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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. B.B. v. D.D. (3/9/01) sp-5371

B.B. v. D.D. (3/9/01) sp-5371

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


B.B.,                         )
                              )    Supreme Court No. S-9117
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3KN-96-839 CI
                              )
D.D.,                         )    O P I N I O N
                              )
             Appellee.        )    [No. 5371 - March 9, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.


          Appearances: B.B., pro se, Kenai.  D.D., prose, Fairbanks.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          Charlene and Tyler Diller are the children of Becky
Bergstrom and Dave Diller. [Fn. 1]  The children are the subjects
of this increasingly acrimonious custody dispute.  An Oregon court
originally granted custody to Bergstrom after the couple's 1991
divorce.  The Alaska superior court modified custody to Diller
after trial in 1998.  Because the superior court had subject matter
jurisdiction and did not abuse its discretion in modifying custody
to Diller and in denying modification to Bergstrom, we affirm.
II.  FACTS AND PROCEEDINGS
          Becky Bergstrom and Dave Diller married on March 26,
1984, in Oregon.  Their union resulted in the birth of two
children: Charlene and Tyler.  Charlene was born in Portland,
Oregon, on November 1, 1984; Tyler was born in Fairbanks on
February 18, 1986. 
          Bergstrom alleged that on February 9, 1989, Diller choked
and threatened to kill her.  After the alleged assault, Bergstrom
and the children moved back to Oregon.  In November 1990 Bergstrom
and Diller divorced.  The Oregon court granted Bergstrom "sole and
exclusive legal and physical custody" of Charlene and Tyler, then
six and four years old, respectively. 
          In early 1991 Bergstrom, Charlene, and Tyler moved to
North Pole.  While Bergstrom and the children lived in North Pole,
Diller regularly exercised his visitation rights, seeing Charlene
and Tyler on weekdays, at least every other weekend, and for
extended periods during the summer.  Around the end of August 1996,
Bergstrom and the children abruptly left North Pole, allegedly
eluding an agent sent to repossess Bergstrom's vehicle.  Because he
lost contact with Bergstrom and the children as a result of
Bergstrom's flight with the children, Diller hired a private
investigator to locate them. 
          On November 22, 1996, the private investigator found
Bergstrom and the children in Kasilof.  They were living in a
fourteen-foot trailer apparently without electricity, water, sewer
service, or heat.  Bergstrom had been home schooling Charlene and
Tyler since early October. 
          In December Diller filed motions asking the court for a
modification of the custody arrangement, temporary custody of the
children, expedited consideration, and a temporary restraining
order barring Bergstrom from leaving Kasilof.  Superior Court Judge
Harold M. Brown granted the temporary restraining order and
expedited consideration.  After a hearing on December 9, the
superior court granted temporary custody to Diller, but reserved
the final decision until custody investigations could be completed. 
After the oral ruling at the hearing, Bergstrom stated that she
would prefer that the children be placed in foster care rather than
in Diller's custody. 
          Judge Brown presided over the hearing to modify custody
of Charlene and Tyler in June 1998, and granted legal and primary
physical custody to Diller.  Judge Brown based his decision on
Bergstrom's failure to inform Diller of her new residence after she
relocated; Bergstrom's repeated failure to cooperate with the child
custody investigation without substantial excuse; Diller's ability
and willingness to provide for the children's physical, mental,
religious, emotional, and social needs, and Bergstrom's inability
and unwillingness to provide for the same; Bergstrom's lack of
credibility based on her contradictory testimony and general
demeanor; Bergstrom's failure to provide adequately for the needs
of the children; and Bergstrom's lack of any attempt to visit
Charlene and Tyler while Diller had temporary custody. 
          Less than a month later, Bergstrom filed a motion to
modify custody and for a temporary restraining order, alleging that
Diller was abusing Charlene and Tyler.  Bergstrom specifically
alleged that Diller: "drug [sic] [Charlene] up seven steps by her
ponytail and threw her outside"; "beat[] her with a heavy steal
[sic] shovel"; yanked Tyler by his ears; "inflict[ed] pain by
grabbing and squeezing thier [sic] fragile knee caps with extreme
strength"; "tickle[d] the children to a point of unbearable pain as
he sits on top of them so they can not get free"; "d[u]g into
collar bone and inflict severe pain"; and "sqeeze[d] them extremely
hard tring [sic] to pop thier [sic] back as he squeezes under their
rib cages until it hurts badly."  In addition, Bergstrom alleged
that Diller's new spouse yelled at Charlene and threatened to kill
her guinea pigs.  Bergstrom also filed motions for expedited
consideration, to clarify visitation, to set a specific time of
visitation, and for temporary custody. 
          Diller moved to restrict Bergstrom's telephone contact
with Charlene and Tyler.  Based on a nurse practitioner's report of
a telephone conversation in which Bergstrom encouraged the children
to run away from Diller, Judge Brown ordered that Bergstrom's
telephone contact be limited and supervised.  
          On April 29, 1999, Judge Brown denied Bergstrom's motion
to modify custody and other motions.  Bergstrom appeals, primarily
contending that the superior court lacked jurisdiction.  In
addition, Bergstrom's pro se brief appears to argue that the trial
court abused its discretion in modifying custody to Diller and in
denying her subsequent motion to modify. 
III. STANDARD OF REVIEW
          We will reverse a trial court's resolution of custody
issues only if the record shows that the trial court abused its
discretion or made clearly erroneous controlling findings of fact.
[Fn. 2]  Subject matter jurisdiction is a question of law that we
review de novo. [Fn. 3]
IV.  DISCUSSION
     A.   The Superior Court Had Subject Matter Jurisdiction to
Modify the Oregon Child Custody Order.

          Bergstrom argues that the Alaska superior court lacked
jurisdiction to modify the Oregon order because the Oregon order
was never registered under the Uniform Child Custody Jurisdiction
Act.  A court's subject matter jurisdiction in a child custody
matter is affected by the federal Parental Kidnaping Prevention Act
[Fn. 4] and the state Uniform Child Custody Jurisdiction Act. [Fn.
5]
          Assuming without deciding that the federal Parental
Kidnaping Prevention Act applies, we conclude that the superior
court satisfied the federal act's requirements.  That law generally
forbids one state's court from modifying the custody order of
another state's court.  The one relevant exception allows a court
to modify a custody determination of a court of another state if:
          (1) it has jurisdiction to make such a child
custody determination; and

          (2) the court of the other State no longer has
jurisdiction, or it has declined to exercise such jurisdiction to
modify such determination. [Fn. 6]
Thus, for the Alaska court to have properly exercised jurisdiction
under the federal act, it must have had jurisdiction according to
Alaska's version of the Custody Jurisdiction Act, and the Oregon
court must have lost or declined jurisdiction to modify its initial
determination. [Fn. 7]
          1.   The Oregon court no longer has jurisdiction.

          While no evidence shows that the Oregon court has
declined jurisdiction to modify, the Oregon court has lost
jurisdiction.  Oregon's 1996 version of the Custody Jurisdiction
Act generally requires that Oregon be the children's home state
(the state where the children lived for six months prior to the
initiation of the custody modification proceeding) or that
exercising jurisdiction be in the best interest of the children
because of some significant connection with Oregon. [Fn. 8] 
Neither Diller, nor Bergstrom, nor the children have lived in
Oregon since 1991.  Thus, Oregon was not the children's home state
in 1996, and no significant connection exists between the children
and Oregon.
          2.   The superior court had jurisdiction to modify under
Alaska's Uniform Child Custody Jurisdiction Act.

          Alaska's Uniform Child Custody Jurisdiction Act required
that one of several listed conditions be met before a court has
jurisdiction to modify another state's custody order. [Fn. 9] 
Condition (1)(A) required that Alaska be the home state of the
children at the time of commencement of the custody modification
proceeding. [Fn. 10]  "Home state" meant "the state in which the
child, immediately preceding the time involved, lived with the
child's parents, a parent, or a person acting as parent, for at
least six consecutive months . . ." [Fn. 11]  Here, the
modification proceeding commenced on December 2, 1996, with
Diller's motion for modification of custody.  By that date, the
children had been living with their mother in Alaska for more than
five years.  Because Charlene and Tyler had lived with Bergstrom in
Alaska for more than six months prior to the commencement of the
custody proceeding, Alaska was the children's home state at the
time of the commencement of the proceeding.  Accordingly, the
superior court had jurisdiction to hear the child custody matter
under the state act.
          3.   The superior court gave Bergstrom notice and an
opportunity to be heard.

          Both the federal Parental Kidnaping Prevention Act and
Alaska's Uniform Child Custody Jurisdiction Act required that
contestants have notice and an opportunity to be heard before a
modification of custody. [Fn. 12]  Bergstrom had notice of Diller's
motion for temporary custody and motion to modify custody.  She
argued her case at the hearing to determine temporary custody and
at the trial to modify custody.  Thus, the trial court satisfied
the requirements of both federal and state jurisdictional acts.
     B.   The Superior Court Did Not Abuse Its Discretion by
          Modifying Custody.
          On June 18, 1998, Judge Brown modified custody from
Bergstrom to Diller.  To modify a custody order, a court must
conclude that a substantial change in circumstances had occurred
since the order and that modifying custody is in the best interests
of the children. [Fn. 13]  As we noted above, Judge Brown's reasons
for finding that it was in the best interests of the children to
modify custody included the following: (1) Bergstrom relocated with
the children without notifying Diller of their new residence; (2)
Bergstrom repeatedly failed to cooperate with the child custody
investigation without substantial reason; (3) Diller was able and
willing to provide for the physical, mental, emotional, religious,
and social needs of the children while Bergstrom was unable and
unwilling to do so; (4) Bergstrom was not a credible witness,
primarily because of her inconsistent testimony and her demeanor;
(5) Bergstrom had failed to provide adequately for the physical
needs of the children; and (6) Bergstrom had failed to visit the
children while Diller had temporary custody.  The conclusions that
a substantial change in circumstances had occurred and that
granting custody to Diller was in the best interests of the
children were adequately supported by the record.  Thus, Judge
Brown did not abuse his discretion, and we affirm.
     C.   The Superior Court Did Not Abuse Its Discretion in
Denying Bergstrom's Motion for Modification of Custody.
          Bergstrom filed a motion for modification of custody and
several other motions on July 8, 1998, less than a month after
Judge Brown had issued his custody modification ruling after trial. 
After an evidentiary hearing and substantial motion practice, Judge
Brown denied the motions.  Because our review of the record reveals
no evidence that Judge Brown abused his discretion by denying
Bergstrom's motion to modify custody and other motions, we
summarily affirm.
          Bergstrom has attempted to supplement the record with
evidence of possible domestic violence against Charlene and Tyler
that was not presented to the superior court.  Matters not made
issues or tried before the lower court will not be considered on
appeal. [Fn. 14]  We denied the motion to supplement because we
cannot properly receive and consider evidence that was not
presented to and considered by the trial court. 
          Bergstrom may present any evidence of possible child
abuse to the superior court for evaluation with a new motion for
modification of custody.  "[A] finding that a crime involving
domestic violence has occurred since the last custody or visitation
determination is a finding of change of circumstances . . . ." [Fn.
15]  
V.   CONCLUSION
          Because the superior court properly exercised subject
matter jurisdiction and did not abuse its discretion in modifying
custody, we AFFIRM.


                            FOOTNOTES


Footnote 1:

     Pseudonyms have been used in this opinion.


Footnote 2:

     See Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998);
Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982).


Footnote 3:

     See B.J. v. J.D., 950 P.2d 113, 115 (Alaska 1997).


Footnote 4:

     28 U.S.C.A. sec. 1738A (1996) (amended October 28, 2000).


Footnote 5:

     The version applicable to this case is the former AS
25.30.010-25.30.230.  That version, known as the Uniform Child
Custody Jurisdiction Act, was repealed in 1998 and replaced with
the Uniform Child Custody Jurisdiction and Enforcement Act, AS
25.30.300-25.30.390, effective September 23, 1998.  See ch. 133
sec.sec.
2 & 4, SLA 1998.


Footnote 6:

     28 U.S.C.A. sec. 1738A(f)(1) & (2).     


Footnote 7:

     Even though we cannot determine on this record whether the
Oregon custody order was made "consistent with the provisions of
[the federal act]," 28 U.S.C.A. sec. 1738A(c), so as to engage the
requirements of that act, we proceed as if the federal act does
apply.  Since the federal act encompasses the state act, a finding
that the federal requirements have been met is determinative of the
issue.


Footnote 8:

     Or. Rev. Stat. sec. 109.730 (repealed 1999).


Footnote 9:

     See former AS 25.30.020(a).


Footnote 10:

     Former AS 25.30.020(a)(1)(A) states the relevant requirement
for jurisdiction to modify a child custody determination in this
case:

          (a) The superior court has jurisdiction to
make a child custody determination by initial or modification
decree if the conditions set out in any of the following paragraphs
are met:

          (1) this state (A) is the home state of the
child at the time of commencement of the proceeding . . . .


Footnote 11:

     Former AS 25.30.900(5).


Footnote 12:

     See 28 U.S.C.A. sec. 1738A(e); former AS 25.30.030.


Footnote 13:

     See AS 25.20.110.


Footnote 14:

     See Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d
104, 109 (Alaska 1963).


Footnote 15:

     AS 25.20.110(c).