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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Meier v Cloud (11/16/2001) sp-5500

Meier v Cloud (11/16/2001) sp-5500

     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, e-mail corrections@appellate.courts.state.ak.us.


             THE SUPREME COURT OF THE STATE OF ALASKA

HAROLD MEIER,                 )
                              )    Supreme Court No. S-9829
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-98-3729 CI
                              )
KERRI A. CLOUD,               )    O P I N I O N
                              )
               Appellee.      )     [No. 5500 -  November 16, 2001]
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Rene J. Gonzalez,
Judge.


          Appearances: William T. Ford, Law Offices of
William T. Ford, Anchorage, for Appellant.  Charles J. Gunther, Law
Office of Charles J. Gunther, Anchorage, for Appellee.


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


          BRYNER, Justice.


I.   INTRODUCTION
          Upon dissolving their marriage, Harold Meier and Kerri
Cloud agreed to share physical custody of their son Tyler.  When
Kerri decided to move to Seattle two years later, she sought
primary custody of Tyler.  Although the superior court initially
considered appointing an investigator to prepare a child custody
report, it ultimately concluded that a report was unnecessary. 
After a hearing, the court found that Tyler's best interests would
be served by awarding primary custody to Kerri because she planned
to care for him at home on a full-time basis.  We affirm,
concluding that the superior court did not abuse its discretion in
finding a custody investigation unnecessary and that it properly
considered and applied all relevant custody factors in deciding
Tyler's best interests. 
II.  FACTS AND PROCEEDINGS
          Harold and Kerri dissolved their marriage in March 1998
and agreed to share legal and physical custody of their son Tyler,
who was then four years old.  Both parties lived in the Anchorage
area.  
          Two years later, in April 2000, Kerri filed a motion to
modify this custody arrangement.  By then, Harold and Kerri had
both remarried.  Kerri was expecting another child, and her husband
had accepted a job transfer to Seattle.  In moving to modify the
existing custody order, Kerri sought primary physical custody so
that Tyler could live with Kerri and her husband in Seattle, with
Harold enjoying reasonable visitation rights. 
          Harold opposed Kerri's motion, arguing that it would be
contrary to the best interest of Tyler to disrupt the present
custodial situation.  In his opposition, he requested that the
court appoint an investigator and order a child custody report. 
Harold's counsel estimated that a report would cost between $3,000
and $4,000, certified that the parties could afford to pay that
amount, and suggested that they split the report's cost.  He named
four potential investigators and promised to confer with Kerri's
counsel to determine if the parties were "amenable to agreeing to
the appointment of an investigator."
          Kerri responded that a limited child custody report might
be helpful, but she complained that a full report by Harold's
proposed investigators would be too costly and time consuming. 
Kerri suggested the name of an investigator who she thought would
be capable of producing a prompt and inexpensive report.  She also
sought an expedited custody determination, so that she could move
to Seattle with Tyler as soon as his school year ended in June. 
          Harold opposed Kerri's motion for an expedited custody
ruling and objected to her proposed investigator, citing "recent
problems with her investigations."  He accused Kerri's attorney of
causing unnecessary delay by "refus[ing] to name a mutually
agreeable custody investigator" from the list of candidates that
Harold's attorney had submitted. 
          Based on these pleadings, Superior Court Judge Rene
Gonzalez issued an order on May 23, 2000, giving the parties five
days to stipulate to a mutually acceptable investigator.  The
parties failed to meet the five-day deadline, offering no
explanation for their noncompliance.  Harold later submitted a
second list, naming six potential custody investigators   the four
that he had originally designated and two new ones.  Kerri
countered with two names   her original proposal and another
candidate.  In reply, Harold objected to Kerri's candidates and
asked the court to make the appointment itself, urging it to act
before deciding whether Tyler could accompany Kerri for an extended
summer visit to Seattle.
          Harold's reply was filed on June 15.   Four days later,
Judge Gonzalez issued an order scheduling a custody hearing for
early August and concluding that the issue could be resolved
without a custody investigation:
                    Upon review of the issues that actually
          [exist] between the parties regarding the custody of
          their minor child, this court finds and concludes that a
          child custody investigation is not necessary in this
          case; therefore, a child custody investigator will not be
          appointed.  The parties have been sharing physical
          custody of their minor child since March 12, 1998, and
          the shared custody arrangement has served the welfare and
          best interest of the minor child.  There is no issue that
          each parent is a fit and proper parent to have . . .
          custody and provide for the needs of the child.
                    The substantial change in circumstance
          that exists that warrants a review of the present shared
          custody arrangement is the move from Anchorage to Seattle
          by the mother with her current husband. 
                    Under the facts and circumstances of this
          case, the court finds that it is not necessary for the
          parties to incur the costs of a private custody
          investigator as the court has concluded that the
          information that would be provided would not necessarily
          be helpful.
                    IT IS HEREBY ORDERED that an evidentiary
          hearing is calendered for August 8, 2000 . . . before the
          undersigned judge . . . .  Each party will be afforded
          the opportunity to present any relevant evidence
          including expert testimony they deem appropriate.
               Neither party sought reconsideration of this order,
raised any issue concerning pre-hearing discovery, or asked to
postpone the August 8 hearing.  The hearing proceeded as scheduled. 
Harold, Kerri, and their spouses testified.  During the hearing,
neither party voiced concern over the unavailability of additional
witnesses or complained of insufficient time to prepare. 
          Upon concluding the hearing Judge Gonzalez awarded
primary custody to Kerri.  The judge found that both Kerri and
Harold were good parents; that both were capable of providing for
Tyler's physical, mental, and social needs; that Tyler loved both
parents; and that he was bonded to them equally.  Finding other
factors equal as well, the judge decided that the determining
factor should be Kerri's ability to stay at home to personally care
for Tyler full time: "[T]he welfare and best interests of the minor
child are served by being provided with the opportunity to have a
parent provide for his care during the day on a full time basis."
          Harold appeals.
III. DISCUSSION
          Harold first contends that the superior court erred in
declining to appoint a child custody investigator.  Noting that he
and Kerri both requested an investigation, Harold faults the
superior court for initially delaying the appointment and then
deciding to forgo an investigation.  He contends that the court's
abrupt decision to proceed without a custody report, its unexpected
order scheduling a hearing on short notice, and the brevity of the
August 8 hearing prevented the parties from producing expert
testimony, thereby resulting in a flawed custody decision.  
          In response, Kerri defends the superior court's decision,
emphasizing that a custody investigation would have delayed the
hearing and that Harold has failed to specify how a custody report
would have assisted the court.
          Kerri's response is persuasive.  As Harold and Kerri both
recognize, a child custody investigation is not required in every
custody case: because a custody report serves to assist the trial
court in its decision, the desirability of a report is an issue for
the trial court to decide as a matter of discretion on a case-by-
case basis. [Fn. 1]  We will find an abuse of discretion only if
the superior court's decision is clearly unreasonable under the
totality of the circumstances. [Fn. 2]  To establish an abuse of
discretion, then, Harold was required to show that the superior
court's decision was "arbitrary, capricious, manifestly
unreasonable, or . . . [stemmed] from an improper motive." [Fn. 3] 

          He has not made the requisite showing.  When Kerri filed
her motion to modify custody in early April 2000, Tyler was
finishing kindergarten in Eagle River and would begin first grade
after the summer vacation.  Kerri filed her motion because her
family was moving to Seattle.  Obviously, time was of the essence:
the issue of Tyler's school-year custody needed to be resolved
before summer ended.  
          Although the superior court initially favored a custody
investigation and directed the parties to designate an
investigator, Harold and Kerri ended up disputing the scope of the
investigation and the choice of the investigator.  Almost two
months passed while they argued over details of the appointment,
each stressing the importance of proceeding expeditiously, and each
blaming the other for the delay.  By mid-June summer had arrived,
the parties had reached an impasse, and they asked the court to
take the initiative.  The court was already aware that a custody
investigation would be costly and time consuming; given that the
parties now appeared unable to agree on the investigation's terms,
the court could reasonably conclude that it would likely prove
divisive, as well.  And the court knew that less than three months
remained to reach a final decision.  The court also knew that both
parties had established themselves to be competent parents during
the time they shared custody of Tyler.  And neither had identified
any concrete need for a formal custody report.  
          Considering the totality of these circumstances, the
superior court concluded that the need for a timely decision
outweighed any marginal benefit to be gained by awaiting a formal
custody investigation.  This decision was not an abuse of
discretion.
          Harold nevertheless contends that the superior court's
June 19 order left him inadequate time to prepare for the August 8
custody hearing.  But this contention is meritless.  
          The superior court's order gave the parties a full six
weeks to prepare their cases.  Moreover, Kerri's custody motion had
been pending more than two months when the June 19 order issued. 
The motion raised issues that needed to be resolved before summer
ended; Harold knew of this need and had pressed the court to act
swiftly.  Once the court set the August 8 hearing, Harold failed to
object to the date, never asked for additional time to prepare, and
said nothing during the hearing to suggest that his case had been
hampered by inadequate discovery or witness problems. [Fn. 4]
          Even now, on appeal, Harold merely advances a conclusory
statement that a new hearing would enable him to present expert
testimony. He fails to specify how an additional opportunity to
present expert testimony would materially assist the trial court's
decision.  Reviewing the record, we find nothing to support a
conclusion that the superior court abused its discretion, either by
declining to appoint a custody investigator or by scheduling the
custody hearing for August 8.
          Harold's last challenge disputes the superior court's
custody decision on its merits.  Alaska Statute 25.24.150(a)
empowers the superior court to modify a child custody order in a
divorce or dissolution proceeding if changed circumstances
demonstrate that modification "may seem necessary or proper . . .
in the best interests of the child." [Fn. 5]  Alaska
Statute 25.24.150 spells out the factors that the court must
consider in determining the child's best interests when changed
circumstances suggest a need for modification. [Fn. 6]
          Harold does not dispute that Kerri's move to Seattle
qualified as a change in circumstances warranting modification of
the earlier custody order; he contends instead that the superior
court misapplied relevant statutory factors in determining Tyler's
best interests.  Specifically, Harold claims that the court
overrated the importance of Kerri's ability to give Tyler full-time
care in her home.  According to Harold, his own work schedule,
Tyler's school schedule, and Tyler's strong relationship with
Harold's new wife, Christine, all demonstrate that Tyler's best
interests would be served by staying in Eagle River with Harold. 
Harold downplays the benefit of Kerri's availability to provide
full-time care, asserting that her decision to stay at home is
motivated by the impending birth of her second child, not by her
desire to spend time with Tyler. 
          Harold also contends that the superior court underrated
the importance of Tyler's ties to Eagle River, a key consideration
in evaluating his need for continuity and stability. [Fn. 7] 
Criticizing the superior court's prediction that Tyler would enjoy
a more stable emotional environment in Kerri's home, Harold insists
that the statutory factor of stability and continuity required the
court to focus on his existing situation:  "The question is not
whether both parents can provide Tyler with a stable environment,
but . . . how long Tyler has been in a stable environment."
          We disagree.  Among other statutory custody factors
listed in AS 25.24.150(c), paragraph (5) requires that, in making
a custody decision, a court must consider "the length of time the
child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity."  The statute's plain
language requires the court to view continuity and stability both
prospectively and retrospectively: the court must examine both the
time that a child "has lived" in a stable environment and "the
desirability of maintaining [that] continuity."  
          Furthermore, when parents live in the same community and
share equal physical custody of a child, a parent's decision to 
relocate to another state will ordinarily necessitate a change in
the status quo, requiring one parent or the other to assume primary
physical custody.  Because the child will no longer be able to
spend equal time with each parent in these situations, a court
considering the child's need for continuity and stability in this
context must examine not only the desirability of maintaining
geographical continuity, but also the importance of maximizing
relational stability. [Fn. 8]  A continuity test centered entirely
on the child's geographical stability would always favor placing
the child with the non-moving parent.  Yet our decisions recognize
that courts may properly award primary custody to the relocating
parent when that parent offers superior emotional stability. [Fn.
9]  Thus, the continuity and stability factor does not preordain
the result in such cases; instead, it commands a comprehensive
inquiry into "each parent's respective ability to maintain stable
and satisfactory relations between themselves and the child." [Fn.
10]  
          Here, the superior court gave balanced consideration to
continuity and stability, as well as to all of the other statutory
custody factors.  Looking back on the historical evidence relating
to Tyler's shared custody situation, the court expressly recognized
that both Harold and Kerri could "provide Tyler with a stable and
safe environment."  The court found that both Harold and Kerri were
good parents who could "provide for Tyler's physical, mental, and
social needs."  It also found that Tyler loved both Harold and
Kerri and was bonded to them equally.  The court found, as well,
that Harold and Kerri were equally capable of and willing to
provide Tyler with an open and loving relationship with the other
parent.  In addition, the court found that there had been no
neglect, domestic violence, or substance abuse affecting Tyler. 
And in the court's view, Tyler was too young to express a
meaningful preference.
          Given the close balance of these statutory factors, the
superior court elected to award primary physical custody of Tyler
to Kerri because she would be available to personally care for
Tyler on a full-time basis; Tyler's best interests would be met,
the court concluded, by being in the primary custody of a full-time
parent.  
          Our review of the record convinces us that the superior
court's factual findings are comprehensive, well supported by the
record, and not clearly erroneous. [Fn. 11]  Because the court
appropriately considered and balanced all relevant statutory
factors, including continuity and stability, we conclude that it
did not abuse its discretion in awarding Kerri primary physical
custody of Tyler.
IV.  CONCLUSION
          We therefore AFFIRM the superior court's decision.


                            FOOTNOTES


Footnote 1:

     See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000).


Footnote 2:

     See Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979).


Footnote 3:

     Id.


Footnote 4:

     Harold belatedly raised these issues for the first time in his
motion to reconsider the superior court's decision awarding primary
custody to Kerri.  On appeal, Harold complains that he was unable
to raise many of these issues because they are based on information
that Tyler first divulged after the superior court issued its
custody order. But Harold had an opportunity to argue this point
before the superior court when he moved for reconsideration of that
court's custody decision.  Since Harold did not raise this argument
then and does not now challenge the superior court's denial of
reconsideration, his arguments are not properly preserved for
appeal.


Footnote 5:

     AS 25.24.150(a) provides: 

          In an action for divorce or for legal
separation or for placement of a child when one or both parents
have died, the court may, if it has jurisdiction under AS
25.30.300--25.30.320, and is an appropriate forum under AS
25.30.350 and 25.30.360, during the pendency of the action, or at
the final hearing or at any time thereafter during the minority of
a child of the marriage, make, modify, or vacate an order for the
custody of or visitation with the minor child that may seem
necessary or proper, including an order that provides for
visitation by a grandparent or other person if that is in the best
interests of the child.


Footnote 6:

     AS 25.24.150(c) provides in critical part:

          In determining the best interests of the child
          the court shall consider

               (1)  the physical, emotional, mental,
religious, and social needs of the child;
               (2)  the capability and desire of each
parent to meet these needs;
               (3)  the child's preference if the child
is of sufficient age and capacity to form a preference;
               (4)  the love and affection existing
between the child and each parent;
               (5)  the length of time the child has
lived in a stable, satisfactory environment and the desirability of
maintaining continuity;
               (6)  the desire and ability of each
parent to allow an open and loving frequent relationship between
the child and the other parent;
               (7)  any evidence of domestic violence,
child abuse, or child neglect in the proposed custodial household
or a history of violence between the parents;
               (8)  evidence that substance abuse by
either parent or other members of the household directly affects
the emotional or physical well-being of the child;
               (9)  other factors that the court
considers pertinent.


Footnote 7:

     AS 25.24.150(c)(5) requires that a court making a custody
award consider "the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity."


Footnote 8:

     See West v. Lawson, 951 P.2d 1200, 1203-04 (Alaska 1998).


Footnote 9:

     See, e.g., McQuade v. McQuade, 901 P.2d 421, 424-26 (Alaska
1995) (rejecting a father's claim that continuity had been
undervalued and affirming the trial court's decision to grant
primary physical custody to a mother moving to Texas so that the
child could continue to live with half-siblings); House v. House,
779 P.2d 1204, 1208 (Alaska 1989) (affirming a determination that
it would be in child's best interest to move with father to
California where handicapped children's services would be superior
to those available in Homer).


Footnote 10:

     McQuade, 901 P.2d at 426.


Footnote 11:

     We review child custody modifications for an abuse of
discretion and reverse them only if controlling factual findings
are clearly erroneous or if the superior court failed to consider
statutorily mandated factors, assigned disproportionate weight to
some factors, or relied on improper factors.  See Kessler v.
Kessler, 827 P.2d 1119, 1119 (Alaska 1992) (per curiam); Horutz v.
Horutz, 560 P.2d 397, 399 (Alaska 1977).