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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kelly v. Joseph (5/10/2002) sp-5570

Kelly v. Joseph (5/10/2002) sp-5570

     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


JAMES L. KELLY,               )
                              )    Supreme Court No. S-10116
             Appellant,            )
                              )    Superior Court No. 4FA-98-2437
CI
     v.                       )
                              )    O P I N I O N
KATHERINE JOSEPH, f/k/a       )
Katherine Kelly,                   )    [No. 5570 - May 10, 2002]
                              )
             Appellee.             )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:  Fleur L. Roberts, Law Office of
          Fleur  L.  Roberts, Fairbanks, for Appellant.
          Christopher E. Zimmerman, McConahy, Zimmerman
          & Wallace, Fairbanks, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          This appeal arises out of a dispute between James Kelly

and Katherine Joseph (f/k/a Katherine Kelly) over the custody  of

their  three children.  The superior court awarded James  primary

physical  custody  of  the  three  children  after  the  divorce.

Katherine  later  alleged  that  James  breached  the  visitation

provisions  of the custody agreement and requested a modification

of the agreement so that she could obtain physical custody of the

two youngest children; the oldest child was to remain with James.

The  superior court ruled for Katherine after finding that Jamess

breaches  of  the  custody  agreement resulted  in  a  change  of

circumstances.  We affirm the order modifying custody but  remand

for recalculation of child support.

II.  FACTS AND PROCEEDINGS

          James and Katherine Kelly (n/k/a Katherine Joseph) were

married  in July 1989.  They had three children: Shane,  born  in

1986; James, Jr. (Junior), born in 1988; and Peter, born in 1991.1

James and Katherine separated in August 1998 and were divorced in

October  1999.   The couple lived in Fort Yukon while  they  were

married.  When they separated, Katherine moved to Fairbanks.

          James  and  Katherine  entered  into  a  child  custody

agreement  in October 1999.  It provided that James was  to  have

primary  physical  custody of the three  children,  who  were  to

continue  living in Fort Yukon during the school year.  Katherine

was  to have set visitation privileges, including six weeks  with

the  children during the summer, alternating holidays, and  free,

open,  liberal,  unrestricted [telephone] access.   The  children

were to be able to visit Katherine any time she was in Fort Yukon

her job requires that she travel there frequently   and they were

to be able to visit Katherine any time James took the children to

Fairbanks.

          The  problems  leading  to the  present  dispute  began

almost immediately after the divorce was final.  Katherine claims

that  when  she  called,  James frequently  hung  up  on  her  or

instructed  the  children  not to answer  the  telephone.   James

testified  that  he  does  not recall hanging  up  on  Katherine,

although he does not fully dispute her claim.  The superior court

found  that  James did not fulfill his responsibility  under  the

custody  agreement  because,  in part,  the  level  of  telephone

communication  from  Fort  Yukon  to  Fairbanks  [was]   woefully

inadequate.

          Katherine  alleged other violations of  her  visitation

rights.  The parties dispute the circumstances surrounding nearly

all of these breaches, but the superior court determined that the

          weight of the evidence supported Katherines allegations.  The

first  significant incident occurred in December 1999.   Per  the

custody  agreement,  Katherine was to have  visitation  with  the

children  for  Christmas.  Katherine sent a fax to James  stating

that she had reserved seats for the children to fly to visit  her

in  Fairbanks from December 22 until December 26.  James disputed

that the tickets were actually purchased and stated that he could

not  afford to purchase the tickets himself.  The superior  court

determined  that,  regardless of the financial  situation,  James

wrongfully denied Katherine visitation at Christmas 1999.

          Shortly  after  a July 4, 2000 incident  involving  the

police,   Katherine  moved  to  modify  the  child  custody   and

visitation provisions of the parties agreement.

          Another  incident  occurred  in  December  2000,  while

Katherines  motion  to  modify custody  was  pending.   Katherine

planned  to  have the boys fly to Fairbanks for  Christmas.   She

faxed a message to James on December 6 proposing visitation dates

of  December 22 through December 26.  James did not send the boys

to  Fairbanks until December 24 because he claimed  there  was  a

party that the boys wanted to attend in Fort Yukon.  The superior

court determined that the custody agreement did not mean that dad

decides that a party on December 23rd is a justification to  deny

visitation.

          The  superior court orally entered its findings of fact

and conclusions of law in January 2001.  Several months later the

court modified the original custody agreement and awarded primary

physical custody of Junior and Peter to Katherine; James retained

primary  physical custody of Shane.  The court also modified  the

child support payments.

          James   appeals  the  custody  modification  and  child

support award.

III. DISCUSSION

     A.   Standard of Review

          The  superior court has broad discretion in determining

child  custody.2  The superior courts custody determination  will

not  be  set  aside unless the record shows that its  controlling

findings  of fact are clearly erroneous or the court  abused  its

discretion.3  A finding of fact is clearly erroneous only when  a

review  of the record leaves the court with a definite  and  firm

conviction that the superior court has made a mistake.4  An abuse

of  discretion  has  occurred if the  superior  court  considered

improper  factors in making its custody determination, failed  to

consider    statutorily    mandated    factors,    or    assigned

disproportionate  weight  to particular  factors  while  ignoring

others.5

          This  court  will generally not disturb a trial  courts

decision  on  a motion for child support unless the  trial  court

abused  its discretion.  We will set aside a lower courts factual

findings  only  when  they are clearly erroneous.6   Whether  the

trial  court used the correct method of calculating child support

is a matter of law that we review de novo.7

     B.   The Superior Court Did Not Err in Modifying the Custody

Agreement            Giving Katherine Primary Custody  of  Junior

and Peter.

          James argues that the superior court erred in modifying

the  custody agreement solely because he had not been cooperative

in  carrying out the visitation obligations.  He argues that  the

modification  was a sanction against him for his  behavior.   The

superior  court  may  not modify an existing custody  arrangement

unless it determines that a change in circumstances requires  the

modification  of the award and the modification is  in  the  best

interests of the child.8

          1.     Jamess   alleged  breaches  of  the   visitation

provisions  of  the             custody agreement  satisfied  the

changed circumstances              requirement.

          James  argues  that  because the children  were  happy,

healthy,  well-cared for and doing better in school  and  because

the  alleged  communication problems with Katherine  occurred  in

          late 1999 immediately following the parties divorce, Katherine

did  not  demonstrate that a substantial change in  circumstances

had  taken  place.  Alaska Statute 25.20.110(a) does not  specify

what must be shown to demonstrate a change in circumstances.   We

have  previously held that [a]ctions by a custodial parent  which

substantially interfere with the noncustodial parents  visitation

rights   [are]   sufficient   to   constitute   a   change    [in

circumstances]. 9  These actions include a detrimental  and  well

established  pattern of behavior on the part  of  [the  custodial

parent]  to  erode  the bonds of love and affection  between  the

[other parent] and the children. 10

          The  custody agreement specified Katherines  visitation

rights,  including telephonic communication and  holiday  visits.

The  superior court found that James did not take necessary steps

to  ensure  that  Katherines  rights  under  the  agreement  were

satisfied.  After examining telephone records, the superior court

found  that the level of telephone communication from Fort  Yukon

to   Fairbanks   is   woefully  inadequate   and   affirmative[ly

demonstrates] Mr. Kellys unwillingness to heal these children  or

allow  them  to share.  The superior court also found that  James

did  not  honor  the  spirit  of the  visitation  agreement  when

Christmas vacation was denied in [1999], and without just  [cause

was]  shortened in 2000.  Our review of the record  convinces  us

that  the  superior  court  did  not  abuse  its  discretion   in

determining that James breached the visitation provisions of  the

custody  agreement,  thus  satisfying the  changed  circumstances

requirement for modifying child custody.

          2.   The superior court did not err in determining that

the  change                in circumstances requires modification

of   child  custody  in  the             best  interests  of  the

children.

          Alaska   Statute  25.24.150(c)  requires  that   courts

determine   custody  in  accordance  with  the   childrens   best

interests,  after considering specified factors.11  James  argues

          that the superior court did not engage in a valid best interests

analysis  as  AS 25.24.150(c) requires because the  court  mainly

based modification on a single factor: Jamess alleged breaches of

the  visitation provisions of the custody agreement.   He  argues

that [t]he Trial Court . . . gave far too much weight to what was

found  to  be [Jamess] non-cooperation with the parties agreement

and  court order on custody.  We agree that a superior court  may

not  modify custody solely because the custodial parent does  not

comply  with  orders of the court; it must still conduct  a  best

interests  analysis.12  We will find that the trial court  abused

its  discretion  if  it considered improper  factors,  failed  to

consider  statutorily  mandated factors,  or  improperly  weighed

certain factors in making its determination.13

          Although the superior court focused on Jamess breach of

the custody agreement in determining that modification was in the

best interests of the children, it also engaged in a broader best

interests  analysis.   The  superior  court  considered  how  the

relocation  might  affect  the  children  and  their  educational

opportunities.  It also found that both parents were  capable  of

raising  the  children, although it expressed  concern  that  the

children were not receiving the professional care needed to  help

[them]  heal from the emotional wounds theyve suffered.   We  are

generally reluctant to separate siblings in custody battles, even

where  it  mollifies  tensions such as those  between  Shane  and

Katherine.14   But  the superior court carefully  considered  the

childrens  best interests in constructing the modification  order

and  gave  Shane an option to choose at any time to be  with  his

brothers.   The  superior courts findings were supported  by  the

record and adequately address the required factors set out in  AS

25.24.150(c).

          The  record  does  not support Jamess  claim  that  the

superior  court abused its discretion in modifying custody.   The

superior  court  found  distressing Jamess  refusal  to  actively

engage  the  children in communication with  Katherine,  and  the

          record supports its finding that Jamess efforts to give the

children  contact with Katherine were woefully  inadequate.   The

superior  court  found  particularly  egregious  Jamess  repeated

interference  with  holiday visits.   These  instances  were  not

isolated,  but formed a pattern of interference.  Indeed,  Jamess

interference  with visitation for Christmas 2000  occurred  after

Katherine had already moved to modify custody.  But the  superior

court  did  not  limit  its  focus to  Jamess  interference  with

visitation  rights.  Instead, it considered  the  impact  of  the

modification  on  the children and determined that  the  evidence

supporting   modification  outweighed   evidence   of   potential

disruptions  in  the childrens lives.  We will  not  reweigh  the

evidence  when  the record provides clear support for  the  trial

courts ruling.15

          Because the superior court assessed the childrens  best

interests  in  relation to the relevant statutory factors  of  AS

25.24.150(c), we hold that it did not err in modifying custody.

     C.   Jamess Child Support Obligation Must Be Recalculated.

          James   argues  that  the  superior  court   erred   in

calculating  child support.  The superior court calculated  child

support  by applying Alaska Civil Rule 90.3(b),16 arriving  at  a

total annual award to Katherine of $5,266.98 ($438.92 per month).17

James argues that the courts determination of how much time  each

parent  would  have  physical custody of the  children  does  not

accurately  reflect the actual time anticipated by  the  parties.

He  expects to have physical custody of Shane ninety-five percent

of the time and physical custody of the two other children for at

least  twenty-five  percent  of  the  time.   Jamess  calculation

implies that he will have physical custody of each child  for  an

average  of approximately forty-eight percent of the time.   This

figure  varies from the superior courts calculated custody figure

of 33.33% for James.

          The   superior  courts  calculated  figure  for  Jamess

custody may be incorrect because its March 2001 order appears  to

          suggest a greater average percentage for Jamess physical custody

than the 33.33% the court used in calculating child support.18  We

cannot  assess the extent of this possible miscalculation because

we  cannot  determine  how  many days  each  parent  is  to  have

visitation under the superior courts custody order.  It does seem

clear  that Katherine has primary physical custody of Junior  and

Peter  and that James has primary physical custody of Shane.   We

hold  that  it  was error to calculate the divided custody  award

under  Rule 90.3(b) without first accurately accounting for  each

parents period of physical custody.

          James may also be entitled to move for recalculation of

the  child  custody  award for changed circumstances  under  Rule

90.3(h)(1), which provides:

          A  final  child support award may be modified

          upon  a  showing  of  a  material  change  of

          circumstances.  . . .  A material  change  of

          circumstances will be presumed if support  as

          calculated  under this rule is more  than  15

          percent  greater or less than the outstanding

          support order.

We  have  held  that  certain changes in the law  can  constitute

material changes of circumstances permitting the modification  of

child support orders [including] the adoption of Civil Rule 90.3,

itself.19  The rule change which makes Rule 90.3(a), rather  than

Rule  90.3(b), the default method for calculating divided custody

awards is such a material change.20  Applying Rule 90.3(a) rather

than  Rule  90.3(b)  would decrease the divided  custody  support

award by about forty-three percent.21

V.   CONCLUSION

          For  these reasons, we AFFIRM the order modifying child

custody  and  REMAND  for recalculation of Jamess  child  support

obligation.

_______________________________
     1     Katherine  also has an older daughter, Amy.   Amy  was
fifteen  at the time of the custody investigators report.   James
is  not  Amys father, and Amy lives with her paternal grandmother
in Chulkytak.

     2     Siekawitch  v. Siekawitch, 956 P.2d 447,  449  (Alaska
1998)  (quoting Borchgrevink v. Borchgrevink, 941 P.2d  132,  134
(Alaska 1997)).

     3    Id.

     4    Id.

     5    Id.

     6     Murphy  v.  Newlynn, 34 P.3d 331,  333  (Alaska  2001)
(citations omitted).

     7    Id.

     8     Pinneo  v.  Pinneo, 835 P.2d 1233, 1238 (Alaska  1992)
(quoting AS 25.20.110) (internal quotations omitted).

     9     Hermosillo v. Hermosillo, 797 P.2d 1206, 1209  (Alaska
1990) (citations omitted).

     10    Pinneo, 835 P.2d at 1238.

     11    AS 25.24.150(c) requires that the court 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 childs 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.
          
     12     Platz v. Aramburo, 17 P.3d 65, 71 (Alaska 2001);  see
also  Hakas v. Bergenthal, 843 P.2d 642, 644 (Alaska 1992) ([Best
interests]    inquiry   is   not   obviated   by    [a    partys]
noncooperation.).

     13     Gratrix  v.  Gratrix, 652 P.2d 76, 80 (Alaska  1982);
Deivert v. Oseira, 628 P.2d 575, 577 (Alaska 1981).

     14     McQuade v. McQuade, 901 P.2d 421, 425 (Alaska  1995).
But  see  Valentino  v. Cote, 3 P.3d 337 (Alaska  2000)  (holding
superior   courts   determination  that   fourteen-year-old   was
sufficiently  mature to express choice to separate  from  sibling
was not abuse of discretion).

     15    D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).

     16    When the superior court issued its child support order
on March 7, 2001, Civil Rule 90.3 permitted, but did not require,
use  of  the method set out in Rule 90.3(b) to calculate  divided
custody  awards.  See Rowen v. Rowen, 963 P.2d 249,  254  (Alaska
1998).  Subsection (3) of Rule 90.3(b) states, in part:

          The  parent  with the larger  [annual  amount
          owed for child support] is the obligor parent
          and   the  annual  award  is  equal  to   the
          difference  between [the obligors  calculated
          payment  and  the  other  parents  calculated
          payment] multiplied by 1.5.  However, if this
          figure  is higher than the amount of  support
          which would be calculated under paragraph (a)
          assuming  primary custody, . . .  the  annual
          support   is  the  amount  calculated   under
          paragraph (a).
          
          Rule  90.3,  following amendment  effective  April  15,
2001, now requires that Rule 90.3(a) be used to determine divided
custody awards.  Alaska R. Civ. P. 90.3(b)(6) (2001-2002).   Rule
90.3(b)(6)  states  in part: Divided Custody.   A  child  support
award  in  a  case in which the parents have divided  custody  is
calculated, first, by determining what each parent would owe  the
other for children in that parents primary physical custody under
90.3(a)  and  offsetting those amounts.  (Emphasis  added.)   See
also  Alaska  R. Civ. P. 90.3, cmt. V.D (2001-2002)  (same);  cf.
Bunn  v.  House,  934 P.2d 753, 755-58 (Alaska   1997)  (applying
similar method to that of Rule 90.3(a) for divided custody case).

     17    The superior court arrived at this amount as follows:

          $26,056.90     (Jamess adjusted annual income)
                      .33  (Rule  90.3(a)  multiplier  for  three
children)
             $8,598.78     (Amount  James would  owe  under  Rule
90.3(a) if Katherine had                     custody of all three
children 100% of the time)
                      .67 (Percentage of time Katherine will have
physical   custody  as                      determined   by   the
superior court)
            $5,732.81    (Jamess obligation)

          $20,197.40     (Katherines adjusted annual income)
                      .33  (Rule  90.3(a)  multiplier  for  three
children)
             $6,665.14    (Amount Katherine would owe under  Rule
90.3(a)  if  James had                    custody  of  all  three
children 100% of the time)
                      .33  (Percentage of time  James  will  have
physical   custody  as                      determined   by   the
superior court)
            $2,221.49    (Katherines obligation)

The  superior  court then offset these calculations to  determine
the total child support owed and the monthly support payment:

            $5,732.81    (Jamess obligation)
          - $2,221.49    (Katherines obligation)
            $3,511.32    (Difference in obligations)
                     1.5 (Rule 90.3(b) multiplier)
              $5,266.98     (Annual  amount  James  is   to   pay
Katherine)
                      12 (Months)
               $438.92   (Jamess monthly support payment)

     18     Because Shane will continue to reside almost entirely
with  James  and because the two younger children may potentially
spend much of their summer vacation with James, the 33.33% figure
used  by  the court may significantly deviate from the percentage
of time James will have the children.

     19     Bunn, 934 P.2d at 758 (citing Charlesworth v.  State,
Child  Support  Enforcement Div. ex rel. Charlesworth,  779  P.2d
792, 793-94 (Alaska 1989)).

     20    Because Rule 90.3 was amended after the superior court
calculated child support, we briefly consider whether the  change
in  the method of calculation may alter Jamess support obligation
by more than fifteen percent.  Assuming for sake of discussion no
change in the underlying facts concerning custody, it appears the
fifteen  percent  threshold will be  met.   Under  Rule  90.3(a),
applying the custody figures the superior court relied on, Jamess
obligation will be $249.66:

          $26,056.90     (Jamess adjusted annual income)
                      .27  (Rule 90.3(a) multiplier, used because
Katherine  has                  primary physical custody  of  two
children)
             $7,035.36    (Total yearly child support James  owes
Katherine)

          $20,197.40     (Katherines adjusted annual income)
                      .20  (Rule 90.3(a) multiplier, used because
James has primary                  physical custody of one child)
             $4,039.48     (Total yearly child support  Katherine
owes James)

            $7,035.36    (Jamess obligation)
          - $4,039.48    (Katherines obligation)
             $2,995.88     (Net Amount James owes  Katherine  per
year)
                      12 (Months)
               $249.66   (Jamess monthly support payment)

     21      Compare   monthly   support   payment   calculations
accompanying notes 17 & 20.