You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moeller-Prokosch v. Prokosch (8/19/2002) sp-5614
Moeller-Prokosch v. Prokosch (8/19/2002) sp-5614
Notice: This opinion is subject to correction
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,
Supreme Court of Alaska.
Faith M. MOELLER-PROKOSCH,
Chuck F. PROKOSCH,
) No. S-10486.
) Aug. 19, 2002.
David A. Golter, Golter & Logsdon, P.C., Wasilla, for Appellant. No brief filed for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and
CARPENETI, Justices. OPINION MATTHEWS, Justice. The main question presented by this case is whether the superior court adequately complied with instructions contained in our prior opinion. For the reasons explained in this opinion we conclude that it did not and remand for further proceedings.
Prior Proceedings: This case is before us for the second time. In our first opinion,
[FN1] we described the initial custody decree of the superior court
as follows: FN1. Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001)
(hereinafter "Moeller I ").
Superior Court Judge Beverly W. Cutler awarded the parties
joint legal custody of their son. Faith was awarded primary
physical custody. The court set out explicit parameters for
the location of the child's residence with Faith: Faith was
not allowed to "relocate Jeremiah to a residence that is
more [than] sixty-five (65) miles from ... Mr. Prokosch's
residence, as long as his residence is known."In the event
Chuck moved outside of the sixty-five mile area, the
residence restriction would be lifted automatically.[ [FN2]]
FN2. Id. at 316 (alteration in original).
Faith, who lives in Palmer but wished to relocate to
Florida, appealed. We vacated the decree and remanded the
case to the superior court. [FN3] We instructed the court to
make a determination as to whether it would be in the best
interests of the parties' son, Jeremiah, to be in the
physical custody of Faith or Chuck, based on an assumption
that Faith would move to Florida. This best interests
determination was to be made in light of all of the relevant
statutory factors set out in AS 25.24.150(c). [FN4] We also
directed the court to determine whether Faith had legitimate
reasons for moving to Florida, noting that "a proposed move
is legitimate if it 'was not primarily motivated by a desire
to make visitation ... more difficult.' "[FN5]
FN3. Id. at 315.
FN4. Id. at 316.
FN5. Id. (quoting House v. House, 779 P.2d 1204, 1208
Our decision was published on July 27, 2001. On August 20,
2001, Faith moved, on an expedited basis, for permission to
take Jeremiah to Florida so that he could start school there
before the Fall 2001 term. She argued that her reasons for
moving to Florida were legitimate. Chuck, who lives in
Anchorage, opposed the motion and asked the superior court
to find that if Faith moved to Florida, it would be in
Jeremiah's best interest to remain in Alaska with him.
On August 31 the court held an unscheduled telephonic
hearing on Faith's motion. Judge Cutler first observed that
"if the court were to consider an award of primary physical
custody to Chuck ... the court would have to afford [Faith]
a hearing before doing it."Judge Cutler then announced that
if she were to rule on the question of physical custody of
Jeremiah, she would rule that it would be "detrimental to
Jeremiah's best interest for [Faith] to continue to have
primary physical custody if she's going to move to Florida."
But rather than making a best interests determination
assuming Faith moved to Florida, the court proposed to
modify the award of joint legal custody in one respect. The
court indicated an intention to give Chuck sole legal
authority to decide where Jeremiah would go to school. Under
this proposal, Faith would keep primary physical custody of
Jeremiah as long as she decided to stay within a reasonable
distance of Chuck's choice of school.
The court invited further briefing in response to this
proposal. In response, Faith argued that the court's
intended order was not materially different from the
original decree that had been vacated and that it would not
comply with the instructions given by this court on remand.
Chuck responded, also expressing doubt as to whether the
proposed modification of legal custody would satisfy this
court's instructions on remand. He suggested that the court
transfer physical custody to Chuck in light of Faith's move
On October 30, 2001, the court entered an oral order along
the lines of the order it proposed on August 31. The order
modified the award of joint legal custody by giving Chuck
sole authority to decide where Jeremiah should attend
school. The order also shifted physical custody to Chuck if
Faith chose to live at more than a reasonable distance from
Jeremiah's school. The court later entered a written order
in accordance with the October 30 order, and indicated that
the oral remarks of October 30 would stand as findings of
fact and conclusions of law.
Arguments on Appeal and Summary of Our Decision
A. Faith argues that the superior court did not comply with
our remand instructions in the following respects:
1. The modified joint legal custody order had the same
effect of preventing her from moving as the prior decree
that we vacated;
2. The court, in ordering an automatic shift in physical
custody to Chuck if Faith chose to move to Florida, did not,
a. Truly assume that the move would take place,
b. Determine whether her motives for the move were
legitimate, c. Consider all relevant statutory factors.
B. Faith also contends that the court should not have
contingently changed physical custody without first holding
an evidentiary hearing.
Chuck did not file a brief on appeal.
We do not agree with Faith's conclusion under A.1. But we
substantially agree with arguments A.2.a. and b. These
conclusions moot the remaining arguments. But on remand the
court should hold an evidentiary hearing as to developments
occurring since the original trial, and should consider all
relevant statutory factors.
Standard of Review
 "'Upon remand of a case by this court it becomes the
duty of the lower court to obey the mandate and render
judgment in conformity.' Whether a lower court on remand has
correctly applied our mandate is a question of law which we
review de novo."[FN6]
FN6. Williams v. Crawford, 47 P.3d 1077, 1079 (Alaska 2002)
(quoting Davis v. Hallett, 630 P.2d 1, 2 (Alaska 1981)).
Requirements and Meaning of Our Prior Opinion
Our prior opinion required the superior court, on remand, to
assume that Faith would move to Florida, and based on this
assumption, determine whether it would be in the best
interests of Jeremiah to be in the physical custody of Faith
or Chuck, using all of the relevant factors of AS
25.24.150(c). [FN7] In making this determination, we
directed that the court should decide whether Faith's
motives for moving to Florida were legitimate. [FN8] We also
suggested, but did not require, that the court make a second
best interests determination based on an assumption that
Faith would not move to Florida. [FN9]
FN7. Moeller I, 27 P.3d at 316 & n. 4.
FN8. Id. at 316.
FN9. Id. at 317 n. 8.
Although we directed the trial court to determine whether
Faith's motives for moving to Florida were legitimate, we
did not specify in detail what the consequences would be if
Faith's motives were found to be legitimate. We said that if
a move is not legitimately motivated "the court must take
this finding into account in its best-interests analysis."
[FN10] We should have added that if a move is found to be
for legitimate reasons, the court should not hold the move
against the party who proposes to move. The court should not
find her to be, because of the move, "selfish and unwilling
to promote an open and loving relationship between"the
child and the other parent. [FN11] Legitimately motivated
moves are a common feature of "today's mobile society."
[FN12] Such moves would be unfairly deterred if courts were
to hold that the moving parent has demonstrated by her
desire to move a parental deficiency or weakness.
FN10. Id. at 316.
FN11. Id. at 317 n. 9.
FN12. Id. at 316.
Mirroring the Prior Decree
We agree with Faith that the current order in practical
effect is nearly the same as the initial decree that we
vacated--but worse from Faith's perspective. The initial
order awarded Faith primary physical custody and provided
that Faith could not relocate Jeremiah more than sixty-five
miles away from where Chuck was living. Currently, Faith
still has primary physical custody so long as she lives
within a "reasonable traveling distance"of Jeremiah's
school. Judge Cutler made clear that she expected that
Jeremiah's school would be in Palmer, where Faith lived, for
the remainder of the 2001- 2002 school year. So, at least
for the present, no real status change has been effected.
But under our remand instructions a result similar to that
of the initial decree is among the reasonably possible
outcomes. Therefore, the mere fact that the current order
effectively mirrors the initial decree does not necessarily
mean that Judge Cutler did not follow our prior opinion.
Failing To Assume that Faith's Move Would Take Place
More telling is Faith's argument that the trial court did
not decide the question of physical custody based on an
assumption that Faith would move from Alaska. The court
found in its oral remarks of October 30, 2001, that Faith's
proposed move to Florida would thwart Chuck's opportunity to
have an open, loving and frequent relationship with
Jeremiah. [FN13] The most important factor in the court's
decision was the court's belief that it was in the best
interests of Jeremiah to have frequent contact with both
parents. [FN14] The court made the same point at the August
31, 2001 hearing. [FN15] When pressed by counsel at the
August 31 hearing to proceed based on the assumption that
Faith would move, the court was resistant:
FN13. The court stated:
And so I find that Mr. Prokosch should be given sole legal
custody to make the decision on where Jeremiah goes to
school because I find if Faith is given that sole legal
custody to make that decision she will make that in a way
that deliberately thwarts the opportunity of the other
parent to have an open, loving, frequent relationship. And
while it may not be deliberate and that is her only intended
result it is certainly an intended result and it is also
defiantly a willfully brought about factual result because
she will choose to put the child in the school that is about
four or 5,000 miles away from where his father lives, which
means that he will not be able--he, the child--will not be
able to maintain an open, loving, frequent relationship with
the other parent, particularly for a child this age for whom
getting on the telephone doesn't constitute an open, loving,
frequent relationship, even if he can get on the phone
I do find that if Mr. Prokosch is given the authority to
make that decision, the sole legal custodial decision of
where the child is enrolled
in school that Mr. Prokosch will enroll this child in
school within a reasonable distance of where the other
parent presently is located. That Mr. Prokosch will not
choose to enroll the child in a school that is willfully
chosen as one that is thousands and thousands of miles away
from where the other parent presently lives. Thus, Mr.
Prokosch is the parent who, between these two parents, who
is more capable than the other parent of fostering an open,
loving, frequent relationship with the other parent.
FN14. The court stated:
And for several more years it appears beyond dispute in
this case that the frequent presence of each of these
child's parents in his life is very important to his well
being. And probably the most important difference in a
decision here on who gets legal or physical custody is that
factor in the custody statute that we are directed to
consider and that is whether the party who has custody is
capable of fostering [an] open, loving, frequent,
relationship with the other parent.
FN15. The court stated:
[B]ut [Jeremiah] is in a situation that is very, very, very
important to the development of a child of his age, who's a
child of divorce, who's an only child without siblings and
so forth, and that is to have an open,
loving, frequent contact relationship with each of his two
parents so that as he develops into what we hope is a
normal, ordinary, responsible adult, he can healthfully
develop in that direction as a result of feeling that both
of his parents love, nurture, support him, spend a fair
amount of time with him. And that he's not suffering from
having a big hole in his life because either his mother is
totally out of the picture or his father is totally out of
the picture most of the time, and that he suffers from the,
you know, absent parent syndrome or whatever it's called in
the psychological literature.
Clearly, a child of Jeremiah's age and based on all the
description I heard at trial and so forth, it's very
important on top of the stress of this divorce to feel that
each of his parents does care for him and support him and
love him and nurture him and guide him and role model for
him, and that this is keeping him more or less
psychologically sound notwithstanding the divorce. That if
he's in a situation where one of those parents is basically
totally absent, that he is likely to deteriorate and to
suffer from the syndrome where you feel like you have a big
hole in your life because you never get to see one of two
people who are very important to you.
In other words, it would be in some ways comparable to the
sudden death of a parent. It might not be quite as dramatic
and quite as negative a
situation as the death of a parent, but there's certainly
no reason to put this child who we hope is developing into a
normal, ordinary, responsible older child and then a normal,
ordinary, responsible adult, no reason to put him at risk of
acting out becoming a victim, becoming negative, becoming
less healthy than he is because all of a sudden one of his
parents is removed from his life. And it does seem to me
highly likely that that would happen.
[T]here's no necessity for them to live in two different
states. It would be different if there were a necessity and
the court said, let's face the fact the parents have to live
in two different states, and therefore we just have to
decide what's best for this kid since the parents have to
live in two different states and nobody can do anything
... The issue ...--the statutory criteria is the ability of
the parent to promote an open loving relationship. And I
guess in a sense the court is saying Faith by moving is
showing that she lacks that ability. It's not a priority
enough for her to make the self-sacrifice to stay where she
really doesn't want to stay for reasons that are certainly
at least partly legitimate.
 Thus, the primary reason for the trial court's decision
is that Jeremiah's best interests will be served if he
continues to have frequent contact with both parents. This
is only possible, however, if Faith does not move. The trial
court's reasoning is therefore fundamentally inconsistent
with the assumption we directed the court to make. If Faith
moves to Florida, Jeremiah will lose frequent contact with
one of his parents. Under our remand instructions the court
was to take the move as a given and determine whether it
would be in the best interests of Jeremiah to be in the
custody of his father in Alaska or of his mother in Florida.
Similarly, the court's reasoning that Chuck's opportunity to
have a close relationship with Jeremiah would be hindered by
Faith's move to Florida is incomplete given the assumption
we directed the court to make. Clearly, if Faith moves, one
party or the other is going to be separated from Jeremiah
for each school year. Under our remand instructions, this
was meant to be the premise on which the court's analysis
would be based. Instead, it served as the basis for the
We therefore agree with Faith that the reasoning used by the
trial court indicates that the court did not decide
Jeremiah's physical custody based on the assumption that
Faith would move to Florida.
Failing To Determine Whether Faith's Motives Were Legitimate
 In our instructions on remand, we emphasized the need
for the trial court to make a determination as to whether
Faith had legitimate reasons for moving. [FN16] But the
court addressed this issue only casually and ambiguously. It
stated that the need to promote an open, loving, frequent
relationship with Chuck is "not a priority enough for
[Faith] to make the self-sacrifice to stay where she really
doesn't want to stay for reasons that are certainly at least
partly legitimate."As we noted, "a proposed move is
legitimate if it 'was not primarily motivated by a desire to
make visitation ... more difficult.' "[FN17] The court's
remark does not resolve this issue.
FN16. Moeller I, 27 P.3d at 316.
FN17. Id. (quoting House v. House, 779 P.2d 1204, 1208
Notwithstanding that the court did not resolve the issue of
whether Faith's motives for moving to Florida were
legitimate, the court found the move to be a negative factor
against Faith and in favor of Chuck in making its best
interests determination. As we have indicated in today's
opinion--but not clearly in our earlier opinion--it is
impermissible to count Faith's move to Florida as a negative
best-interests factor personal to Faith if her reasons for
moving are legitimate--that is, if the move is not primarily
motivated by a desire to make visitation more difficult. If,
on the other hand, Faith's reasons are not legitimate, "the
court must take this finding into account in its best-
We conclude, therefore, that the trial court did not follow
our instructions on remand, both because the court's reasons
were inconsistent with a custody determination based on an
assumption that Faith would move to Florida, and because the
court did not make a finding as to whether Faith's move was
motivated by legitimate considerations.
Faith also argues that the court erred by failing to
consider all relevant statutory factors in making a best-
interests determination and by failing to hold an
evidentiary hearing. We need not resolve these questions. On
remand, we are confident that the court will address all
relevant factors. Further, we believe that there should be a
supplemental evidentiary hearing to bring the court up-to-
date on factual developments that have occurred since the
December 1999 custody trial.
VACATED and REMANDED for further proceedings in accordance
with this opinion. [FN19]
FN19. Notwithstanding the provisions of Appellate Rules
507(b) and 512(a), this opinion takes effect upon the date
of issuance of this opinion.
Moeller-Prokosch v. Prokosch
53 P.3d 152