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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moeller-Prokosch v. Prokosch (10/01/2004) sp-5834

Moeller-Prokosch v. Prokosch (10/01/2004) sp-5834

     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


FAITH M. MOELLER-PROKOSCH,    )
                              )    Supreme Court No. S-11146
             Appellant,            )
                              )     Superior Court No.  3PA-99-35
CI
     v.                       )
                              )    O P I N I O N
CHUCK F. PROKOSCH,       )
                              )    [No. 5834 - October 1, 2004]
             Appellee.             )
                              )



          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:   David  A.  Golter,  Golter   &
          Logsdon,  P.C., Wasilla, for  Appellant.   No
          brief filed by Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          I.   This appeal is the third arising from a superior courts

initial custody order conditioning custody upon the relocation of

a parent.  We decided in the first appeal that the superior court

cannot  place restrictions on a parents ability to relocate,  but

rather must make a custody determination in light of each parents

situation, taking into consideration all factors related  to  the

best  interests of the child.  We concluded in the second  appeal

that  the  superior court erred on remand in failing  to  make  a

custody  determination  based on an assumption  that  the  mother

would   relocate  and  in  failing  to  make  a  finding  whether

legitimate  reasons motivated the mothers decision  to  relocate.

The  mother  now appeals the latest custody order,  which  awards

primary  physical  custody  to the  father  assuming  the  mother

relocates  out of Alaska.  Because we conclude that it was  error

to fail to consider pertinent consequences of the mothers assumed

relocation,  we vacate the custody award and remand  this  matter

for further proceedings consistent with this opinion.

II.  FACTS AND PROCEEDINGS

          This  case  has  come  before  us  twice  before.   The

superior courts initial custody order found that each of Jeremiah

Ezekiel  Prokoschs  parents,  Faith  Moeller-Prokosch  and  Chuck

Prokosch, would be capable of exercising sole legal custody,  but

gave  primary  physical custody to Faith based  on  her  flexible

employment.   The  superior court also concluded,  however,  that

because  Faith  had indicated a desire to move to  Florida,  thus

necessarily  separating Jeremiah from his father in  Alaska,  she

demonstrated  an unwillingness to meet his emotional  needs.   It

therefore  ordered  that the parties share joint  legal  custody,

specified extensive visitation procedures, and ordered that Faith

not  relocate  Jeremiah to any place more than  sixty-five  miles

from Chuck.1

          Faith  appealed  the superior courts  order  containing

this  limitation on her relocation.2  We vacated  the  order  and

remanded,  holding that the superior court must consider  all  of

the AS 25.24.150(c) best interest factors in awarding custody  if

one  parent  chooses to move from Alaska, and must also  consider

whether legitimate reasons for the move exist.3

          The  superior  court  on remand modified  the  original

custody  order  by  awarding sole legal  custody  to  Chuck  with

respect  to where Jeremiah would attend school, physical  custody

to  Faith  as  long as she resided within a reasonable  traveling

distance  to  Jeremiahs school in Alaska,  and  primary  physical

custody  to  Chuck  if  Faith chose to live  at  an  unreasonable

          traveling distance to the school.  Faith again appealed.

          We  again  vacated the custody order and  remanded  for

further  proceedings including an evidentiary hearing to consider

subsequent  developments since the original trial.   We  reasoned

that  the  superior  court failed to follow our  instructions  on

remand to make a finding as to whether legitimate reasons existed

for Faiths move and to apply the best interest analysis based  on

the assumption that Faith would move to Florida.4

          After  our  second remand, the superior court conducted

an  evidentiary hearing and found that Faiths reasons for  moving

to  Florida  were legitimate and were not intended  to  frustrate

Chucks  visitation.  The superior court also performed  the  best

interest analysis of factors listed in AS 25.24.150(c), and found

that  (1) Jeremiahs needs were typical of those of any nine-year-

old  boy  growing up in the Mat-Su Valley; (2) both parents  were

capable of meeting his needs;  (3) due to Jeremiahs young age, no

preference  was  considered or presented;  (4)  strong  love  and

affection  existed between him and each parent;  (5)  it  was  in

Jeremiahs  best  interests to remain in  Southcentral  Alaska  to

maintain  stability and continuity; (6) Chuck  was  more  willing

than  Faith to allow Jeremiah to have an open and loving frequent

relationship with the other parent; (7) there was no evidence  of

domestic violence, child abuse, or neglect; (8) Chuck had cleaned

up  his life with regard to his former problem with alcohol;  and

(9)  Jeremiah  would be devastated if he had to move  to  Florida

away  from  his  father.  Based on these findings,  the  superior

court  entered  an order stating that, assuming  Faith  moves  to

Florida, Chuck would gain primary physical custody.

          After  Faith  moved  for  partial  reconsideration   to

request a custody ruling in the event she remained in Alaska, the

superior court ordered that as long as Faith remained in the Mat-

Su Valley, she would continue to have primary physical custody of

Jeremiah.  Because she had no intention of leaving Alaska without

Jeremiah,  Faith  stipulated  to entry  of  final  judgment  that

          indicated the parties did not wish to further litigate the

visitation issue at the time.  The superior court entered a final

decree,  incorporating its previous orders and some  elements  of

its initial custody order.

          Faith now appeals this decree.5

III. DISCUSSION

     A.   Standard of Review

          Whether  a lower court on remand has correctly  applied

our  mandate  is  a  question of law  we  review  de  novo.6   We

determine  questions  of law in light of precedent,  reason,  and

policy.7

          We  set  aside a trial courts determination of  custody

only  if  the  entire  record demonstrates that  the  controlling

findings  of  fact are clearly erroneous or that the trial  court

abused its discretion.8  A fact finding is clearly erroneous when

this  court is left with a definite and firm conviction that  the

trial  court  has  made a mistake.9  An abuse of  discretion  has

occurred if the trial 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.10

     B.   The   Superior  Court  Erred  in  Failing  To   Analyze
          Jeremiahs Best Interests Based on the Assumption  Faith
          Would Move to Florida.
          
          We first remanded this case for a determination whether

it  would  be  in Jeremiahs best interests to be in the  physical

custody  of  Faith or Chuck, based on the assumption  that  Faith

would move to Florida.11  Alaska Statute 25.24.150(c) requires the

court  to  consider  these  factors  in  determining  custody  in

accordance with the childs best interests:

          (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.
          
Faith  challenges the superior courts findings  with  respect  to

statutory factors (2), (5), (6), (7), and (9).

          With  respect  to  the  fifth statutory  factor,  Faith

argues that the superior court focused too narrowly on geographic

stability  in weighing this factor against her.  We  agree.   The

stability  factor requires the court to engage in a comprehensive

review  of  several aspects of continuity.  As  we  explained  in

Barrett v. Alguire:

          The   trial  courts  consideration   of   the
          stability of the childrens environment  in  a
          custody  . . . case can encompass a multitude
          of  factors,  including, but not limited  to,
          the  relationship with the custodial  parent,
          the  home  provided by the custodial  parent,
          the   childrens  school,  the  community   of
          friends  and family, the cultural  community,
          and  the childrens relationship with the non-
          custodial parent.  It also includes stability
          of place.[12]
          
The  stability  factor also requires the court to view  stability

and  continuity  both  prospectively and  retrospectively.13   We

specifically addressed in Meier v. Cloud how to apply this factor

in  situations  such  as Jeremiahs, in which  two  parents  share

custody  and  one  subsequently decides to  relocate  to  another

state:

          Because  the child will no longer be able  to
          spend  equal time with each parent  in  these
          situations,  a court considering  the  childs
          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.      A
          continuity  test  centered  entirely  on  the
          childs  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.   Thus,   the
          continuity  and  stability  factor  does  not
          preordain the result in such cases;  instead,
          it commands a comprehensive inquiry into each
          parents respective ability to maintain stable
          and satisfactory relations between themselves
          and the child.[14]
          
          Because  Jeremiah  has  strong  geographical  ties   to

Alaska, focusing only on the geographical consequences of  Faiths

move  to Florida would clearly favor granting custody to Chuck.15

We  have noted, however, that [s]tability is often a function  of

parental attitude and not of geography.16

          The  court-ordered notebook through which  the  parents

communicate  shows  that  both parents provide  Jeremiah  with  a

constant stream of activities such as reading, swimming, skating,

cooking,  playing  video games, spending time with  friends,  and

attending  church.   Faith has been Jeremiahs  primary  caretaker

since  the  divorce in 1999; he spends most if  not  all  of  the

school  week with her.  She closely monitors his daily activities

and  has  provided a stable environment for him.  Chuck, however,

has  also  maintained a constant relationship with Jeremiah.   As

noted  by the superior court, he regularly exercised all  of  his

weekend  visitation  rights in exemplary fashion,  even  when  he

lived in Anchorage while Faith and Jeremiah lived in Palmer.

          As  part  of  considering Jeremiahs best  interests  in

terms  of  relational stability, the superior court  should  have

fully  considered  the  effect of his separation  from  the  non-

custodial  parent,  assuming his mother moves  to  Florida.   The

superior court did recognize that Jeremiah would be devastated if

          he had to move to Florida away from Chuck, but did not discuss

the  corresponding effect on Jeremiah if he had to stay in Alaska

after Faith moved to Florida.17  As shown by the testimony of both

Faith  and  Chuck,  it  is  undisputed  that  Jeremiah  would  be

devastated by either custody choice: living in Alaska without his

mother  or  living in Florida without his father.  This testimony

was  consistent with the finding that Jeremiah is strongly bonded

to both parents.

          We  conclude that it was an abuse of discretion not  to

consider the detriment to Jeremiah if he were separated from  his

mother  upon her move to Florida.  The absence of any  discussion

of  this  consequence  raises  some  question  whether  the  best

interests  analysis was based on the assumption that Faith  would

move  to Florida, as we required in remanding.18  Performing  the

best  interests  analysis based on Faiths assumed  move  requires

symmetric consideration of the consequences to Jeremiah  both  if

she leaves with him and if she leaves without him.

          C.    The  Superior Court Did Not Err in  Finding  Each
          Parent  Desired  and  Was Equally  Capable  of  Meeting
          Jeremiahs Needs.
          
          Faith  also  argues that the superior court incorrectly

determined  under the second statutory factor that  both  parties

were   equally  adequate  despite  evidence  of  Chucks  inferior

housing,  his  failure  to  make  use  of  all  of  his  mid-week

visitation privileges, his failure to pay regular child  support,

and   his  minimal  participation  in  Jeremiahs  schooling   and

counseling.  We conclude that the superior court did not  err  in

finding  that the parties offer different but comparable ways  of

meeting Jeremiahs needs.

          Chuck  admittedly lives in a large two-bedroom  trailer

with  no running water and no central heat, but he heats his home

with a wood stove and keeps 100 gallons of water on hand for  the

toilet  and  other  household uses.  Faith  lives  in  a  housing

project   in  Palmer.   Regardless,  both  parents  have  housing

adequate to provide Jeremiah with basic necessities.

          Chucks  failure  to exercise all of his Wednesday  mid-

week  visitation privileges is also insufficient to show that  he

is  less  capable  than  Faith of meeting Jeremiahs  needs.   The

superior  court  found  that he did  avail  himself  of  all  the

weekends  in  exemplary  fashion.   Chuck  also  testified   that

Wednesday  visits were sometimes difficult due to  his  work  and

that he had unsuccessfully attempted to exchange days with Faith.

Under these circumstances the superior court could properly  find

that  Chucks  exemplary weekend visitation record  outweighs  his

imperfect Wednesday visitations.

          With  respect to Faiths allegations that Chuck did  not

pay  regular  child support, Chuck testified that every  time  he

found  employment,  he made arrangements to  make  up  the  child

support  he was unable to pay while unemployed.  Chuck  has  also

provided  Jeremiah with clothes, video games, toys, and a  laptop

computer in addition to child support.

          Faith,  however,  has  been more  active  in  Jeremiahs

counseling  and education.  Faith sought counseling for  Jeremiah

after  he  displayed anger and had difficulty  adjusting  to  the

divorce, and she continued his counseling beyond the year ordered

by  the court.  She also closely monitors Jeremiahs homework  and

his  academic progress.  Chuck, on the other hand, apparently had

difficulty reaching Jeremiahs counselor but did manage  to  speak

to  her  once about him.  Chuck made an effort to go to Jeremiahs

school to speak with his teacher and volunteer with the class but

upon  returning  to  the school a second time was  informed  that

because of the divorce decree he would not be permitted to  visit

Jeremiah during the school day.  Faith testified that she is more

book  smart, but Chuck testified that he and Jeremiah do artistic

activities and educational programs on the computer together.

          Some  of  the  ways  in  which  Faith  participates  in

Jeremiahs life more than Chuck relate to her role as the  primary

physical  custodian.  Because Jeremiah lives with her during  the

school  week, she would naturally be more involved in  monitoring

his  homework  and  taking  him to counseling.   Furthermore,  it

appears  that  Faith  has interfered to some extent  with  Chucks

ability  to  participate in Jeremiahs life.  She does not  inform

Chuck  about  Jeremiahs Boy Scout events and also  has  prevented

Chuck from participating in Jeremiahs church program by asking  a

minister to tell him not to attend.

          Because  the evidence permits a finding that Faith  and
Chuck  respond  to  Jeremiahs needs  and  approach  parenting  in
different  but  equally adequate ways, it was  not  an  abuse  of
discretion for the superior court to find, as a whole, that  both
parties equally desired and equally were able to meet his needs.

     D.   The  Superior Court Did Not Err in Finding  that  Chuck
          Was More Willing and Able To Allow Jeremiah an Open and
          Loving Relationship with the Other Parent.
          
          The  superior court weighed the sixth statutory  factor

in  favor of Chuck, based on information presented at the hearing

and  contained in the 1999 custody investigation report;  in  the

superior  courts  view,  the information  indicated  that  Faiths

inflexibility  with respect to minor changes or short  delays  in

visitation  failed to promote Chucks participation  in  Jeremiahs

life.

          The  evidence  presented at the  hearing  supported  an

inference  that  Faith  shows extreme adherence  to  the  initial

custody  order  with  regard  to any contact  between  Chuck  and

Jeremiah.   Under that order, each parent can make  a  ten-minute

phone  call to Jeremiah no more than once every forty-eight hours

while  he is in the custody of the other parent.  Chuck testified

that  in  the three years since the divorce, Faith never  allowed

him to talk to Jeremiah on the phone two days in a row, even with

respect  to  Chucks birthday or Fathers Day.  According  to  him,

Faith  refuses  to let Jeremiah speak to Chuck  longer  than  ten

minutes even though Chuck permits him to speak with Faith as long

as  he  wants.   Chuck  also  testified  that  Faith  refuses  to

facilitate email communication between him and Jeremiah.

          The  evidence  supports the trial courts  finding  that

Faith   exhibited   a   lack  of  flexibility   with   visitation

arrangements,  resulting  in  minor  changes  or   short   delays

concerning the time and location of visitation pick-up  and  drop

off [and] the provision of extra visitation . . . .  For example,

she has not facilitated Chucks Wednesday visits.  She refuses  to

let   Chuck  trade  days  and  has  refused  to  allow  Wednesday

visitation in the summertime.  Chuck has allowed Jeremiah  to  be

with   his  mother  on  holidays  that  are  technically   Chucks

visitation  days,  but  Faith  has  never  reciprocated.    Chuck

testified  that  Faith would not allow Jeremiah to  take  to  her

house the laptop given by Chuck on which Jeremiah writes stories.

Similarly, Faith does not allow Jeremiah to wear the clothes from

his fathers house back to her house, forcing Chuck to maintain  a

separate  set  of clothes, hats, gloves, and boots at  his  home.

Because  of Faiths insistence that all items from Chuck  stay  at

Chucks place, all birthday and Christmas presents also remain  at

the respective homes.

          The  evidence thus supports the superior courts finding

that Faith is very inflexible in her dealings with Chuck and  the

child.  The superior court therefore did not err in finding Chuck

to  be more willing and able to allow Jeremiah to develop an open

and loving frequent relationship with his mother than vice-versa.

     E.   The  Superior  Court  Did Not Err in  Failing  To  Find
          Evidence of Domestic Violence.
          
          Faith also argues that following trial in December 1999

the superior court did find evidence that there was some domestic

violence  by Chuck against Faith.  She contends that the superior

court  should have considered this fact to the extent  the  court

faulted  Faith for the current relationship between the  parties.

But  because the superior court did not weigh this factor against

either  party, there is no indication the factor did  affect  (or

should  affect, as conceded by Faith) the custody  decision.   We

therefore conclude that the superior court did not err in failing

to find evidence of domestic violence.

IV.  CONCLUSION

          Because  the superior court did not perform a  complete

analysis of Jeremiahs best interests based on the assumption that

Faith  would  move  to Florida, we VACATE the custody  order  and

REMAND for proceedings consistent with this opinion.

_______________________________
     1     Moeller-Prokosch v. Prokosch (Moeller I), 27 P.3d 314,
316 (Alaska 2001).

     2    Id.

     3    Id. at 316-17.

     4    Moeller-Prokosch v. Prokosch (Moeller II), 53 P.3d 152,
157 (Alaska 2002).

     5    No attorney has appeared for Chuck, and Chuck has filed
no brief in this appeal.

     6    Moeller II, 53 P.3d at 154.

     7     Moeller I, 27 P.2d at 316 (citing McQuade v.  McQuade,
901 P.2d 421, 423 n.3 (Alaska 1995)).

     8    Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).

     9    Id.; Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).

     10    Hamilton, 42 P.3d at 1111.

     11    Moeller II, 53 P.2d at 153.

     12    Barrett v. Alguire, 35 P.3d 1, 9 (Alaska 2001).

     13    Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001).

     14     Id.  (footnotes omitted) (quoting McQuade v. McQuade,
901 P.2d 421, 426 (Alaska 1995)).

     15    Jeremiah has lived in Southcentral Alaska all ten years
of his life, attending the same school in the Mat-Su Valley since
elementary school.  He has friends with whom he spends time  when
he  is in the custody of either parent, and he participates in  a
local church program and the local Boy Scouts.

     16    McQuade, 901 P.2d at 426 (quoting Craig v. McBride, 639
P.2d 303, 308 (Alaska 1982) (Rabinowitz, C.J., concurring)).

     17    The superior court discussed the devastating impact of
being  separated  from his father as part of the ninth  statutory
factor, but because it involves relational continuity, the impact
of  separation  is  more  properly  considered  as  part  of  the
stability analysis under the fifth statutory factor.

     18    At one point during the evidentiary hearing, the court

asked Faith:

          [W]hy   given  how long thats  been  on  hold
          anyway, and given . . . that Jeremiah is .  .
          .  a  little boy . . . [who] loves  his  dad,
          loves  his mom, but who does get to  see  his
          dad  a lot, I mean, hes not a little boy  who
          doesnt  have any dad relationship . .  .  why
          cant  you wait just a few more years so  that
          Jeremiah can spend his childhood with his dad
          in his life, at least as much as he is in his
          life,  which  isnt as much as  youre  in  his
          life,  but a whole lot more than he would  be
          if  you  went to Florida?  Why cant you  wait
          until  hes an older  I dont want to  say  all
          teenagers  do  this, but once  they  hit  the
          teenage  years and they dont really want  mom
          or  dad  in  their life . . . why  is  it  so
          important  to do this now as opposed  to  let
          Jeremiah have at least a few more years  with
          his dad while hes still a little boy?
          
          This  line  of  questioning further  suggests  possible
preoccupation with the irrelevant question whether  Faith  should
be  permitted to relocate, rather than the impact of her  assumed
move.