Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ebertz v. Ebertz (06/03/2005) sp-5905

Ebertz v. Ebertz (06/03/2005) sp-5905

     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

PETER J. EBERTZ,              	)
                              		)    Supreme Court No. S-11190
               Appellant,          	)
                              		)    Superior Court No.4BE-02-108 CI
          v.                  		)    
                              		)
DENISE J. EBERTZ,             	)    O P I N I O N
                              		)
               Appellee.     	 	)         [No. 5905 - June 3, 2005]
                                                        s)

          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Leonard R. Devaney, Judge.

          Appearances: Phyllis A. Shepherd,  Anchorage,
          for  Appellant.  Michele Power, Angstman  Law
          Office, Bethel, for Appellee.

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

          BRYNER, Chief Justice.

I.   INTRODUCTION

          Peter Ebertz and Denise Bahma-Ebertz divorced in 2002.1

A  court-appointed custody investigator recommended  that  Ebertz

receive  custody  of  the couples three  children.   Following  a

custody  hearing, the superior court awarded physical  and  legal

custody  of  two of the children to Bahma-Ebertz, awarded  shared

custody  of  the third child, and ordered Ebertz to pay  part  of

Bahma-Ebertzs  attorneys fees.  Ebertz appeals,  challenging  the

sufficiency of the superior courts custody findings, its decision

to  grant  custody  to  Bahma-Ebertz, and its  award  of  partial

attorneys  fees.   We  affirm, holding that  the  superior  court

sufficiently addressed the statutory best-interests factors, that

          the record supports its custody decision, and that the court did

not abuse its discretion in awarding partial attorneys fees.

II.  FACTS AND PROCEEDINGS

          Peter   Ebertz  and  Denise  Bahma-Ebertz  married   in

December  1989.   They  have  three children  together,  Zackery,

Alicia,  and  Mitchell.  Bahma-Ebertz took care of  the  children

during  most  of  the marriage, while Ebertz worked  outside  the

home.   Both  parties  served in the military  in  some  capacity

through  much  of the marriage.  Bahma-Ebertz left her  part-time

position with the Alaska National Guard in 1998.

          The couple lived in Wasilla until 1997, when the Alaska

National  Guard  transferred Ebertz to Bethel.  Bahma-Ebertz  and

the  children  remained in Wasilla for two years  before  joining

Ebertz  in Bethel.  In 2001 Ebertz received transfer orders  back

to Wasilla, but Bahma-Ebertz decided to stay with the children in

Bethel  rather  than return to Wasilla.  This living  arrangement

strained  the  marriage, and Ebertz filed for  divorce  in  March

2002.

          The  superior  court entered an interim order  granting

custody  of the children to Bahma-Ebertz and appointed a  custody

investigator,  who interviewed the family and prepared  a  report

recommending that the court award custody to Ebertz.   The  court

then  modified  the  interim custody order  by  granting  interim

custody of Zackery to Ebertz.

          In early 2003 the superior court held a custody hearing

and  received testimony from over twenty witnesses, including the

custody  investigator.  The investigator testified that,  in  his

opinion,  it  was in the childrens best interests for  Ebertz  to

have custody.  Despite the custody investigators recommendations,

the court awarded Bahma-Ebertz sole legal and physical custody of

Alicia  and Mitchell.  The court awarded shared physical  custody

of  Zackery, placing him with Bahma-Ebertz during the school year

and  Ebertz  during  the summer months.  The court  also  ordered

Ebertz to pay forty-five percent of Bahma-Ebertzs attorneys fees.

          Ebertz appeals the award of custody and attorneys fees.

III. DISCUSSION

     A.   Standard of Review

          Whether  the  superior court applied the correct  legal

standard  presents  a question of law that we  review  de  novo.2

Trial courts have broad discretion in determining child custody.3

We  will set aside the superior courts custody determination only

if the court abused its discretion or if its findings of fact are

clearly erroneous.4  The superior court abuses its discretion  if

it   consider[s]   improper  factors  in   making   its   custody

determination, fails to consider statutorily mandated factors, or

assign[s]  disproportionate weight to  particular  factors  while

ignoring  others.5  Factual findings are clearly erroneous  when,

based  on  the  entire record, they leave us with a definite  and

firm  conviction . . . that a mistake has been made, even  though

there  may  be  evidence  to  support  the  finding.6   We   give

particular  deference to the trial courts factual  findings  when

they  are  based primarily on oral testimony, because  the  trial

court,  not  this  court, performs the function  of  judging  the

credibility of witnesses and weighing conflicting evidence.7

          In   divorce  proceedings,  a  trial  court  has  broad

discretion  to award attorneys fees, and we will not reverse  the

courts  award  unless its decision is arbitrary,  capricious,  or

manifestly unreasonable.8

     B.   The Superior Courts Custody Determination

          1.   The legal standard for determining child custody

          Ebertz  first  argues that the superior  court  treated

this case as an action to modify an existing custody order rather

than  as  an action to determine initial custody.  In  its  final

findings,  the  court  awarded  physical  and  legal  custody  of

Mitchell and Alicia to [Bahma-Ebertz] based on the amount of time

they  have spent with their mother, the fact that they  are  both

doing  very  well in [Bahma-Ebertzs] care.  Because  the  interim

custody  order,  entered  soon after Ebertz  filed  for  divorce,

          granted physical and legal custody to Bahma-Ebertz, Ebertz

maintains  that the courts final custody order demonstrates  that

the  court  required him to show changed circumstances sufficient

to justify any change in the custody situation.

          Bahma-Ebertz responds that the superior court  did  not

require  Ebertz  to  show a significant change  in  circumstances

before determining the childrens best interests.  She points  out

that  the  court  specifically stated  that  it  was  basing  its

decision  on  a  best-interests analysis.  She  argues  that  the

courts discussion regarding the  amount of time the children  had

spent  with  their  mother did not require Ebertz  to  show  that

circumstances  had  changed since the interim order,  but  simply

recognized  that the children had spent most of their lives  with

Bahma-Ebertz.  She asserts that although the superior  court  may

consider interim custody in its final determination,9 it did  not

do so in this case.

          The   trial   court   must  base  an  initial   custody

determination on the childrens best interests, using the  factors

listed  in AS 25.24.150(c).10  In contrast, modifying an existing

custody  order  entails a two-step process:  the  parent  seeking

modification must establish a significant change in circumstances

affecting  the  childs best interests; only if the  parent  makes

this   showing  does  the  court  proceed  to  determine  whether

modification is in the best interests of the child.11

          Here, the court found that Bahma-Ebertz was the primary

caregiver of all three children throughout  most of their  lives,

while  Ebertz  spent  considerable time away  from  the  children

because of his work schedule.  The court found that Ebertz  lived

in  Bethel, away from his children, for most of 1997-1999.  After

his  family  joined  him in Bethel, Ebertz  transferred  back  to

Wasilla  in  August  2001, while Bahma-Ebertz  and  the  children

remained  in Bethel.  The court noted that [i]n August  2003,  it

will  be  another two years he has not lived with the two younger

children.   Though  recognizing  that  there  has  not  been   an

          excessive amount of stability for these children, what with their

move and their father coming in and out of their lives, the court

found  that these children appear to be[] doing very  well.   The

court then granted custody to Bahma-Ebertz based on the amount of

time they have spent with their mother.

          When  viewed  as  a  whole,  these  findings  fail   to

substantiate  Ebertzs claim that the court focused exclusively on

the  childrens  situation  after the interim  custody  order  was

entered.  To the contrary, the courts discussion of Ebertzs  time

away  from  the family establishes that the court considered  the

childrens situation over the span of their lives.  We agree  with

Bahma-Ebertz  that the superior court did not base its  order  on

Ebertzs failure to show that circumstances had changed since  the

interim custody order issued.

          2.      Rejection    of   the   custody   investigators
recommendations

          Ebertz  next argues that the superior court abused  its

discretion     in    rejecting    the    custody    investigators

recommendations.   Because the investigator expressly  considered

all  the  statutory best-interests factors, Ebertz contends,  the

court abused its discretion by rejecting his recommendations  and

relying instead on a single statutory factor  the length of  time

the children have lived with Bahma-Ebertz and the desirability of

continuing the existing arrangement.12  Bahma-Ebertz responds that

the  superior court considered the disputed statutory factors and

insists  that it cannot be the case that the only way to properly

consider   a   statutory  factor  is  to   follow   the   custody

investigators recommendation.

          We  agree  with  Bahma-Ebertz on this  point.   Ebertzs

argument  suggests  that a custody investigators  recommendations

deserve special status and should presumptively be followed.  Yet

we  have  previously  recognized that custody  investigators  are

simply expert witnesses and that their recommendations should  be

evaluated  on  a  case-by-case  basis,  in  the  same  manner  as

testimony  presented by other witnesses.13   Here,  the  superior

          court accepted testimony from over twenty witnesses.  Some of

this  testimony  contradicted the investigators  recommendations,

while other testimony agreed with those recommendations.  We have

held   that   a   court   may  reject  a  custody   investigators

recommendations and rely on other evidence as long as the  courts

findings  are  not  clearly erroneous.14  The critical  question,

then,  is  not whether the superior court erred in rejecting  the

custody investigators proposed decision, but whether the evidence

as   a  whole  supports  the  courts  decision.   Because  Ebertz

separately  argues  that  the  courts  custody  decision  is  not

supported by the evidence, we will consider that issue below.

          3.   Adequacy  of  the  superior  courts  findings  and

               sufficiency of evidence to support them

          Ebertz  argues  that  the courts custody  findings  are

deficient  because  they address only one of the  nine  statutory

factors  used  to  determine the childrens best interests:15  the

length   of  time  the  child[ren]  ha[ve]  lived  in  a  stable,

satisfactory  environment  and the  desirability  of  maintaining

continuity, which is the fifth statutory best-interests factor.16

He  argues that even the most cursory review of the record . .  .

demonstrates that the trial court abused its discretion . . .  in

its  application of [the] evidence to the best interests  of  the

minor  children.   Bahma-Ebertz responds that the court  was  not

required  to discuss every statutory factor and that its  written

custody order establishes that the court did consider the factors

that were disputed.

          Bahma-Ebertzs argument has merit.  Our cases hold  that

in  determining the best interests of a child, the court need not

discuss each statutory factor in detail; the courts findings will

be  sufficient if they give us a clear indication of the  factors

which   [the  court]  considered  important  in  exercising   its

discretion   or   allow  us  to  glean  from  the   record   what

considerations were involved.17  Although the courts findings here

are  sparse  and  certainly could have been set  out  in  greater

          detail, a review of those findings against the backdrop of the

record  gives  us  a  clear indication of the factors  which  the

superior court considered important.18

          The  court  discussed at length the  fact  that  Ebertz

lived  away from the children for extended time periods.  Despite

this  instability  in the childrens lives, the court  noted  that

several  witnesses testified that Alicia and Mitchell were  doing

well  in  Bahma-Ebertzs care.  The court also discussed  Zackerys

special educational and emotional needs and the fact that  Bahma-

Ebertz arranged for Zackery to have counseling to help with these

special  needs.  Thus, it appears the court addressed the  social

and  emotional needs of the children and the parents  desire  and

ability  to  meet  those needs   the first  two  statutory  best-

interests  factors.19   The court also discussed  testimony  that

Ebertz  once  hit  Zackery and that Bahma-Ebertz  once  left  the

children  in  the  car  on  a  very cold  day.   This  discussion

establishes  that  the court considered the  issue  of  abuse  or

neglect by the parties  the seventh statutory custody factor.20

          Ebertz  additionally  faults  the  superior  court  for

failing  to  consider Bahma-Ebertzs tendency to exaggerate  as  a

relevant point under the ninth subsection of the statutory  best-

interests provisions  a catchall provision that allows a court to

consider any non-specified factor it deems pertinent to custody.21

But  the  court did consider this factor, expressly  noting  that

Bahma-Ebertz had acknowledged exaggerating certain facts.

          In  short, the record reveals that the court considered

and  discussed evidence relating to most of the statutory custody

factors that were actively disputed, not just a single factor, as

Ebertz   alleges.    The  courts  ultimate   decision   to   give

determinative  weight to one of these factors and the  consequent

emphasis  it  placed  on  this factor  do  not,  standing  alone,

establish  that  it ignored the remaining factors  or  gave  them

inadequate  weight.   Accordingly, we find no  merit  to  Ebertzs

claim that the superior courts findings are deficient as a matter

          of law because they address only a single custody factor.

          A  separate  issue is whether the record  supports  the

superior  courts  findings.  Ebertz insists  that  it  does  not,

arguing that the evidence at trial conclusively established  that

the  childrens  best  interests would not be served  by  awarding

custody  to Bahma-Ebertz.  But our review of the record indicates

that  the  superior courts decision is supported  by  substantial

evidence.

          The   court  heard  testimony  from  several  witnesses

regarding each parents ability to meet the needs of the children.

The  evidence showed that Bahma-Ebertz was the childrens  primary

caretaker during the marriage and that Ebertzs job forced him  to

spend considerable time away from the children.  Even the custody

investigators  report,  which  recommended  awarding  custody  to

Ebertz, acknowledged that [g]reater time lost with the father has

been shown to correlate to high levels of problems in the area of

aggression.   In  its  final custody order,  the  superior  court

discussed  its concern about Ebertzs extended absences  from  the

children.   The court also found that Zackery had anger  problems

in  school  and  at  home.   Bahma-Ebertz  had  sent  Zackery  to

counseling to help him deal with his emotional problems, and  his

teacher   testified   that  Zackery  started  showing   progress.

Zackerys  teacher also testified that Bahma-Ebertz  checked  with

her  on Zackerys progress approximately every two weeks.  Alicias

teachers  also  testified that Alicia is on  track  academically.

Bahma-Ebertz  stayed  with  Alicia in  Anchorage  during  Alicias

kidney surgery and participated regularly in the childrens social

activities, like Girl Scouts and baseball.  All of this  evidence

bears on and substantially supports the courts findings regarding

the first two statutory factors, the physical, emotional, mental,

religious, and social needs of the child[ren]22 and the capability

and desire of each parent to meet these needs.23

          The  court  heard conflicting evidence  concerning  the

next contested24 factor, the childrens stability in Bahma-Ebertzs

          home and the desirability of continuing their custody there.25

Ebertz argues that the evidence clearly showed that Bahma-Ebertzs

household  was  unsafe  and unstable for  the  children.   Bahma-

Ebertzs brother testified that he was concerned about the  living

conditions at Bahma-Ebertzs house in Bethel after making a  brief

visit.  He testified that there was very little food in the house

and  that the front door to the home continually froze shut.   On

the  other hand, a private custody investigator found that Bahma-

Ebertzs  home  was appropriately kept for children and  that  the

children  were  clean  and well fed.  A friend  of  Bahma-Ebertzs

testified  that  she  visited  Bahma-Ebertzs  home  approximately

twenty  times  and  found  that  Bahma-Ebertz  kept  it  in  good

condition.   Moreover, the court heard undisputed  evidence  that

Ebertz  had lived away from the children for most of their lives.

Despite  the presence of conflicting testimony, then, substantial

evidence  supported  the courts decision to weigh  the  stability

factor  as  distinctly favoring Bahma-Ebertz.  We have repeatedly

emphasized  that it is the function of the trial  court,  not  of

this   court,  to  judge  witnesses  credibility  and  to   weigh

conflicting evidence.26  We decline to second guess the  superior

courts decision to resolve this conflict in Bahma-Ebertzs favor.

          Ebertz further argues that the court completely ignored

the  almost  constant disparagement expressed by Ms. Bahma-Ebertz

against Mr. Ebertz; he also maintains that Bahma-Ebertz does  not

allow him reasonable visitation.  But the evidence revealed  that

both  parents  appear to have made negative  remarks  about  each

other.  And there was testimony indicating that Bahma-Ebertz went

out  of  her  way  to keep the children from hearing  and  making

negative  comments  about  Ebertz.   For  example,  Bahma-Ebertzs

mother  testified  that when the children made  negative  remarks

about Ebertz, Bahma-Ebertz would reprimand them and tell them  he

is  your  dad. He loves you and you do not talk . . .  like  that

about  your dad.  This evidence lends substantial support to  the

superior  courts  implicit  decision  that  the  sixth  statutory

          custody factor  the desire and ability of each parent to allow an

open  and loving frequent relationship between the child and  the

other parent27  did not tilt strongly in either parents favor.

          The  court similarly declined to rule that either party

was   favored  under  the  seventh  statutory  factor    domestic

violence, child abuse, or child neglect in the proposed custodial

household.28  The court found that Ebertz had hit Zackery in  the

face  on  one occasion but found this to be an isolated incident.

It also found that Bahma-Ebertz had once left the children in the

car  on a very cold day while she visited a friend.  But this too

was an isolated incident, and Bahma-Ebertz had testified that she

left  the children for only a brief period time.  Ebertz contends

that  Bahma-Ebertz also neglected the children  by  allowing  the

windows  and doors of her house to freeze shut.  But the evidence

suggests  that  this was caused by Bahma-Ebertzs misunderstanding

of how her homes ventilation system worked.  Substantial evidence

supported  the  courts  refusal to give this  factor  significant

weight as to either party.

          As  to the eighth specified statutory factor  substance

abuse by either parent or other members of the household directly

affect[ing]  the emotional or physical well-being of the  child29

Ebertz  argues  that Bahma-Ebertzs use of prescription  narcotics

and  her  friendship  with a known alcoholic  had  a  detrimental

effect  on  the children.  But as Bahma-Ebertz accurately  points

out,  no  evidence was presented that the children had access  to

any  of  her  medication or that her use of  medication  had  any

effect  on  them.  And despite Ebertzs assertion to the contrary,

there  was no evidence that Bahma-Ebertz had a friendship with  a

known  alcoholic.  The accusation related to a friend  of  Bahma-

Ebertzs named Carl Bailey.  Bailey testified that he used to brew

his  own beer as a hobby.  But a tenant in Baileys rooming  house

testified  that she had never seen him consume excessive  amounts

of alcohol.

          Ebertz  further argues that the court should also  have

          considered Bahma-Ebertzs tendency to exaggerate the truth.  He

asserts  that  Bahma-Ebertz is a liar of such  proportion  as  to

easily  lead  to the conclusion that she is simply divorced  from

reality and can never be trusted.  In Ebertzs view, Bahma-Ebertzs

alleged  dishonesty deserves weight under the catchall  provision

of the best-interests statute, which allows reliance on any other

factors  that the court considers pertinent.30  Yet the  superior

courts  custody decision demonstrates that the court did consider

Bahma-Ebertzs  admitted  tendency to  exaggerate,  but  evidently

chose  to  give it minor weight.  We see no basis for overturning

the  courts  decision on this point, since,  as we  have  already

mentioned, it is not our role as an appellate tribunal to  second

guess the trial courts decision on issues of credibility.

          In  summary,  the record shows that the superior  court

weighed  the extensive testimony of many witnesses and ultimately

found,  based  on  all  the  evidence, that  the  childrens  best

interests  would be served by awarding Bahma-Ebertz sole  custody

of Alicia and Mitchell and shared custody of Zackery.  Our review

of  the  record  convinces  us that the superior  courts  custody

findings  are  well supported by substantial evidence.   We  thus

hold  that  the findings are not clearly erroneous and  that  the

custody decision does not amount to an abuse of discretion

     C.   Attorneys Fees

          Ebertz  additionally asserts that  the  superior  court

abused  its discretion in ordering him to pay forty-five  percent

of  Bahma-Ebertzs  attorneys fees.   He  argues  that  the  court

fail[ed]  to take into account the fact that both of the  parties

[were]   fully  capable  of  financially  sustaining  their   own

attorneys fees.  Citing Fernau v. Rowden, a child custody case in

which  we  affirmed an award of attorneys fees  to  a  spouse  we

described  as having only poverty level job prospects,31   Ebertz

claims  that  fees should be awarded only when the poorer  spouse

lacks the resources to hire an attorney.32 Because Bahma-Ebertz is

far  from poverty level in either her current employment  or  her

          job prospects,  Ebertz reasons, an award of fees was unjustified

here.

          But  Fernau did not hold that fees can be awarded  only

to disadvantaged spouses who have poverty level job prospects; it

merely  affirmed  a  decision  that  awarded  fees  under   those

circumstances.   Nor have we adopted a rule like the  one  Ebertz

proposes.  To the contrary, we have consistently recognized  that

parties should generally bear their own fees and costs when their

economic  situations and earning capacities  are  comparable  but

that, [o]therwise, awards of attorneys fees are committed to  the

trial courts discretion.33

          Here,  the  superior court recognized that the  parties

economic   situations  were  nominally  comparable:  Bahma-Ebertz

earned $46,800 per year while Ebertz earned approximately $49,000

per  year.  Yet the court noted that, the relatively higher  cost

of  living  in  Bethel undermined this nominal equality,  placing

Bahma-Ebertz at a disadvantage.  The court also noted that Ebertz

would  soon be eligible to retire from the military, which  would

give  him  the  ability to receive a pension and  earn  a  second

income in the private sector.  Moreover, the court noted that its

order dividing the parties property favored Ebertz, awarding  him

fifty-eight percent of the marital property, including  a  duplex

that  generated regular rental income.  Ebertz had also inherited

funds that were available to pay his litigation costs.

          Given the totality of these circumstances, the superior

court  found  a  sufficient disparity  in  the  parties  economic

circumstances to warrant a partial award of fees to Bahma-Ebertz.

Because  the  courts findings concerning these circumstances  are

substantially  supported by the record, its fee award  cannot  be

characterized    as   arbitrary,   capricious,   or    manifestly

unreasonable.   Accordingly, we hold that the award  fell  within

the scope of the superior courts broad discretion.

IV.  CONCLUSION

          For  these  reasons,  we  AFFIRM  the  superior  courts

          decision.

_______________________________
     1     Before  their divorce, Denise Bahma-Ebertzs last  name
was Ebertz.  The divorce decree changed her name to Bahma-Ebertz.
For  the  sake  of  consistency, we have  retained  the  original
caption  in  this  case (Ebertz v. Ebertz),  but  throughout  the
opinion, we refer to the appellee as Bahma-Ebertz.

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

     3    Smith v. Weekley, 73 P.3d 1219, 1222 (Alaska 2003).

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

     5     Barrett  v.  Alguire, 35 P.3d 1, 5 n.5  (Alaska  2001)
(citing  Borchgrevink v. Borchgrevink, 941 P.2d 132, 134  (Alaska
1997)).

     6    Jenkins v. Handel, 10 P.3d 586, 588 (Alaska 2000).

     7     In  re  Adoption of A.F.M., 15 P.3d 258,  262  (Alaska
2001).

     8    Sloane v. Sloane, 18 P.3d 60, 63-64 (Alaska 2001).

     9    Citing Smith, 73 P.3d at 1224.

     10    West v. West, 21 P.3d 838, 841 (Alaska 2001).

     11    Barrett, 35 P.3d at 5, 6.

     12     See  AS 25.24.150(c)(5) (listing as one of the  best-
interests  factors the length of time the child has  lived  in  a
stable,   satisfactory  environment  and  the   desirability   of
maintaining continuity).

     13    See State v. Phillips, 470 P.2d 266, 272 (Alaska 1970)
(stating  that  [t]he weight to be given to expert  testimony  is
within the province of the trier of fact).

     14    Rooney v. Rooney, 914 P.2d 212, 219 (Alaska 1996).

     15     The  statutory  custody factors are  set  out  in  AS
25.24.150(c).  At the time the superior court issued its finding,
subsection .150(c) provided in relevant 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 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.
               
     16    AS 25.24.150(c)(5).

     17     Smith, 73 P.3d at 1225 (citing Borchgrevink, 941 P.2d
at 139-40).

     18    Id.

     19    See AS 25.24.150(c)(1) and (2).

     20    See AS 25.24.150(c)(7).

     21    See AS 25.24.150(c)(9).

     22    AS 25.24.150(c)(1).

     23    AS 25.24.150(c)(2).

     24    The parties did not actively contend that the third or
fourth   statutory   factors    the  childrens   preference   (AS
25.24.150(c)(3)) and the affection between the parents and  their
children (AS 25.24.150(c)(4))  had any relevance under the  facts
of  this case, so there was no occasion for the superior court to
address them.

     25    See AS 25.24.150(c)(2).

     26     Knutson  v.  Knutson, 973 P.2d 596,  599-600  (Alaska
1999).

     27    AS 25.24.150(c)(6).

     28    AS 25.24.150(c)(7).

     29    AS 25.24.150(c)(8).

     30    AS 25.24.150(c)(9).

     31    42 P.3d 1047, 1060 (Alaska 2002).

     32    Ebertz also cites Carlson v. Carlson, 722 P.2d 222, 225
(Alaska  1986),  and  Bussell v. Bussell,  623  P.2d  1221,  1223
(Alaska  1981),  for this proposition.  But neither  case  is  on
point.

     33    Schmitz v. Schmitz, 88 P.3d 1116, 1130 (Alaska 2004).