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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Melendrez v. Melendrez (09/15/2006) sp-6045

Melendrez v. Melendrez (09/15/2006) sp-6045, 143 P3d 957

     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

VALERIE P. MELENDREZ, )
) Supreme Court No. S- 12198
Appellant, )
) Superior Court No.
v. ) 1KE-02-222 CI
)
MICHAEL A. MELENDREZ, ) O P I N I O N
)
Appellee. ) No. 6045 - September 15, 2006
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Trevor N. Stephens, Judge.

          Appearances:  Michael P.  Heiser,  Ketchikan,
          for  Appellant.  Amanda M. Skiles, Ketchikan,
          for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          In  this  custody case, a mother challenged  a  custody
modification that would result in the placement of  all  four  of
her  children with their father.  Although initially  the  mother
had  been granted custody of the children, she did not oppose the
fathers modification request placing the two older children  with
him.   However,  she challenged the superior courts  decision  to
also  move  the  two younger children to live with their  father.
Because  the mother failed to establish clear error or  abuse  of
discretion  by  the superior court, we affirm  the  lower  courts
decision.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Valerie  Melendrez and Dr. Michael Melendrez,  Sr.  had
four  children during their marriage:  Michael Jr.  (born  1990),
Candace (born 1991), Gabriel (born 1997), and Audrey (born 1999).
The  family  lived in Craig from 1993 until February  2002,  when
Michael   Sr.  and  Valerie  separated.   Valerie  relocated   to
California with the children during the separation, and  in  2003
the  parties  divorced.   Michael Sr.  and  Valerie  developed  a
custody and visitation agreement, adopted by Superior Court Judge
Trevor  N.  Stephens,  which  granted  Valerie  primary  physical
custody  of  the  four children and Michael  Sr.  five  weeks  of
visitation each summer.  According to the terms of the agreement,
the  children  lived with Valerie in California and  spent  their
summers with Michael Sr. in Craig.
          On   November  16,  2004  Judge  Stephens  received   a
handwritten  letter from Candace expressing her  desire  to  live
with  her  father in Alaska.  Valeries signature appears  at  the
bottom  of  the letter as evidence of her consent to the  custody
modification.   Two  weeks later, however,  Valerie  submitted  a
letter  to  the  court expressing second thoughts about  allowing
Candace  to  live with her father.  Michael Sr. moved  to  modify
custody  in  order to become Candaces primary physical custodian.
A  hearing  was held in December 2004, and Judge Stephens  denied
the  motion  to modify custody.  Applying the statutory  analysis
required  in AS 25.20.110(a),1 the court found that, while  there
had  been  a  substantial change in circumstances, the  requested
change was not in Candaces best interests.
          In  August  2005  Michael Sr. filed a letter  with  the
court  expressing  concern for the childrens  well-being  as  the
result  of  an incident during which Valerie struck Michael  Jr.,
causing  him  to bleed.  A month later Michael Sr.  notified  the
court  that Michael Jr. and Candace would be moving to  Craig  to
live  with  him.   He also appeared to request  primary  physical
custody  of  Gabriel, stating that Gabriel wished  to  return  to
Alaska  to  be  with  his older brother,  sister,  and  his  Dad.
Valerie  did not object to the change in custody for Michael  Jr.
and  Candace,  but she opposed granting Michael  Sr.  custody  of
Gabriel.   Based  upon the documents filed by both  parties,  the
court  awarded primary physical and legal custody of Michael  Jr.
and  Candace to the father and ordered an evidentiary hearing  to
be  held  regarding custody of Gabriel.  Michael Sr. then amended
his  motion  in October 2005 to seek custody of both  Audrey  and
Gabriel  on the ground that it would be in the best interests  of
all  four  children  to be kept together.   Valerie  opposed  the
motion to modify custody.
          Judge Stephens granted custody of Audrey and Gabriel to
Michael  Sr.,  relying  heavily on the benefits  of  keeping  the
children together.  According to the court, divided custody would
substantially  impair if not destroy their sibling relationships.
The  court  found  that  the negative  impact  on  their  sibling
relationships  outweighs  the  possible  detrimental  impacts  on
Gabriel  and  [Audrey]  of moving from  their  mothers  home  and
returning  to  Craig  and  the possibility  of  the  older  [two]
siblings being bad influences on them.
          Valerie appeals.
     B.   Proceedings
          In  awarding physical and legal custody of Gabriel  and
Audrey  to  Michael Sr., Judge Stephens looked to AS 25.20.110(a)
and examined whether any substantial changes in circumstances had
occurred  warranting  a  modification of custody  and  whether  a
modification would be in the best interests of the children.  The
court   found  that  Michael  Sr.  demonstrated  at   least   one
substantial  change  in  circumstances  affecting  the  childrens
welfare  since  the  previous  custody  order  was  entered:  the
transfer  to  Michael  Sr.  of  physical  custody  of  the  older
siblings, Michael Jr. and Candace.  In addition, the court  found
that  the  reasons  Michael Jr. and Candace  returned  to  Alaska
(mainly,  their  altercations with Valerie), changes  in  Michael
Sr.s work schedule and location such that he is able to work from
home,  and  his  participation in anger  management  and  alcohol
treatment programs all constituted changes in circumstances since
the previous custody order was enacted.
          The  court then evaluated the best interests of  Audrey
and  Gabriel  by  considering  and weighing  the  statutory  best
interest factors set forth in AS 25.24.150(c)(1)-(8).  The  court
concluded that the statutory custody factors on balance  slightly
favored  Michael Sr. because he already had physical  custody  of
Michael Jr. and Candace.  The court expressed its belief that the
importance   of   maintaining   sibling   ties   outweighed   the
consequences of moving Gabriel and Audrey from their mothers home
in California.  Consequently, the court awarded Michael Sr. legal
and physical custody of the two younger children.
          Valerie  appeals,  arguing  that  the  superior   court
erroneously  determined that it would be in Gabriel  and  Audreys
best interests to be placed with their father.  First, she argues
that  the court gave undue weight to the desirability of  keeping
the  children together.  To substantiate this claim she maintains
(1)  that  there  is  insufficient evidence demonstrating  strong
bonds  between the older and younger children, and that  in  fact
the  bonds  are  probably fairly weak, and  (2)  that  the  older
children have been bad influences on Gabriel and Audrey, so  that
the  younger children would probably benefit from being separated
from  their  older  siblings.   Second,  she  contends  that  the
superior  court failed to accord proper weight to  the  stability
and  continuity  that would be achieved by allowing  Gabriel  and
Audrey  to  remain  with her.  Valerie asks  us  to  reverse  the
superior courts modification of custody and to order that primary
custody  of Gabriel and Audrey be returned to her; alternatively,
she  asks  us to reverse and remand for further findings  on  the
issue of sibling bonds.
III. STANDARD OF REVIEW
          The  trial court has broad discretion in deciding child
custody  disputes.  A trial courts determination of custody  will
be  set  aside  only if the entire record demonstrates  that  the
controlling  findings of fact are clearly erroneous or  that  the
trial  court has abused its discretion.2  A finding  of  fact  is
clearly  erroneous when this court is left with  a  definite  and
firm  conviction that the trial court has made a mistake.3  Abuse
of  discretion  is  established if  the  trial  court  considered
          improper factors in making custody determinations, failed to
consider    statutorily    mandated    factors,    or    assigned
disproportionate  weight  to particular  factors  while  ignoring
others.4
IV.  DISCUSSION
          In  order to successfully modify a custody arrangement,
the  parent requesting the change must prove two facts: (1)  that
there  has  been a substantial change in circumstances  affecting
the  welfare  of  the children since the last custody  order  was
entered,  and  (2)  that  the change requested  is  in  the  best
interests of the children.5
     A.   A   Substantial  Change  of  Circumstances   Has   Been
          Demonstrated.
          The superior court held that Michael Sr. met his burden
of proving that a substantial change in circumstances justified a
modification  of  custody.   The court  cited  three  changes  in
circumstance that occurred since the previous custody  order  was
entered.  First, Michael Sr. obtained primary physical custody of
Michael  Jr. and Candace.6  Second, Michael Sr. changed his  work
schedule and location so that he could work half days out of  his
home,  allowing him to spend more time with his children.  Third,
Michael   Sr.  participated  in  anger  management  and   alcohol
treatment programs.7
          Valerie does not dispute the courts findings of changes
in  circumstances,  and we find no abuse  of  discretion  by  the
court.
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Determining that Placement of the Children  with  Their
          Father Would Be in Their Best Interests.
          The   superior  court  determines  the  childrens  best
interests   by  considering  and  weighing  the  statutory   best
interests  factors  set  forth in AS 25.24.150(c)(1)-(9).   These
factors include:
          (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  willingness  and  ability  of  each
          parent  to facilitate and encourage  a  close
          and continuing relationship between the other
          parent  and the child, except that the  court
          may not consider this willingness and ability
          if one parent shows that the other parent has
          sexually  assaulted  or engaged  in  domestic
          violence  against the parent or a child,  and
          that a continuing relationship with the other
          parent will endanger the health or safety  of
          either the parent or the child;
          (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.
          
          We  have  held that the superior court need not address
each  factor  individually, but that  it  must  provide  a  clear
indication  of the factors it considered  important in exercising
its  discretion.8   Here  the superior  court  provided  a  brief
analysis  of  each  factor.   The court  acknowledged  that  both
parents  desired  to  and were capable of meeting  the  physical,
emotional,  mental, religious, and social needs of the  children;
both  parents had loving and affectionate relationships with  the
children; both parents could provide stable homes and would  face
similar  challenges  as  single parents  of  four  children;  and
neither  parent was unfit on the basis of violence  or  substance
abuse.   Nonetheless  the court concluded  that  on  balance  the
statutory factors slightly favor Michael Sr.:
          The   primary  reason  [that  the   statutory
          factors  favor  Michael Sr.]  is  his  having
          custody of Candace and Michael.  Gabriel  and
          [Audrey] would rarely see Candace and Michael
          if  divided  custody continues.   This  would
          substantially  impair if  not  destroy  their
          sibling  relationships.  That  immediate  and
          likely   concern   outweighs   the   possible
          detrimental  impacts on Gabriel and  [Audrey]
          of   moving  from  their  mothers  home   and
          returning to Craig and the possibility of the
          older [two] siblings being bad influences  on
          them.
          Because  the  court  found that  sibling  relationships
tipped  the balance in favor of Michael Sr., it modified  custody
to award him physical custody of all four children.
          1.   The  superior court did not err by emphasizing the
               desirability of keeping the siblings together.
          Valerie first contends that the superior court erred by
placing too much emphasis on the desirability of keeping all four
children  together.   In  considering the  custody  placement  of
siblings,   we   have   adopted  a  flexible,  case-determinative
approach.   The  question of whether or not it  is  necessary  to
separate children must depend upon the facts and circumstances of
each  particular  case.9   While  we  have  often  embraced   the
proposition that it is desirable to not separate siblings,10  our
concern  for  maintaining  sibling  relationships  has  not  been
          transformed into a rigid rule to govern all situations.11  Rather,
we  accord superior court judges the necessary discretion to best
respond  to  the myriad of factual settings which will invariably
arise  in custody matters, at all times cognizant that it is  the
best interests of the child which is the paramount consideration.12
          Valerie  challenges  the courts factual  finding  of  a
close  relationship  among  the  children.   She  maintains  that
Michael  Sr.  failed  to produce sufficient  evidence  of  strong
sibling  relationships among the four children.  Yet she concedes
that Michael Sr. introduced evidence that Michael Jr. has a close
relationship with Audrey and Gabriel, that he misses them, and he
would like to see them again.  She also acknowledges that Michael
Sr.  testified that Gabriel was in tears after the first  custody
modification and told his father that he wanted to  come  and  be
with his big brother.
          Valerie   additionally  maintains  that  the   evidence
suggests  that the older children were not strongly  bonded  with
their younger siblings.  She offers no support for this argument,
however,  other  than  her belief that [i]f  sibling  bonds  were
strong,  Michael  [] Jr. and Candace would not  have  left  their
younger  siblings  and  move[d] to  Alaska.   But  this  argument
neglects  to consider the reasons that the older children  sought
to escape their mothers custody and the relative powerlessness of
the  younger  children;  in short, it fails  to  prove  that  the
relationship among the siblings was weak.
          Valerie  suggests that strong bonds between  the  older
and  younger children are not likely because of the gap in  their
ages.  This point is speculative at best.  Valerie introduces  no
evidence  to  support her conclusion, other than her  own  belief
that children of the same age group have more in common with each
other than . . . children of another age group, and that [i]t  is
questionable  how much time teenagers would want  to  spend  with
younger   children.   We  cannot  agree  that   age   differences
necessarily preclude a close sibling bond, particularly given the
specific evidence that Michael Jr. wanted to spend time with  his
younger  siblings and that Gabriel wished to be  with  his  older
siblings.
          Valerie  asserts that Gabriel and Audrey would  benefit
from  being  separated from Michael Jr. and Candace  because  the
older  children had a bad attitude . . . [which] caused  the  two
younger  children to act out and not listen.  The superior  court
noted,  however, that [t]he record reflects . . .  that  Michaels
attitude  and conduct has improved markedly since he has  resided
with  Dr.  Melendrez  and the record does not  reflect  that  Dr.
Melendrez  has had any disciplinary problems with  Candace.   The
record  shows  that  the  two  older  children  had  a  difficult
relationship  with their mother, not with their father.   Valerie
offers  no  evidence to prove that the courts  findings  in  this
regard are clearly erroneous.
          Finally,  Valerie  suggests  that  the  superior  court
should have waited to see how Candace and Michael Jr. adjusted to
life  in  Craig before modifying custody for Gabriel and  Audrey.
She argues that it is conceivable that Candace or Michael Jr. may
choose  to  return to California and their friends,  school,  and
          extended family.  She also suggests that if Michael Jr. attends
college, the children will be together for only a short period of
time.   She  states, The court should have considered  that  this
likely  reality weighed against severing the young children  from
their  established  household with  their  mother.   While  these
arguments  may  be  persuasive  to  some  degree,  she  has   not
demonstrated that the court failed to consider them, or that  the
court abused its discretion in its final ruling.
          The   superior  court  weighed  the  value  of  sibling
relationships against other relevant factors in its discussion of
AS  25.24.150(c)(1)-(2) (the desire and capability of each parent
to  meet  the physical, emotional, mental, religious, and  social
needs of the children).  The court found that, while Valerie  was
marginally  better able to meet Audrey and Gabriels social  needs
in  the  sense  that  their current friends,  school,  and  their
extended  family  are where she resides, Audrey and  Gabriel  had
resided in that location only for three years.  Outweighing  that
factor, the court found, was that Michael Sr. was better able  to
meet the childrens emotional needs because he has custody of  the
older  brother and sister.  The superior court noted, The  record
reflects  that Gabriel and Audrey have a close relationship  with
Michael  and at least a normal sibling relationship with Candace.
While  Valerie clearly disagrees with the courts conclusion about
the  value of maintaining strong relationships among Michael Jr.,
Candace,  Audrey, and Gabriel, she has not demonstrated that  the
courts factual findings were clearly erroneous, or that the court
abused its discretion by considering sibling bonds in making  its
custody determination.
          2.   The court did not fail to accord proper weight  to
               continuity and stability.
          Valerie  argues  that  the  superior  court  erred   in
emphasizing  sibling bonds over continuity  and  stability.   She
claims  that the court did not adequately consider the importance
of  a  continuous  and stable home environment,  which  would  be
interrupted  if  the  younger children were  removed  from  their
primary care-giver, as well as their established friends, school,
home,  and  extended  family.  In support of this  argument,  she
observes  that Gabriel and Audrey were too young when  they  left
Craig to have any memory of or attachment to the Craig home.
           Alaska  Statute 25.24.150(c)(5) requires the  superior
court  to  consider the length of time the child has lived  in  a
stable,   satisfactory  environment  and  the   desirability   of
maintaining continuity in determining the childs best  interests.
We  have  defined  stability  as often  a  function  of  parental
attitude and not of geography.13  The superior court may properly
broaden  its consideration of the issue of stability to encompass
the  childrens more general needs for stability in their  overall
living environment, and it may evaluate the childrens needs,  not
just  in relation to each parent, but in relation to the totality
of  the  circumstances  they were likely to  encounter  in  their
respective parents homes.14
          The  superior  court in the present  case  acknowledged
that  Valerie   provided  a stable and satisfactory  environment.
The  court  noted that Gabriel and Audrey had lived in California
          with their mother for three years, and if custody were not
modified  they  would  be able to continue  to  attend  the  same
school,  have  the  same friends, and see their extended  family.
Yet,  the  current custody split would preclude them from  seeing
their  older  brother and sister, with whom they had lived  their
entire  lives,  for any significant period of  time.   The  court
admitted  that  this  situation presents a  close  question.   It
concluded  that  the  importance  of  the  sibling  relationships
prevailed   over   other   considerations.    Valerie   has   not
demonstrated  that  this  conclusion  represented  an  abuse   of
discretion.
          Moreover,  in  McQuade we held that the superior  court
may  properly  consider  sibling relationships  as  an  essential
component  of maintaining the emotional continuity and  stability
of the childs home environment.15  In that case we concluded that
the  superior  court  did  not  abuse  its  discretion  when,  in
considering  stability  and continuity,  it  chose  to  emphasize
emotional continuity over geographical continuity.16
          The  McQuade analysis is applicable here.  The superior
court  apparently considered the relationships among the children
to  be  an essential component of emotional stability for  Audrey
and  Gabriel.    It  appropriately balanced multiple  factors  in
considering the best interests of the children, and it determined
that  the need for continuity of sibling relationships outweighed
other  considerations.   Valerie has not  demonstrated  that  the
superior court abused its discretion in this regard.
V.   CONCLUSION
          Because  Valerie  failed  to prove  that  the  superior
courts findings of fact were clearly erroneous, or that the court
abused  its  discretion  in making the custody  modification,  we
AFFIRM the superior courts decision.

_______________________________
     1     AS 25.20.110(a) states: An award of custody of a child
.  .  . may be modified if the court determines that a change  in
circumstances  requires  modification  of  the  award   and   the
modification is in the best interests of the child.

     2     Chesser-Witmer v. Chesser, 117 P.3d 711,  715  (Alaska
2005)  (quoting Hamilton v. Hamilton, 42 P.3d 1107, 1111  (Alaska
2002)).

     3    Id.

     4    Id.

     5     AS  25.20.110(a); Nichols v. Mandelin, 790 P.2d  1367,
1371 (Alaska 1990).

     6     Valerie  concedes that she did not oppose Michael  Jr.
and  Candace going to live with their father.  In a letter to the
court she explained that, after an incident with Michael Jr., she
decided  to  have  their father share in the responsibilities  of
parenthood.  He had . . . been recruiting for custody of  Michael
Jr. and Candace from the beginning of the separation. . . . Since
the  older children were not listening to me thats when I decided
to have them live with their father in Alaska.

     7     In the courts initial order of August 2002 in which it
awarded custody to Valerie, the court found that Michael Sr.  had
anger, impatience, and alcohol problems that adversely impact his
abilities to meet the childrens emotional needs.

     8     Chesser-Witmer,  117  P.3d at 718  (quoting  Smith  v.
Weekley, 73 P.3d 1219, 1225 (Alaska 2003)).

     9    Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973).

     10     Craig  v.  McBride, 639 P.2d 303, 306  (Alaska  1982)
(citing Nichols, 516 P.2d at 736; Rhodes v. Rhodes, 370 P.2d 902,
903 (Alaska 1962)).

     11    Craig, 639 P.2d at 306.

     12    Id.

     13     McQuade  v. McQuade, 901 P.2d 421, 426 (Alaska  1995)
(quoting Craig, 639 P.2d at 308 (Rabinowitz, C.J., concurring)).

     14    McQuade, 901 P.2d at 426 (internal citations omitted).
See also Evans v. Evans, 869 P.2d 478, 482 (Alaska 1994).

     15    901 P.2d at 426.

     16    Id.

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