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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blanton v. Yourkowski (04/11/2008) sp-6249
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
| RENAE BLANTON, | ) |
| ) Supreme Court No. S- 12565 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3HO-05-00227 CI |
| ) | |
| MICHAEL YOURKOWSKI, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6249 - April 11, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Donald D. Hopwood, Judge.
Appearances: Renae Blanton, pro se,
Anchorage. Michael Gershel, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating]
CARPENETI, Justice.
I. INTRODUCTION
Following a custody trial, the superior court awarded
custody of the parties three-year-old daughter to her father.
Because the courts finding that the father was more likely than
the mother to offer a loving relationship between the child and
the other parent was not clearly erroneous, and because the court
did not abuse its discretion in considering each parents
capability to care for the child and in assessing the stability
offered by each parent, we affirm the superior courts custody
decision.
II. FACTS AND PROCEEDINGS
A. Facts
Michael Yourkowski and Renae Blanton began living
together in Homer in April 2002. Their daughter Ella was born on
June 22, 2003. The couple married in September 2003 but
separated two years later. Upon separation, the parties were
unable to reach a formal agreement on a custody schedule for
Ella. At first, Ella spent two nights of each week with Michael
and five nights of each week with Renae. Michael spent a
substantial amount of time with Ella during the day while Renae
was working. After a short period, Renae agreed that Michael
could have one more night of custody every other week;
accordingly, Michael had three overnights one week and two the
next week. For most of the time after separation, the parties
had approximately equal time with Ella during the childs waking
hours.
B. Proceedings
In October 2005, unhappy with the custody arrangement,
Michael filed a complaint for divorce and joint custody of Ella.
Renae responded by seeking sole legal and primary physical
custody of the child.
Renae obtained permission from the trial court in April
2006 to relocate to Anchorage in order to pursue her nurse
practitioner career. In June 2006 the superior court entered an
interim custody order providing for shared custody while Renae
was in Anchorage. Specifically, the court ordered that [d]uring
alternate weeks, the child shall be with plaintiff Michael
Yourkowski from Sunday at 10:00 a.m. to Friday at 10:00 a.m. and
[d]uring the remaining period of each two-week cycle, the child
shall be with defendant Renae Blanton. The order also provided
that [d]uring the time that the child is with Renae . . . ,
Michael . . . shall be entitled to reasonable, non-overnight
visitation with the child whenever he travels to Anchorage. This
shall include the right to care for the child while Renae . . .
is at work. Thereafter, Michael made numerous trips to Anchorage
for extra visitation. The reasonable visitation provision in the
order caused disagreement between Renae and Michael. Michael
alleges that Renae interfered with his efforts to spend time with
Ella every time he came to Anchorage. Renae responds that
Michael abused his privilege of visitation by making it a point
of being in Anchorage every week that Ella was with Renae in
order to bully Renae into agreeing to a week on week off
schedule. Upon motion from Michael, the trial court held Renae
in contempt of court because she violated the interim order by
willfully, without justification, denying Yourkowski visitation
while she was working.
The matter came to trial over three days in August-
September 2006 before Superior Court Judge Donald H. Hopwood.
Judge Hopwood concluded that the distinguishing considerations
for the parents are the ability and willingness of each of them
to foster a good relationship between Ella and the other parent,
the ability of the parents to meet Ellas needs, and the need for
continuity.
As to the first distinguishing factor the ability and
willingness to foster a good relationship between the child and
the other parent Judge Hopwood found:
The parents differ in their willingness and
ability to facilitate and encourage . . . a
close and continuing relationship between the
child and the other parent. Mr. Yourkowski
is willing to do that, and has demonstrated
it . . . . On the other hand, as described
above, Ms. Blanton is consistently unwilling
to foster a good relationship between the
father and the child, and does so by
attempting to limit his time with the child
and frustrating his efforts to see the child.
. . . [H]er ability to facilitate a good
relationship between Mr. Yourkowski and Ella
is impaired. It is much less than that of
the father, and is likely to continue for a
long period of time.
As to the second distinguishing factor the ability to
meet Ellas needs the court found that Michael would be able to
take care of Ella most of the time, rather than relying on
babysitters, while Renae would have to utilize childcare more
often.
As to the third factor the need for continuity the
court pointed to Michaels long residence in Homer and the social
network and supportive friends that surrounded him and Ella
there.
Based on these findings, the superior court granted
primary physical custody and sole legal custody to Michael.
Renae appeals.
III. STANDARD OF REVIEW
The superior court has broad discretion in determining
child custody, and its determination will not be set aside unless
the record shows that its controlling findings of fact are
clearly erroneous or that the court abused its discretion.1 A
finding of fact is clearly erroneous when a review of the record
leaves us with a definite and firm conviction that a mistake has
been made.2 An abuse of discretion has occurred if the superior
court considered improper factors in determining custody, failed
to consider statutorily mandated factors, or assigned
disproportionate weight to certain factors while ignoring others.3
IV. DISCUSSION
On appeal Renae makes three arguments: (1) the trial
courts finding that Renae would be less likely to foster a loving
relationship between Ella and Michael was clearly erroneous; (2)
the trial court abused its discretion by considering improper
factors regarding each parents capability to care for Ella; and
(3) the trial court abused its discretion in its assessment of
the continuity of care factor.
A. The Superior Courts Finding that Renae Was Unable To
Cooperate and Foster a Loving Relationship Between Ella and
Michael Was Not Clearly Erroneous.
The superior court must determine custody in accordance
with the best interests of the child by considering the factors
set out in AS 25.24.150(c). These factors include the
willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the other
parent and the child.4 In Silvan v. Alcina5 we explained the
increased significance of this factor when the parents live in
different cities: It is essential to have a custodial parent
willing to foster an open relationship with the other parent when
a great distance separates the children from the non-custodial
parent, and it is reasonable for the superior court to place
enhanced importance on this factor when making its decision.6
The superior court concluded that Renae is consistently
unwilling to foster a good relationship between the father and
the child, and does so by attempting to limit his time with the
child and frustrating his efforts to see the child. Part of the
basis for this conclusion was the courts finding that Ms. Blanton
has exhibited resistance to Mr. Yourkowskis visitation with the
child, particularly when he attempted to visit with Ella after
Ms. Blanton moved to Anchorage. Renae challenges this finding as
clearly erroneous.
The superior court found that Renae resisted Michaels
attempts to have visitation with Ella in Anchorage. The conflict
as to visitation in Anchorage resulted from the parties different
interpretations of part of the interim custody order. The
interim order provided that [d]uring the time that the child is
with Renae Blanton, Michael Yourkowski shall be entitled to
reasonable, non-overnight visitation with the child whenever he
travels to Anchorage. This shall include the right to care for
the child while Renae Blanton is at work. Renae argues that a
reasonable interpretation of the order would provide that, should
Michael happen to be in Anchorage for some other reason, he
should be allowed to visit with Ella. Renae alleges that Michael
inappropriately took advantage of ambiguity in the courts interim
order to travel to Anchorage every week solely for the purposes
of visitation.
Michael admits that he visited Anchorage every week in
order to spend time with Ella while Renae was at work. However,
Michael is correct that his visits were permissible under the
language of the order. The order unambiguously stated that
Michael could have daytime visitation whenever he traveled to
Anchorage, including while Renae Blanton is at work. Michaels
visits, although frequent (and possibly disruptive of Ellas daily
routine), were within the language of the order. Importantly,
the visits are also indicative of a desire to be present in Ellas
life.
Renae decided, upon the advice of her attorney, to not
facilitate Michaels attempts to be with Ella even though Michael
provided advance notice every time he came to Anchorage. Renae
failed to meet Michael at Home Depot, the planned transfer
location, numerous times when he requested daytime visitation.
Renae also refused to allow Michael to take Ella from daycare
even though Michael sought daytime visitation. Although it is
possible that Renaes lack of cooperation was situational as she
alleges, she presents no evidence that she ever actually did
cooperate when Michael sought visitation in Anchorage. To the
contrary, Renae acted as an impediment to Michaels attempts to
spend time with Ella and thereby refused to foster a good
relationship between Michael and Ella. Renaes argument fails to
leave us with a definite and firm conviction that the superior
court made a mistake when it found that Renae exhibited
resistance to Michaels visitation. Thus, the courts finding was
not clearly erroneous.
B. The Superior Court Properly Considered Each Parents
Relative Capability To Care for the Child.
The superior court may also consider, in determining
custody in the best interests of the child, the physical,
emotional, mental, religious, and social needs of the child as
well as the capability and desire of each parent to meet these
needs.7
Renae argues that the superior court erred by
considering each partys work schedule in making its custody
determination. For the proposition that parental work schedules
may not be considered, she relies on several cases from outside
Alaska and on our opinion in West v. West.8 In West, we
considered a superior court custody determination that was based
on a finding that a two-parent household was better for the child
than a single working-parent household.9 We held that custody
awards may not be based on the assumption that a divorced parent
who remarries can provide a better home than an otherwise equally
competent parent who remains single.10 Importantly, we did not
hold that a parents work schedule could never be considered.
Rather, we merely concluded that a custody decision cannot be
based on the assumption that a two-parent household is invariably
better than a single-parent household.11 Indeed the effect of a
parents work schedule on the parents capability to care for a
child is regularly considered in custody cases.12 Thus, in Meier
v. Cloud,13 we affirmed the superior courts custody award to a
parent based on a finding that the parent would be available to
personally care for [the child] on a full-time basis.14 The
necessary inquiry requires an examination of case-specific
evidence of each parents capability to care for the child.15
Here, the superior court considered case-specific
evidence revealing that Michael was more able to meet Ellas
daily needs. The court concluded that custody with Michael was
in Ellas best interest because Michael had more time to be with
Ella as well as an excellent social network and supportive
friends who take great interest in the child . . . and will
assist . . . whenever necessary. In discussing the relative
capability of the parents to meet Ellas needs, the superior court
emphasized that Renae has less time available to spend with Ella,
than Michael. The court then added that Renaes potential move to
Texas could mean disruption, new social contacts, new employment,
more time and energy necessary for a job and new living
circumstances, and less time and energy for the child.
This discussion does not improperly focus on Renaes
status as a working parent. Rather, it provides case-specific
evidence of why it may be in Ellas best interest to be with
Michael. Because the superior court considered the specific
context of each parents capability to care for Ella, the court
did not abuse its discretion.
C. The Superior Court Properly Applied the Continuity
Factor by Addressing Both Geographic Continuity and
Emotional Continuity.
Alaska Statute 25.24.150(c)(5) requires the court in a
child custody case to consider the length of time the child has
lived in a stable, satisfactory environment and the desirability
of maintaining continuity. The continuity factor has two
components: maintaining geographic continuity and maximizing
relational stability.16 We have held that this factor does not
automatically give a custodial preference to the primary care
giver.17
1. The superior court did not err by failing to find
a preference for the primary care giver.
Renae argues that the superior court abused its
discretion by failing to find that she was Ellas primary care
giver and by failing to consider that factor in its decision.
However, we have concluded in various cases that there is no
custodial preference for the primary care giver in Alaska.18
Nonetheless, the primary care giver inquiry may be relevant to
the extent that it affects the determination of the childs
stable, satisfactory environment and the desirability of
maintaining continuity.19 The superior court made no
explicit finding that Renae was the primary care giver, although
it did recognize that she had been the primary custodian during
the post-separation period. The court found that [f]or most of
the time since their separation, the parties have had
approximately equal time with Ella during the childs waking hours
. . . . Ms. Blanton has had more overnights with the child, but
the parties have had nearly equal waking time. While it is true
that Ella lived with Renae after the parties separated, Michael
was still a constant presence in Ellas life due to his frequent
visits to Anchorage. Thus, even if Alaska had a primary care
giver presumption for custody determinations, it is not certain
that Renae would be considered the primary care giver. For these
reasons, the superior court did not abuse its discretion by not
granting a preference to Renae as primary care giver.
2. The superior court adequately addressed the factor
of emotional stability.
The continuity factor includes both emotional stability
and geographic stability.20 Renae argues that the superior court
abused its discretion by providing undue focus on the geographic
stability of each parent, and thereby improperly gave a
preference to the non-moving parent.
In various cases we have emphasized the importance of
emotional stability in addition to geographic stability. In
Meier we described the appropriate continuity analysis when a
moving parent seeks custody:
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.[21]
In McQuade v. McQuade22 we concluded that the superior court did
not abuse its discretion by awarding custody to the parent who
planned to move because the record shows that the superior court
considered the factors of stability and continuity and, in light
of the particular facts of this case, chose to emphasize
emotional continuity over geographic continuity.23 Finally, in
Moeller-Prokosch v. Prokosch24 we reasoned that the trial court
must engage in a symmetric consideration of the consequences to
[the child] both if [the mother] leaves with him and if she
leaves without him.25 In other cases we have
affirmed superior court decisions that concluded it was in a
childs best interest to remain with the non-moving parent. For
example, in Rooney v. Rooney26 we held that the superior court did
not abuse its discretion by granting custody to the non-moving
parent because such a determination was appropriate based on
continuity.27 One important factor we considered in upholding the
superior courts decision in Rooney to grant custody to the non-
moving parent was the quality of the childs support network where
he lived.28 Also, in Barrett v. Alguire29 we upheld a custody
modification that granted custody to a non-moving parent in order
to maintain stability of the childrens environment.30
In the present case the superior court considered both
geographic stability and emotional stability and engaged in a
symmetric consideration of the consequences to Ella under each
placement alternative. Under the geographic stability prong, the
court found that placing Ella with Michael would be appropriate
because of Michaels continuous presence in the supportive
environment of Homer, compared with Renaes move to Anchorage and
potential move to Texas. The superior court did not provide an
automatic preference to Michael as the non-moving parent.
Rather, the court explicitly recognized that [m]oves of residence
do not, alone, mean that the parent is less capable of caring for
the child, and addressed important additional facts under the
emotional stability prong. The court reasoned that Michael had
more time to be present in Ellas life, that Renae was less
capable of providing continuous care because she had less time
and energy for the child, and that Michael had a supportive
social network in Homer who would assist him in raising Ella.
These facts indicate that being with Michael may provide Ella
with not only geographic continuity, but also superior emotional
stability because Michaels living arrangements are settled, and
he is part of a community that will be supportive of Ella.
Because the superior court adequately addressed both elements of
the continuity test and came to a reasonable result in light of
the facts, it did not abuse its discretion.31
V. CONCLUSION
Because (1) the superior courts finding that Michael
was more willing to foster a loving relationship between Ella and
her mother was not clearly erroneous, (2) the court did not abuse
its discretion in assessing each parents capability to meet the
childs needs, and (3) the court did not abuse its discretion in
assessing the continuity factor, we AFFIRM the superior courts
custody decision.
_______________________________
1 Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997).
2 Id.
3 Id.
4 AS 25.24.150(c)(6).
5 105 P.3d 117 (Alaska 2005).
6 Id. at 121.
7 AS 25.24.150(c)(1) and (2).
8 21 P.3d 838 (Alaska 2001).
9 Id.
10 Id. at 839.
11 Id.
12 See, e.g., Jenkins v. Handel, 10 P.3d 586, 591-92
(Alaska 2000) (discussing effect of mothers work schedule on her
availability to care for her children in custody modification
case).
13 34 P.3d 1274 (Alaska 2001).
14 Id. at 1279.
15 West, 21 P.3d at 843.
16 Meier, 34 P.3d at 1279.
17 Elliott v. Settje, 27 P.3d 317, 320 (Alaska 2001)
(citing Evans v. Evans, 869 P.2d 478, 483 n.4 (Alaska 1994);
I.J.D. v. D.R.D., 961 P.2d 425, 430 (Alaska 1998); McDanold v.
McDanold, 718 P.2d 467, 470 n.4 (Alaska 1986)). But see Veselsky
v. Veselsky, 113 P.3d 629, 635 (Alaska 2005) (reasoning that
under the stability factor, courts should consider social and
emotional factors such as who the primary care giver is).
18 See, e.g., Elliott, 27 P.3d at 320 (reasoning that the
continuity factor does not automatically give a custodial
preference to the primary care giver).
19 See AS 25.24.150(c)(5); Veselsky, 113 P.3d at 635.
20 Meier, 34 P.3d at 1279.
21 Id. at 1279 (quoting McQuade v. McQuade, 901 P.2d 421,
426 (Alaska 1995)).
22 901 P.2d 421.
23 Id. at 426.
24 99 P.3d 531 (Alaska 2004).
25 Id. at 536.
26 914 P.2d 212 (Alaska 1996).
27 Id. at 217.
28 Id. (explaining at least two important people in [the
child]s past support network will remain with him in Wrangell).
29 35 P.3d 1 (Alaska 2001).
30 Id. at 9.
31 Although awarding custody to Renae based on her strong
emotional bond with Ella may have also been a reasonable result,
we cannot substitute our judgment for that of the superior court.
McDanold v. McDanold, 718 P.2d 467, 470-71 (Alaska 1986)
(explaining [i]n a case as close as this one, the trial court
must be given some latitude in making a decision).
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