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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

Blanton v. Yourkowski (04/11/2008) sp-6249, 180 P3d 948

     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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