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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McLane v. Paul (08/01/2008) sp-6295

McLane v. Paul (08/01/2008) sp-6295, 189 P3d 1039

     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

SHARON A. McLANE, )
) Supreme Court No. S- 12872
Appellant, )
) Superior Court No. 4FA-06-01594 CI
v. )
) O P I N I O N
CHAD B. PAUL, )
) No. 6295 August 1, 2008
Appellee. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Randy M. Olsen, Judge.

          Appearances:  Jason  A. Weiner,  Terrance  W.
          Hall    and   Associates,   Fairbanks,    for
          Appellant.  Margaret OToole Rogers, Foster  &
          Rogers, LLC, Fairbanks, for Appellee.

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

          FABE, Chief Justice.
          CARPENETI,  Justice,  dissenting,  with  whom
          WINFREE, Justice, joins in Part IV(C).

I.   INTRODUCTION
          When Chad Paul and Sharon McLane divorced in 2006, they
entered  into  a  court-approved  settlement  agreement  granting
Sharon  physical  custody of their six-year-old  daughter  Alexis
during  the  school year in Alaska and Chad summer visitation  in
Illinois.   While Alexis was with Chad for the summer visitation,
Chad   suggested  to  Sharon  that  they  reverse  their  custody
arrangement.  The parties discussed this possibility through  the
end  of  the  summer, but Sharon refused to formalize  a  custody
change  and insisted that Alexis be returned to her.   Chad  then
filed  a  motion for modification of custody and Sharon  filed  a
motion for enforcement of the settlement agreement.  The superior
court granted Chads motion for modification, awarding him school-
year  custody  and  granting  Sharon summer  visitation.   Sharon
appeals.    Because   a  modification  of  custody   requires   a
substantial  change in circumstances, and because no  substantial
change  of  circumstances was demonstrated here, we  reverse  the
modification of custody awarding Chad custody during  the  school
year.
II.  FACTS AND PROCEEDINGS
          Chad  Paul  and Sharon McLane were married on  February
14,  1999 and divorced on June 20, 2006.  Their daughter,  Alexis
Rose,  was  born  on November 13, 2000.  Before the  divorce  was
final,  Chad and Sharon signed a settlement agreement drafted  by
Sharons  counsel.   Among other things, the settlement  agreement
divided  the  marital property and provided for spousal  support.
The  settlement  agreement  also incorporated  a  parenting  plan
through  which  the  parties agreed to  share  legal  custody  of
Alexis, providing Sharon with primary physical custody and giving
Chad scheduled summer and holiday visitation.  The parenting plan
was drafted by Chad without the aid of legal representation.
          The   settlement   agreement  required   that   custody
modifications would be in writing, signed by both parties, or  by
court  order.  The parenting plan allowed flexibility for special
events,  changes  in  circumstances and to  adjust  to  Alexis[s]
schedule  if  both parties agreed, but provided that the  parties
agreement remained in effect when the parties did not agree to  a
change.
          Shortly after he signed the settlement agreement,  Chad
moved  to  Illinois.  The parties had anticipated this  move  and
included  provisions in the settlement agreement that would  take
effect when Chad and Sharon lived in different communities.   The
settlement  agreement and parenting plan were  incorporated  into
the  divorce  decree  on  June 20,  2006.   In  early  2007  Chad
remarried;  his new wife had two young children from  a  previous
relationship.
          In  June  2007, while Alexis was with Chad in  Illinois
for summer visitation, Chad suggested to Sharon that they reverse
their agreement to give Chad school-year custody.  Discussions on
this topic took place throughout the summer.  In late July Sharon
sent  Chad $2,000 that she described as child support for Alexis,
along with some school clothes.  Chad drafted a revised parenting
plan  to reverse the custody arrangement and mailed it to Sharon.
But Sharon never signed the paperwork modifying custody.
          On  August  20,  2007, Alexis started  first  grade  in
Illinois.  Two days later, Sharon called Alexis to ask how school
was  going.  According to Sharon, Alexis said she wanted to  come
back to Alaska.  Sharon then heard Chad talking to Alexis in  the
background, and Alexis told her mother, I got to go, Daddys  mad.
Sharon  concluded that Chad had been monitoring her  phone  calls
with  Alexis, thwarting Alexiss attempts to tell Sharon that  she
wanted  to  return to Alaska.  Soon afterward, Sharon  told  Chad
that  she  would not agree to modify the custody arrangement  and
insisted Alexis be returned to Alaska.
          Chad  filed  a motion to modify custody on  August  27,
arguing  that the alleged informal agreement to allow  Alexis  to
remain   in   Illinois  constituted  a  substantial   change   of
circumstances.   Chad  offered  his  e-mail  correspondence  with
Sharon as proof of the alleged informal agreement.  The same day,
Sharon  filed a motion to enforce the existing custody  agreement
and  to  return Alexis to Alaska.  She argued that Alexis  should
have  been  returned on July 29, and that despite her willingness
to  consider  a  different arrangement,  the  existing  agreement
remained in effect because no modification had been agreed to  in
writing, as the settlement agreement required.  In her opposition
to  Chads  motion for modification of custody, she also contended
that her e-mails with Chad were protected settlement negotiations
and inadmissible under Alaska Rule of Evidence 408.
          The  motions were considered on an expedited basis, and
on  August  29 the superior court held a hearing at which  Sharon
and  Chad  were  the only witnesses.  After a short  recess,  the
superior  court issued its decision from the bench, finding  that
Sharon  and Chad had agreed that Alexis would remain in  Illinois
for  the school year, although the agreement had not been  placed
in writing or formalized and Sharon had later changed her mind.
          The   superior   court  then  analyzed   Alexiss   best
interests,  concluding that the parties were even-steven  on  the
factors  listed in the statute and that they were equally capable
and  loving parents.  It nonetheless granted the modification  of
custody in Chads favor, stating:
          I believe and I find that a decision was made
          for  Alexis  to stay and that Sharon  thought
          differently and changed her mind late.   Now,
          thats usually what a writing is for.  Its  so
          that people actually have a written signature
          that helps them realize, this is the point of
          no return. . . .
          
          In  this  case,  though, I believe  that  the
          point  of  not returning  the decision  point
          was  reached earlier and that was when Alexis
          was  not returned[,] when school clothes were
          sent,  money was sent, and that the  decision
          was made.
          
          And  based  upon this finding . . .  and  the
          childs expectations at this point . . . it is
          appropriate to modify the custody .  .  .  so
          that  Alexis  stays with Mr.  Paul  for  this
          school  year  with  the  visitation  as   the
          parties have agreed.
          
          The   superior  court  went  on  to  clarify  that  the
modification was temporary, ruling that Alexis was to  stay  with
Chad  for  this school year but that future custody was  open  to
discussion:  [I]t is appropriate to modify the custody . .  .  so
that Alexis stays with Mr. Paul for this school year . . . .  The
parties   need  to  discuss  the  future  with  either  a   child
development  counselor  [or] school counselors  .  .  .  .   When
Sharons  counsel  asked whether there could be a modification  of
custody  at  the  end of the year, the superior court  responded:
Yeah, and I hope the parties can sort [it] out by agreement,  but
well  do  it by a motion, if not, . . . this is for one  for  the
next year or for the school year.  And in response to whether the
modification  of  custody  switched the  prior  arrangement,  the
superior court responded, Yes.  But based upon the testimony, the
parties  were going to see how it went and then theyll reconsider
what  theyre  going to do.  The parties agree that  the  superior
courts modification of custody was to last only through the 2007-
2008  school  year, and during oral argument before  this  court,
they noted the superior courts recent sua sponte appointment of a
child  custody investigator to re-evaluate custody at the end  of
this temporary period.
          Sharon  filed a motion for reconsideration on September
10, in which she raised a number of arguments, including (1) that
there  was  no  written  agreement  to  change  custody  as   the
settlement agreement required; (2) that there had been no  change
in   circumstances  to  support  a  modification;  (3)  that  the
settlement  agreement should have been enforced; and (4)  that  a
custody  investigator  should have been  appointed.   Three  days
later,  the superior court denied the motion for reconsideration.
Sharon appeals the custody modification in favor of Chad.
III. STANDARD OF REVIEW
          We  review  a  trial courts child custody  modification
decision  deferentially, reversing the  decision  only  when  the
lower  court  abused  its  discretion  or  when  its  controlling
findings of fact were clearly erroneous.1  Abuse of discretion is
established  if  the lower court considered improper  factors  in
making  its custody determination, failed to consider statutorily
mandated   factors,  or  assigned  disproportionate   weight   to
particular  factors while ignoring others.2  We conclude  that  a
finding  of  fact  is clearly erroneous if, after  reviewing  the
record  as  a  whole,  we  are left  with  a  definite  and  firm
conviction that a mistake has been made.3
IV.  DISCUSSION
     A.   The  Superior  Court Erred in Granting  the  Motion  To
          Modify  Custody  Because There Had Been No  Substantial
          Change in Circumstances.
          
          Under  AS  25.20.110(a), an award  of  custody  may  be
modified  if  the  court  determines a  change  in  circumstances
requires  the modification . . . and the modification is  in  the
best interests of the child.  The movant must prove a substantial
change in circumstances as a threshold matter.4  We require  this
showing  to  maintain continuity of care and to avoid  disturbing
and  upsetting the child with repeated custody changes.5  We have
cautioned  that [c]hildren should not be shuttled back and  forth
between divorced parents unless there are important circumstances
justifying such change.6
          Here,  the  superior court concluded that the  informal
agreement  between  Chad  and Sharon  constituted  a  substantial
          change in circumstances and that modifying custody would serve
Alexiss  best  interests.  Sharon agrees that she  and  Chad  had
discussed and experimented with the possibility of changing their
custody arrangement but she maintains that no agreement was  ever
finalized  and that the experimental arrangement lasted  no  more
than   three  weeks.7   Therefore,  she  argues,  the   requisite
substantial change in circumstances was not established.
          In  Morino  v. Swayman, we recognized that  [c]ustodial
parents  should  have  the flexibility  to  experiment  with  new
visitation schedules without fearing that every temporary  change
could be the basis for modifying visitation.8  We concluded  that
a  change  lasting  ten months could warrant  a  modification  in
visitation,9  but expressly noted that [o]f course,  experimental
changes lasting only a few months should not qualify as a  change
in  circumstances.10  We warned that if temporary  variations  in
visitation schedules always constituted a substantial  change  in
circumstances,  primary  custodians  would  be  discouraged  from
allowing any favorable deviation from the visitation order.11  It
is  important to allow parents leeway to cooperate and experiment
with custody.  Characterizing a short-term temporary and informal
custody  arrangement  as  a substantial change  in  circumstances
could  discourage parents from being generous with each other  in
custody  matters and, to that extent, run[] counter to the  goals
of  Alaskas  family  law  and the needs of  Alaskas  children  of
divorce.12
          In  this  case,  it  is undisputed  that  the  informal
arrangement lasted only approximately three weeks.13  In  Morino,
we emphasized that the change in circumstances required to modify
visitation . . . is not as great as that required for a change in
custody.14  Here, modification of primary physical custody is  at
issue,  setting  an  even  higher  bar  to  prove  a  change   in
circumstances.
          Chad  concedes that the duration of the change was  not
lengthy,  but he claims the distinguishing factor is  that  there
was  an  actual  agreement to modify custody  here.   The  record
nonetheless  indicates that the informal agreement was  not  only
short-lived  but  experimental.   As  Chad  testified,   we   had
discussed  that we were going to have her go to school  here  for
the  year [in] Illinois, then we would readdress it next year  to
see  how she was doing and wed rediscuss custody next year  also,
see  what  was in her best interest.  Sharon confirmed that  Chad
had agreed several times that we would see how it went; you know,
we could see how it goes.  And the superior court recognized that
the  parties  were  going  to see how it  went  and  then  theyll
reconsider  what theyre going to do, which impacted its  decision
to  grant  a modification for this school year only and to  leave
future  arrangements  open  for discussion.   Because  temporary,
experimental  arrangements do not constitute substantial  changes
in circumstances sufficient to warrant modifications of custody,15
relying on the parties informal, temporary agreement to establish
a substantial change in circumstances was error.
          Chad argues alternatively that the actions taken by the
parties and not the mere informal agreement were the basis of the
substantial  change  in  circumstances.  And  although  its  oral
          decision focused on the informal agreement, the superior court
included  other elements in its order denying reconsideration  of
its decision to modify custody:
          There  had  been  a change in  circumstances.
          Alexis  had  been  integrated  into  her  new
          family.   She had been advised of the parents
          joint decision that she should remain and  go
          to  school in Illinois.  Her mother had  sent
          her  personal items and clothing  to  support
          and   reflect  that  new  arrangement.    The
          parties  set  this train in  motion,  and  to
          preserve  her  stability Alexis  will  reside
          with Chad and go to school in Illinois.
          
But  none  of these elements constitutes a substantial change  in
circumstances.  First, Alexis was scheduled to spend  the  summer
with  Chad  in  Illinois  under  the  existing  agreement.    Her
integration  into  Chads household was a natural  consequence  of
visitation,  not a substantial change in circumstances,  and  her
return to Alaska at the end of the summer was anticipated by  the
custody  arrangement, and did not amount to a disruption  in  her
stability.   Similarly, Alexis had been in school  for  only  two
days before her mother requested her return and only one week  by
the  time  of the hearing.  The superior court found in its  oral
decision  that in light of this short duration, and in  light  of
her young age, her starting the first grade in Illinois was not a
compelling consideration.  The superior court stated:
          The   beginning   of   school   is   not   an
          overwhelming  consideration.  This  is  first
          grade . . . . I mean, it wouldnt  I know that
          school  is  important . . . and  being  there
          with  everybody  else at the start  might  be
          important, but the first grade, I  dont  find
          that  .  . . even a week or two weeks  or  to
          start  late,  one or the other is compelling,
          but  that is not  just because she started  a
          week ago isnt going to be dispositive.
          
Next, the superior court cited the school clothing Sharon sent as
evidence  that  the  parties had an informal  agreement,  but  as
discussed  above,  an  informal, experimental  agreement  with  a
duration  of  a  few weeks is insufficient to warrant  a  custody
modification under our case law.
          Nor  does Alexiss expectation that she would remain  in
Illinois  warrant a modification of custody.  To  rule  otherwise
would  allow  non-custodial parents to manufacture a  substantial
change  in circumstances merely by telling a child that she  will
remain with the non-custodial parent.  Notably, the statute  does
not include consideration of the childs expectations in its best-
interests analysis.16  It does require consideration of the childs
preferences,17  but  the  record does not  indicate  that  Alexis
expressed a preference to stay in Illinois rather than return  to
Alaska.   And  even  had  she expressed such  a  preference,  its
persuasiveness would be limited in light of her  age.18   As  one
          commentator has remarked, involving young children in the process
of  deciding  child custody matters is generally not  appropriate
because  they have neither the emotional and cognitive  maturity,
nor  the  capacity  for  moral reasoning, that  is  essential  to
participation in meaningful dialogue regarding their perspectives
on divorce outcomes and parent behaviors.19
          The  superior courts finding that Chad had  proven  the
requisite  substantial  change  in  circumstances  to  support  a
modification of custody was an abuse of discretion.   Because  we
reverse the modification of custody for this reason, we need  not
reach Sharons other arguments.20
V.   CONCLUSION
          Because  no  substantial change  in  circumstances  was
demonstrated, we REVERSE the superior courts decision and  VACATE
the order modifying custody.  Alexis shall spend summer 2008 with
Sharon.   The  parties shall then revert to the original  custody
arrangement under which Sharon exercises school-year custody  and
Chad is permitted visitation as outlined in the parenting plan.
CARPENETI, Justice, dissenting, with whom WINFREE, Justice, joins
in Part IV(C).
I.   INTRODUCTION
          During  the  summer of 2007 Sharon McLane unequivocally
agreed  with  Chad  Paul to reverse the custody  arrangement  for
their daughter Alexis that Sharon and Paul had put into place the
previous  year.  The parties agreed that instead of returning  to
Sharon in Fairbanks, Alexis should stay with Chad in Illinois and
attend school there.  In recognition of this agreement  which was
expressed both orally and in writing  Sharon wrote eloquently (if
earthily)  of  the  pain it caused her, sent Alexiss  clothes  to
Chad,  prepaid  child support to Chad covering a period  of  five
months, and notified the Child Support Services Division that  it
should  stop  collecting child support  from  Chad.   Alexis  was
notified of the change, as she had to be, given that she was  not
returning to Alaska at the scheduled time but indeed began school
in  Illinois.  Three days after Alexis began school in  Illinois,
Sharon  changed  her  mind.  Because  I  cannot  agree  that  the
superior  court  in Fairbanks abused its discretion  in  deciding
that  there  had  been a substantial change in  circumstances,  I
dissent.
II.  FACTS AND PROCEEDINGS
          Sharon  McLane  and Chad Paul married in  1999.   Their
union  produced Alexis Rose Paul, who was born in 2000.  In  2006
the  parties divorced.  They agreed in a parenting plan that  was
attached  to  their settlement agreement that  they  would  share
legal  custody of Alexis, that Sharon would have primary physical
custody  of  Alexis, and that Chad would have  summer  visitation
from  one week after the end of school to three weeks before  the
beginning  of  school.  Alexiss visitation with Chad  during  the
school year would depend upon his residence.1
          About  the time of the divorce, Chad moved from  Alaska
to  Illinois.  In early 2007 Chad married a woman with two  young
children  of her own.  Pursuant to the parties agreement,  Sharon
sent  Alexis to Illinois for her summer visitation with  Chad  in
May 2007.
          During   the   next  month,  Chad  and   Sharon   began
discussing, through e-mails, the possibility of changing  Alexiss
primary physical custody from Sharon to Chad.  Over the course of
several  weeks, Sharon and Chad considered the pros and  cons  of
changing   their   custody  arrangement.   Sharon   exhibited   a
remarkable  ability to analyze the strengths  and  weaknesses  of
each  parent  and  to  consider what was best  for  Alexis.   For
example,  even  while noting, in a June 14 e-mail to  Chad,  that
[y]ou  and  I  have zero trust for each other, she  was  able  to
recognize  Chads strengths: Alexis loves you.  I never  said  you
werent  a good dad.  I do think her leaving this town may be  for
the best.  But she also saw reasons not to change: I do think she
needs more time with you.  I just dont know if she wont think Ive
abandoned her too.  On July 10 Chad inquired of Sharon:  We  also
need  to  make a final decision on what we are going to  do  with
Lexy.   If I am going to have to register her for school here  it
needs  to be soon . . . .  Let me know what you think so that  if
she  is  staying  we can get the paper work done.   In  response,
          Sharon asked Chad, Have you had a chance to see what Alexis
thinks?  I realize she cannot make the decision, but as you  said
she can either make it work or not.
          During  the following two weeks, Sharon agreed  to  the
custody change.  On July 23 the parties exchanged a series of  e-
mails concerning the paperwork to effect the change.  On July  24
Sharon  corrected  a  number  of  typographical  errors  in   the
paperwork  and requested that her summer visitation extend  until
two  weeks, not three weeks, before school started.  In  response
to  Chads question, Sharon asked that he e-mail the final version
of the paperwork.
          Beyond merely writing her assent, Sharon took unusually
concrete  steps  to verify her agreement that  Alexis  spend  the
upcoming  school  year with Chad.  On July 29 she  notified  Chad
that  she  had  ordered clothes for Alexis for school  that  were
being  sent to her.  As she stated, I got Lexy lots of stuff.   I
feel  guilty and unbelievably lonely without her plus  not  being
there for her  Im sure the shrink will call it guilt buying.  But
even  more  than  sending school clothes to her daughter,  Sharon
also  notified Chad that she was sending him five months of child
support  in  advance and additional money for school registration
and school supplies: I sent [$]2000.00 which is five months child
support  and extra for the registration and some school supplies.
She  in  fact  sent  the money.  She notified the  child  support
agency to stop collecting from Chad.
          Finally, at the end of a string of e-mails on  July  30
discussing  details  of  visitation for upcoming  school  breaks,
Sharon  wrote of the difficulty she was experiencing as a  result
of  having agreed to the custody change: Well, all I can  say  is
that[,] if this is what you went through missing her[,] it  sucks
.  . . .  Completely and totally sucks the big one.  But this  is
the right thing to do  I just dont have to like it.  Go ahead and
mail the packet off.  Ill sign it and well be done.
          The  parties  proceeded to implement  their  agreement.
Chad  mailed the revised agreement to Sharon that she had  agreed
to  and  said she would sign.  Sharon having sent school  clothes
and  money  for  school registration, as well as five  months  of
child  support in advance, Chad registered Alexis  in  school  in
Illinois.  Alexis began school on schedule on August 21.
          Shortly  after Alexis began school, Sharon changed  her
mind.  She notified Chad on August 23 that she wanted him to send
Alexis  back  to  Alaska.  Chad, believing that the  parties  had
agreed  to  modify Alexiss custody so that she would attend  that
school  year in Illinois, declined to withdraw Alexis from school
and send her to Fairbanks.  The parties cooperated in setting the
matter  on  for  an  expedited hearing in the superior  court  in
Fairbanks on August 29.
          Superior Court Judge Randy Olsen conducted the hearing.
Sharon   testified  in  person;  Chad  appeared   and   testified
telephonically.  At the end of the hearing, the court found  that
there  was  an agreement that Alexis was to stay in Illinois  for
the  school year: I am convinced  I am absolutely convinced  that
there  was an agreement that she was to stay for the school year.
Treating  this  agreement as a material change in  circumstances,
the  court went on to consider whether a change in custody  would
be in Alexiss best interests.  After engaging in further colloquy
with both the parties and their counsel, Judge Olsen decided that
she should remain in Illinois for the school year:
               I believe and I find that a decision was
          made  for  Alexis  to stay  and  that  Sharon
          thought  differently  and  changed  her  mind
          late.   Now, thats usually what a writing  is
          for.   Its  so  that people actually  have  a
          written  signature that helps  them  realize,
          this is the point of no return.  This is  the
          decision point.  Thats one reason to  have  a
          written agreement before a person is actually
          bound to an agreement.
               In this case, though, I believe that the
          point  of  no[] return[]  the decision  point
          was  reached earlier and that was when Alexis
          was  not returned[,] when school clothes were
          sent,  money was sent, and that the  decision
          was made.
          
At  the  end of the hearing Judge Olsen clarified that his  order
changing  primary  physical custody to Chad would  last  for  the
current  school year only.  He encouraged the parties  to attempt
to reach agreement for the time after that but noted that custody
would  again be resolved by motion in the event that the  parties
could not reach agreement.
          Sharon appeals.
III. STANDARD OF REVIEW
          The  trial  court has broad discretion  in  determining
child custody issues; resolution of those issues will be reversed
only  if,  after a review of the entire record, we are  convinced
that   the  trial  court  abused  its  discretion  or  that   the
controlling factual findings made by the trial court are  clearly
erroneous. 2  An abuse of discretion may be found only where  the
trial  court  considered improper factors in making  its  custody
determination,  failed to consider statutorily mandated  factors,
or  assigned disproportionate weight to particular factors  while
ignoring  others.3  A factual finding is clearly  erroneous  only
if,  after  viewing the record as a whole, we  are  left  with  a
definite and firm conviction that a mistake has been made.4
IV.  DISCUSSION
     A.   The  Superior Court Did Not Clearly Err in Finding that
          Sharon Had Agreed To the Custody Change.
          
          Judge Olsens factual finding that Sharon had agreed  to
the  change  of custody is unassailable.  Apart from  and  beyond
Chads  testimony  that Sharon had agreed, her  e-mail  statements
lead ineluctably to that conclusion and her actions confirm it.
          As  to  her e-mails, she went from honest consideration
of  the  proposal, to discussion of the specifics, to  confirming
that  Alexis  had  been  consulted about  the  change,  to  final
acceptance.   Her  anguished e-mail of  July  30,  in  which  she
describes the pain of missing her child, leaves no doubt that she
          had made her decision and that, though painful, it was right:
Well,  all I can say is that[,] if this is what you went  through
missing her[,] it sucks . . . .   But this is the right thing  to
do   I  just dont have to like it.  Go ahead and mail the  packet
off.  Ill sign it and well be done.
          But  even  beyond  Sharons  words,  her  actions  speak
volumes.  She bought school clothes for Alexis and sent  them  to
her in Illinois.  She sent money to Chad specifically for Alexiss
school  registration in Illinois.  She sent five months of  child
support  payments to Chad in advance.  She had inquired  to  make
sure that Alexiss input had been obtained before the decision was
made, and so she knew that Alexis had been informed of the change
in  plans  for  the upcoming year.  She allowed Alexis  to  start
school  in  Illinois pursuant to the agreement to change  custody
for  the  year.  In light of these facts, it cannot be said  that
Judge Olsens factual finding that Sharon had agreed to the change
in  custody  is  clearly erroneous.  And, indeed, todays  opinion
does not do so.
     B.   The  Superior Court Did Not Abuse Its Broad  Discretion
          in  Considering Whether To Change Custody Because There
          Had  Been  a  Substantial Change in Circumstances:  The
          Parties Had Agreed To Change Alexiss Custody, They  Had
          Taken  Substantial Steps To Implement  That  Agreement,
          and Alexis Was Aware of the Change.
          
          Todays opinion rests on two formalities that, under the
facts of this case, are inconsequential: (1) Although Sharon  had
undeniably  agreed  to the custody change, had taken  substantial
steps to implement it, had made sure that Alexis was aware of it,
and knew that it was being implemented, Sharon had not signed the
formal agreement changing custody; and (2) although the agreement
covered a one-year period, it had been in effect for less than  a
month   when  Sharon  changed  her  mind.   Given  the  practical
realities  of planning for and implementing a change  in  custody
for  a  school-age child between households located thousands  of
miles  apart,  and  given the realities of the  situation  facing
Judge  Olsen when the expedited case was brought to  him  in  the
second  week of an ongoing school year, these formalities  should
not  be  enough  upon  which  to  base  a  finding  of  abuse  of
discretion.
          That Sharon had not signed the agreement should not  be
dispositive.  She had unequivocally stated her intention to  sign
it ([T]his is the right thing to do  I just dont have to like it.
Go  ahead  and  mail the packet off.  Ill sign  it  and  well  be
done.).   Just  as  importantly, the lack  of  her  signature  is
immaterial  in contract terms.  As the Restatement  of  Contracts
makes  clear, a party can manifest assent by performance as  well
as by signing a contract: the offeree may choose to accept either
by  promising or by rendering the requested performance.5   Judge
Olsen  correctly looked to Sharons remarkable performance  buying
and  sending school clothes to Alexis in Illinois, sending  money
to  pay  for her school registration in Illinois, prepaying  five
months  of child support to Chad, letting Alexis begin school  in
Illinois,  etc.   in concluding that the parties had  passed  the
          point of no return by their actions and that the lack of Sharons
signature should not be dispositive.
          The  court  relies  on general language  in  Morino  v.
Swayman6  as  support for its conclusion that the superior  court
erred  in  finding that Sharons agreement that Alexis  remain  in
Illinois  for  the  school year was not a substantial  change  in
circumstances.   But Morino is entirely distinguishable.   First,
Morino  held that a superior court that had refused  to  hold  an
evidentiary   hearing  on  changed  circumstances   had   erred;7
consequently, its statements as to what level of change might  be
insufficient to trigger a hearing are necessarily dicta.  Second,
and  more  importantly, Morino dealt with a  minor  change  in  a
weekly  visitation pattern between two parents who lived  in  the
same  city.8  Because the changed regime had been in  effect  for
ten  months, we held that the superior court should have  held  a
hearing to determine whether it constituted a substantial  change
that  could justify a change in the custodial order.9  It  simply
makes  no  sense  to equate this minor visitation  change10  that
merely  adjusted  the hours of weekly visitation between  parents
living  in  the same city with the decision to change the  childs
state of residence for an entire school year that we have in  the
present case.
          In   characterizing   the  change   as   lasting   only
approximately three weeks,11 the court misses the significance of
the  change in Alexiss life and expectations that taking her  out
of  a school that she had already started would have entailed, an
impact that Judge Olsen did not fail to appreciate.  While it  is
true  that  Alexis had been in school for only a  week  when  the
matter  came  before him, and while it is true that  Judge  Olsen
realized  that  a week of school for a first grader  was  not  an
overwhelming  consideration   or  dispositive,  it  remains  that
Alexis  had  been  told  for several  weeks  that  she  would  be
remaining in Illinois for the year, had prepared for the  change,
and had begun to attend her new school.  For Alexis, the decision
of  her  parents to change her custody for the upcoming year  was
significant, and its significance could not have been  lost  upon
the child.  It surely was not lost upon Judge Olsen:
               There    had    been   a    change    in
          circumstances.   Alexis had  been  integrated
          into her new family.  She had been advised of
          the  parents joint decision that  she  should
          remain  and  go  to school in Illinois.   Her
          mother  had  sent  her  personal  items   and
          clothing  to  support and  reflect  that  new
          arrangement.  The parties set this  train  in
          motion, and to preserve her stability  Alexis
          will  reside  with Chad and go to  school  in
          Illinois.
          
(Emphasis added.)
          It  is true, as todays opinion notes, that in Morino we
encouraged  custodial parents to experiment with ongoing  custody
arrangements   in an effort to find what works best for  children
without  fearing that every temporary change could be  the  basis
          for modifying visitation.12  But the change in this case was not
a  temporary   change as Morino used that term.  As  Judge  Olsen
found, this change was set for the period of the school year.  It
was intended by Sharon and Chad to last for a substantial period,
as  Sharons act of sending five months child support to  Chad  in
advance  clearly  demonstrates.  Finally, in a  case  like  this,
where   a  major  change  that  involves  substantial  pre-change
planning and execution are involved, there must come a time  when
the  train  that the parties set . . . in motion, as Judge  Olsen
termed  it, leaves the station.  It does not chill parents  right
to  experiment with ongoing custody arrangements to hold that  at
some  point they are bound, by their promises and their  actions,
to proceed.
          The   court  downplays  the  significance  of   Alexiss
integration into her new family by noting that it was the natural
result  of  her  having spent the summer in  Illinois  under  the
existing  agreement.13   But  that  integration  must  have  been
qualitatively  different after a month of  expectation  that  she
would be remaining with her new step-brother and step-sister  not
for  one more week14 but for the entire upcoming year.  The court
downplays  the  significance of the stability achieved  by  Judge
Olsens order, relying on the existing order: her return to Alaska
at  the  end  of  the  summer  was  anticipated  by  the  custody
arrangement,  and  did  not  amount  to  a  disruption   in   her
stability.15  This observation completely ignores the effect on a
six-year-old child of her parents preparing her for a month for a
major change in her life, substantially implementing that change,
and  then abruptly cancelling the program.  Of course taking  her
out  of school and sending her back to Alaska in late August 2007
would have amounted to a disruption in her stability!
          The  court  similarly errs in its treatment of  Alexiss
expectations, placing the blame on Chad for notifying  Alexis  of
the  agreed-upon  change: Nor does Alexiss expectation  that  she
would  remain in Illinois warrant a modification of custody.   To
rule otherwise would allow non-custodial parents to manufacture a
substantial  change in circumstances merely by  telling  a  child
that she will remain with the non-custodial parent.16  The truism
that non-custodial parents should not be allowed to manufacture a
substantial change in circumstances has nothing to do  with  this
case.   First,  Sharon  raised the necessity  of  discussing  the
planned  change  with Alexis, properly noting that  while  Alexis
should  not make the decision she should be consulted  about  it.
Second, Sharons actions in sending clothes to Illinois for Alexis
could  only  reinforce whatever Alexis had  been  told  by  Chad.
Third,  how could Alexis not have been notified that her  parents
had agreed that she should remain in Illinois?  She was going  to
remain there and go to school there.  She did go to school there.
There  is  no basis for the suggestion that Chad should not  have
notified  Alexis  that  her parents had decided  that  she  would
remain  in  Illinois for the school year.  And there is therefore
no   way   to   avoid   the  necessity  of  considering   Alexiss
expectations.
          Equally  unavailing is the courts suggestion  that  the
parents  here, and especially Chad, involv[ed] young children  in
          the process of deciding child custody matters.17  Of course it is
a  truism  that  young children should not  be  involved  in  the
decision  process.  But that did not happen here.  What  happened
is  that,  during  the  parents decision-making  process,  Sharon
checked  with Chad to find out what Alexis thinks.   Sharon  even
quickly  noted  that it was not Alexiss decision,  but  that  she
ought  to be heard on the matter.  What happened further is that,
after  the parents made the decision, Alexis was informed of  it,
as  she  necessarily had to be.  What is really at stake in  this
matter  is the propriety of both parents telling their child  one
thing and then doing another.
          Judge  Olsen  was  presented by  both  parents  with  a
Hobsons  choice in late August 2007 when the matter  came  before
him.   He  correctly found that the parents had agreed to  change
Alexiss custody to Chad so that she would remain in Illinois  for
the  upcoming school year.  He correctly found that they had  not
only  agreed  on  that course of action, but  had  taken  several
substantial steps to implement it.  He correctly found that, as a
result  of  her parents actions, Alexis had the expectation  that
she  would remain in Illinois for the school year.  On the  basis
of  these factual findings, I would conclude that Judge Olsen did
not abuse his discretion in holding that a substantial change  in
circumstances  had  occurred.  It was therefore  proper  for  the
court  to  consider whether it was in Alexiss best  interests  to
change her custody for the upcoming school year.18
     C.   Alternatively, the Order Having Been Temporary and  the
          2007-2008  School  Year  Having  Passed,  the  Question
          Whether There Was a Substantial Change in Circumstances
          Justifying the Custody Change for That Year Is Moot.
          
          Judge  Olsens order was to be in effect for  the  2007-
2008 school year.  That school year is now over.  Both counsel at
oral  argument  agreed  that Judge Olsens  order  was  temporary.
Counsel for Chad agreed that by Summer 2008 all issues raised  in
this  appeal would be moot.  Given that the order was  temporary,
primary  physical  custody has now reverted to Sharon.19   Should
Chad desire to regain primary physical custody of Alexis, he will
have  to  show a substantial change in circumstances.20  While  I
conclude above that Judge Olsen did not err in reaching the  best
interests question, his decision to do so is now moot.

V.   CONCLUSION
          Because  Alexiss  parents had agreed  that  she  should
remain  in  Illinois to attend school for the year, because  they
had  taken very substantial steps to put that plan into operation
(including  Sharon sending clothes to Alexis for school,  sending
money  to Chad for school costs, and prepaying child support  for
five  months), and because Alexis was aware of this major  change
in  her  life  and  had begun to attend school in  Illinois,  the
superior  court did not abuse its discretion in determining  that
there  had  been  a  substantial  change  in  circumstances   and
considering  whether a custody modification would be  in  Alexiss
best  interests.    Alternatively,  because  the  courts  custody
change  order  was temporary and the period of its operation  has
          ended, the case is moot.  For these reasons, I dissent from
todays opinion.
_______________________________
     1    Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).

     2     Chesser-Witmer v. Chesser, 117 P.3d 711,  715  (Alaska
2005).

     3    Barrett, 35 P.3d at 5.

     4    Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999).

     5    S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985).

     6    Nichols v. Nichols, 516 P.2d 732, 735 (Alaska 1973).

     7    Under the settlement agreement, Alexis was to return to
Alaska three weeks before school began.

     8    970 P.2d at 429.

     9    Id. at 427, 429-30.

     10    Id. at 429.

     11    Id.

     12    Id. at 433 (Fabe, J., dissenting).

     13    See supra note 7.

     14    970 P.2d at 428.

     15     970  P.2d at 429; see also id. at 430-31  (Fabe,  J.,
dissenting).

     16    See AS 25.24.150(c); AS 25.20.110.

     17     AS 25.24.150(c)(3); AS 25.20.110.  The superior court
did  not address Alexiss preference in its oral decision  or  its
order  on reconsideration.  The superior courts silence  on  this
factor  suggests  that  it  did not  consider  Alexis  to  be  of
sufficient   age   and  capacity  to  form  a   preference.    AS
25.24.150(c)(3).

     18    See Veazey v. Veazey, 560 P.2d 382, 386 (Alaska 1977),
superseded by statute on other grounds, ch. 63,  30, SLA 1977, as
recognized in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska  1981)
(suggesting that a young childs preferences are often  unreliable
as  she  can be easily influenced by the behavior of her parents,
but  that  a  relatively  mature  teenagers  reasoned  preference
carries more weight).

     19     Joan  B. Kelly, Psychological and Legal Interventions
for  Parents and Children in Custody and Access Disputes: Current
Research and Practice, 10 Va. J. Soc. Poly & L. 129, 151 (2002).

     20    We do note, however, that the superior court appears to
have  had  little  information regarding Alexiss  best  interests
beyond the testimony of Sharon and Chad.  The superior court  may
have  felt  that  it  had  sufficient  information  to  grant   a
temporary,  one-year  modification of custody,  but  as  we  have
explained,  such  modifications should be  granted  only  rarely.
Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157 n.10 (Alaska 2008)
(Generally, custody orders are considered final and permanent . .
.  .While  a temporary order may have been appropriate under  the
unusual  circumstances  of this case, such  instances  should  be
rare.).

1     If  Chad  remained  in  the same community  as  Sharon,  he
would have visitation every weekend from Friday evening to Sunday
at  4:00 PM.  If he lived in a different community, he would have
reasonable visitation as could be arranged.

2      Barrett   v.   Alguire,  35  P.3d  1,  5   (Alaska   2001)
(citation omitted).

     3     Chesser-Witmer v. Chesser, 117 P.3d 711,  715  (Alaska
2005).

     4    Barrett, 35 P.3d at 5.

5    Restatement (Second) of Contracts,  50 cmt. a.

6    970 P.2d 426 (Alaska 1999).

     7    Id. at 427.

     8     The  non-custodial  parent was  entitled  to  mid-week
visitation of three hours with the children as well as  weekends.
The  custodial parent had agreed to moving that visit by one  day
and  turning  it into an overnight and combining it with  weekend
visitation,  leaving  the same amount of  actual  visitation  but
requiring less disruption of the childrens schedules.  Id.

     9    Id. at 429.

     10   Id. at 430 (Fabe, J., dissenting).

     11   Slip Op. at 8.

12   Slip Op. at 7.

     13   Slip Op. at 9.

     14    The  parties prior agreement called for Alexis  to  be
returned to Fairbanks three weeks before the start of her school.

     15   Slip Op. at 9.

     16   Slip Op. at 10.

17   Slip Op. at 11.

     18    When faced with a motion to modify custody, a superior
court  must  first  determine whether  a  substantial  change  in
circumstances  has  occurred  that  might  justify  a  change  in
custody.  AS  25.20.110(a).  Long v.  Long,  816  P.2d  145,  150
(Alaska 1991).  Only if the court finds such a change does it  go
on  to consider whether the requested change in custody is in the
childs  best interests.  Id.  Todays opinion holds that  no  such
change  in circumstances had occurred, (Slip Op. at 11)  and  the
court therefore does not reach the question whether the requested
change  of  custody  was  in the best  interests  of  the  child.
Because I believe that Judge Olsen did not clearly err in finding
that  a  substantial  change  in circumstances  had  occurred,  I
believe  that  he  correctly proceeded to consider  Alexiss  best
interests.

     19    See  Chesser  v. Chesser-Witmer, 178 P.3d  1154,  1157
(Alaska 2008) (holding that temporary, one-year change in custody
during  school  year was not final custody order modifiable  only
upon   former   custodial   parent   showing   new   change    in
circumstances).

     20   See Long, 816 P.2d at 150.

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