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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mikesell v. Waterman (12/05/2008) sp-6324

Mikesell v. Waterman (12/05/2008) sp-6324, 197 P3d 184

     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

DAVID MIKESELL, )
) Supreme Court No. S- 12910
Appellant, )
) Superior Court No. 4FA-07-1502 CI
v. )
) O P I N I O N
ALLISON WATERMAN, )
) No. 6324 - December 5, 2008
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Douglas L. Blankenship, Judge.

          Appearances:  Michael J. Walleri, Law Offices
          of   Michael   J.  Walleri,  Fairbanks,   for
          Appellant.  Allison Waterman, pro se,  Silver
          City, New Mexico, Appellee.

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

          FABE, Chief Justice.


I.   INTRODUCTION
          The  superior court in Alaska declined to exercise  its
home   state   jurisdiction   in   an   initial   child   custody
determination,  holding that New Mexico  was  a  more  convenient
forum  to  decide the custody issue.  The childs father  appeals,
arguing that the court erred in failing to hold a hearing on  the
motion  to  decline  jurisdiction and in  declining  to  exercise
custody  jurisdiction.  Because we conclude that  a  hearing  was
unnecessary  and  that  the superior  court  did  not  abuse  its
discretion  in  deciding that New Mexico was a  more  appropriate
forum, we affirm its ruling.
II.  FACTS AND PROCEEDINGS
          David  Mikesell  and Allison Waterman  have  one  child
together,  Mary, who is now seven years old.  Mary  was  born  in
2001  in  New  Mexico and lived there together with  her  parents
until she was two years old.  When the parties separated in 2003,
they  agreed  to  alternate custody of Mary on  a  yearly  basis.
Waterman  moved with Mary to Flagstaff, Arizona in the summer  of
2003.   Mary remained with her mother in Arizona until  September
2004.   She  lived with her father in New Mexico  from  September
2004  until May 2005, then again with her mother in Arizona  from
June 2005 until May 2006.
          As  part  of  her parents informal custody arrangement,
Mary began to live with her father in Fairbanks in May 2006.1  On
April  16,  2007,  Mikesell began a custody  action  in  superior
court,  asking  for  sole  legal and physical  custody  of  Mary.
Waterman  filed a custody action in Grant County, New  Mexico  in
early  May  2007.2  In Watermans answer to the Alaska  complaint,
she  contested  Alaskas jurisdiction and stated her  disagreement
with Mikesells request for custody.
          Both  parties  filed motions requesting  jurisdictional
rulings in their respective forums.  After a hearing on Mikesells
motion to determine jurisdiction, Superior Court Judge Douglas L.
Blankenship  decided that Alaska was the childs home  state3  for
purposes   of   the   Uniform  Child  Custody  Jurisdiction   and
Enforcement  Act4  (UCCJEA) but noted that he would  entertain  a
motion  to  decline jurisdiction on inconvenient  forum  grounds.
The  New  Mexico court stayed Watermans custody action pending  a
decision  from  the  Alaska court about  whether  Alaska  was  an
inconvenient forum.
          Waterman then filed a motion asking the Alaska court to
decline  jurisdiction as an inconvenient forum.  Mikesell opposed
the  motion and requested a hearing.  The court granted Watermans
motion  without a hearing.  In its memorandum decision and order,
the  court  identified  five UCCJEA factors  that  it  considered
germane  to  the case and decided that three of the five  factors
favored New Mexicos exercise of jurisdiction while the other  two
factors  favored neither forum.  As a result, it  concluded  that
New Mexico was the more appropriate forum to litigate custody.
          Mikesell  moved for reconsideration, arguing  that  the
court  erred  in not holding a hearing on the motion  to  decline
jurisdiction.    He  asserted  that  because   the   motion   was
dispositive, a hearing was required by Alaska Civil  Rule  77(e).
He  also  argued that New Mexico lacked jurisdiction to hear  the
case and that the court had improperly evaluated and applied  the
UCCJEA  statutory  factors.   The court  denied  reconsideration,
holding  that  a  motion  to  decline  jurisdiction  was  not   a
dispositive  motion.   It also concluded  that  it  had  properly
considered the relevant factors and that New Mexico could  assume
jurisdiction under the UCCJEA.
          Mikesell appeals.
III. DISCUSSION
     A.   Standard of Review
          We  review  the  superior courts  decision  to  decline
jurisdiction  as an inconvenient forum for abuse of  discretion.5
We  will  find  an abuse of discretion if we are  left  with  the
          definite and firm conviction on the whole record that a mistake
has  been made.6  The superior courts interpretation of the civil
rules is a legal question that we review de novo.7  We review the
superior courts decision not to hold an evidentiary hearing using
our independent judgment.8
     B.   The Superior Court Was Not Required To Hold a Hearing.
          Mikesell  asks us to reverse the superior courts  order
because  the  court  did  not  hold  a  hearing  before  deciding
Watermans  inconvenient forum motion.  In making  this  argument,
Mikesell  relies  on Alaska Civil Rule 77(e)(2),  which  requires
oral  argument  on  dispositive motions,  including  motions  for
summary   judgment.   Interspersed  throughout  his   brief   are
arguments that the court should have held an evidentiary  hearing
before issuing its ruling.
          The  parties disagree about whether a motion to decline
jurisdiction is a dispositive motion.  We do not need  to  decide
whether the motion was dispositive, however, because even if  was
a  dispositive  motion,  Mikesell has not  demonstrated  that  he
suffered  substantial prejudice from the lack of oral  argument.9
He  claims that he was prejudiced by not being able to respond to
what  he viewed as new arguments in Watermans reply, but he  does
not  specify  what new arguments were raised or how consideration
of  them  was  prejudicial.10  The superior court  rejected  this
assertion, stating that it was unable to identify any new  issues
raised  in  Ms. Watermans reply that [it] considered relevant  to
the issue of inconvenient forum.  Because Mikesell failed to show
substantial prejudice in not having oral argument on the  motion,
any possible error by the court was harmless.11
          We  also consider whether Mikesell was entitled  to  an
evidentiary  hearing on the motion to decline jurisdiction.12   A
court  is  required to hold an evidentiary hearing only when  the
parties  present a genuine issue of material fact.13   Here,  the
superior   court  concluded  that  its  decision  rest[ed]   upon
undisputed facts.  We agree.
          The  UCCJEA  factors that the superior court considered
in  deciding the inconvenient forum motion were (1) the length of
time  the  child  lived  outside  of  Alaska;  (2)  the  relative
financial  circumstances  of  the parties;  (3)  the  nature  and
location of the evidence required to resolve the litigation;  (4)
the  ability of each court to decide the issue expeditiously  and
the  procedures  necessary  to  present  evidence;  and  (5)  the
familiarity  of  each  court with the facts  and  issues  of  the
litigation.   Mikesell had the opportunity to present information
to  the  court to support his position that Alaska should  retain
jurisdiction when he filed his opposition to Watermans  motion.14
He  chose not to supplement his earlier affidavits or exhibits at
that time.
          There  was  no dispute about where the child had  lived
during  her  life and the length of time she had  lived  in  each
place.  Nor was there a material issue of fact about the relative
financial circumstances of the parties.  Waterman filed  a  child
support guidelines affidavit showing limited income, and she  was
represented  in New Mexico by an attorney from New  Mexico  Legal
Aid.   Mikesell, in contrast, was able to retain private  counsel
          and asserted in his reconsideration motion that he d[id] have
limited  ability to bring Waterman and some witnesses to  Alaska.
Mikesell  does  not  show how an evidentiary hearing  would  have
assisted  the  court in determining the relative  familiarity  of
each  court with the case or the time within which the case could
be heard in either forum, and we can see no useful testimony that
could  have  been  presented  on  these  issues.   Nor  does   he
demonstrate  that there was a material issue of fact  related  to
the  nature and location of the evidence required to resolve  the
case.   It  was  undisputed that both parties had family  members
living  in New Mexico who might be called as witnesses  and  that
Mary  attended  school in Fairbanks and had a treating  physician
there.  Because  there were no material factual  issues  for  the
court   to  decide  before  ruling  on  the  motion  to   decline
jurisdiction, the superior court did not abuse its discretion  in
failing to hold an evidentiary hearing on Watermans motion.15
     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Declining Jurisdiction.
          
          The  decision to decline jurisdiction under the  UCCJEA
is  a discretionary one.16  In reviewing discretionary decisions,
it  is  not the role of the appellate court to reweigh the  facts
and  equities  and substitute its judgment for the trial  courts.
Instead,  we  must determine whether the trial court  abused  its
discretion.17  Here, we are not persuaded that the  court  abused
its discretion in declining jurisdiction.
          1.    New  Mexicos  statutes  permit  the  exercise  of
jurisdiction.
          Mikesell  argues first that New Mexico cannot  exercise
jurisdiction  because  New Mexico is not  Marys  home  state  and
Alaska  is.   He  claims that New Mexico can  only  have  initial
custody  jurisdiction if it is the childs home state or  was  the
home  state  within six months before the custody  action  began.
But  under  New Mexicos statutes, New Mexico courts can  exercise
initial  custody  jurisdiction when New Mexico is  not  the  home
state,  as long as other conditions are met.  New Mexicos version
of the UCCJEA provides that the New Mexico court has jurisdiction
if
          [A]  court of the home state of the child has
          declined  to  exercise  jurisdiction  on  the
          ground   that   this  state   is   the   more
          appropriate forum under Section  207  or  208
          [40-10A-207 or 40-10A-208 NMSA 1978] and:
          
          (A)  the child and the childs parents, or the
          child  and  at least one parent or  a  person
          acting   as  a  parent,  have  a  significant
          connection  with this state other  than  mere
          physical presence; and
          
          (B)   substantial  evidence is  available  in
          this   state  concerning  the  childs   care,
          protection,     training     and     personal
          relationships[.][18]
          
Section  40-10A-207  of New Mexicos statutes  corresponds  to  AS
25.30.360, the statutory section the superior court used here  in
deciding to decline jurisdiction.19
          Here,  no  one contests that Alaska is the childs  home
state.   Mikesell  argues  that because the  superior  court  had
previously  decided that Alaska was Marys home state, New  Mexico
could not exercise custody jurisdiction.  But whether Alaska  had
exclusive  home state jurisdiction is irrelevant to the  question
whether  the  superior court properly declined to  exercise  this
jurisdiction.   Even  though both the  UCCJEA  and  the  Parental
Kidnapping Prevention Act20 (PKPA) give a preference to home state
jurisdiction in custody matters,21 both also permit a home  state
to  decline jurisdiction.22  Alaska declined to exercise its home
state  jurisdiction on inconvenient forum grounds in  this  case,
finding that New Mexico was the more appropriate forum to  decide
custody.  Thus, New Mexico can exercise jurisdiction if Mary  and
at  least  one of her parents have a significant connection  with
New  Mexico and substantial evidence about her care is  available
in  New  Mexico.23  Mikesell conceded in the superior court  that
both  parties have a significant connection with New Mexico.   In
his  brief  before  this court he did not argue that  substantial
evidence  was unavailable in New Mexico.  He has thus waived  any
argument  that New Mexico cannot establish jurisdiction based  on
Marys  connection with it.24  In any event, substantial  evidence
appears  to  be available in New Mexico that is relevant  to  the
custody proceeding.  Both of the parties lived in New Mexico with
the  child, extended family whom the parties planned to  call  as
witnesses  live  there, and Waterman currently  lives  there  and
cares for her other child there.
          Mikesell  cites two New Mexico cases, Trask v.  Trask25
and  Nelson  v. Nelson,26 to argue that New Mexico cannot  assume
custody  jurisdiction.   Both  cases  are  distinguishable.    In
neither case did a home state decline jurisdiction and find  that
New  Mexico was the more appropriate forum to determine  custody.
In  addition, the cases involved modification jurisdiction  under
the  Uniform Child Custody Jurisdiction Act (UCCJA), not  initial
jurisdiction under the UCCJEA.27
          Mikesell   suggests   that  New  Mexico   cannot   have
significant connection jurisdiction because Mary has not lived in
New Mexico recently except for summers with her mother.  Although
the  UCCJA  required that substantial evidence  for  purposes  of
establishing initial jurisdiction be about the childs present  or
future  care, protection, training, and personal relationships,28
the  UCCJEA does not limit evidence to present or future  care.29
According  to  a  comment  to  the UCCJEA,  [t]he  jurisdictional
determination  should  be made by determining  whether  there  is
sufficient  evidence  in  the State for  the  court  to  make  an
informed  custody determination.  That evidence might  relate  to
the past as well as to the present or future. 30
           Mikesell also argues that the superior court order was
contrary to this courts opinion in Atkins v. Vigil.31  In Atkins,
the  superior court decided that it did not have jurisdiction  to
hear  a  custody dispute even though Alaska was the childs recent
home  state  because a California guardianship proceeding,  which
had  been  filed  before  the  Alaska custody  action,  preempted
          Alaskas jurisdiction.32  We reversed because the UCCJEA and the
PKPA  give  a  preference to a childs home  state  in  exercising
jurisdiction.33  But Atkins is silent about jurisdiction when the
home  state  declines jurisdiction because it is an  inconvenient
forum, as it did here.  Based on the foregoing, we conclude  that
New  Mexico  may properly exercise custody jurisdiction  in  this
case.
          2.    The  superior court did not improperly weigh  the
factors.
          Alaska  Statute 25.30.360(b) sets out a list of factors
for   a   court  to  consider  in  deciding  whether  to  decline
jurisdiction  as an inconvenient forum.  Mikesell  contends  that
the  superior court applied the [statutory] factors in  a  manner
inconsistent with controlling preceden[t].  He relies heavily  on
our decisions interpreting the UCCJA,34 which preceded the UCCJEA,35
in  arguing that the superior court erred by not considering  the
best interest of the child in making its jurisdictional decision.
Waterman  answers  that the superior court properly  weighed  the
factors  and notes that the Alaska court was not making a custody
determination but a decision about which court was better able to
make the custody decision.
          Alaska Statute 25.30.360(b) provides:
          (b)   Before  determining whether  it  is  an
          inconvenient  forum, a court  of  this  state
          shall consider whether it is appropriate  for
          a   court   of  another  state  to   exercise
          jurisdiction.   For this purpose,  the  court
          shall allow the parties to submit information
          and  shall  consider  all  relevant  factors,
          including
          
               (1)    whether  domestic  violence   has
          occurred  and  is likely to continue  in  the
          future and which state could best protect the
          parties and the child;
          
               (2)   the  length of time the child  has
          resided outside this state;
          
               (3)   the distance between the court  in
          this  state  and the court in the state  that
          would assume jurisdiction;
          
               (4)       the     relative     financial
          circumstances of the parties;
          
               (5)   an agreement of the parties as  to
          which state should assume jurisdiction;
          
               (6)   the  nature  and location  of  the
          evidence  required  to  resolve  the  pending
          litigation, including testimony of the child;
          
               (7)   the  ability of the court of  each
          state  to decide the issue expeditiously  and
          the   procedures  necessary  to  present  the
               evidence; and
          
               (8)   the  familiarity of the  court  of
          each  state with the facts and issues in  the
          pending litigation.
          
In  this case, the parties agreed that domestic violence was  not
an  issue  and  that  they had not selected  a  state  to  assume
jurisdiction  over a custody dispute.  The court  considered  the
remaining factors in its decision.36  Of these factors, it decided
that  factors (2), (4), and (6) favored New Mexicos  exercise  of
jurisdiction, and that factors (7) and (8) did not  favor  either
forum.
          Mikesell  concedes that the child lived outside  Alaska
for most of her life but maintains that our decision in Szmyd  v.
Szmyd37 was factually similar and thus required the Alaska  court
to  retain  jurisdiction.  But Szmyd is  distinguishable.   Szmyd
involved  a  custody modification where the changed circumstances
alleged  in  the motion for modification were the instability  of
the custodial parent and her interference with visitation.38   We
held  in  Szmyd  that California, the state where  the  custodial
parent and child lived, was a more appropriate forum than Alaska,
in  part  because  the  relevant evidence  about  the  change  in
circumstances was more readily available in California.39  Unlike
Szmyd,  this is an initial custody action, so the evidence should
not  focus on either party.  Also, the list of statutory  factors
for  the  superior court to consider was different  at  the  time
Szmyd was decided than it is now: the length of time a child  had
resided outside of Alaska was not a listed factor when Szmyd  was
decided.40
          At  the time the motion was filed in this case, it  was
undisputed  that the child had lived for a little more  than  one
year  in Alaska but had lived the rest of her life in New  Mexico
and Arizona.  The courts finding that this factor  the length  of
time  the  child  lived  outside Alaska  favored  New  Mexico  is
supported  by  uncontested  evidence  in  the  record.    Nothing
suggests that the superior court improperly evaluated or  weighed
this factor.
          Mikesell  next argues that the court improperly  placed
too  much weight on  a finding that it was more inconvenient  for
the  mother to litigate in Alaska than for the father to litigate
in  New Mexico.  He relies on Rogers v. Rogers41 and asserts that
the  court committed reversible error by failing to consider  the
best  interest  of  the  child  in  deciding  the  jurisdictional
question.  He also claims that the record is totally void  as  to
evidence of [the parties] relative resources.
          Again,   Mikesells   best  interest  argument   ignores
statutory changes in Alaskas child custody jurisdiction  statute.
One  of  the  most  significant  changes  relevant  to  Mikesells
argument is that the UCCJEA removed the childs best interest as a
factor  in  both  inconvenient forum decisions and  questions  of
initial jurisdiction.42  According to the comment accompanying the
UCCJEA, the best interest factor was removed because it tended to
create  confusion  between  the  jurisdictional  issue  and   the
          substantive custody determination.43  The best interest language
was deemed unnecessary for jurisdictional issues.44  Mikesell does
not  argue convincingly that the childs best interest is still  a
factor  that a court must consider in deciding whether to decline
jurisdiction in custody cases.45  We hold that under  the  UCCJEA
the  superior  court  was not required to make  a  best  interest
analysis in deciding whether to decline jurisdiction.
          Although  the  evidence  was  sparse,  the  court   had
adequate evidence before it to support its finding that travel to
a  distant  forum  would  be  more difficult  for  Waterman  than
Mikesell   even   though  both  parties  had  limited   financial
resources.  The court had information about Watermans income from
her  child  support guidelines affidavit and a copy of  her  2006
federal tax return.46  Additionally, Waterman was represented  in
New  Mexico by an attorney from New Mexico Legal Aid.   Watermans
income  tax  return shows that she has another child living  with
her as well.  Mikesell had sufficient resources to retain private
counsel  in Alaska and asserted in his motion for reconsideration
that  he  does  have limited ability to bring Waterman  and  some
witnesses  to Alaska.  Overall, the evidence supports the  courts
determination that Waterman has more limited financial means than
Mikesell.   Mikesell does not show how this factor  weighed  more
heavily in the courts analysis than other factors.
          In    his   discussion   of   the   parties   financial
circumstances,  Mikesell  contends that  the  court  should  have
addressed  the  issue  of the availability  of  a  court  custody
investigator in Alaska, which he asserts is not available in  New
Mexico.   In  the superior court and at oral argument before  us,
Waterman  responded  that  the New Mexico  court  can  appoint  a
guardian   ad  litem.   The  availability  of  a  court   custody
investigator in Alaska to parents with limited financial means is
not  relevant  to  a  determination  of  the  relative  financial
circumstances  of  the  parties.47  If the Alaska  court  custody
investigator  rather  than  a private custody  investigator  were
appointed,  it could decrease litigation costs overall.   But  it
does not have any bearing on the relative financial circumstances
of the parties.
          In  arguing that the court improperly considered factor
(6)   the nature and location of evidence required to resolve the
pending  litigation  Mikesell again cites Szmyd v.  Szmyd.48   He
asserts  that the issues in this case are the same  as  those  in
Szmyd  and  concludes that the superior court order  was  clearly
contrary  to  controlling preceden[t].  As we noted above,  Szmyd
was a modification case, and this court focused its attention  on
the  changes in circumstances alleged in the modification  motion
when  it  decided that California would be a better forum.49   In
contrast, this case is an initial custody determination, so there
is no need to focus on alleged changed  circumstances.
          Although  Mikesell argues that nothing  in  the  record
indicates  that  the parties relatives in New Mexico  or  Arizona
would  be  testifying in the custody case, his own  witness  list
named   three   witnesses  from  New  Mexico,   including   Marys
grandmother.  Watermans Alaska witness list named all individuals
mentioned  in [the] Custody Investigators report as  well  as  an
          expert from New Mexico.  Waterman stated in other filings that
her witnesses were all in New Mexico and will be unable to travel
to Alaska to meaningfully help the [c]ourt.
          The superior court recognized that more recent evidence
was  available  in  Alaska, but considered that  educational  and
medical  evidence  is  more  amenable to  telephonic  or  written
presentation.   At  oral argument before us, Mikesell  emphasized
alleged   disputes   between  the  parties  about   medical   and
educational issues, asserting that the testimony of professionals
who  have  recently dealt with Mary is more readily available  in
Alaska.   But  as  the superior court noted, the  credibility  of
witnesses such as doctors is less likely to be questioned in  the
same way that the credibility of relatives is, potentially making
personal  observation of relatives and other lay  witnesses  more
important  in  assessing credibility.  The  superior  court  also
noted  that  New  Mexico would be expected  to  have  information
available about both parents because both parents have  lived  in
New  Mexico, whereas Alaska has no information about Waterman  as
she  has never lived here.  We cannot say that the superior court
abused  its discretion or improperly weighed this factor when  it
decided that this factor favored jurisdiction in New Mexico.
          Finally, with respect to factor (8), the familiarity of
each  court with the facts and issues in the litigation, Mikesell
asserts that the Alaska court erroneously assumed that New Mexico
[c]ourts  have  dealt with the parties in a  2002  child  support
action.   Although  Mikesell and the  New  Mexico  Child  Support
Enforcement Division entered into a stipulated judgment and order
that was filed with and approved by the New Mexico court in 2002,
the Alaska court specifically stated that it placed no weight  on
the  child  support action.  In any event, the court  found  that
this  factor  did not favor either forum, and Mikesell  does  not
argue  here  that  the court should have found that  this  factor
favored Alaska.
IV.  CONCLUSION
          Because  we  conclude that a hearing was not  necessary
and  because Mikesell has failed to show that the superior  court
abused  its discretion in declining to exercise jurisdiction,  we
AFFIRM the order of the superior court.
_______________________________
     1     The  record  does not reflect precisely  when  or  why
Mikesell moved to Fairbanks.

     2     It  appears that Waterman moved back to New Mexico  in
2006:  she stated in her initial pleadings filed May 17, 2007  in
the  Alaska  court that she had just finished a year of  teaching
middle  school  English at a local private  school  and  at  oral
argument before us, she said that she moved back to New Mexico in
June 2006.

     3      A   childs   home  state  for  purposes  of   custody
jurisdiction is the state in which the child lived with a  parent
or  a  person  acting  as a parent for at least  six  consecutive
months, including any temporary absences, immediately before  the
commencement  of  a child custody proceeding.   AS  25.30.909(7).
Waterman  does not contest that Alaska was Marys home state  when
Mikesell filed the custody action.

     4    AS 25.30.300.910.

     5     Pinneo  v.  Pinneo, 835 P.2d 1233, 1235 (Alaska  1992)
(citing Szmyd v. Szmyd, 641 P.2d 14, 18 (Alaska 1982)).

     6     Sawicki  v.  Haxby, 186 P.3d 546,  550  (Alaska  2008)
(quoting Byers v. Ovitt, 133 P.3d 676, 680 (Alaska 2006)).

     7     Miller v. Clough, 165 P.3d 594, 599 n.8 (Alaska  2007)
(citing  Fuller  v.  City of Homer, 113  P.3d  659,  662  (Alaska
2005)).

     8    Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997).

     9    McCracken v. Davis, 560 P.2d 771, 774-75 (Alaska 1977).

     10     Mikesell only mentioned one superior court finding in
his appellate argument, that the Alaska action short-circuited  a
plan for Mary to attend first grade in New Mexico.  This was  not
a  new  issue raised in Watermans reply: Waterman discussed  this
issue in her motion asking the court to decline jurisdiction.  As
the  superior  court  noted, Mikesell  himself  stated  that  the
parents had agreed to alternate custody on a yearly basis.

     11    McCracken, 560 P.2d at 774-75.

     12     Mikesells hearing request indicated that he would  be
calling  witnesses, so Mikesell actually asked for an evidentiary
hearing rather than oral argument.  Cf. Alaska R. Crim. P. 42(e)-
(f).

     13     See Meidinger v. Koniag, Inc., 31 P.3d 77, 85 (Alaska
2001) (citing Acevedo, 944 P.2d at 476 n.2).

     14     Alaska  R.  Civ. P. 77(c); see also  AS  25.30.360(b)
(stating that court shall allow parties to submit information  to
consider in making inconvenient forum decision).

     15     See Alaska R. Civ. P. 77(i) (permitting court to hear
motions on affidavits).

     16     See AS 25.30.360(a) (providing that court may decline
jurisdiction); see also Szmyd v. Szmyd, 641 P.2d 14,  18  (Alaska
1982)  (holding  that  decision  to  decline  jurisdiction  under
Uniform Child Custody Jurisdiction Act (UCCJA) is discretionary).

     17     See Jerrel v. Kenai Peninsula Borough Sch. Dist., 567
P.2d 760, 767 (Alaska 1977).

     18      N.M.   Stat.   40-10A-201(a)(2)  (2006)   (bracketed
statutory citations in original).

     19      Compare  N.M.  Stat.   40-10A-207  (2006)  with   AS
25.30.360.

     20    28 U.S.C.  1738A (2000).

     21     See  Atkins v. Vigil, 59 P.3d 255, 258 (Alaska  2002)
(noting that PKPA and UCCJEA grant exclusive jurisdiction to  the
home  state);  see  also  Unif.  Child  Custody  Jurisdiction   &
Enforcement Act (UCCJEA)  201 cmt. 1, 9 U.L.A. Part IA 672 (1997)
(noting  that UCCJEA prioritizes home state jurisdiction  in  the
same manner as the PKPA).

     22     28  U.S.C.  1738A(c)(2)(D) (2000); UCCJEA  207(a),  9
U.L.A. Part IA 682 (1997); see also AS 25.30.360(a).

     23    N.M. Stat.  40-10A-201(a)(2) (2006).

     24     See  Tillmon  v. Tillmon, 189 P.3d  1022,  1029  n.21
(Alaska  2008)  (noting that issue waived when not  discussed  in
brief).

     25    727 P.2d 88 (N.M. App. 1986).

     26    910 P.2d 319 (N.M. App. 1995).

     27    See Nelson, 910 P.2d at 321; Trask, 727 P.2d at 89-90.
New  Mexico  repealed the UCCJA and adopted the UCCJEA  in  2001.
See 2001 N.M. Laws Ch. 114.

     28     Unif. Child Custody Jurisdiction Act  3(a)(2)(ii),  9
U.L.A. Part IA 307 (1968).

     29    UCCJEA  201(a)(2)(B), 9 U.L.A. Part IA 671 (1997); see
also AS 25.30.300(a)(3)(B).

     30    UCCJEA  201 cmt. 2, 9 U.L.A. Part IA 672 (1997).

     31    59 P.3d 255 (Alaska 2002).

     32    Id. at 256-57.  The superior court had also incorrectly
determined  that California was the childs home  state.   Id.  at
257.

     33    Id. at 258.

     34     Former  AS 25.30.010.900 (repealed ch. 133,   4,  SLA
1998).

     35     The  Alaska Legislature replaced the UCCJA  with  the
UCCJEA  in  1998.  Ch. 133, SLA 1998.  According to the prefatory
note  accompanying  the  uniform law,  the  UCCJEA  substantially
revised  the UCCJA because inconsistencies in interpretation  had
resulted in a loss of uniformity among the States.  9 U.L.A. Part
IA 650 (1999).

     36    The superior court appears to have combined the factors
in subsections .360(b)(3) and .360(b)(4) in its discussion.

     37    641 P.2d 14 (Alaska 1982).

     38    Id. at 21-22.

     39    Id.

     40    Id. at 18-19.

     41    907 P.2d 469 (Alaska 1995).

     42     Compare  AS 25.30.300(a)(3) and AS 25.30.360(b)  with
former AS 25.30.020(a)(3) and former AS 25.30.060(c).

     43    UCCJEA  201 cmt. 2, 9 U.L.A. Part IA 672 (1997).

     44     Id.;  see also Welch-Doden v. Roberts, 42 P.3d  1166,
1175  (Ariz. App. 2002) (noting that UCCJEA removed best interest
analysis from initial jurisdictional determination).

     45    A court issuing a custody order may at times still need
to  consider  a childs best interest when making a jurisdictional
decision.   The  PKPA  provides that a custody  determination  is
consistent  with the PKPA when the court making the determination
(1) has jurisdiction under its own laws and (2) another state has
declined jurisdiction and it is in the best interest of the child
that  the court issuing the order assume jurisdiction.  28 U.S.C.
1738A(c)  (2000).   An  order declining  jurisdiction  is  not  a
custody   determination  for  purposes  of  the  PKPA,  so   this
subsection is inapplicable here.  28 U.S.C.  1738A(b)(3) (2000).

     46     Our  review of the appellate record did not reveal  a
child support guidelines affidavit from Mikesell.

     47     See  Alaska R. Civ. P. 90.6(a) (permitting  court  to
appoint  court  custody  investigator if  parties  cannot  afford
private custody investigator).

     48    641 P.2d 14 (Alaska 1982).

     49    Id. at 21-22.

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