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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Havel v. Havel (9/18/2009) sp-6413

Havel v. Havel (9/18/2009) sp-6413, 216 P3d 1148

     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

JOSHUA HAVEL, )
) Supreme Court No. S- 13075
Appellant, )
) Superior Court No.
v. ) 3AN-06-6473 CI
)
EPPIE HAVEL n/k/a HOGAN, ) O P I N I O N
)
Appellee. ) No. 6413 - September 18, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances: Carl D. Cook, Law Office of Carl
          D.  Cook,  P.C.,  Anchorage,  for  Appellant.
          Cris W. Rogers, Law Office of Cris W. Rogers,
          Anchorage, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          Divorced  parents originally agreed to  joint  physical
custody   split  fifty-fifty  of their son and to negotiate  each
months  schedule based on the parties work schedules.  The mother
later  moved  to  set a specific schedule, on  the  grounds  that
communication  was  deteriorating,  and  that  inconsistency   in
scheduling and occasional long separations from each parent  were
not  in  their  sons  best interest.  The superior  court  set  a
schedule  that  resulted in a permanent change in the  amount  of
time each parent would spend with the child.  The father appeals,
arguing  that it was error to set a specific schedule because  no
change  in  circumstances occurred, and that the  superior  court
erred  in setting a schedule that significantly reduced his  time
with the child.  We conclude that no change in circumstances  was
required  to  set a schedule because it is not a modification  to
set  a  schedule  where the parties did not previously  have  any
schedule.   We also conclude that it was not error to  find  that
setting  a  specific  schedule was in the childs  best  interest.
However,  because  the change in the agreed-to division  of  time
with  the child amounted to a modification of custody, we reverse
the  superior courts order and remand for further proceedings  to
set  a  schedule consistent with the parties agreement  to  split
custody fifty-fifty.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Eppie  Havel (n/k/a Hogan) and Joshua Havel are parents
to  a son, born in 1999.  Eppie and Joshua divorced in April 2006
and  since then have maintained joint legal and physical  custody
of  their son.  Until entry of the court order setting a specific
schedule  that  is  the  subject  of  this  appeal,  the  parties
attempted to set each months custody schedule via e-mail based on
their   work  schedules,  in  accordance  with  their  separation
agreement.  Eppie  is employed as an independent  contractor  for
British  Petroleum with a thirty-two hour per week schedule,  and
with  flexibility in when she works.  Joshua is a flight engineer
for Lynden Air Cargo whose monthly schedule is determined through
a  bid  packet system.  This means that he bids for  his  desired
schedule each month, but because the system is based on seniority
and  he  has  low seniority, he does not always get  his  desired
schedule.
          In January 2007 and August 2007 the parties experienced
substantial  difficulty  working out  a  suitable  schedule,  and
returned  to  court as a result.  Over the course of time,  Eppie
became  very stressed by communication needed each month  to  set
the  schedule  for the following month and became convinced  that
she and her son would be better off with a set schedule to create
a sense of stability and expectability.
     B.   Proceedings
          The  superior  court incorporated the  parties  custody
agreement  into  its divorce order in April 2006.   The  physical
custody and custody schedule provision provided that:
          The  parties shall be awarded equal  (50/50),
          shared  physical custody of their son.   Each
          months  custody schedule shall be worked  out
          between  the parties by the 15th day  of  the
          preceding month, based upon the parties  work
          schedules.    Both  parties   recognize   and
          acknowledge  that  both of  their  respective
          work   schedules   require   flexibility   in
          exercising custody of their child, and  shall
          work together with this understanding.
          
          In  January 2007 Joshua brought a motion to enforce the
custody  agreement  to allow him to have his son  February  1-15,
2007.   Superior  Court Judge Sen K. Tan denied the  motion  with
respect to the request for specific dates, noting that there  was
no  mechanism  in  the parties agreement for  resolving  physical
custody  issues when the parties were unable to reach  agreement.
The  superior  court interpreted the agreement to  require  equal
custody  over the course of time, but not in a given month.   The
court  ordered that the parties meet together with  attorneys  to
work out a February schedule,  which they did.
          In  September 2007 Eppie filed a motion for a  specific
schedule.  She stated that she was not asking the court to modify
custody, but indicated that the agreement to negotiate a schedule
each month had become unworkable because (1) the schedule usually
was  built  only around Joshuas schedule; (2) he was increasingly
unwilling  to accept any schedule that was not built  around  his
schedule,  regardless of the resulting time the  child  would  be
separate from one parent, and as a result the parties ability  to
work  together  and their communications were deteriorating;  and
(3) the child was showing signs of stress, and it would be in his
best interest to have some routine and structure in the schedule.
          The  dispute  went to a hearing before  Superior  Court
Master  Jonathon  Lack, who found that the agreement  required  a
high  ability  of the parties to communicate in a meaningful  and
productive  manner  without conflict, that  the  arrangement  was
causing stress to Eppie and may be problematic for the child, and
that  there had been a breakdown in communication constituting  a
change in circumstances.  The master found that, in spite of  the
order,  the child was doing well, but that the stress  placed  on
Eppie and the arrangement, overall, had a substantial probability
of  negatively affecting the boy as he grew older.   Accordingly,
the  master  recommended a new schedule that gives Eppie  custody
from the beginning of each month through the third Friday of each
month, and Joshua custody from the third Friday through the  last
day  of  the  month.   The superior court  approved  the  masters
recommendation.  Joshua moved for reconsideration,  pointing  out
that  the  new schedule would lead to a significant reduction  in
his  custodial  time.  The superior court denied reconsideration.
Joshua appeals.
III. STANDARD OF REVIEW
     I.         We review a trial courts decision to establish  a
custody  schedule for abuse of discretion.1  We reverse  a  trial
courts order to modify custody only if the record shows an  abuse
of  discretion  or  if controlling factual findings  are  clearly
erroneous.2  Abuse of discretion may occur when the  trial  court
considers   improper  factors,  fails  to  consider   statutorily
mandated  factors, or gives too much weight to some factors.3   A
factual  finding  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.4
IV.  DISCUSSION
          Joshua  argues  that the trial court erred  because  it
modified custody although the evidence did not support a  finding
of substantial change in circumstances.  We analyze two different
results  of  the  trial  courts  order  to  evaluate  whether   a
modification  requiring  a showing of a change  in  circumstances
occurred.   First,  we review the action of setting  a  schedule.
Next,  we review the specific schedule the court set to determine
          whether it results in a modification of the custody arrangement.
By  custody arrangement, we mean the overall percentage  of  time
each parent has custody of the child.5
     A.   It Was Not an Abuse of Discretion To Set a Specific Custody
          Schedule.
          A.   Joshua argues that, in setting out a specific schedule, the
superior  court  impermissibly modified the custody  arrangement.
He  argues  that this was error because there was  no  change  in
circumstances that justified it.  Eppie responds that the  motion
to  set  a  schedule  did not seek modification  of   custody  or
visitation  triggering  the  application  of  AS  25.20.110,  the
statute governing changes of custody or visitation, and the  case
law interpreting that statute.6  In Siekawitch v. Siekawitch,7 we
analyzed  a  situation  in  which the  parties  agreed  in  their
petition  for  dissolution to amicably decide in  the  future  on
reasonable  visitation  times.8  In that  case,  the  father  was
granted  physical custody, but we noted that had the  dissolution
form  reflected  an  agreement by the parties to  joint  physical
custody,   their  dispute  would  merely  be  over   establishing
visitation  rather than modifying custody.  In such  a  case,  no
change of circumstances would be necessary.9
          Here, the parties original provision for a schedule  is
quite similar to the provision at issue in Siekawitch in that the
parties agreed to agree on a schedule in the future.  In essence,
the  parties  agreement to agree each month,  based  on  what  is
convenient   for  their  work  schedules,   is  not  meaningfully
different  than the Siekawitchs agreement to amicably  decide  in
the future. We therefore conclude that the parties did not have a
schedule and that setting a schedule was not a modification.  Had
the  schedule  conformed to the parties plan  for  a  fifty-fifty
split  in  custody,  it would not require a  showing  of  changed
circumstances.
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Establishing a Specific Schedule.
          
          Joshua  challenges  the  superior  courts  decision  to
impose  a  specific visitation schedule rather than  leaving  the
parties  to  work out, on a monthly basis, the schedule  for  the
following  month.   But our law is clear that, when  parents  who
have  obtained a flexible order cannot agree on the  schedule  in
practice,  it is always appropriate for the court to establish  a
fixed  schedule.10  The concept of the parents agreeing to  agree
on  a  monthly basis is an attractive one.  And, where  they  can
actually negotiate a flexible schedule on a regular basis, it  is
often  best for all concerned.  But where they prove in  practice
unable  to  agree  on a continuing basis on the following  months
actual  schedule,  as  happened here, the  trial  court  has  the
authority to establish a fixed schedule.
          Joshua  does not address this issue directly.   Rather,
he  argues  that the evidence clearly established that the  child
did  very  well under the original arrangement and  that  it  was
improper  to  conclude, without evidence, that Eppies frustration
with  the  agreement  would adversely impact  the  child  in  the
future.  Because he believes setting a specific schedule effected
          a modification, he also urges us to apply the rule in Long v.
Long11  that  any  problems  the  parties  experienced  in  their
communications could justify altering custody only if  they  were
found  to  have resulted in an extreme  adverse impact12  on  the
child.   Eppie  correctly responds that this rule   that  extreme
adverse  impact  on  the  children must be  shown  to  find  that
hostility is a change in circumstances  does not apply here.  She
argues that since  unlike in Long13  this is not a modification in
the  parties joint physical custody arrangement, no such  finding
was  necessary.   She also argues that the trial  courts  finding
that  an  irregular schedule with long periods of time away  from
each parent cannot be good for their child was correct and should
not be disturbed.14
          The  evidence demonstrated that the parties were unable
to  agree here.  They  only communicated via e-mail because their
ability  to  speak directly to each other had deteriorated.   The
parties  ability  to communicate effectively had so  deteriorated
that twice within an eight-month period they had resorted to  the
court  to resolve their disputes.  And even when they did  manage
to  set a schedule for the following month, Eppie testified  that
often  their conversations were stressful and frequently did  not
result in a schedule that was best for the child, since sometimes
he  had to spend three weeks or even a month away from one of his
parents.   Thus, as noted above, because the parents were  unable
to  agree  on the schedule, the court as always had the authority
to establish a specific schedule.
     C.   It Was an Abuse of Discretion To Adopt a Sixty-Forty Custody
          Schedule Where the Parties Continued To Agree that Fifty-Fifty
          Custody Was in the Childs Best Interests.
          
          A.   Joshua argues that the current  schedule provides him
substantially unequal time with his son.  As a result, he  argues
the   masters   order  modified  the  parties  original   custody
agreement.   Eppie  responds that the  arrangement  for  physical
custody  has  not been altered because the new set schedule  best
manifests the parties[] agreement to share 50/50 physical custody
in  light  of  the  parties work schedules  and  other  evidence.
Although the masters report to the superior court noted that  the
new  schedule resulted in Eppie having fifty-six percent  custody
and  Joshua having forty-four percent for the remainder of  2008,
the master did not calculate the long term effect on each parents
portion  of time with the child.  In fact, the custody split  for
2009  would result in a sixty-forty split.15  The superior  court
did not explain whether, or why, it was infeasible to divide time
with  the  child more equally.  It appears that the master  found
that Joshua could either work the first half of the month or work
a  morning schedule, so the schedule set by the master  does  not
explain  the need for this length of separation.  The master  did
note  that  both parents indicated a preference to limit  midweek
transfers,  but  this is not a justification  for  such  a  large
change  in custody of the child from the equal sharing of custody
that the parties bargained for.16
          The  court made no explicit finding that it was in  the
childs  best  interest to reduce his time with his father  by  so
          much, including several separations of almost three weeks.17  The
court  did  not explain why providing Joshua with only the  third
Friday  through  the  end of the month was  in  the  childs  best
interest.   The  court could have structured a  virtually  fifty-
fifty  division by choosing any five months during the  year  and
providing,  for those months, that the transfer would take  place
on the second, rather than the third, Friday of that month.  Even
accepting  that  the parents expressed desire  to  avoid  midweek
transfers is in the childs best interest, we conclude that it was
an  abuse  of discretion not to consider whether another schedule
might better meet this goal while also preserving his equal  time
with both parents.
          The   master  also  explained  that  the  schedule  was
intended  to  account  for Joshuas work schedule.   The  evidence
regarding  Joshuas  work schedule does not  clearly  support  the
conclusion  that  the significant deviation  from  a  fifty-fifty
split  was necessary.  Joshuas schedule each month is  set  by  a
bidding  process based on seniority.  The master found  that  [a]
review  of  the  fathers line bid schedule  leads  the  court  to
believe  he  can bid and hold a line which would have him  flying
the  first  part  of  the  month, or in the  alternative,  flying
instate  where  he would be home every evening.           At  the
hearing,  Joshua testified regarding the process of  bidding  for
schedules.   He  said that it begins when the crew  scheduler  e-
mails  a  bid packet with a memo explaining flight schedules  and
plans  for  the  following month.  When Joshua was  asked  if  he
typically  got his first or second choice schedule,  he  said  he
needed  to explain some quirks and stated, apparently, that  crew
members who live in Alaska generally get in-state assignments:
          [W]e  have several of our crewmembers, a  lot
          live in Anchorage and in Alaska and a lot  of
          them live in the Lower 48 and they dont  they
          dont  allow the guys in the Lower 48  to  bid
          Anchorage lines for airfare just  for   as  a
          cost-saving function when they have  guys  in
          state that theyve hired. . . . So because  of
          that I typically get  I dont  I  you know,  I
          never  really get my first choice but  I   in
          2007  .  .  . for 2007 anyways, I managed  to
          stay  in state flying in one form or another,
          whether  itd  be ad hoc, a.m.s  or  p.m.s  or
          reserve but thats not to say that it will  be
          that this month or next month.
          
          He  testified  that  Lynden had  no  week-on,  week-off
schedules.   At the end of the hearing, the court  said,  [a]s  I
understand  it  based  on your seniority,  essentially,  the  two
options that  well the three options that youre going to  get  on
flying  are  either going to be an a.m./p.m. schedule,  youre  on
five, off five, or some type of reserve schedule where youre  off
two  weeks  and  on two weeks.  Joshua said the  trend  had  been
toward two on/two off but that he could not be certain that would
continue.   Although the nature of the a.m./p.m. and reserve  day
schedules are not explained, it appears that the master concluded
          that Joshuas schedule was generally an in-state schedule, and
that  he would usually get a schedule where he either worked only
mornings  or worked two weeks on/two weeks off if he bid  for  it
consistently,  even if he did not always get  his  first  choice.
These  findings  provide  no basis for setting  a  schedule  that
resulted in a change to a sixty-forty division of custody.
V.   CONCLUSION
          We  AFFIRM  the  decision to set  a  schedule,  but  we
conclude that it was error to set the specific schedule that  the
court  did,  because  the schedule modified the  parents  custody
arrangement  for an equal division of time with  the  child.   We
therefore  REMAND  for further proceedings consistent  with  this
opinion.

_______________________________
     1     Cusack  v. Cusack, 202 P.3d 1156, 1162 (Alaska  2009);
Siekawitch v. Siekawitch, 956 P.2d 447, 451 n.7 (Alaska 1998).

     2     Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (quoting
McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986)).

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

     4    Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).

     5    See, e.g., Siekawitch, 956 P.2d at 450 n.6.

     6    As 25.20.110 provides in relevant part
          (a)  An  award  of  custody  of  a  child  or
          visitation with the child may be modified  if
          the   court  determines  that  a  change   in
          circumstances  requires the  modification  of
          the  award  and the  modification is  in  the
          best  interests of the child.   If  a  parent
          opposes the modification of the award .  .  .
          and  the  modification is granted, the  court
          shall enter on the record its reason for  the
          modification.

Both  before  and  after the adoption of  the  statute,  we  have
required that the moving parent demonstrate a substantial  change
in  circumstances for a modification of custody. See Jenkins,  10
P.3d at 589;  Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989)
(holding that the change under the statute must be significant or
substantial).   However, if the order modifies  visitation  only,
but not custody, the change need not rise to the level sufficient
to warrant a change in custody. Acevedo v. Liberty, 956 P.2d 455,
457  (Alaska  1998) (quoting Hermosillo v. Hermosillo,  797  P.2d
1206, 1209 (Alaska 1990)).

     7    956 P.2d 447 (Alaska 1998).

     8    Id. at 451.

     9    Id. at 451 n.7.

     10     See id. at 451 (holding that inability of parties  to
agree   on   visitation   schedule  warranted   superior   courts
intervention).

     11    816 P.2d 145 (Alaska 1991).

     12    Id. at 152.

     13     Long  concerned a very significant modification  from
sole  custody by one parent to sole custody by the other  parent.
Id. at 148.

     14     In this regard, the parties submitted extensive,  and
conflicting,  evidence  about the effect  on  their  son  of  the
parents  disputes over the schedule.  Eppie filed  affidavits  in
the  superior  court  claiming  that  the  boy  was  experiencing
symptoms  of  stress  such  as migraine headaches  and  increased
colds.  Joshua countered that his medical records showed no signs
of  these  ailments.   Eppie did not present additional  evidence
concerning  the boys medical problems or stress at  the  hearing.
Instead, her testimony about his welfare primarily concerned  his
interests  in  seeing  each parent regularly  and  without  long,
unpredictable separations, testifying that he became upset during
long  periods  away  and  did better with  transitions  when  the
parties  had  a  week-on/week-off arrangement.  Joshua  responded
with  extensive testimony from witnesses that the boy  was  doing
very  well.   The masters report did not make findings  regarding
these  claims, rather finding that although the child  was  doing
well,  he  was  doing  well  despite  the  current  custody   and
visitation  order.   He  concluded that  the  arrangement  had  a
substantial  probability of negatively affecting the  boy  as  he
grew older.

     15    For 2009, under the new schedule, Eppie would have 217
days  of visitation  59.5 percent of the year.  We treat the  new
schedule as establishing a sixty-forty custody split between  the
parties.

     16    While sixty percent custody is not primary custody, it
is  substantially more than fifty-fifty.  We have never held that
joint  custody requires a fifty-fifty sharing of time,  but  here
the  parties clearly stated in their agreement that the  division
of custody would be fifty-fifty.

     17    For example, in August 2009, the schedule would result
in   twenty days separation.  In March, April, and November 2009,
the  schedule would result in nineteen days separation.  See also
supra note 15, calculating percentages of time.

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