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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yvonne S. v. Wesley H. (1/14/2011) sp-6533

Yvonne S. v. Wesley H. (1/14/2011) sp-6533, 245 P3d 430

        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 
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YVONNE S.,                                      ) 
                                                )       Supreme Court No. S-13562 
                        Appellant,              ) 
                                                )       Superior Court No. 
        v.                                      )       3AN-95-01666 CI 
WESLEY H.,                                      )       O P I N I O N 
                        Appellee.               )       No. 6533 - January 14, 2011 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Mark Rindner, Judge. 

                Appearances:       Yvonne     S.,  pro  se,  Anchorage,     Appellant. 
                Wesley H., pro se, Anchorage, Appellee. 

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

                CARPENETI, Chief Justice. 


                A divorced mother appeals the denial without a hearing of her motion to 

modify   a   two-year-old   custody   order.     The  parties'   daughter,   16   at   the   time   of   the 

hearing, strongly preferred the current arrangement in which her father has primary 

physical custody.   Because the mother's allegations, even if true, did not demonstrate a 

change of circumstances warranting a modification of custody, we affirm the superior 

court's decision. 

----------------------- Page 2-----------------------

                Yvonne and Wesley have one child, Allison,1 born September 22, 1993. 

When they divorced in 1996, the court ordered joint legal custody of Allison and granted 
Yvonne primary physical custody.2             The court granted Wesley regular visitation on 

weekends and holidays. 

                In May 2008, when Allison was 14 years old, Wesley moved for primary 

physical custody of Allison.  Allison submitted an affidavit expressing a strong desire to 

live with her father.  Yvonne opposed the motion and the court held a hearing.  Allison 

testified that she wanted to live with her father because he was supportive, they shared 

interests   and   communicated   well,   and   he   trusted   her   more   than   her   mother   did. In 

addition, Allison testified that she experienced a lot of stress living with her mother.  For 

instance, Allison testified that she was hurt by her mother's excessive criticism of her 

weight and appearance.        Allison also testified that she had a difficult relationship with 

her stepfather. 

                The   court   found   that   Allison   was   mature,   made   good   decisions,   had   a 

healthy self-image, did not use drugs or alcohol, did well in school, and had not had 

trouble with the law.   The court also found that the criticism Allison perceived from her 

mother   was   problematic   and   that   some   conflicts   existed   between   Allison   and   her 

stepfather.  The court found that Allison clearly wanted to live with her father, that she 

had legitimate reasons for her preference, that she was not being unduly influenced by 

either    parent,   and   that  she   was    of  sufficient   capacity    and   maturity     to  warrant 

        1       We use pseudonyms to protect the family's privacy. 

        2       In 2000, Wesley unsuccessfully moved for primary physical custody of 

Allison. As part of those proceedings, Wesley unsuccessfully moved to recuse the judge. 
Wesley appealed, and this court affirmed the superior court's decision to deny recusal. 

                                                   -2-                                               6533 

----------------------- Page 3-----------------------

consideration of her custody preference.  The court also discussed each of the statutory 
factors for determining a child's best interests.3      Weighing these factors, the court held 

that Allison's preference, her age, and the problems at her mother's house constituted a 

change   in   circumstances   which   warranted   a  change   in   custody.    The   court   granted 

Wesley primary physical custody, giving Yvonne regular visitation. The court noted that 

Allison's preference was the "most significant factor" influencing its decision.  Yvonne 

did not appeal this decision. 

                On June 3, 2009, when Allison was nearly 16 years old, Yvonne moved to 

for shared physical custody.  Yvonne alleged several changed circumstances which she 

asserted    warranted     the  change,    including   that   Allison's   grades    and   health   had 

deteriorated under Wesley's care.   Yvonne attached to her motion Allison's report cards 

and medical records, as well as several pages of emails between herself and Wesley. 

Wesley opposed the motion and Allison submitted an affidavit expressing her strong 

desire to remain living with her father.  It does not appear that Yvonne submitted a reply 

to Wesley's opposition. 

                On June 22, 2009, the superior court denied Yvonne's motion to change 

physical   custody   without   a   hearing,   stating  that   Yvonne   "has   not   demonstrated   a 

substantial   change   in   circumstances."    Yvonne   appeals.       Both   Yvonne   and   Wesley 

appeared pro se during the custody proceedings discussed above, and also appear pro se 
before this court.4 

        3       See AS 25.24.150(c) (excerpted infra at note 12). 

        4       In July and August 2009, Yvonne and Wesley expressed disagreement to 

this court about the proper scope of the record on appeal.           On September 1, 2009, we 
issued an order clarifying that the appeal is limited to Yvonne's contention that the trial 
court erred in denying, without a hearing, her motion to modify custody. Thus, while the 

                                                 -3-                                             6533 

----------------------- Page 4-----------------------


               The question before us is whether Yvonne's allegations, taken as true, 

demonstrate     a  significant  or  substantial  change   in  circumstances    relative  to  the 

circumstances that existed at the time of the prior custody order, and whether those 
allegations, if true, would warrant a change in custody.5     If the answer to both questions 

is yes, Yvonne is entitled to evidentiary proceedings and an opportunity to establish 

whether, in light of the changed circumstances, "it is in the child's best interest to alter 
the existing custodial arrangement."6     Whether a moving party has made a prima facie 

       4       (...continued) 

most recent custody trial (the 2008 trial in which Wesley was awarded primary physical 
custody) was relevant, several other proceedings that Yvonne sought to make part of the 
record on appeal were irrelevant and would not be considered. These included the March 
2007 trial resulting from Wesley's unsuccessful motion to modify custody and three 
domestic violence proceedings dating back to 1994. 

               Because our order arose from Yvonne's motion to provide CDs instead of 
written hearing transcripts, the order technically applies only to the hearings from these 
proceedings.     However, multiple documents from the irrelevant proceedings are still 
included in Yvonne's excerpt and repeatedly cited to in her brief.  Consistent with the 
reasoning in our September 2009 order, we have disregarded this material in considering 
this appeal. 

       5       Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001) ("The superior court 

may deny a hearing on a motion to modify custody if it considers the motion and finds 
it plain that the facts alleged in the moving papers, even if established, would not warrant 
a change in custody.") (internal citations omitted); Valentino v. Cote, 3 P.3d 337, 340 
(Alaska 2000);  see also J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001). 

       6       Iverson v. Griffith, 180 P.3d 943, 946 (Alaska 2008) (quotingMaxwell, 37 

P.3d at 426); AS 25.20.110(a) ("An award of custody of a 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."); see also Maxwell, 37 
P.3d at 426 ("The moving parent bears the burden of making a prima facie showing of 

                                              -4-                                          6533 

----------------------- Page 5-----------------------

showing of changed circumstances warranting a hearing is a question of law that we 
review  de   novo.7      We   review   allegations   of   multiple   changed   circumstances   in   the 

aggregate to determine whether modification would be warranted if the allegations were 
proven true at a hearing.8         We will affirm the denial of a motion to modify custody 

without a hearing if, in our independent judgment,  either (1) "the facts alleged in the 
motion would not warrant  a change in custody,"9                 or (2) the "allegations of changed 

circumstances are convincingly refuted by competent evidence"10 and the moving party 

then   fails   to   indicate   the   ability   to   "produce   admissible   evidence   of   specific   facts 
rebutting that evidence."11 

                 In determining the best interests of a child for custody purposes, a court 

should   consider   several   factors,   including   the   child's   preference   if   the   child   is   of 
sufficient age and capacity to form a preference.12   In particular, "courts should place 

         6       (...continued) 

a substantial change of circumstance as a threshold matter."); Valentino, 3 P.3d at 340 
("[A] custody modification is valid if (1) the non-custodial parent establishes that a 
change in circumstances has occurred; and (2) the modification is in the best interests of 
the child."). 

         7       Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008);Maxwell, 37 P.3d at 425. 

         8       Barile, 179 P.3d at 946. 

         9       Iverson, 180 P.3d at 946. 

         10      Id. 

         11      C.R.B.   v.   C.C.,   959   P.2d   375,   382   (Alaska   1998),  overruled   on   other 

grounds by Evans v. McTaggart, 88 P.3d 1078, 1084-85 (Alaska 2004). 

         12      AS 25.24.150(c)(3).        In addition, the court should consider: 

                 (1)   the   physical,   emotional,   mental,   religious,   and   social 

                                                     -5-                                                 6533 

----------------------- Page 6-----------------------

weight upon an older child's preferences [because], while a young child's preferences 

are often unreliable because he or she can be easily influenced by the behavior of his or 

her parents, 'a relatively mature teenager's reasoned preference is not so lightly to be 
disregarded.' "13 


        The Superior Court Did Not Err In Denying Yvonne's Motion To Modify 
        Custody Without A Hearing. 

        12	      (...continued)

                 needs of the child; 
                 (2)   the   capability   and   desire   of   each   parent   to   meet   these
                 . . .
                 (4) the love and affection existing between the child and each
                 (5)   the  length    of  time   the   child   has   lived   in  a  stable,
                 satisfactory environment and the desirability of maintaining
                 (6) the willingness and ability of each parent to facilitate and
                 encourage a close and continuing relationship between the
                 other parent and the child . . .
                 (7) any evidence of domestic violence, child abuse, or child
                 neglect in the proposed custodial household or a history of
                 violence between the parents; 
                 (8) evidence that substance abuse by either parent or other
                 members of the household directly affects the emotional or
                 physical well-being of the child; 
                 (9) other factors that the court considers pertinent. 

        13       Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) (citing  Veazey v. 

Veazey, 560 P.2d 382, 390 n. 11 (Alaska 1977), overruled by statute on other grounds); 
see also Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 200) (affirming denial of custody 
modification hearing where teenagers expressed strong preference to stay with custodial 
parent and there were no signs of abuse or neglect). 

                                                    -6-	                                             6533

----------------------- Page 7-----------------------

               Although    Yvonne    raises  ten  points  on  appeal,  her  position   can  be 

summarized as follows: Yvonne argues that the superior court erred in denying her 

motion for changed custody without a hearing because, in her view, her allegations show 
a substantial change in circumstances which potentially warrants a change in custody.14 

Yvonne alleges eight changed circumstances discussed below. Wesley responds that the 

superior court correctly determined that Yvonne had not demonstrated a substantial 

change in circumstances.  Specifically, Wesley points out that Allison's preference was 

a major factor in the court's 2008 decision awarding him primary physical custody, and 

that Allison's preference has not changed. 

               As a preliminary matter, we note that Yvonne has included in the excerpt 

and relied on in her brief a large amount of material that is outside the proper scope of 

our review.   The relevant inquiry here is whether Yvonne has demonstrated a change in 

circumstances "relative to the facts and circumstances that existed at the time of the prior 
custody order that [she] seeks to modify."15    Yvonne seeks to modify the custody order 

issued in August 2008.     Thus, for this appeal we will not consider material relating to 
events before August 2008 other than for comparison purposes.16 

       14      In Yvonne's fourth through tenth points on appeal, she argues that the 

superior court gave too much or too little weight to various factors in determining the 
child's best interests.   However, because the superior court denied Yvonne's motion on 
the ground that she had not shown a substantial change in circumstances, the court did 
not actually weigh the statutory factors or make a determination about Allison's best 
interests.  Thus, we understand Yvonne to be arguing that this court in its independent 
judgment should conclude that the facts  alleged in her motion potentially warrant a 
change in custody. 

       15     J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001). 

       16      This decision tracks the reasoning in this court's September 2010 order 

regarding the scope of the record on appeal.     See supra note 4. 

                                             -7-                                        6533

----------------------- Page 8-----------------------

                As noted above, we review allegations of multiple changed circumstances 
in the aggregate.17    Therefore we will first discuss each of Yvonne's allegations and the 

corresponding evidence, and then determined whether, in the aggregate, the allegations 

merited a hearing in the superior court. 

                First,   Yvonne   alleges   that   Allison's  health   has   deteriorated   under   her 

father's care. Yvonne points to a January 2009 physician's report indicating that Allison 

had a hormone imbalance causing irregular menses, probably as a result of weight gain, 

and recommending that Allison lose 15 pounds.               Yvonne alleges that Wesley does not 
provide healthy food or exercise opportunities to allow Allison to reach this goal.18 

Yvonne   does   acknowledge,   however,   that   a  May   2009   doctor's   report   showed   that 

Allison had lost some weight and was on the "right track." 

                Second, Yvonne allegesthat Allison lives largely unsupervised in one-half 

of Wesley's duplex, allowing her to socialize excessively and irresponsibly.  Yvonne's 

assertions on this point are either unsupported (because Yvonne provides no record 
support or cites to non-supportive material) or supported only by inadmissible evidence.19 

        17      See supra note 8 and accompanying text. 

        18      Wesley and Allison dispute this in their affidavits.             Both state that they 

exercise together.      Wesley says they "eat well and have a good diet." Allison says her 
mother's infrequent visits make her a poor judge of Allison's diet while at her father's. 
Further, Allison's affidavit indicates that she and her mother have a difficult relationship 
on   the   subject   of   exercise,   which   is   unsurprising   given   the   weight-related   criticism 
Allison experienced from her mother while they lived together. 

        19      For example, Yvonne supports her allegation that Allison "has parties at 

'her' house and spends overnights [with] friends often at the expense of her grades" by 
citing a few emails between herself and Wesley.                Yvonne's emails are inadmissible 
hearsay, and Wesley's statements, though potentially non-hearsay party admissions, do 
not support Yvonne's allegations. See Alaska Evidence Rules 801(d)(2), 802. 

                                                   -8-                                               6533 

----------------------- Page 9-----------------------

Yvonne also asserts that Wesley has a history of objecting to or refusing to pay for 
Allison's doctor visits, but she does not point to any admissible evidence.20  Rather, the 

record shows that Wesley has attended at least one doctor's visit with Allison since 

assuming custody.  Although she has abandoned the claim on appeal, Yvonne did allege 

in the superior court that Wesley prevented Allison from getting a flu shot. However, 

Allison stated in her affidavit that she did not want a flu shot even though Wesley would 

have permitted it.  Yvonne provides no evidence refuting this. 

                Third, Yvonne alleges that Allison's grades in school deteriorated under her 

father's care.  Allison's report cards show that she had As and Bs in the year before she 

went to live with Wesley and had a mixture of As, Bs, Cs, and Ds in the year after.  On 

the positive side, Allison's report cards show regular attendance, enrollment in several 

honors classes, and consistent As in "Concert Orchestra."   In his affidavit, Wesley said 

he shared Yvonne's concerns and was making efforts to help Allison improve.  Allison 

        19      (...continued) 

                Although Wesley and Allison do not explicitly deny Yvonne's allegation 
that they live in different sides of a duplex, they disagree with Yvonne that Allison is 
unsupervised.       Wesley stated in his affidavit that he discusses homework with Allison 
and fixes meals for her daily. Allison stated in her affidavit that her father once grounded 
her and prevented her from attending parties after she received a bad grade. Yvonne has 
not   produced   admissible   evidence   of   specific   facts   rebutting   Wesley   and   Allison's 

                Yvonne   also   alleges   that   Allison's  living   area   is   dirty   and   in   disarray. 
Because Yvonne did not make this allegation in the superior court, it is waived. See 
Peterson v. Swarthout, 214 P.3d 332, 339 (Alaska 2009) (claims not raised below are 

        20      Yvonne also claims on appeal, without support, that Wesley let Allison dye 

her hair and make inappropriate internet postings.             She did not make these allegations 
below.   Accordingly, they too are waived.  Peterson, 214 P.3d at 339. 

                                                   -9-                                             6533

----------------------- Page 10-----------------------

stated that her father often helped her with her homework and that her grades were lower 

because classes at her new school were more challenging. 

                Fourth, Yvonne alleges that Allison has a new interest in learning Russian 

and that spending more time with her mother, a native speaker, would be beneficial. 

Allison responded that she has not been able to learn Russian from her mother after 15 


                Fifth, Yvonne alleges on appeal that Wesley has "manipulated" Allison and 

therefore her custody preference should be given little weight. Yvonne did not make this 
allegation below, so it is waived.21     Further, Yvonne made this allegation in the July 2008 

custody trial and the superior court rejected it, finding that Allison's preference had not 

been unduly influenced by her father. 

                Sixth, Yvonne alleges that Wesley has interfered with her relationship with 
Allison. Yvonne did not make this allegation below; thus it is waived.22  Further, Yvonne 

supports this allegation primarily by citing events that occurred before July 2008 and 
therefore are irrelevant to this appeal.23 

        21      Id. 

        22      Id. 

        23      The only relevant events are those that occurred after August 2008 when 

the prior custody order was issued, and before June 2009, when Yvonne brought this 
appeal.   See J.L.P. v. V.L.A., 30 P.3d 590, 595-96 (Alaska 2001) (relevant inquiry is 
whether party has shown that change in circumstances occurred since prior custody 
                The only recent development Yvonne now alleges is that Wesley disparages 
her to Allison, thus harming the mother-daughter relationship.              For support, she gives 
two examples that are unsupported by the record and cites to additional unsupported 
assertions   from   her   December   2008   pleading  in   an   ancillary   proceeding   relating   to 
visitation and child support. Affidavits from both Wesley and Allison in that case denied 

                                                 -10-                                              6533 

----------------------- Page 11-----------------------

                Seventh, Yvonne alleges that her husband recently moved to Los Angeles 

for work. Yvonne argues that because Allison's difficult relationship with her stepfather 

was   one   basis   for   the   superior   court's   prior   custody   decision,   his   recent   move   is   a 

substantial change in circumstances which warrants a modification in custody. 

                Eighth, Yvonne alleges that she has recently moved into an apartment in 

Allison's school district.   Yvonne did not make this allegation below, and therefore it is 
waived.24    Further, Yvonne does not explain why her relocation warrants a change in 

custody, and it does not appear that Yvonne's previous distance from Allison's school 
district was a barrier to shared custody.25 

                Considering Yvonne's multiple allegations in the aggregate26 and accepting 

them as true, we conclude that Yvonne has not demonstrated a substantial or significant 

        23      (...continued) 

Yvonne's allegations. 

        24      See Peterson, 214 P.3d at 339 (claims not raised below are waived). 

        25      Yvonne makes two additional arguments which completely lack merit. 

First,   she argues that the superior court should have given more weight to a 2007 child 
custody investigator's report.        This report was done as part of a proceeding completed 
before the custody order which Yvonne seeks to modify, and thus the report is largely 
irrelevant now.  See J.L.P., 30 P.3d at 595-96. 

                Second, Yvonne argues that the superior court should have considered 
Wesley's history of domestic violence.            However, Yvonne cites only material from 
between 1993 and 2000, well before the date of the 2008 custody order.                   See id.   The 
superior court in the 2008 custody trial found that domestic violence was not an issue 
and Yvonne does not cite any incidents after that time.                In addition, Yvonne raised 
neither of these issues below, so they are waived. See Peterson, 214 P.3d at 339. 

        26      Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008). 

                                                 -11-                                            6533

----------------------- Page 12-----------------------

change   in   circumstances   which   would   potentially   warrant   a   change   in  custody.27 

Although Allison was diagnosed with a medical condition while under her father's care, 

it is undisputed that she has obtained follow-up treatment and made progress in following 

the doctor's recommendations while under her father's care.                Many of Yvonne's other 

allegations are relatively minor or are outside the range of our review. 

                Two   of   Yvonne's   allegations   do   warrant   closer   consideration:   that   her 

husband - whose presence was a partial basis for the prior custody order - is no longer 

in Alaska, and that Allison's grades dropped significantly after the change in custody. 

In particular, the marked drop in Allison's academic performance gives us pause, as a 

parent's ability to provide for a child's educational needs can be an important factor to 
consider in determining the child's best interests.28 

                If Allison were younger or did not express a strong preference, we might 

conclude that a hearing was necessary given these changes. However, Allison turned 17 

in September 2010 and she has expressed a strong preference to live with her father.  In 

2008, when she was 14, the superior court heard extensive testimony from Allison and 

determined that she was mature, made good decisions, and had legitimate reasons for her 

custody preference.       Yvonne has not made any allegations (such as drug abuse, risky 

behavior, or mental illness) that now call Allison's maturity into question.                 Moreover, 

        27      See Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001) ("The superior 

court may deny a hearing on a motion to modify custody if it considers the motion and 
finds it plain that the facts alleged in the moving papers, even if established, would not 
warrant   a   change   in   custody.")   (internal   citations   omitted); J.L.P.,   30   P.3d   at   595; 
Valentino v. Cote, 3 P.3d 337, 340 (Alaska 2000). 

        28      See   Michele   M.   v.   Richard   R.,   177   P.3d   830,   834-35   (Alaska   2008); 

Williams v. Ross, Mem. Op. & J. No. 1361, 2006 WL 830611, at *3 (Alaska, Mar. 29, 
2006)   (considering   parent's   ability   to   provide   for   child's   educational   needs   under 
AS 25.24.150(c)(1)-(2)). 

                                                  -12-                                             6533

----------------------- Page 13-----------------------

Wesley concedes that Allison's grades have declined but, as Allison explained, that the 

work is more challenging at her new school, and Yvonne has not contested the factual 

basis   for   this   reasonable   explanation.     In   light   of   this,   and   in   light  of   this   court's 

precedent   giving   greater   weight   to   the   custody   preferences   of   older   children,        we 

conclude in our independent judgment that Yvonne's allegations, even if established as 

true, do not demonstrate a significant or substantial change in custody that would warrant 

a custody modification.        Therefore, the superior court did not err in denying Yvonne a 

hearing on her motion to modify custody. 


                 For   the   foregoing   reasons,   we   AFFIRM   the   superior   court's   decision. 

        29       See, e.g., Maxwell, 37 P.3d at 425; Valentino, 3 P.3d at 340-41. 

                                                   -13-                                                 6533 
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