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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bagby v. Bagby (5/13/2011) sp-6559

Bagby v. Bagby (5/13/2011) sp-6559, 250 P3d 1127

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

LEOTA BAGBY,                                      ) 
                                                  )   Supreme Court No. S-13785 
                       Appellant,                 ) 
                                                  )   Superior Court No. 1SI-07-00072 CI 
        v.                                        ) 
                                                  )   O P I N I O N 
BRYAN BAGBY,                                      ) 
                                                  )   No. 6559 - May 13, 2011 
                       Appellee.                  ) 
                                                  ) 

               Appeal from the Superior Court of the State of Alaska, First 
               Judicial District, Sitka, David V. George, Judge. 

               Appearances:      Justin R. Eschbacher, Law Offices of G. R. 
               Eschbacher, Anchorage, for Appellant. Bryan Bagby, pro se, 
               Plymouth, California, Appellee. 

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

               CHRISTEN, Justice. 

I.      INTRODUCTION 

               Bryan and Leota Bagby were married in 1998 and divorced in 2008.  They 

are the parents of one daughter. Prior to separation, the parties resided in Sitka but Leota 

moved to Anchorage soon after Bryan filed a complaint for divorce.  After a bench trial, 

Bryan was awarded primary physical custody of the parties' daughter during the school 

year and Leota was awarded visitation during the summer and on alternating holidays. 

Bryan moved to Arizona after the custody trial.  Leota filed a motion to modify custody, 

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but the superior court denied the motion without holding a hearing.  The superior court 

reasoned   that   Bryan's   move   to   Arizona   did   not   constitute   a   substantial   change   in 

circumstances because the original custody order contemplated that Leota's visitation 

would   require   long-distance   travel   between   Sitka   and   Anchorage.         Leota   appeals. 

Because we have consistently held that an out-of-state move is a substantial change in 

circumstances as a matter of law, we reverse the superior court's order and remand for 

a hearing on Leota's motion to modify custody. 

II.     FACTS AND PROCEEDINGS 

                Bryan Bagby and Leota Bagby were married on September 4, 1998 and are 

the parents of one daughter, Natalie.1        In April 2007, Bryan filed for divorce and Leota 

moved from Sitka to Anchorage.             The parties resolved   some of their custody issues 

through a settlement agreement and others were resolved at a trial held October 17 and 

19, 2007.     The superior court determined that it was in Natalie's best interests for the 

parties to share legal custody but for Bryan to have physical custody during the school 

year.  Leota was awarded visitation during the summer and on alternating holidays.  The 

parties were ordered to equally share the cost of flights between Sitka and Anchorage to 

facilitate Leota's two visitation periods - summer and one holiday each year.                    Leota 

was also allowed limited additional holiday visitation at her own expense.2 

        1       A pseudonym is used to protect the identity of the parties' child. 

        2       Under   the   partial   settlement   agreement,   Leota   was   allocated   additional 

holiday time according to the following schedule: 

                [Leota] is entitled to exercise additional holiday visitation 
                during     even    numbered      years   the   day   after  Christmas, 
                December 26th until 2 days before school resumes, at her 
                own   expense.      She   may   also   visit   with   [Natalie]   for   the 
                                                                                        (continued...) 

                                                  -2-                                             6559
 

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                Bryan moved to Arizona in October 2008.   In December 2009 Leota filed 

a motion to modify custody.   The superior court denied the motion to modify custody in 

an order that stated Leota "failed to demonstrate a change in circumstances entitling her 

to   a   hearing."  The   superior   court   reasoned   that   Bryan's   move   to   Arizona   did   not 

constitute     a  substantial    change    in   circumstances      because    the   parties   lived   in 

"geographically distant" locations when the original custody decision was made, and 

Leota   raised   no   allegations   that   the   move   to   Arizona   would   have   an   impact   on   her 

visitation schedule.  The superior court also ruled that Leota did not demonstrate that the 

move would have an impact on Natalie's welfare. 

                Leota appeals. 

III.    STANDARD OF REVIEW 

                We review de novo "[w]hether a moving party has made a prima facie 

showing sufficient to justify a custody or child support modification hearing."3                 "The 

parent   moving   for   modification   has   the   burden   of   proving   a   substantial   change   in 

circumstances as a threshold matter"4 to obtain a hearing on whether the child's best 

interests require modification of custody.          We will affirm a denial of a modification 

motion without a hearing "if, in our independent judgment, the facts alleged, even if 

        2(...continued)
 

                second half of her spring break during odd numbered years.
 
                [Leota] may also have [Natalie] for Thanksgiving on even
 
                numbered years for a three day visit that is not to interfere
 
                with [Natalie's] schooling.
 

        3       Hunter v. Conwell, 219 P.3d 191, 195 (Alaska 2009) (citing Harrington v. 

Jordan, 984 P.2d 1, 3 (Alaska 1999)). 

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

816 P.2d 145, 150 (Alaska 1991)). 

                                                  -3-                                            6559
 

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proved, cannot warrant modification, or if the allegations are so general or conclusory, 

and so convincingly refuted by competent evidence, as to create no genuine issue of 

material fact requiring a hearing."5 

IV.     DISCUSSION 

               The   superior   court   denied   Leota's   motion   to   modify   custody   without 

holding     a  hearing   because    it  decided   she   "failed  to  demonstrate     a  change    in 

circumstances entitling her to a hearing."        Leota argues that Bryan's move to Arizona 

constitutes a substantial change in circumstance as a matter of law, and that the move 

requires a hearing   to   determine whether modification of custody is in Natalie's best 

interests.  Leota's argument is supported by our case law. 

               In Alaska, modification of custody requires a showing that there has been 

a substantial change in circumstances since the last custody order was entered and that 

the modification is in the child's best interests.6     The moving party bears the burden of 

demonstrating that a substantial change in circumstances has occurred.7             If the moving 

party    satisfies  the  threshold   requirement    of  establishing   a  substantial   change    in 

circumstances, the superior court must hold an evidentiary hearing on the motion to 

determine whether the proposed change in custody is in the child's best interests.8 

        5      Id. (quoting C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)). 

        6      AS 25.20.110(a); see also Misyura v. Misyura, 244 P.3d 519, 521 (Alaska 

2010); Hunter, 219 P.3d at 195-97. 

        7      Morino, 970 P.2d at 428 (citing Long, 816 P.2d at 150). 

        8      See Acevedo v. Liberty, 956 P.2d 455, 457 (Alaska 1998) (internal citation 

omitted). 

                                                -4-                                           6559
 

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

                "We have held that 'a custodial parent's decision to move out-of-state [with 

the children] amounts to a [substantial] change in circumstances as a matter of law' "9 

and "the moving party is entitled to a hearing on a motion to modify custody as a matter 

of law based on a showing that the custodial parent has moved or intends to move [out­ 

of-state]."10 

                After Leota's motion to modify custody was denied, she filed a motion for 

reconsideration.       She   again   argued    that  Bryan's    out-of-state   move    constituted    a 

substantial change in circumstances and that she was entitled to a hearing.              Her motion 

cited several Alaska cases that have established and reaffirmed this rule.11           The superior 

court responded with an order acknowledging the Alaska cases cited in Leota's motion, 

but observing that each of the cases relied on House v. House.12                The superior court 

distinguished House because that case involved a custody and visitation order that was 

put in place when the parties lived in the same geographic area, while Leota had moved 

to Anchorage by the time the superior court entered the custody order in this case.  The 

superior court also noted thatHouse was predicated on the children facing a "potentially 

disturbing and upsetting change in circumstances" because they would be "likely to have 

less frequent contact with the noncustodial parent who continue[d] to reside in the state." 

        9       Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (quoting Acevedo , 956 P.2d 

at 457). 

        10      Id. 

        11      Hamilton v. Hamilton, 42 P.3d 1107, 1115 (Alaska 2002) (citing Moeller- 

Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2002);House v. House, 779 P.2d 1204, 
1207 (Alaska 1989));Barrett, 35 P.3d at 6 (quotingAcevedo , 956 P.2d at 457); Pearson 
v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (citing House, 779 P.2d at 1207-08). 

        12      779 P.2d 1204. 

                                                  -5-                                           6559
 

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Concluding that "it was not simply the move out-of-state, but the negative impact upon 

the noncustodial parent's visitation" that was pivotal in House, the superior court denied 

Leota's motion for reconsideration. We are not persuaded that House is distinguishable. 

                 Bryan and Leota lived several hundred miles apart when the superior court 

entered its custody order,13 but many parents in Alaska have homes separated by long 

distances and we have not exempted the custody orders in those cases from the rule that 

a custodial parent's out-of-state move is a substantial change in circumstances as a matter 

of law.14  And the many reasons for this rule apply whether or not the parents lived near 

each other when custody was initially determined.              Because Alaska is geographically 

separated from the contiguous United States by a significant distance, an out-of-state 

move   will   typically   mean   that   visitation   will   become   more   costly   and   more   time- 

consuming.      As a result, visitation may occur less frequently and there may be fewer 

opportunities for children to visit with extended family living in Alaska.               We are also 

mindful that the finances of many families make it necessary for parents to consider 

allowing their children to travel unaccompanied at a fairly young age.               That process is 

significantly more complicated if the travel extends outside of Alaska because such travel 

is lengthy, often requires changing planes, and often requires more than one flight - 

unlike some in-state travel.  Out-of-state moves also necessarily mean that children will 

live in different homes and neighborhoods and will attend different schools. For children 

with special healthcare or educational needs, changes in healthcare providers, therapists, 

        13      The distance between Sitka and Anchorage is over 600 miles by air. 

        14      We have articulated this holding in several cases.          See Hamilton, 42 P.3d 

at 1115; see also Barrett, 35 P.3d at 6 (quoting Acevedo , 956 P.2d at 457); Pearson, 5 
P.3d at 242 (citing House, 779 P.2d at 1207-08); Long v. Long, 816 P.2d 145, 152 
(Alaska 1991) (citing House, 779 P.2d at 1207-08). 

                                                  -6-                                            6559
 

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and    teachers  can   be  equally  significant.    All  of  these  factors  reinforce  the  well- 

established rule that an out-of-state move is a substantial change in circumstances as a 

matter of law. 

               Bryan's move to Arizona does not mean that custody will change, but it 

does require a hearing on Leota's motion to modify custody.            A hearing will allow the 

superior court an opportunity to consider all of the relevant evidence and determine 

whether modification of custody is in Natalie's best interests. 

V.      CONCLUSION 

               We REVERSE the superior court's determination that Bryan's move to 

Arizona did not constitute a substantial change in circumstances and REMAND for a 

hearing on the motion to modify custody. 

                                                -7-                                          6559
 
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