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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Collier v. Harris (9/2/2011) sp-6599

Collier v. Harris (9/2/2011) sp-6599, 261 P3d 397

        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 

BRANWEN COLLIER f/k/a                               ) 
MENDEL-GLEASON,                                     )   Supreme Court No. S-13496 
                                                    ) 
                        Appellant,                  )   Superior Court No. 3AN-06-12452 CI 
                                                    ) 
        v.                                          )   O P I N I O N 
                                                    ) 
WILLIAM AUBREY HARRIS,                              )   No. 6599 - September 2, 2011 
                                                    ) 
                        Appellee.                   ) 
                                                    ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Jack Smith, Judge. 

                Appearances:      Mary A. Gilson and Lori Colbert, Mendel & 
                Associates, Anchorage, and Karla F. Huntington, The Law 
                Office of Karla F. Huntington, Eagle River, for Appellant. 
                David   W.   Baranow,   Law   Offices   of   David   W.   Baranow, 
                Anchorage, for Appellee. 

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

                CHRISTEN, Justice. 
                FABE, Justice, dissenting. 

I.      INTRODUCTION 

                Parents    agreed    to  shared   physical   custody    of   their  daughter,   and  the 

superior court decided that joint legal custody was in the child's best interest.   The 

mother later filed a motion for modification of joint legal and shared physical custody, 

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asserting that her work schedule had changed since the parties agreed on a physical 

custody     schedule,    that  the  father  had   violated   court  orders,   and   that  he  was   not 

communicating effectively. The mother sought sole legal and primary physical custody. 

The superior court denied the motion without a hearing and awarded attorney's fees to 

the father.   We affirm the superior court's decision that the mother was not entitled to a 

hearing on her motion to modify custody under the circumstances of this case, but vacate 

the award of attorney's fees. 

II.     FACTS AND PROCEEDINGS 

        A.      Proceedings Through Trial 

                Branwen Collier and William (Will) Harris are the parents of a daughter, 
Zada.1    The    couple    ended   their  relationship    in  March    2006   and   Branwen     filed  a 

complaint for custody of Zada.        Trial was delayed to give the parties an opportunity to 

resolve their differences through a settlement conference. 

                At settlement conferences held in May and July 2007, the parties came to 

agreement on several issues, including:  child support, daycare, insurance, the schedule 

for shared physical custody, the name on Zada's birth certificate, and the parents' means 

of communication. At the time of the partial settlement, Branwen was a full-time student 

with   a   flexible   schedule   during   the   week   and   Will   worked   a   conventional   Monday 

through Friday work week with flexible time on weekends.                This was the basis for the 

physical custody schedule, which provided for Will to have physical custody of Zada 

most weekends and Branwen to have physical custody most weekdays.                       A number of 

issues were not resolved at the settlement conferences, including:                legal custody, the 

division of Zada's Permanent Fund Dividend, the use of the dependency tax exemption, 

        1       We use a pseudonym for the daughter to protect her privacy. 

                                                  -2-                                              6599 

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

and the start date for Will's child support obligation.           The unresolved matters were left 

for trial. 

                In    February    2008    the  superior    court   entered   a  partial   custody    order 

incorporating   the   terms   of   the   parties'   settlement   agreement.     The   order   was   fairly 

detailed on the issue of physical custody, but the issue of legal custody was held in 

abeyance for another six months.   The superior court established the parties' respective 

responsibilities for financially supporting Zada and ordered the parents to engage in co- 

parenting counseling to help them improve the effectiveness of their communication with 

each other.  Trial was scheduled for September 30 and October 1, 2008 on legal custody. 

                On August 6, 2008, Branwen filed a motion for appointment of a custody 

investigator.    She claimed the appointment was necessary because "[t]he parties have 

little history of communication, and it would be difficult for either party to gather the 

necessary information about the other without the assistance of a neutral investigator." 

At the same time, Branwen filed a motion for an order to show cause.  She claimed that 

Will had   violated   the court's orders to   pay   child support, pay   for daycare, maintain 

Denali Kidcare, and allow Branwen reasonable telephone access to Zada.                        The court 

denied Branwen's motion for appointment of a custody investigator but decided to delay 

ruling on the motion for an order to show cause until trial. 

                In   September   2008,   less   than   two   weeks   before   trial,   Branwen   filed   a 

motion to modify physical custody.           Branwen argued that there had been a substantial 

change in circumstances since the May and July 2007 settlement conferences.                        These 

claimed changes included the failure of effective communication between the parties, 

Will's alleged violations of court orders, and a change in Branwen's schedule due to her 

graduation   from college and entry into the workforce full-time.                  The superior court 

denied   the   motion,   observing:        "[t]he   court   does   not   find   a   substantial   change   in 

circumstances."      The court was clear that the scope of the October 2008 trial would be 

                                                   -3-                                              6599
 

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

limited.   The court ruled it would "not revisit the issue of physical custody, support or 

other extrinsic matters in the absence of proper motion and due process opportunity to 

respond" and "evidence shall not be presented at the trial . . . on modification of physical 

custody of the parties' minor child." 

                Trial was held over two days in October 2008.  The court found joint legal 

custody to be in Zada's best interest and ordered specific terms for parent communication 

to   make   joint   legal   custody   successful.  In   addition,   the   court   addressed   Branwen's 

August motion for order to show cause why Will should not be held in contempt for 

violations of the February 2008 custody   and support order.                The court decided that 

Branwen's allegation that Will had not provided reasonable telephone access to Zada 

"was not established by a preponderance of the evidence."   But the court also found that 

Will   had   not   paid   his   share   of   Zada's   daycare   costs. The   court   attributed   this   to   a 

misinterpretation of the earlier order and declined to hold Will in contempt.                  But the 

court did order Will to pay Branwen $270.35 within 30 days for his share of Zada's past 

due daycare expenses. 

        B.      Branwen's Post-Trial Motion To Modify Legal And Physical Custody 

                Branwen       filed  a  motion     to  modify    legal   and   physical    custody    on 

January   27,   2009,   approximately   four   months   after   the   trial   on   legal   custody.  She 

supported      her  motion    with   three   allegations   of  changed     circumstances:       (1)   the 

cooperation and communication anticipated by the court had not occurred; (2) Will 

refused to abide by the court's orders; and (3) because she had graduated from college 

in May 2008 and was working conventional hours Monday through Friday, the existing 

schedule no longer allowed Branwen to have free time with Zada.  Branwen's proposed 

modification included awarding her sole legal and primary physical custody of Zada, 

reducing Will's time with Zada to visitation every other weekend, half of the holidays, 

and a vacation period during the summer. 

                                                  -4-                                             6599
 

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

                Will   opposed   the   motion   to   modify   custody,   arguing:      (1)   Branwen's 

motion     claimed    a  nominal    change    in  circumstances,     including    a  "unilateral"   and 

"voluntar[y]" decision to matriculate and graduate from college, which did not rise to the 

level required for modification; and (2) Branwen's repeated use of the judicial system 

to try to obtain sole custody of their daughter was not in good faith.  Will also asked the 

court   to   assess   attorney's   fees   against   Branwen   for   her   January   2009   motion. Will 

alleged that an award of fees was necessary because "[w]ithout such sanction, the Court, 

counsel and [Will] may only expect another motion in a few weeks or at most, months' 

time." 

                The superior court denied Branwen's motion to modify physical and legal 

custody without holding a hearing.  In its February 19, 2009 order denying the motion, 

the court found "[Will's] arguments persuasive," and ordered Branwen to "reimburse 

[Will] full/partial attorney fees."      Will's counsel was directed to submit an accounting 

of fees and costs. 

        C.      Branwen's First Motion For Reconsideration 

                On February 23, 2009, Branwen filed a motion for reconsideration.  The 

motion argued that the court ruled on the motion to modify custody before she had the 
opportunity to reply to   Will's   opposition.2        Branwen filed a reply in support of her 

motion to modify custody at the same time.            The court accepted Branwen's reply and 

gave Will a chance to file a response. 

                On March 10, 2009, Will responded to Branwen's reply.                   The response 

argued that Will was complying with court orders, that custody should not be modified 

based on Branwen's own "life choices," and that Branwen's reply "assert[ed] no new 

        2       The    superior    court   denied   Branwen's      motion    to  modify    custody    on 

February 19, 2009, one day before Branwen's reply was due. 

                                                  -5-                                               6599 

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

issues or arguments in any particular."          After considering the motion papers, the court 

again denied Branwen's motion for modification.                The court found "the affidavits of 

[Will] credible, the arguments of [Will's] Counsel persuasive and no significant change 

in circumstances warranting modification of the present custody order in the best interest 

of the child."    The court confirmed its prior order awarding attorney's fees to Will and 

directed Will's counsel to submit an accounting of fees and costs to Branwen and the 

court. 

        D.      Branwen's Second Motion For Reconsideration 

                Branwen filed a second motion for reconsideration almost two weeks later. 

It argued the court should have given her a hearing on her motion to modify and that the 

court erred by assessing fees against her.   The superior court denied this motion as well, 

ruling "[a] voluntary decision by one parent to change [her] schedule is not grounds to 

modify custody for the other parent."  The court further ruled that Branwen's concerns 

about Will not following court orders would be better addressed in a motion to enforce 

or   an order to show cause, which "might be warranted if the [c]ourt found [Will's] 

response   unpersuasive."       The   court   then   wrote:   "[g]iven   the   fairly   extensive   shared 

physical custody arrangement set by the [c]ourt, and the lack of any allegation those 

visits are not being complied with, even taking [Branwen's] affidavits as true would not 

warrant a change of custody."  The order did not specify whether the court was referring 

to legal or physical custody; the parties understood the order to refer to both.  We agree 

with the parties' interpretation. 

                As to attorney's fees, the superior court found Branwen's motions simply 

"a continuation of a dissatisfaction with shared custody," which was still the arrangement 

"in   the   best   interests   of   the   child." The   court   ordered   Branwen   to   pay   Will   partial 

attorney's fees, but explained that the parties' relative financial resources was not the 

reason for the award.       Rather, Branwen's use of "motion practice to attempt to control 

                                                   -6-                                             6599
 

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

and abuse [Will]" was what led the court to assess fees.  The court found that "[a]bsent 

some     accountability    for  repeated   motions    raising  the  same    issues  that  have   been 

previously heard, this [abuse would] likely continue."           The court ruled that Branwen's 

actions were neither in the best interests of the child nor in good faith. 

                Branwen appeals the court's denial of her motion to modify custody and 

subsequent motions for reconsideration, and the court's award of attorney's fees to Will. 

III.	   STANDARD OF REVIEW 

                We   review   de   novo   whether   a   moving   party   has   made   a   prima   facie 
showing sufficient to justify a custody modification hearing.3 

                An award of attorney's fees under AS 25.20.115 is subject to reversal only 

for abuse of discretion or if the court's factual findings supporting the award are clearly 
erroneous.4    We use our independent judgment to determine whether the superior court 

applied the law correctly in awarding fees.5 

IV.	    DISCUSSION 

        A.	     The Superior Court Did Not Err By Denying Branwen's Motion To 
                Modify Joint Legal and Shared Physical Custody Without A Hearing. 

                Branwen      filed  a  motion    to  modify    legal   and   physical   custody    on 

January 27, 2009.      The court denied this motion and declined to   change its order in 

response to two subsequent motions for reconsideration.  In its orders, the court lumped 

together Branwen's request to modify legal and physical custody, rather than explaining 

its reasons for denying modification of each type of custody.             But these two types of 

        3       Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001) (quoting Schuyler v. 

Briner, 13 P.3d 738, 741 (Alaska 2000)). 

        4       See Rowen v. Rowen, 963 P.2d 249, 257 (Alaska 1998) (citing Nelson v. 

Jones, 781 P.2d 964, 971 (Alaska 1989)). 

        5       See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996). 

                                                 -7-	                                          6599
 

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

                                               6 
custody must be analyzed separately;  as is true here, the comparative period used to 

analyze changed circumstances for one may not be the same as for the other. 

                A parent seeking a modification of legal custody must make a prima facie 

showing   of   substantially   changed   circumstances   sufficient   to   justify   a   modification 
hearing.7     The    "change     in  circumstances"      requirement   is    "intended     to  discourage 

continual relitigation of custody decisions, a policy motivated by the judicial assumption 

that   finality  and   certainty    in  custody    matters   are   critical   to  the  child's  emotional 
welfare."8    "For this reason, the change 'must be demonstrated relative to the facts and 

circumstances that existed at the time of the prior custody order that the party seeks to 
modify.' "9    A parent seeking to modify physical custody must also demonstrate that a 

substantial change in circumstances has taken place since the last custody order was 
entered.10 

                 Here, legal custody was established by court order after the October 2008 

trial. Branwen filed her motion to modify on January 27, 2009.                  Therefore, the correct 

comparison        for   determining      whether     there   had    been    a  substantial     change     in 

circumstances for legal custody purposes is a comparison of the circumstances as they 

        6       See D.J. v. P.C., 36 P.3d 663, 670 n.26 (Alaska 2001) (" 'Legal custody' 

refers to the responsibility for making 'major decisions affecting the child's welfare' and 
is a status that may be held by a parent who does not have 'physical custody,' which 
refers to the responsibility for physical care and immediate supervision of the child." 
(quoting Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000))). 

        7       Hunter v. Conwell, 219 P.3d 191, 195-97 (Alaska 2009). 

        8       Peterson   v.   Swarthout,   214   P.3d   332,   340-41   (Alaska   2009)   (internal 

citations and quotation marks omitted). 

        9       Id. (quoting Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)). 

        10      Hunter, 219 P.3d at 195-97; see also Peterson, 214 P.3d at 340-41. 

                                                    -8-                                              6599
 

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existed in October 2008 to the circumstances as of January 27, 2009.  Physical custody 

was   agreed   to   by   the   parties   in   their   2007   settlement   discussions,   though   the   court 

memorialized the parties' physical custody schedule in February 2008.                        The correct 

comparison of circumstances for physical custody purposes is the circumstances as they 

existed in July 2007 and the circumstances as they existed when the January 27, 2009 

motion was filed. 

                 1.      The parties' competing affidavits 

                 In her motion to modify custody, Branwen alleged two circumstances that 

went to the heart of legal custody:          (1) a failure of communication between the parties; 

and (2) Will's refusal to honor court orders regarding co-parenting counseling, use of 

email,   and   telephone   access   to   Zada.    Branwen   also   claimed   a   change   in   her   post- 

graduation      work     schedule     in   support    of   modifying      physical    custody.      In   its 

February   19,   2009   order   denying   Branwen's   motion   to          modify   custody,   the   only 

explanation the superior court gave was that it found "[Will's] arguments persuasive." 

The   court   gave   minimal   further   explanation   when   it   issued   its   order   on   Branwen's 

motion for reconsideration, adding that it found "the affidavits of [Will] credible" and 

"no significant change in circumstances warranting modification of the present custody 

order." In its order on Branwen's second motion for reconsideration, the court explained 

that "[t]he . . . issues raised by [Branwen] as to telephonic and e-mail contact and co- 

parenting   classes   go   to   enforcement   of   current   [c]ourt   orders."    The   superior   court 

explained that the appropriate remedy for enforcement problems would be a motion to 

enforce or an order to show cause.  But in the same sentence, the court wrote that these 

types     of  motions     would     be   warranted     if  "the   [c]ourt   found    [Will's]    response 

unpersuasive."      As explained, the court's original order denying the motion to modify 

made clear that the superior court found "[Will's] arguments persuasive." 

                                                    -9-                                              6599
 

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

                Branwen argues that the superior court's statements, taken together, imply 

that "any motion to enforce would be fruitless." She also argues that the court attempted 

to "resolve factual issues by making credibility determinations based on the affidavits the 

parties filed, which is not permissible." We agree with Branwen that the superior court's 

decision is troubling on these grounds. 

                First,   the   court's   order   is   problematic   because   it   overlooks   Branwen's 

contention that her motions appear to have been what motivated Will to comply with the 

court's orders, such as scheduling a counseling appointment for himself and a dentist 

appointment   for   Zada.      There   is   at   least   some   support   for   this   contention: at   the 

conclusion of the October 2008 trial, the superior court found Will failed to comply with 

a court order due to a misunderstanding of what daycare costs he was required to pay. 

It was Branwen's order to show cause that led the court to clarify this requirement, and 

to enforce it. 

                The second reason the court's order is problematic is because the court 

weighed Will's credibility when determining whether a hearing was warranted on the 

motion to modify custody. In its order denying Branwen's motion to modify, the court 

wrote that it "finds [Will's] arguments persuasive" and, in its order on the motion for 

reconsideration, the court elaborated that it found "the affidavits of [Will] credible [and] 

the arguments of [Will's] Counsel persuasive." 

                Branwen argues the court should not have made credibility determinations 

based on the parties' affidavits. Will responds that "a court can deny a motion to modify 

custody or visitation, without holding a hearing, based solely on the pleadings or after 
considering material beyond the pleadings - e.g., affidavits."11              But we held in C.R.B. 

        11      C.R.B.  v.   C.C.,   959   P.2d   375,   378   (Alaska   1998),   overruled   on   other 

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

                                                  -10-                                               6599 

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

v. C.C. that granting or denying a motion to modify custody without a hearing is akin to 
making a determination on summary judgment;12                 and we have cautioned that courts 

should not weigh witness credibility on summary judgment.13 

                Here,   Will   alleges   that   the   superior   court   was   justified   in   judging   the 

affidavits' credibility because the court had "multiple, extended opportunities to not only 

review     and   assess   Branwen's     many     affidavits,  but   also  to  view   her  conduct     and 

demeanor and to assess her credibility in trial and in hearing after hearing."                We have 

never directly addressed this issue, but other jurisdictions have recognized that a court's 

familiarity with a case can sometimes allow it to make credibility determinations without 
taking additional testimony.14       There may be circumstances where a party's repetitious 

use of the judicial system over a short time period without new allegations would allow 

a trial court to make a credibility determination on written filings, but this is not such a 

case.    Here, the parties' affidavits contained directly conflicting information regarding 

the reasons for ongoing failures in communication and cooperation.                   Physical custody 

had not been addressed since July 2007, the court had never decided physical custody 

in   a   contested   setting,   and   Branwen   had   filed   only   two   motions   to   modify   physical 

custody in the entire history of the case.           Filing a second motion to modify does not 

constitute repetitious use of the judicial system such that Branwen should be denied her 

        12      Id. 

        13      Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002); 

Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1216 (Alaska 1991) 
("Credibility is a factual issue . . . properly determined by the factfinder at trial, not a 
matter of law determined by the court   in   summary judgment.").                 But see Iverson v. 
Griffith, 180 P.3d 943, 946 (Alaska 2008) ("[A] trial court is not required to grant a 
hearing . . . if the allegations of changed circumstances are convincingly refuted by 
competent evidence." (quoting Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001))). 

        14      See, e.g., Burckett v. State, 704 So. 2d 1266, 1268 (La. App. 1997). 

                                                  -11-                                             6599
 

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

day in court.   In fact, it appears that the only time Branwen testified before the superior 
court was at the October 2008 trial.15  The October 2008 trial did not include arguments 

or evidence about modifying physical custody because the superior court had ruled that 

"evidence shall not be presented . . . on modification of physical custody of the parties' 

minor child." Under these circumstances, the superior court's credibility determinations 

were premature. 

                 Although   we   conclude   that   the   superior   court   erred   in   its   reasons   for 

denying Branwen a hearing, our analysis does not end here. We review de novo whether 

a party has a made a prima facie showing sufficient to justify a modification hearing; in 

this case we independently conclude that Branwen failed to make a sufficient showing. 

                 2.	     Branwen did not allege a sufficient change in circumstances to 
                         warrant a hearing on modifying joint legal custody. 

                 When deciding whether a party is entitled to   a   hearing on a motion to 

modify custody, we review the record and arguments de novo to determine whether the 
party alleged facts which, if true, demonstrate a substantial change in circumstances.16 

In so doing, we take the moving party's allegations as true.17 

                 In   support   of   her   motion   for   sole   legal   custody,   Branwen   claimed   that 

communication   between   the   parties   had   not   improved   and   that   Will   was   failing   to 

comply   with   court   orders.     Regarding   the   first   allegation,   we   have   held   "joint   legal 

custody is only appropriate when the parents can cooperate and communicate in the 

        15       Branwen's   prior   motions   were   denied   without   a   hearing   and   the   2007 

settlement conferences were conducted by a different judge. 

        16      Maxwell, 37 P.3d at 425 (quoting Schuyler v. Briner, 13 P.3d 738, 741 

(Alaska 2000)). 

        17       C.R.B., 959 P.2d at 378. 

                                                   -12-	                                             6599
 

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

child's best interest."18     Here, the superior court's decision to award joint legal custody 

was based on an assumption that "once the litigation goes away there's a pretty good 

indicator that the parents are going to focus on the best interest of the child at that point 

in   time,   and   hopefully   put   their   personal   conflicts   aside."  Branwen   argues   that   the 

parties' communication did not improve after the October 2008 trial on legal custody, 

but the record reflects the parents were communicating, at least to the extent that they 

were   able   to   facilitate   shared   physical   custody   by   exchanging   weekly,   if   not   daily, 

emails. 

                 Email communication between two parents may not be optimal, but the 

superior court specified that the parents were to use email, implying that this mode of 
communication was at least minimally functional for facilitating shared custody.19                     We 

have observed that "sustained noncooperation by one parent may constitute sufficiently 
changed circumstances to justify terminating joint legal custody,"20 but less than four 

months had elapsed after the trial on legal custody and the parties were exchanging 

emails     regularly.     Under     these   circumstances,      the   "lack   of   communication        and 

cooperation" alleged by Branwen does not rise to the level of "sustained noncooperation" 
sufficient to justify modifying legal custody.21 

        18      Jaymot   v.   Skillings-Donat,   216   P.3d   534,   540   (Alaska   2009)   (quoting 

Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991)). 

        19       Cf. id. (holding that shared legal custody was not in the child's best interest 

because      the   mother     "refuses    to   speak    with    the   father   and    fails  to   promote 
communication"). 

        20      Peterson v. Swarthout, 214 P.3d 332, 341 (Alaska 2009) (internal citations 

and quotation marks omitted). 

        21      Id. 

                                                   -13-                                              6599
 

----------------------- Page 14-----------------------

                 Branwen also alleged that Will was not complying with court orders, an 

allegation   that   must   receive   serious   consideration   by   the   superior   court.      Here,   the 

superior     court    issued   an   order   notifying     Branwen      that  the   non-compliance        she 

complained of would be better addressed as a motion to enforce or order to show cause, 

rather than a motion to modify custody. We have said "[w]here one party fails to comply 

with   a   court   order,   the   appropriate   use   of   judicial   intervention   is   to   seek   an   order 
directing the non-compliant party to comply."22              This response to initial complaints of 

non-compliance with child custody orders has the advantage of providing a remedy 

without risking disruption to the child.   The preference for motions seeking compliance 

over motions to modify custody stems from our "deep reluctance to shuttle children back 
and forth between parents."23         Further, alleged violations of court custody orders do not 

necessarily   constitute   grounds   for   modification,24        although   they   certainly   can   if   the 

violations are continuous, repetitious, or egregious. 
                 Peterson v. Swarthout proves a good example.25               There, the mother filed a 

motion to modify legal custody based on the father's alleged violations of court orders 
three   months   after   the   court   had   entered   an   order   on   legal   custody.26   The   alleged 

violations included: removing the child from counseling, failing to protect the child from 

being bitten by a three-year-old half-brother, failing to communicate, scheduling more 

        22       Id. at 341 n.28 (citing Vachon v. Pugliese, 931 P.2d 371, 378-79 (Alaska 

1996)). 

        23       Harrington v. Jordan, 984 P.2d 1, 4 (Alaska 1999) (quoting C.R.B. v. C.C., 

959 P.2d 375, 381 (Alaska 1998)). 

        24       Peterson, 214 P.3d at 341 n.28 (citing Vachon, 931 P.2d at 378-79). 

        25       Id. at 332. 

        26       Id. at 340. 

                                                    -14-                                              6599
 

----------------------- Page 15-----------------------

time with the child on holidays and special days than allowed by the custody order, 

failing to schedule an annual physical checkup for the child, and questioning the child 
about time spent with the other parent.27  We held that these instances of non-compliance, 

occurring over a three-month period, "did not effect a 'significant or substantial' change 

in circumstances," although they could warrant an order forcing compliance with the 
custody arrangement.28        Branwen alleged that Will violated the court order by failing to: 

(1)   email    effectively;    (2)  schedule     counseling     appointments;       (3)  allow    Branwen 
telephonic contact with Zada when Zada was in Will's custody;29 and (4) pay his share 

of the daycare bills.  While continual violation of these orders may warrant a hearing - 

or   even   a   modification     of  legal   custody   -    in   the   future,   we   conclude   that   these 

allegations had not yet risen to the level of a substantial change in circumstances as of 

the time Branwen filed her motion to modify legal custody.                      We affirm the superior 

court's ruling that Branwen was not entitled to a hearing on the motion to modify joint 

legal custody. 

                 Our    decision     today    does   not   mean     that   Branwen's      allegations    are 

insignificant; we only decide that the alleged violations did not warrant a hearing on 

modification   of   joint   legal   custody   four   months   after   the   order   was   established.     If 

Branwen       alleges   that   Will   continues   to  demonstrate      non-compliance   over   a       more 

        27       Id. 

        28       Id. at 341 n.28. 

        29       In support of this allegation, Branwen cites an instance when she could not 

contact Zada, who was with Will for a week over the Christmas holiday.                        Will admits 
that   Zada   did   not   talk   to   Branwen   for   four   days,   but   claims   that   it   was   because   he 
accidentally washed his cell phone in the washing machine. 

                                                    -15-                                              6599
 

----------------------- Page 16-----------------------

extended period of time, or in additional ways, a future motion to modify may allege a 
sufficient change in circumstances to warrant a hearing.30 

                3.	     Branwen did not allege a sufficient change in circumstances to 
                        warrant a hearing on modifying shared physical custody. 

                        a.	     One parent's unilateral change can warrant a hearing on 
                                a   motion   to   modify   shared   physical   custody;   a   parent 
                                does   not   need   to   show   violation   of   a   custody   order   to 
                                receive a hearing. 

                Branwen   also   contends   that   she   made   a   prima   facie   case   sufficient   to 

warrant a hearing on her motion to modify shared physical custody.                  In support of this 

motion, Branwen   alleged   that since   the   time   of the   last physical custody   order   she 

graduated from college, gained full-time employment, and started evening classes to 

work toward her master's degree.  Branwen claimed that "[a]t the time of the [stipulated 

2007 custody] agreement, Will worked a Monday through Friday schedule, while [she] 

worked   weekends   and   went   to   school   during   the   week."      Because   of   her   changed 

circumstances, Branwen was working Monday through Friday and taking classes two 

workday evenings per week when she moved to modify custody.                      She claimed that the 

time she had to spend with   Zada had been substantially reduced as a result of these 

changes. 

                The superior court rejected Branwen's claim that a substantial change in 

circumstances had occurred with respect to physical custody and it made this ruling 

without holding a hearing.  The court ruled that "[a] voluntary decision by one parent to 

change their schedule is not grounds to modify custody for the other parent."                 It added 

that "[g]iven the fairly extensive shared physical custody arrangement set by the [c]ourt, 

        30      See, e.g., Peterson, 214 P.3d at 341 n.30. 

                                                  -16-                                              6599 

----------------------- Page 17-----------------------

and the lack of any allegation those visits are not being complied with, even taking 

[Branwen's] affidavits as true would not warrant a change of custody." 

              Branwen contends that her allegations of changed circumstances warranted 

a hearing.  She claims that the superior court's conclusion that "[a] voluntary decision 

by one parent to change their schedule is not grounds to modify custody for the other 

parent" is unsupported by law. We agree with Branwen that the superior court's analysis 

was flawed in two respects.  First, the court's ruling that a parent's unilateral decision to 

change his or her schedule cannot warrant modification is not consistent with our case 

law.  For example, in Iverson v. Griffith we held that a hearing to modify custody was 

necessary because the father had new employment that required him to be away from 
home for two-week periods.31     This was certainly a "unilateral" change in the sense that 

it did not involve the mother, and nothing suggested it was an involuntary change in 

employment.     To the contrary, decisions to accept new employment or to move one's 

residence typically are unilateral and   voluntary, and our case law is clear that these 
changes can form the basis for custody modification.32       The key inquiry is whether the 

change is significant enough to warrant the disruption inherent in changing a child's 

       31     Iverson v. Griffith, 180 P.3d 943, 946 (Alaska 2008). 

       32     See, e.g., Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) ("[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." (internal quotation marks and citations omitted)). 

                                             -17-                                         6599 

----------------------- Page 18-----------------------

custody schedule or routine,33 not whether the changed circumstance is "unilateral" or 

"voluntary." 

                Second, the superior court's order might be interpreted as suggesting that 

Branwen was not entitled to a custody modification because she did not allege that Will 

was not complying with the court's physical custody schedule. The court wrote: "Given 

the fairly extensive shared physical custody arrangement set by the [c]ourt, and the lack 

of any allegation those visits are not being complied with, even taking [Branwen's] 

affidavits as true would not warrant a change of custody."  We have never held that one 

party must be in violation of the physical custody order for the court to modify legal or 

physical custody.  Nor have we held that compliance with an existing physical custody 

schedule is dispositive of the question whether there has been a change in circumstances. 

                The     superior   court   erred   when    it  ruled  that  a  voluntary     change    in 

employment cannot be the basis of finding a substantial change in circumstances and that 

Branwen was not entitled to a hearing because Will was complying with the physical 

custody order, but because we independently determine that Branwen was not entitled 

to a hearing on her motion to modify shared physical custody, this error was harmless. 

                        b.	     Branwen's changed schedule did not warrant a hearing 
                                on   modifying   the   percentage   of   physical   custody   time 
                                each parent receives. 

                To determine whether Branwen was entitled to a hearing on modification 

of shared physical custody, we compare the circumstances as they existed at the time of 

        33      Id. at 5-6, 10; see also Peterson, 214 P.3d at 340-41 (There is a "judicial 

assumption   that   finality   and   certainty   in   custody   matters   are   critical   to   the   child's 
emotional welfare." (internal quotation marks and citations omitted)); Harrington v. 
Jordan, 984 P.2d 1, 4 (Alaska 1999) ("[C]ommentators have noted the counterproductive 
effect   of   unnecessary   litigation   on   all   parties,   including   children."   (internal   citation 
omitted)); cf. Melendrez v. Melendrez, 143 P.3d 957, 962-63 (Alaska 2006) (discussing 
a child's need for stability and continuity in custody arrangements). 

                                                  -18-	                                           6599
 

----------------------- Page 19-----------------------

the last order on physical custody to the circumstances Branwen alleged when she filed 
her motion to modify custody in January 2009.34 

                Branwen's primary allegation was that her transition from college into the 

full-time workforce and master's degree program severely restricted the amount of time 

she had with Zada.   When the parties agreed to physical custody in 2007, Branwen was 

a   full-time   student  with   a  flexible  schedule    during   the  week    and   Will  worked     a 

conventional Monday through Friday schedule with flexible time on weekends.  The 

parties agreed to allocate most of Zada's weekend time to Will and most of her weekday 

time to Branwen.       By the time Branwen filed her motion to modify physical custody in 

January 2009, both parties were working typical work-week schedules and Branwen was 

taking classes two evenings during the week.   Branwen argued that this change affected 

how much time Zada was able to spend with Branwen, and that "[i]t would be much 

better for [Zada] if she spent a more equal share of her free time with each parent so she 

can have family activities with each of [them]." 

                But Branwen's January 27, 2009 motion sought more than a reallocation 

of Zada's weekend time.         The motion asked the superior court to grant her sole legal 

custody and primary physical custody, with a dramatically reduced physical custody 

schedule for Will.  We agree with the superior court that no hearing on this motion was 

necessary because, taking her allegations as true, Branwen did not make a prima facie 

showing      that   her  post-graduation    schedule   justified  a  change    to  primary   physical 

custody. 

                We     have   said  that  a   lesser  showing     is  required   for  a  "change     in 

circumstances"   determination   when   a   parent   seeks   to   modify   visitation   rather   than 

        34      Peterson, 214 P.3d at 340-41 (quoting Jenkins v. Handel, 10 P.3d 586, 589 

(Alaska 2000)). 

                                                 -19-                                             6599 

----------------------- Page 20-----------------------

custody.35   Here, if Branwen had sought modification of the custody schedule only, and 

not modification of the percentage of time each parent had with the child, a lesser change 

in circumstances would have been required to entitle her to a hearing. A similar situation 

was presented in Havel v. Havel, where the superior court awarded each parent 50% 
custody, and left it to the parents to determine a custody schedule.36              When the parties 

could not agree to a schedule, the superior court imposed one, but in the process the court 
changed the percentage allocation from 50/50 to 60/40.37             We upheld the decision to set 

a schedule, but also held it was an abuse of discretion to change the percentage of time 

each parent had with the child because the superior court made no findings explaining 
why modifying the custody arrangement was in the child's best interests.38               Our decision 

reflected the higher showing   required to modify the percentage of time each parent 

receives in a shared custody situation, as compared to the lesser standard required for 

modifying a custody schedule. 

                Branwen's January 2009 motion to modify physical custody specifically 

requested   that   the   court   "grant   her   physical   custody   of   [Zada],   with   Will   to   have 

visitation every other weekend and half the holidays, and a vacation period during the 

summer."      The parties' prior agreement gave Will roughly 50% physical custody of 

Zada.  On its face, Branwen's request sought primary physical custody and a reduction 

of the percentage of time Will had physical custody of Zada, not just the schedule when 

        35      Havel v. Havel, 216 P.3d 1148, 1151 n.6 (Alaska 2009).                In the past this 

court has used the term "visitation" to mean "custody schedule" in the context of a 
shared physical custody arrangement.  See, e.g., id. at 1151-53. 

        36      Id. at 1150. 

        37      Id. at 1153. 

        38      Id. at 1151-53. 

                                                  -20-                                            6599
 

----------------------- Page 21-----------------------

he had custody.        Branwen's motion did not mention or suggest simply modifying the 

existing custody schedule to more   equally allocate weekend time.                     To the contrary, 

Branwen's request sought primary physical custody, with Will's time being reduced to 

visitation every other weekend. 

                 Branwen   had   experienced   family   law         counsel   representing   her.     It   is 

possible Branwen only hoped to gain a more equal allocation of weekend time, but we 

cannot say the superior court erred by failing to speculate as to what relief she sought; 
the court was obliged to rule only on the relief Branwen requested.39              Further, Branwen's 

briefing   before   this   court   does   not   allege   that   the   superior   court   misunderstood   her 

request; rather, her appeal focuses entirely on whether she has met the requisite threshold 

for a hearing on modifying shared physical custody. The cases she cites are all instances 

of parents seeking to change the amount of time each parent had custody of the child, not 
just modification of the custody schedule.40             An appellant must at least raise an issue 

        39       Cf. Alaska R. Civ. P. 7. ("An application to the court for an order . . . shall 

set forth the relief or order sought."). 

        40       See Hunter v. Conwell, 219 P.3d 191, 192-94 (Alaska 2009) (mother sought 

primary physical custody when father had primary physical custody); Iverson v. Griffith, 
 180 P.3d 943, 945 (Alaska 2008) (mother sought shared physical custody when father 
had   primary   physical   custody);  Barile   v.   Barile,   179   P.3d   944,   945   (Alaska   2008) 
(mother sought primary physical custody when parents had shared physical custody). 

                                                   -21-                                              6599
 

----------------------- Page 22-----------------------

before our court to secure review.41        We therefore affirm the superior court's denial of 

Branwen's motion to modify shared physical custody without a hearing.42 

        B.      The Award Of Fees Was An Abuse Of Discretion. 

                The superior court awarded fees to Will because it found that Branwen was 

"using     motion    practice   to  attempt    to  control   and    abuse   [Will].    Absent     some 

accountability for repeated motions raising the same issues that have been previously 

heard, this will likely continue." 

                There are three types of attorney's fee standards germane to child support 

and custody cases:      (1) initial custody and child support determinations (the "divorce 

exception to Rule 82"); (2) postjudgment child support modification and enforcement 

proceedings       (Rule     82);   and     (3)   proceedings      to   modify      custody/visitation 

        41      Alderman v. Iditarod Props., Inc., 104 P.3d 136, 145-46 (Alaska 2004) 

(noting that, aside from plain error, issues neither argued before trial court nor included 
in opening brief before this court "[are] deemed abandoned" (citing In the Matter of 
H.C., 956 P.2d 477, 480 n.7 (Alaska 1998)); see also Int'l Seafoods of Alaska, Inc. v. 
Bissonette,   146   P.3d   561,   569   (Alaska   2006)   (deeming   issue   waived   for   failure   to 
adequately brief point before this court). 

        42      Nothing in this decision should be read to suggest that future motions by 

Branwen   will   necessarily   fail   or   succeed;   we   simply   hold   that   Branwen's   changed 
schedule did not warrant modifying the percentage of time each parent has physical 
custody of Zada.  If Branwen believes the schedule for sharing 50/50 custody should be 
adjusted based on her changed work schedule, she may   file a motion to modify the 
custody schedule. 

                                                 -22-                                            6599
 

----------------------- Page 23-----------------------

(AS 25.20.115).43       Although the superior court never explicitly stated the authority it 

relied upon to award fees, we assume it was AS 25.20.115.44                  That statute provides: 

                 In an action to modify . . . an order providing for custody of 
                 a child . . . the court may, upon request of a party, award 
                 attorney fees and costs of the action.          In awarding attorney 
                 fees and costs under this section, the court shall consider the 
                relative   financial   resources   of   the   parties   and   whether   the 
                parties have acted in good faith. 

                 1.	     Alaska      Statute    25.20.115     requires     findings    on   the   parties' 
                         relative financial resources and good faith. 

                 We have previously held that "in making an award of attorney's fees and 

costs under AS 25.20.115, a court must make explicit findings as to the parties' relative 
financial resources and whether the parties acted in good faith."45               The parties' relative 

financial resources do not need to take primacy over the presence or absence of good 
faith,   but   AS   25.20.115   still   requires   the   court   to   make   findings   on   both   factors.46 

Regarding relative financial resources the superior court explained: 

                Although       the   court   is   unaware   as   to   whether   Plaintiff   is 
                paying      for  the  legal   services   she   is  receiving    from    her 
                mother's law firm, relative financial resources was not the 
                 driving factor in awarding Defendant attorney's fees. . . .  The 

        43      See Rowen v. Rowen, 963 P.2d 249, 257 (Alaska 1998) (proceedings to 

modify custody/visitation); Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989) 
(initial   custody   and   support   determination);   and Patch   v.   Patch, 760 P.2d 526,   531 
(Alaska 1988) (postjudgment child support modification and enforcement proceedings). 
Because      Branwen's       motion    falls   into   the  category     of  "proceedings       to  modify 
custody/visitation," attorney's fees are governed by AS 25.20.115. 

        44       The parties briefed and argued the fee award under this statute. 

        45      S.L. v. J.H., 883 P.2d 984, 985 (Alaska 1994). 

        46      Id. at 985-86. 

                                                   -23-	                                             6599
 

----------------------- Page 24-----------------------

                relative resources of the parties is not controlling under these 
                circumstances. 

In other words, the superior court made clear that it did not know the parties' relative 

financial resources, nor did it take these resources into account, when it awarded fees. 

                Branwen argues that the superior court was required to consider her relative 

financial resources before awarding fees against her.             Will argues that under Rodvik v. 
Rodvik47 a superior court may make an implied finding regarding the parties' relative 

resources by considering the record itself.            Will's argument is unpersuasive for two 

reasons.  First, Rodvik concerned the award of fees under AS 25.24.140 - a statute that 
guides fees in divorce proceedings, not custody modification disputes.48                 Second, there 

is no basis for our court to conclude that the superior court made an implicit finding 

regarding the parties' relative financial resources; to the contrary, it appears the superior 

court could not have done so because the record does not contain information regarding 

Branwen's   financial   status.       We   conclude   that  Rodvik      is   not   controlling,   and   that 

AS 25.20.115 required the superior court to consider and make explicit findings about 

the parties' relative financial resources before awarding fees.             The court's failure to do 

so was error.      On remand, the superior court must make explicit findings about the 

parties' relative financial resources and how this influences its fee award. 

        47       151 P.3d 338, 352 (Alaska 2006). 

        48      A   court's   fee   analysis   under   AS   25.20.115   is   different   than   that   under 

AS 25.24.140.      See S.L., 883 P.2d at 985-86. 

                                                  -24-                                               6599 

----------------------- Page 25-----------------------

                2.      It was error to expand the scope of the fee award without notice. 

                A trial court's discretion in awarding attorney's fees is broad, but we will 

find an abuse of discretion if the award is "arbitrary, capricious, manifestly unreasonable, 
or stems from an improper motive."49 

                In   its   original   order   awarding   Will   attorney's   fees,   the   superior   court 

directed   Will's   counsel   to   "submit   an   accounting   of   fees   and   costs  to  respond   to 

[Branwen's] motion [to modify custody]."              The court limited its award to the fees and 

costs incurred in responding to the motion Branwen filed on January 27, 2009.   But, as 

Branwen      points   out,   the  court   ultimately  approved     Will's   attorney's   fee  and   cost 

accounting, which included fees incurred between the October 2008 trial and the January 

2009 motion.      The court implicitly expanded its award to include fees incurred in all 

post-trial briefs, and it did so without giving notice of its intent or providing Branwen an 

opportunity to address the expanded scope of fees.  This was an abuse of discretion and 
we must therefore reverse the award of fees and costs.50 

V.      CONCLUSION 

                For the reasons discussed above, we AFFIRM the superior court's denial 

of   Branwen's   motion   to   modify   legal   and   physical   custody   without   a   hearing.    We 

VACATE the fee award and REMAND to the superior court for further proceedings 

consistent with this opinion. 

        49      Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (citations omitted). 

        50      The expansion in the scope of the fee award raises due process concerns 

because Branwen did not have an opportunity to be heard on this issue of consequence. 
See Smith v. Groleske, 196 P.3d 1102, 1106 (Alaska 2008). 

                                                  -25-                                              6599 

----------------------- Page 26-----------------------

FABE, Justice, dissenting. 

                Today the court affirms the superior court's decision that Branwen was not 

entitled to a hearing on her motion to modify custody.             I agree with the court that there 

was   no   need    for   a   hearing   regarding   modification   of   legal   custody.  But   because 

Branwen did show a sufficient change of circumstances based on changes in her work 

and school schedule, I would remand the case for a hearing and determination of whether 

there   should   be   modification   of   the   parties'   shared   physical   custody   schedule,   also 

referred to as the visitation schedule. 

                Branwen requested modification of both legal and physical custody based 

on three alleged changed circumstances.            Two of her allegations were related to Will's 

conduct.   But apart from her allegations regarding Will's conduct, Branwen argued that 

the current visitation schedule had become "even more problematic because of [her] 

work and school schedule."          Branwen noted that the current schedule allowed her only 

one weekend with Zada each month.             She explained that the parties had agreed to this 

schedule   at   a   time   when   she   was   still   in   school   and   worked   on   weekends,   but   that 

because she had changed to a normal weekly work schedule, "[t]here is no longer any 

reason why Will should have more non-work time with [Zada] than her mother should." 

Branwen added that she "now has classes for her Master's degree on two of her scarce 

evenings with [Zada]" and that she thought it "highly unlikely" that Will would agree to 

change scheduled evenings to allow Branwen an additional "free" evening with Zada. 

Finally, Branwen noted that because "Will takes no responsibility for things like the 

dental appointments during his time with [Zada,] [a]ll the mundane, necessary tasks must 

be done on Branwen's time." 

                The trial court expressly stated that it was denying Branwen a hearing on 

the issue of physical custody based on its view that Branwen's unilateral job and school 

schedule changes could not provide support for a change in physical custody.  As the 

                                                  -26-                                            6599
 

----------------------- Page 27-----------------------

court explains, this view was erroneous because "our case law is clear that [unilateral and 
voluntary] changes can form the basis for custody modification."1                But the court excuses 

the   trial   court's   error   as   harmless   because   Branwen's   motion   "sought   more   than   a 

reallocation of . . . time" and Branwen did not show that her changed schedule justified 
a modification of physical custody.2 

                 It  is  true  that  Branwen      requested     a  change    in  the  physical    custody 

arrangement that would have given her a larger percentage of time with Zada than Will; 
such a request would require a heightened changed circumstances burden.3                    But physical 

custody has two components - (1) the allocation of the percentage of time that each 

parent has custody of the child, and (2) the   schedule of where the child resides at a 
particular time.4 

                 Here, even if Branwen's allegations as a whole were not sufficient to justify 

a   change   in   the   percentage   of   time   she   had   physical   custody,   the   separate   question 

whether Branwen's changed schedule justified a change in how the shared custody time 

was scheduled, in other words, a change in the visitation schedule, remained, and that 

        1        Slip Op. at 17-18. 

        2        Slip Op. at 18-19. 

        3        The court allows that "if Branwen had sought modification of the custody 

schedule only . . . a lesser change in circumstances would have been required to entitle 
her to a hearing.       Slip Op. at 20.    See also Havel v. Havel, 216 P.3d 1148, 1151 n.6 
(Alaska 2009). 

        4        I  recognize     that   Branwen      requested     modification     of   both   of   these 

components,   and   I   do   not   believe   that   Branwen   "only   hoped   to   gain   a   more   equal 
allocation of weekend time."         Slip Op. at 21.     But in my view a party is not required to 
choose between these two forms of relief in requesting modification of physical custody. 

                                                   -27-                                              6599
 

----------------------- Page 28-----------------------

discrete issue merited a hearing.5      Put another way, the arguments in Branwen's motion 

established her entitlement to a hearing and review of the visitation schedule, even if the 

percentages remained even and physical custody remained shared.                   Because it is the 

child's best interests that are at stake, I do not favor the court's technical reading of the 

motion and implied conclusion that Branwen was required to frame an express stand- 
alone or alternative argument that a new visitation schedule was necessary.6 

                Because the basis for the parties' original physical custody schedule was 

the flexible weekday schedule Branwen had as a student, her schedule change to full- 

time employment was a sufficient change of circumstances to warrant a hearing on her 

motion     to  modify    physical   custody    to  the  extent   she  requested    a  change    in  the 

arrangement of shared physical custody.            And Branwen's express argument that her 

revised work and school schedule, which left her with only one weekend a month with 

Zada, caused the custody arrangement to be "even more problematic" placed the issue 

of the visitation schedule squarely before the superior court.           I would remand the case 

for a hearing on the parties' visitation schedule and I therefore respectfully dissent. 

        5       Even if a trial court denies a parent's motion to modify legal and physical 

custody   based   on   changed   circumstances,   the   trial   court   may   modify   the   parents' 
visitation   schedule   to   accommodate   those   changed   circumstances.        See   Pearson   v. 
Pearson, 5 P.3d 239, 242 (Alaska 2000). 

        6       Slip Op. at 20-22. 

                                                 -28-                                             6599 
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