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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sheffield v. Sheffield (12/9/2011) sp-6625

Sheffield v. Sheffield (12/9/2011) sp-6625

        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 

REBECCA L. SHEFFIELD,                          ) 
                                               )       Supreme Court No. S-14220 
                        Appellant,             ) 
                                               )       Superior Court No. 3AN-09-11133 CI 
        v.                                     ) 
                                               )       O P I N I O N 
MICHAEL T. SHEFFIELD,                          ) 
                                               )       No. 6625 - December 9, 2011 
                        Appellee.              ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Sharon Gleason, Judge. 

                Appearances:      John C. Pharr, Law Offices of John C. Pharr, 
                Anchorage, for Appellant.       Andrew L. Josephson, The Law 
                Offices of G.R. Eschbacher, Anchorage, for Appellee. 

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

                FABE, Justice. 

I.      INTRODUCTION 

                Michael and Rebecca Sheffield of Unalaska divorced in 2009.                 Because 

Michael planned to move to Virginia in 2010, he sought school-year custody of the 

couple's two sons.  The superior court ruled that the children's best interests supported 

school-year   custody   with   Michael   in   Virginia.     Rebecca   appeals,   arguing   that   the 

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superior court placed too much emphasis on the older son's preference to live in Virginia 

with his father, especially in relation to the geographical stability that would result if the 

children remained in Unalaska.   We conclude that the superior court's consideration of 

the   older   child's   preference   was   appropriate   and   that   the   superior   court   adequately 

considered the other statutory factors. We therefore affirm the superior court's decision. 

II.     FACTS AND PROCEEDINGS 

                Michael and Rebecca Sheffield were married on May 16, 1992 in Virginia. 

Both grew up in Virginia and both have family in the area.             Michael and Rebecca have 

two sons:  Davis, born in 1996, and Jacob, born in 2000.  In 2003, the Sheffields moved 

from Virginia to Unalaska so that Rebecca could take a job with the Alaska Department 

of Environmental Conservation.  After the couple moved to Unalaska, Michael obtained 

work with the city fire department.         Michael and Rebecca initially planned to stay in 

Alaska for only two years, but the couple remained in Alaska until after their dissolution 

in 2009. 

                Michael and Rebecca separated in 2008 and filed a petition for dissolution 

of marriage on October 5, 2009.  During the intervening 17 months of their separation, 

they shared custody.      Until September 2008, Davis and Jacob lived with Michael "full 

time and visited with their mom." After that, Michael and Rebecca had a shared custody 

arrangement.   In the dissolution petition, the couple agreed to shared legal and physical 

custody.   They agreed to have the children spend the first part of the week with Rebecca 

and the second part with Michael.   The parenting plan appended to the petition included 

a provision on relocation: 

                If either parent intends to move from the Dutch Harbor area, 
                the   moving   parent   shall   provide   at   least   120   days   written 
                notice to the other parent.       Neither parent shall remove or 
                cause Davis and Jacob to be removed permanently from the 
                Dutch Harbor area without first securing the written consent 

                                                  -2-                                            6625
 

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               of the other parent or a court order.  If the parents are unable 
               to come to a new mutually satisfactory parenting plan as a 
               result of any such moves, the parents shall seek mediation. 
               Should mediation not remedy the problem, the parents shall 
               seek court intervention. 

A decree of dissolution was issued in December 2009. 

               Michael attended his father's funeral in Virginia in early 2010. He emailed 

Rebecca in March 2010 to tell her that he planned to marry Holly, a woman he had 

known from his childhood in Virginia.  He explained that the "thought of leaving Dutch 

[Harbor] ma[de] [him] physically ill" but that he needed to be closer to his extended 

family, especially his mother. Michael and Holly married in December 2010.  Holly has 

two teenage children from a previous marriage. 

               Michael moved to modify physical custody in June 2010 and sought to 

relocate to Virginia with the children "as soon as possible."     Michael filed a motion to 

have a custody investigator, Pamela Montgomery, interview the children to determine 

their preference regarding the proposed move.       He also sought to waive the mediation 

provision   in   their custody   agreement.  Rebecca opposed   both   the motion   to   modify 

custody and the motion to appoint a custody investigator.        In her opposition, Rebecca 

argued that the children knew "only the rosy, unrealistic account [of the move] being 

given by their father." 

               The   superior   court  denied   Michael's   motions    to  have  the  children 

interviewed and to waive mediation.       The parties tried to mediate their case but were 

unable to resolve their dispute, and the case was scheduled for trial.      On November 23, 

2010,    Rebecca   agreed   to  have  the  children  interviewed   but  only  by  a  "qualified 

counselor" based in Unalaska.  Rebecca proposed Donna Henry, but Michael objected, 

asserting that Henry was "a social friend" of Rebecca's.      Michael proposed three other 

individuals whom he asserted were "unconnected to the parties."  He then filed a motion 

                                              -3-                                        6625
 

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to   have   the   superior   court   select   one   of   the   parties'   nominees   because   there   was 

"essentially     no   chance    that   the  parties   will  be   able   to  agree"    on  someone.       On 

December 17, 2010, the superior court selected one of Michael's nominees, Janet Giles, 

to interview the children.       Giles interviewed Jacob and Davis on January 11, 2011 and 

faxed a letter to the superior court that day stating that both children preferred to live 

with   Michael.     She   also   faxed   a   copy   of   the   letter   to   Michael's   attorney   but   not   to 

Rebecca's attorney. 

                 The   superior   court   held    an   evidentiary   hearing   in   January   2011,   and 

Rebecca's      attorney    obtained     a  copy   of  Giles's   letter  from    Michael's     attorney    on 

January 12, the first day of the hearing.              Rebecca's attorney contacted Giles   on   the 

afternoon of January 12 in order to interview her, but Giles was not available at the 

proposed time.       Rebecca moved to disqualify Giles on January 13.                The superior court 

denied the motion but ruled that Giles would "not be permitted to testify" until she made 

herself available for Rebecca's attorney to interview her.   Rebecca's attorney was never 

able to reach Giles, who was unavailable, and Giles did not testify.                  The superior court 

struck Giles's letter from the record. 

                 Following the three-day hearing, the superior court found that Michael's 

reasons     for  moving     to  Virginia    were    legitimate.    Because      the  move     out  of  state 

constituted a substantial change of circumstances as a matter of law, the court analyzed 

the   best   interest   factors   listed  in  AS   25.24.150     and   determined      that   these   factors 
supported awarding Michael custody of the children during the school year in Virginia.1 

        1        The superior court considered the following statutory factors: the physical, 

emotional,      mental,    religious,   and    social   needs   of   the  children;    the   older   child's 
preference; continuity; and Rebecca's scheduling flexibility during the summer.  The 
superior court found that most of the factors, including the parents' ability to meet the 
children's needs; the love and affection existing between the children and each parent; 
                                                                                           (continued...) 

                                                    -4-                                               6625
 

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The    superior    court  emphasized      the  quality   of  the   schools   and   the  extracurricular 

opportunities available in Virginia, along with the older child's preference for Virginia. 

The court also noted Rebecca's ability to rearrange her work to spend more time with the 

children in the summer.  The superior court ruled that Michael would bear two-thirds of 

the cost of the children's travel to and from Unalaska.  The superior court concluded that 

the   children   would   finish   the   2010-2011   school   year   in   Unalaska   before   moving   to 

Virginia and that they would return to Unalaska to spend the summers and some holidays 

with Rebecca. 

III.    STANDARD OF REVIEW 

                Alaska Statute 25.20.110(a) provides that an "award of custody of a child 

or visitation with the child may be modified if the court determines that a change in 

circumstances requires the modification of the award and the modification is in the best 

interests of the child."  We will reverse a custody determination order "only if the record 
shows an abuse of discretion or if controlling factual findings are clearly erroneous."2 

An abuse of discretion in child custody awards occurs when "the trial court considers 

improper factors, fails to consider statutorily mandated factors, or gives too much weight 
to some factors."3    Factual findings are clearly erroneous if a review of the record leaves 

this   court   "with   the   definite   and   firm   conviction   that   the   superior   court   has   made   a 

        1(...continued) 

and the ability of each parent to provide a close and continuing relationship between the 
other parent and the child, did not favor one parent over the other.              The court found no 
evidence of domestic violence or substance abuse. 

        2       Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (internal citations omitted). 

        3       Id. 

                                                   -5-                                             6625
 

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mistake."4    The trial court's factual findings enjoy particular deference when they are 

based "primarily on oral testimony, because the trial court, not this court, judges the 
credibility of witnesses and weighs conflicting evidence."5 

IV.	     DISCUSSION 

        A.	     The   Superior   Court   Did   Not   Err   In   Giving   Significant   Weight To 
                Davis's Preference. 

                Rebecca argues that the court gave too much weight to 14-year-old Davis's 

preference to move to Virginia with his father.  She argues that the superior court did not 

have enough information about Davis's preference to determine whether it was reliable. 

Specifically, Rebecca alleges an "absence of . . . information about how Davis reached 

a preference" and argues that Michael may have pressured Davis. 

                Alaska Statute 25.24.150(c)(3) instructs the superior court to consider "the 
child's preference if the child is of sufficient age and capacity to form a preference."6 

We have noted that as children "get older, the trial court will be more inclined to respect 
their preference."7     And we have held that a teenager's preference can be a deciding 

        4       D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207-08 (Alaska 

2000). 

        5       Josephine B. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 174 P.3d 217, 222 (Alaska 2007). 

        6       See also Yvonne S. v. Wesley H., 245 P.3d 430, 432 (Alaska 2011) ("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."). 

        7       William P. v. Taunya P., 258 P.3d 812, 816 (Alaska 2011) (citing Valentino 

v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) ("[T]rial courts should place weight upon an 
older child's preferences.")); see also Harrington v. Jordan, Mem. Op. & J. No. 877, 
1998 WL 34347990, at *3 (Alaska, Mar. 18, 1998); Veazey v. Veazey, 560 P.2d 382 n.11 
                                                                                       (continued...) 

                                                  -6-	                                           6625
 

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factor   because,   while   a   young   child's   preferences   are   often   unreliable,   "a   relatively 
mature teenager's reasoned preference is not so lightly to be disregarded."8                 We have 

also, however, affirmed superior court decisions finding a teenager's preference to be 
unreliable because it was manipulated or unduly influenced by a parent.9 

                The superior court found that the record "made it clear that Davis does have 

a preference to go to Virginia."         Although it decided not to admit Giles's report, the 

superior court recognized that there was not "a whole lot of dispute about [Davis's] 

preference," and Rebecca's counsel did not dispute that characterization.                  Moreover, 
Rebecca testified that Davis would be "disappoint[ed]" to remain in Unalaska.10 

                Rebecca   also   acknowledged   Davis's   desire   to   move   to   Virginia   in   an 

affidavit and noted that he felt "the schools were better and he wanted a change."  Thus, 

the superior court's finding that Davis preferred to move to Virginia with his father was 

supported by the record, and there is no evidence that Davis's opinion was immature or 

unduly     influenced    by   his   father. The    record   suggests   that   Davis   is   interested  in 

engineering and believes that the education system in Virginia might offer him more 

opportunities. 

        7(...continued) 

(Alaska 1977) (overruled by statute on other grounds). 

        8       Yvonne S., 245 P.3d at 433 (quoting Valentino, 3 P.3d at 340-41). 

        9       See Michele M. v. Richard R., 177 P.3d 830, 838 (Alaska 2008) (finding 

the preference of 13- and 15-year-old children to be unduly influenced by a parent); 
Jenkins v. Handel, 10 P.3d 586, 591 (Alaska 2000) (finding the preference of 13- and 15- 
year-old children to be unreliable due to the influence of a sexual relationship with an 
older man and by siblings and adults within the community). 

        10      The superior court commended the parents for showing "a great deal of 

love and affection" for the children in not having Davis testify about his preference, 
which would have been "unduly stressful" on the children. 

                                                  -7-                                             6625
 

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                In Yvonne S., we considered a case where a daughter went to live with her 
father, who then moved out of Alaska.11           While with her father, the daughter's grades 

dropped      significantly.12   Nevertheless,      we   concluded     that   the  daughter's    "strong 

preference   to   live   with   her   father"   outweighed   any   change   in   circumstance.13   The 

14-year-old daughter's preference was the key factor, and the mother had "not made any 

allegations (such as drug abuse, risky behavior, or mental illness) that . . . call[ed the 
daughter's] maturity into question."14         Similarly, Rebecca has not provided any reason 

to question Davis's maturity, nor has she pointed to evidence in the record suggesting 
Davis's preference was a result of pressure.15         The superior court heard testimony from 

three of Rebecca's witnesses that Davis is "positive and outgoing," a "bright kid [and] 

a leader."  As children "get older and more mature, their reasoned preference regarding 

custody     will   be   entitled   to  'substantial    reliance'   and   is  'not   so  lightly   to  be 
disregarded.' "16    Thus, where both parents are capable and neither living situation would 

        11      245 P.3d 430, 435 (Alaska 2011). 

        12      Id. 

        13      Id. 

        14      Id. 

        15      Cf. Jenkins v. Handel, 10 P.3d 586, 590-91 (Alaska 2000) (rejecting two 

teenagers' preference to live with their mother because it was motivated by a "romantic 
involvement" with an older man which the mother did not discourage, as well as a desire 
for "greater social and recreational opportunities"). 

        16      William   P.   v.   Taunya   P.,   258   P.3d  812,   819   (Alaska   2011)   (quoting 

Valentino v. Cote, 3 P.3d 337, 341 (Alaska 2000)). 

                                                  -8-                                             6625
 

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be detrimental to the child, an older child's preference should be honored.17  The superior 

court did not abuse its discretion by assigning significant weight to Davis's preference. 

        B.      The Superior Court Adequately Considered Geographical Stability. 

                Rebecca asserts that the superior court did not adequately   consider the 

stability that staying in Unalaska would provide for the children. A superior court cannot 

"ignor[e]"   statutory   factors,   but   it   has  "considerable   discretion   in   determining   the 

importance of each statutory factor in the context of a specific case and is not required 
to weigh the factors equally."18       In this case, the superior court found that "each home 

has the ability to provide a great deal of stability."          The superior court found that the 

greater degree of geographic stability offered by Unalaska was outweighed by Davis's 

preference for Virginia and by Rebecca's flexibility to rearrange her work schedule in 

the summers. 

                We have explained that the stability factor is not limited to geographic 

stability and continuity, but also encompasses the "totality of the circumstances [the 

        17      We recognize the need for sensitivity on the part of trial judges to avoid 

unintentionally placing children in the middle of a custody battle.              Helping parents to 
understand that custody decisions are made by the court and not their children may take 
some pressure off of an older child who has expressed a preference to live with a parent. 
We also recognize that there may be situations where the trial court will determine that 
a parent has coerced or manipulated a child into expressing a preference to live with that 
parent.   See, e.g., Thomas v. Thomas, 171 P.3d 98, 105 (Alaska 2007) (concluding that 
children's     testimony    appeared     to  be  "swayed     by   [their  father's]   influence"    and 
remanding for superior court to consider whether older children's preference to live with 
their father was improperly influenced by their father). 

        18      Williams v. Barbee, 243 P.3d 995, 1005 (Alaska 2010) (quoting Barlow v. 

Thompson, 221 P.3d 998, 1005 (Alaska 2009)) (internal quotation marks omitted). 

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children]   were   likely   to   encounter   in   their   respective   parents'   homes."19    Here,   the 

superior court did consider the importance of stability and continuity in its extensive 

findings.  The superior court observed that "a greater degree of stability for the youth . . . 

would be obtained by remaining in Unalaska," but it also recognized that "the other part 

of   the   statute   looks   at   the   desirability   of   maintaining   continuity,   and   .   .   .   Davis's 

preference is to go and spend time in Virginia."               The superior court concluded that 

Davis's "mental needs are likely to be better met in the Virginia school system, given his 

academic and sports interests."         The superior court determined that the children should 

move to Virginia only after finishing the school year in Unalaska to avoid causing them 

additional stress.     In examining the stability factor, the superior court also found that 

Rebecca   had   greater   flexibility   in   the   summer   and   could   spend   more   time   with   the 

children during their school vacation in Unalaska each summer. 

                The superior court explained that the potential for either parent to be an 

excellent parent and to provide a good environment for the children made its decision 

more difficult.      The superior court carefully considered the evidence as it weighed the 

relevant factors, and its decision was not an abuse of discretion. 

V.       CONCLUSION 

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

        19      Evans   v.   Evans,   869   P.2d   478,   482   (Alaska   1994); see   also   Rooney   v. 

Rooney, 914 P.2d 212, 217 (Alaska 1996) ("Continuity and stability for a child come not 
only from staying in the same house, or going to the same school.   Consideration should 
also be given to social and emotional factors such as who the primary care-giver was for 
the child and whether the child would be separated from siblings or family members if 
he was placed with one parent rather than another."). 

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