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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hunter v. Conwell (4/13/2012) sp-6663

Hunter v. Conwell (4/13/2012) sp-6663

                                             NOTICE 

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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        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 



BOBBIE ANN HUNTER,                             ) 

                                               )       Supreme Court No. S-13915 

                Appellant,                     ) 

                                               )       Superior Court No. 2KB-06-00085 CI 

        v.                                     ) 

                                               )       O P I N I O N 

SHAUN T. CONWELL,                              ) 

                                               ) 

                Appellee.                      )       No. 6663 - April 13, 2012 

                                               ) 



                Appeal   from     the  Superior   Court   of  the  State  of   Alaska, 

                Second Judicial District, Kotzebue, Ethan L. Windahl. 



                Appearances:        Bobbie     A.   Hunter,    pro   se,   Fairbanks, 

                Appellant.     Margaret   O'Toole   Rogers,   Foster   &      Rogers, 

                LLC, Fairbanks, for Appellee. 



                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices.    [Christen, Justice, not participating.] 



                STOWERS, Justice. 


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

I.      INTRODUCTION
 



                Bobbie Ann Hunter and Shaun T. Conwell had two sons before separating, 



                  1 

S.C.  and   A.C.     Conwell   filed   a   complaint   for   custody   in   2006   but   Hunter   did   not 



respond.    The superior court granted Conwell sole legal and primary physical custody 



of the boys in a 2006 default judgment.           Nearly two years later Hunter, acting pro se, 



sought modification of custody.         The superior court denied Hunter's motion without a 



hearing because it concluded that Hunter's allegations were insufficient to constitute a 



substantial change in circumstances. Hunter appealed, and in a 2009 opinion we rejected 



as time-barred her arguments regarding the initial custody determination, but reversed 



the   superior   court's   denial   of   her   motion   for   modification.   We   remanded   for   an 



evidentiary hearing on Hunter's allegations of (1) potential verbal abuse of the boys, (2) 



a change in Conwell's employment requiring significant time away from the boys, (3) 



signs    that  the  boys    were   developing     mental    health   problems,    and   (4)   Conwell's 



                                                                2 

interference with court-ordered telephonic visitation. 



                An evidentiary hearing on remand was held and the superior court found 



that   Hunter   had   not   demonstrated   a   substantial   change   in   circumstances   warranting 



modification      of   custody.    The     court   noted,   however,     that   Conwell's     continued 



interference with telephonic visitation would alone amount to a substantial change if not 



remedied going forward.         Hunter moved for reconsideration; her motion was deemed 



denied after 30 days.       Hunter appeals.      We affirm the superior court's finding of no 



substantial change in circumstances. 



        1 

                We use initials to identify the children. 



        2 

                Hunter v. Conwell , 219 P.3d 191, 198 (Alaska 2009) (Hunter I). 



                                                   -2                                               6663 


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

II.     FACTS AND PROCEEDINGS 



        A.       Proceedings Prior To Remand 



                 Bobbie Ann Hunter and Shaun T. Conwell have two young sons, S.C. and 



                                                                                                 3 

A.C.    The couple never married but lived together for approximately six years.                    Their 



relationship ended in early 2006 and the parties began living in different communities: 



                                                           4 

Conwell in Kotzebue and Hunter in Fairbanks.                  Conwell has been in a "committed 



relationship" with his current girlfriend, Kristen Walker, since 2005, and she lives with 



Conwell in Kotzebue. 



                 In June 2006, Conwell filed a complaint for sole legal custody and primary 



physical custody of the boys.          Hunter filed no answer, so Conwell moved for default 



judgment.     Hunter did not appear at the August 24, 2006 default custody hearing, at 



which time the   superior court awarded legal and physical custody to Conwell, with 



summer visitation to Hunter. 



                Nearly two years passed, during which time Hunter exercised her 2007 and 



2008 summer visitation periods.  On July 3, 2008 Hunter, acting pro se, filed a motion 



to modify custody. Hunter argued that modification was appropriate because it "is in the 



best interest of the children, and a substantial change in circumstances has occurred." 



Hunter alleged that: (1) while talking on the telephone with S.C., she heard Walker 



"screaming" and "shouting" at A.C. in the background and was sufficiently "concerned 



for   her   children's   safety"   to   call   Kotzebue   police   and   request   that   they   "conduct   a 



welfare check"; (2) Conwell often did not answer the telephone when Hunter called, 



changed his number twice, and was "attempting to alienate [the] children against their 



mother";   (3)   S.C.   asked   Hunter   whether   Walker   was   his   mother;   (4)   Conwell's   job 



        3 

                Id . at 192. 



        4 

                Id . 



                                                   -3-                                                6663 


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

caused him to "live away from the children for several weeks at a time"; and (5) Hunter 



believed Conwell was "neglecting proper parental guidance."                   Hunter requested sole 



legal and primary physical custody. 



                On   July   28,   2008,   Conwell   filed   his   opposition   to   Hunter's   motion   to 



modify custody.   Conwell argued that "many of [Hunter's] statements are not accurate, 



and    even   if  they  were,    the  allegations   do   not  amount     to  a  significant   change    in 



circumstances" since the default custody order was entered. 



                On    September      3,  2008,   Superior    Court   Judge    Richard    Erlich   denied 



Hunter's motion to modify custody without a hearing.                 The court noted that custody 



modification is a two-step process: "[f]irst, AS  25.20.110[] requires the parent seeking 



the modification [to] show that a substantial change in circumstances has occurred," and 



if this burden is met, "the court will proceed to examine whether modification is in the 



best interests of the child." The court construed Hunter's arguments as "a) the alienation 



of the child's affection," which implicated AS 25.24.150(c)(6), and "b) a failure to meet 



the child's needs," which implicated AS 25.24.150(c)(1) and (2).                 The court found no 



substantial change in circumstances and therefore declined to modify the custody order. 



The court did, however, impose a regular telephone visitation schedule with calls to be 



made between 7:30 and 8:00 p.m. on Tuesdays, Thursdays, and Sundays "unless the 



parties come to some other written mutual agreement," and stated that "[b]oth parties 



shall ensure that this contact is made." 



                Hunter     filed   a  motion    for  reconsideration      on   September      16,  2008, 



presenting     new    evidence    of  Conwell's     alleged    failure  to  comply     with  telephonic 



visitation, as well as two telephone log printouts showing 22 calls Hunter alleged she 



made     to  Conwell     prior  to  the  default   hearing.     Hunter    requested     that  a  custody 



investigator be appointed, and separately filed a motion requesting enforcement of the 



telephonic visitation order. 



                                                   -4-                                             6663
 


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

                 Conwell       opposed     Hunter's      motion    to   enforce    telephonic     visitation, 



explaining that he was making an effort to spend time outdoors with the boys in the fall 



months so they were sometimes unavailable when Hunter called. Conwell requested that 



the court modify the times for calls from between 7:30 and 8:00 p.m. to between 7:00 



and 7:30 p.m. 



                 On   October   16,   2008,   the   superior   court   denied   Hunter's   motion          for 



reconsideration, again finding no substantial change in circumstances, and it denied 



Hunter's request for a child custody investigation.                The court separately ordered the 



parties to abide by its telephone visitation schedule and declined to adjust the time for 



court-ordered   visitation,   which   remained   between   7:30   and   8:00   p.m.   on   Tuesdays, 



Thursdays, and Sundays. 



                 Hunter      appealed     the  denial   of   her   motion    to   modify    custody.       We 



"reject[ed] her arguments regarding the initial custody determination as time-barred," but 



"reverse[d] the superior court's denial of her motion for modification, and remand[ed] 



                                   5 

for a hearing on that issue." 



                 In   doing   so,   we   examined   "whether   Hunter   alleged   facts   that,   if   true, 



                                                                                6 

demonstrate[d] that a change in circumstances ha[d] occurred,"                   and concluded that she 



had done so: 



                 If   established   at   an   evidentiary   hearing,   the   allegation   of 

                 verbal abuse, the allegation that the boys may still be left in 

                 the care of Conwell's girlfriend, and the allegation that the 

                 boys have exhibited significant anger and behavioral issues 

                 after    returning     from     Conwell's       home,     could    warrant 



         5 

                 Id . 



         6 

                 Id. at 196. 



                                                     -5-                                                  6663 


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

                modification of custody. Therefore, Hunter is entitled to a 

                hearing on her motion.[7 ] 



We also noted "other allegations that could justify modification of custody or visitation 



if proven at an evidentiary hearing," including (1) "that work-related travel requires 



Conwell to leave the children in the care of third-party custodians several weeks each 



year," and (2) "that Conwell   failed   to foster [Hunter's] relationship with the boys," 



including interfering with telephonic visitation, which we characterized as "extremely 



           8 

serious." 



                We remanded the case to the superior court for an evidentiary hearing on 



these issues. 



        B.      Proceedings On Remand 



                An initial evidentiary hearing took place on March 24, 2010 in Kotzebue 



before Superior Court Judge Ethan   L. Windahl, who was sitting pro tem.                      Hunter's 



witness was unavailable, so the court rescheduled the hearing for April 1, 2010. 



                At the April hearing, after Hunter's witness testified that both Hunter and 



Conwell were good parents, Hunter then testified on her own behalf by reading from a 



prepared   statement.     She   stated   that   while   she   was   more   than   willing   to   work   with 



Conwell, "he does not appear to have any desire to work with me."  Regarding Walker's 



alleged verbal abuse of the boys, Hunter described the original incident that prompted 



the welfare check, but conceded that she "[didn't] know if the verbal abuse is still going 



on." 



                Hunter   also   testified   that   she   "continue[s]   to   have   problems   with   the 



telephone visitation," and then spent several minutes reading from a log of dates and 



        7 

                Id. at 197 (footnote omitted). 



        8 

                Id. 



                                                   -6                                               6663 


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

times when she called Conwell's house but was unable to visit satisfactorily with the 



boys.    Hunter   testified  that   there   was   a   three-week  period  between   March  3  and 



March 21, 2010 when Conwell took the children on vacation to Hawaii and Hunter had 



no contact information and was unable to reach the boys.              Hunter also testified that 



generally when she does reach the boys they are distracted by television or video games. 



She also stated "[t]he supreme court was extremely strong about letting [Conwell] know 



that [it was] concerned with the contact, with me having contact with the kids, and I 



believe that the denial of contact causes the children to be alienated."        Hunter testified 



that telephonic visits    "either . . . don't happen, or when I do get them . . . my kids are 



always watching TV or playing video games and it distracts them," a situation Hunter 



believed was "intentional to alienate them from me or break our mother and child bond." 



               Regarding who watches the boys while Conwell is out of town, Hunter 



testified that she "was never told actually who watches them when he is out of town, I 



just asked that, why can't it be me?"      When asked whether she had "any idea about" 



Conwell's "work schedule or where he is," Hunter replied,"I actually do not." 



               Hunter testified that in the summer of 2009 she saved up "all her money" 



to take the boys on a trip to Anchorage and had planned various activities to do with 



them, but Conwell's sister asked to take the boys to a film, and Hunter "let them go." 



Hunter also testified that during her summer custody of the boys, Conwell's mother often 



"show[ed] up unannounced" and asked the boys to go with her; Hunter agreed to let 



them go and "[doesn't] mind letting [Conwell's mother] take [the boys], but frequently 



it's hard to get them back." 



               Finally   Hunter testified that she has to pay for all tickets for the boys' 



travel, although she is "pretty sure" that Conwell should pay for some of the tickets: 



"Like, the holidays [in 2009-2010], I had to buy all the tickets, and if I didn't [Conwell] 



                                               -7-                                          6663
 


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

told me that he wasn't going to send me the kids. . . .  I just feel like he's trying to keep 



                           9 

them away from me." 



                On cross-examination by Conwell's attorney, Hunter conceded that she has 



had all of her physical visitation with the boys, though Hunter again noted that she had 



paid for the boys' travel herself, and she also emphasized that telephonic visitation has 



not been consistent. But Hunter admitted that she "didn't keep track of the days" that she 



did speak to the boys, only those days on which she encountered problems. 



                Hunter also conceded that she had no knowledge that anyone was abusing 



the boys "because I'm not there," and confirmed that she willingly let the boys go with 



Conwell's   family   members   on   the   various   occasions   she   had   described   when   this 



occurred.    Hunter also acknowledged that the boys exhibit "difficult behaviors" when 



they visit her, "[i]n the first few days, like the transition time"; Hunter acknowledged it 



was   possible   that   the   boys'   acting   out   could   be   a   result   of   the   transition   between 



households. 



                Conwell testified on his own behalf, and called no other witnesses.                    He 



stated that he has been employed by OTZ Telephone for three to four years, and that 



although the "vast majority of [his] work is taken care of in Kotzebue," "every once in 



a great while" he is "called out for a day trip" which tends to be within 90 miles of 



Kotzebue.     Conwell testified that since this job started he has been out of town for no 



more than three days at a time, that his employer knows he has children, and that he has 



kept   records   of   his   occasional   day   trips   to   the   villages. Conwell   explained   that   his 



normal work schedule is 8 to 5 Monday through Friday, he is on call at other times but 



has not been called once since he started work, and he is usually home for dinner with 



        9 

                Although it appears Hunter has had the boys over Christmas holidays, this 

arrangement seemingly was not provided for by the custody order. 



                                                   -8-                                                6663 


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

the boys, who have a "very structured time schedule."  Conwell testified that on the rare 



occasions he is out of town, his girlfriend Walker cares for the boys:  Walker lives in his 



home and has been in a relationship with Conwell since 2005, and the boys are familiar 



with her.   He stated that there is "no confrontation" between Walker and the boys, and 



that there is no truth to the allegation that Walker verbally abuses them. 



              With regard to telephonic visitation, Conwell testified that Hunter does 



have her telephonic visitation with the boys, that "on top of the scheduled days I do get 



called every day," and "when it is the day [Hunter] calls, Tuesday[s] Thursday[s] and 



Sunday[s], when she calls those days . . . and [the boys] do not speak with her, I do call 



her back."    Conwell stated that he did not call Hunter while he and the boys were in 



Hawaii because his cellular phone SIM card did not function there, and because he did 



not want to use the telephone at the condominium in which they were staying because 



he tries to "shy away from phones when [he is] working in the telephone community." 



He also conceded that when Hunter calls outside of her court-ordered time, he does not 



"have a tendency of calling back." 



              Finally, Conwell testified that the boys have a structured life and are doing 



well at school and that their best interests are served by being in his custody. 



              On cross-examination by Hunter, Conwell denied having stated that he 



noticed that Walker "mistreated" the boys, but admitted that he did not use a calling card 



to call Hunter while on vacation with the boys in Hawaii.      When asked by Hunter why 



he did not "turn the TV off during [her] visitation," Conwell replied that "only one child 



can talk at a time," and if one boy is on the phone the other should not be "punish[ed]" 



if he's "really into that show." 



              The superior court, ruling on the record, stated that it was satisfied that the 



issues on remand had been answered, and found specifically that (1) "[t]he verbal abuse 



allegation . . . is not substantiated for anything that's going on these days,"      (2) "the 



                                             -9-                                        6663
 


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

children are being cared for adequately and properly whether Mr. Conwell is there or 



whether his girlfriend is there," (3) no "significant anger management and behavioral 



issues" affect the boys, "other than perhaps during a transitional period," and that (4) 



"Mr.   Conwell's       testimony     is  pretty  clear  that   he  does   not   travel  out   of   town   for 



significant periods of time."         The court concluded that these issues "do not create a 



significant change in circumstances." 



                 The court stated that it was "concerned" about the telephone contact, and 



that "that's the only thing really that seems to me to have some substance."                    The court 



elaborated: 



                 I don't think that the telephone contact issue creates a change 

                 in   circumstances,   but   I   do   believe   that   Ms.   Hunter   has   a 

                 legitimate concern about contact with the boys.  And I am of 

                 the opinion that if there is a scheduled time, and it is, there is, 

                 in the custody order as I recall, it seems to me that maybe the 

                 television needs   to   get turned off, and when mother calls, 

                 then you deal with it, and I don't care if that's inconvenient 

                 or if it upsets one of the kids or not.          This is a significant 

                 issue, you [Conwell] have the kids more than nine months of 

                 the year, mother's entitled to talk to them when it's time to 

                 talk to them.   Now clearly if she doesn't call at the appointed 

                 times,   then   it's   her   problem.  But   if   she   does,   then   she's 

                 entitled to have the kids talk to her. 



                 Hunter requested written findings and the court issued its supplemental 



written order on April 5, 2010.          In it, the superior court stated that although Conwell's 



"less than satisfactory performance . . . when it comes to telephonic visitation" did not 



amount   to   a   change   in   circumstances   warranting   custody   modification,   "if   over   the 



course of the next year Ms. Hunter feels that the situation has not improved," "[t]hat 



issue alone, if established by reliable evidence, will constitute a substantial change of 



circumstances sufficient to appoint a child custody investigator and revisit the issues of 



custody and the best interests of the children under AS 25.24.150." 



                                                    -10-                                              6663
 


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

                Hunter filed a motion for reconsideration on April 12, 2010, which was 



deemed denied after 30 days pursuant to Alaska Civil Rule 77(k)(3).                 Hunter appeals. 



III.    STANDARD OF REVIEW 



                The     superior   court   "has   broad   discretion    in  deciding    child   custody 



          10 

issues."     We will "review a trial court's child custody decision for abuse of discretion 



                                                                      11 

and   review   underlying   factual   findings   for   clear   error."     A   trial   court's   decision 



whether there has been a prima facie showing of a substantial change in circumstances 



sufficient to trigger an evidentiary hearing regarding custody modification is reviewed 



                           12 

for abuse of discretion.       Abuse of discretion occurs when the superior court "considers 



                                                                                       13 

improper factors or improperly weighs factors in its decisional process."                  Clear error 



exists when, after a review of the entire record, we are "left with a definite and firm 



                                           14 

conviction" that a mistake occurred.          We grant "particular deference to the trial court's 



factual findings when they are based primarily on oral testimony, because the trial court, 



        10 

                Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (citing Millette v. 

Millette , 177 P.3d 258, 261 (Alaska 2008)). 



        11 

                Id. (citing Jaymot v. Skillings-Donat , 216 P.3d 534, 538 (Alaska 2009)); 

see   also   Odom   v.   Odom ,   141   P.3d   324,   330   (Alaska   2006)   (quoting  Hamilton   v. 

Hamilton , 42 P.3d 1107, 1111 (Alaska 2002)) ("A trial court's determination of custody 

will be set aside only if the entire record demonstrates that the controlling findings of fact 

are clearly erroneous or that the trial court abused its discretion."). 



        12 

                McLane v. Paul , 189 P.3d 1039, 1042 (Alaska 2008) (citing Barrett v. 

Alquire , 35 P.3d 1, 5 (Alaska 2001)). 



        13 

                Id. (citing Jaymot , 216 P.3d at 538-39). 



        14 

                Id. (citing Dingeman v. Dingeman , 865 P.2d 94, 96 (Alaska 1993)). 



                                                  -11-                                            6663
 


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

not this court, performs the function of judging the credibility of witnesses and weighing 



                            15 

conflicting evidence." 



IV.     DISCUSSION 



                 Under AS 25.20.110(a), "[a]n 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." 



Modification of a custody determination is a two-step process:  first, "the parent seeking 



modification must establish a significant change in circumstances affecting the children's 



                                                                               16 

best interests"; only then is a best interests analysis performed. 



                 In Hunter I we remanded this case and specified several allegations that, 



if   established   at   the   evidentiary   hearing   on   remand,   could   warrant   modification   of 



                                                                                    17 

custody: (1) verbal abuse, (2) the boys being left in Walker's care,                   (3) signs that "the 



boys     have   exhibited     significant    anger   and   behavioral     issues   after   returning    from 



Conwell's home," (4) that "Conwell's employment required that he 'live away from the 



                                                                                                           18 

children for several weeks at a time,' " and (5) interference with telephonic visitation. 



The superior court found that there had not been a substantial change of circumstances 



with   respect   to   any   of   these   allegations,   and   therefore   denied   Hunter's   request   for 



         15 

                 Millette , 177 P.3d at 261 (quoting Ebertz v. Ebertz , 113 P.3d 643, 646 

(Alaska 2005)) (internal quotation marks omitted). 



         16 

                 Hunter v. Conwell , 219 P.3d 191, 196 (Alaska 2009) (Hunter I) (citing 

Ebertz , 113 P.3d at 647). 



         17 

                 This issue was related to the allegation that Walker verbally abused the 

boys.    See Hunter I, 219 P.3d at 196-97.              On remand, the superior court appeared to 

merge issues (1) and (2). 



         18 

                 Id . 



                                                    -12-                                               6663
 


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

custody modification. Our review of the record leads us to conclude that this decision 



was not an abuse of discretion, and we affirm. 



        A.	     The Superior Court Did Not Abuse Its Discretion In Concluding That 

                There Had Not Been A Substantial Change Of Circumstances With 

                Reference To Abuse, Behavioral Problems, And Travel By Conwell. 



                1.	     Alleged verbal abuse by Walker 



                Hunter     testified  that  in  2006   she   "overheard     [Walker]    .  .  .  in  the 



background, and she was . . . yelling at [the boys], and . . . I didn't know who she was 



at the time so I called the troopers on a welfare check."  Kotzebue police followed up by 



telephone and no other evidence of abuse was recorded.  When the superior court asked 



if Hunter had any other evidence of verbal abuse by Walker, Hunter replied "I don't 



                                                   19 

know if the verbal abuse is still going on."          Hunter's witness offered no evidence of 



abuse by Conwell or Walker.  Conwell testified that if Walker yelled at the boys, it was 



only to get their attention and was not an aggressive yell.            Conwell also testified that 



there was "no confrontation" between Walker and the boys at all, and denied having 



stated that he noticed that Walker "mistreated" the boys.  Conwell stated that "there has 



never been an incident towards [the children] ever, the allegations on [Walker] yelling 



or verbally or physically abusing is completely false . . . there's nothing to show. . . . I've 



never, ever, ever had a problem with [Walker] and the boys." 



                Having heard this testimony, the superior court concluded that there had not 



been a change of circumstances with respect to the issue of abuse, stating that "[t]he 



        19 

                With regard to the related issue of the boys being left in Walker's care, the 

superior court asked Hunter whether she had any specific information concerning who 

provides care for the boys when Conwell is away; Hunter replied that she "was never 

told actually who watches them when he is out of town, I just asked that, why can't it be 

me?"    Hunter also conceded that she willingly let the boys go with Conwell's family 

members on various occasions. 



                                                 -13-	                                          6663
 


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

verbal abuse allegation I believe is not substantiated for anything that's going on these 



       20 

days."     This finding is amply supported by the record. 



               2.      The boys' alleged behavioral problems 



               Hunter testified that the boys exhibit "difficult behaviors" when they visit 



Hunter, "[i]n the first few days, like the transition time," although she acknowledged that 



the boys might be acting out as a result of the transition between households.            Conwell 



testified that when the boys return to his custody the only behavior he sees is "over 



excitement," and suggested that "[m]aybe [Hunter is] not used to their personalities, 



they're aggressive young boys, they like to wrestle, they're hands-on boys. Maybe she's 



not used to that."    He also testified that the boys are among the top in their classes at 



school. 



               Having heard this testimony, the superior court was "not convinced that 



there are significant anger management and behavioral issues, other than perhaps during 



a transitional period."    This finding is supported by the record. 



               3.      Conwell's work and travel schedule 



               Conwell testified that he had been employed by OTZ Telephone for "three 



to four" years, and that although the "vast majority of [his] work is taken care of in 



Kotzebue," every "once in a great while" he is "called out for a day trip" which tends to 



be within 90 miles of Kotzebue.   Conwell testified that since this job started he has been 



out of town for no more than three days at a time; his employer knows he has children, 



and he has kept records of his occasional day trips to the villages.  Conwell also testified 



that his normal work schedule is 8 to 5 Monday through Friday, and that he is on call at 



other times but has not been called once since he started work; he is usually home for 



        20 

               The    superior   court   also  found   that   "the  children  are  being  cared   for 

adequately and properly whether Mr. Conwell is there or whether his girlfriend is there." 



                                                -14-                                            6663 


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

dinner with the boys, who have a "very structured time schedule."  Hunter submitted no 



evidence      or   testimony     challenging      any   of   Conwell's      testimony     on   this   issue. 



Furthermore,       the  superior    court   asked    Hunter    whether     she  had   "any    idea   about" 



Conwell's "work schedule or where he is," and she replied "I actually do not." 



                 Having heard this testimony, the superior court stated that "Mr. Conwell's 



testimony is pretty clear that he does not travel out of town for significant periods of 



time."   This finding is supported by the record. 



        B.	      The Superior Court Did Not Abuse Its Discretion In Concluding That 

                 There Had Not Been A Substantial Change Of Circumstances With 

                 Reference To Telephonic Visitation. 



                 In   our   2009   opinion   remanding   this   case   to   the   superior   court   for   an 



evidentiary hearing, we stated with regard to the issue of telephonic visitation: 



                 In   her   motion     for  reconsideration,      Hunter     alleged    that 

                 Conwell continued to interfere with her telephonic visitation 

                 even after the court ordered a specific schedule for the calls. 

                 This allegation was not part of the record at the time the court 

                 denied the motion to modify custody, but because this case is 

                 remanded for a hearing, we note that Conwell did not refute 

                 this allegation.     He essentially responded by explaining that 

                 he considered it more important to allow the boys to play 

                 outside than making them available for Hunter's telephone 

                 calls, and he implied that he would not return Hunter's calls 

                 unless   she   provided   him   with   a   calling   card.  The   court's 

                 order   did   not   require   that   Hunter   provide   a   calling   card. 

                 Where      geographic      separation     makes    frequent     in-person 

                 visitation   impossible,   telephonic   visitation   is   crucial.     On 

                 remand,   both   parties   will   have   an   opportunity   to   address 

                 whether Hunter has had continued difficulty contacting the 

                 boys   by   telephone   and   if   so,   whether   any   interference   by 

                 Conwell constitutes a substantial change of circumstances.[21] 



        21 

                 Hunter I , 219 P.3d at 197-98 (footnote omitted, emphasis added). 



                                                   -15-                                                 6663 


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

               On   appeal   following   remand,   Hunter   argues   that   "the   most   important 



issue . . . is the continued interference by Mr. Conwell in regard to contact with her 



children," highlighting her "ongoing" problems contacting the boys during her visitation 



periods between 7:30 and 8:00 p.m. on Tuesdays, Thursdays, and Sundays.  In essence, 



Hunter argues that the superior court abused its discretion in finding that the lapses in 



telephone visitation did not constitute a substantial change in circumstances.           Conwell, 



in turn, argues that the superior court did not abuse its discretion in so finding. 



               Telephonic visitation between these parties   has proved problematic for 



some time.   In her reply brief, Hunter points to two September 2008 affidavits detailing 



her difficulties communicating with the boys, a circumstance she described as "the rule, 



rather than [the] exception." For instance, she noted that between early August and mid- 



September 2008 she "was able to make contact and speak with [S.C.] once and [A.C.] 



twice, on all other occasions the telephone was not answered, nor was any attempt made 



to return my calls."   The record also contains a third 2008 affidavit by Hunter in which 



she stated that Conwell claimed that he "does not have to allow the children to speak 



with her" and that "he has all the power," and that he had "acted upon his threats" by 



changing his telephone number, failing to answer the telephone, and failing to return her 



telephone messages. 



               The superior court heard detailed testimony from Hunter recounting dates 



and times when she was unable to reach the boys in early 2010.  Hunter also testified that 



when she does reach the boys they often are distracted by television or video games. 



               Conwell   concedes   that   Hunter   missed   seven   scheduled   telephone   calls 



during the months of January and February 2010, as well as having no contact at all for 



several weeks in March 2010 when Conwell took the boys to Hawaii and did not provide 



Hunter with contact information or otherwise contact Hunter.            But Conwell points out 



that many of these missed calls occurred outside court-ordered times, and that Hunter 



                                               -16-                                           6663
 


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

testified that occasionally she was able to speak with the children outside of her court- 



ordered times. 



                 It is clear that telephonic communication between Hunter and the boys 



continues to be problematic, and, as the superior court observed:   if "over the course of 



the next year . . . the situation [does] not improve[]," then "[t]hat issue alone . . . will 



constitute a substantial change of circumstances." 



                 The   superior   court   found,   however,   that   the   problems   with   telephonic 



communication did not rise to the level of a substantial change of circumstances.  While 



the issue is a close one, the court's decision is neither clearly erroneous nor an abuse of 



discretion.    In Kelly v. Joseph , for example, we upheld the superior court's finding of 



changed      circumstances      after  the   court   found   the   telephone    communication        to  be 



"woefully inadequate" and an "affirmative [demonstration]" of "unwillingness to . . . 



                                     22 

allow [the children] to share." 



                 We reiterate, though, that this is a serious issue.             As the superior court 



explained: 



                 Ms. Hunter has a legitimate concern about contact with the 

                boys.    And I am of the opinion that if there is a scheduled 

                 time, and it is, there is, in the . . . custody order as I recall, it 

                 seems to me that maybe the television needs to get turned off, 

                 and when mother calls, then you deal with it, and I don't care 

                 if that's inconvenient or if it upsets one of the kids or not. 

                 This is a significant issue, you [Conwell] have the kids more 

                 than nine months of the year, mother's entitled to talk to them 



        22 

                 46   P.3d   1014,   1017-18   (Alaska   2002)   ("Actions   by   a   custodial   parent 

which substantially interfere with the noncustodial parent's visitation rights are sufficient 

to constitute a change in circumstances.           These actions include a detrimental and well 

established pattern of behavior on the part of the custodial parent to erode the bonds of 

love   and   affection   between   the   other   parent   and   the   children.")   (Internal   cites   and 

quotations omitted). 



                                                   -17-                                              6663
 


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

                when it's time to talk to them .   Now clearly if she doesn't call 

                at the appointed times, then that's her problem.             But if she 

                does, she's entitled to have the kids talk to her . (Emphasis 

                added.) 



                The     superior   court's   decision    was   based    almost   entirely   on   the  oral 



testimony of Hunter, Conwell, and Hunter's witness, so its weighing of this testimony 



                               23 

must be given deference.           When reviewing whether the superior court is justified in 



finding a change of circumstances, we do not parse each alleged factual assertion of 



change, but instead look to see whether the circumstances in the aggregate establish a 



                               24 

change of circumstances.          On the record as a whole, we hold that the superior court did 



not   abuse   its   discretion   in   finding   no   change   of   circumstances   sufficient   to   modify 



          25 

custody.       We cannot, however, overemphasize what we said in Hunter I : "Where 



geographic      separation     makes    frequent    in-person    visitation   impossible,     telephonic 



                         26 

visitation is crucial."      If Hunter feels that the telephonic visitation is not occurring as 



ordered by the court, she may ask the superior court to revisit the issue. 



V.      CONCLUSION 



                We AFFIRM the superior court's order denying Hunter's motion to modify 



custody. 



        23 

                See Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008) (quoting Ebertz 

v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)). 



        24 

                See Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990) (concluding 

that "in the aggregate, [several indicia of a mother's 'overall maturation'] constitute a 

substantial change in circumstances"). 



        25 

                Because      the   superior   court   concluded     that   no  substantial    change    in 

circumstances had occurred in this case, no best interests analysis was necessary.                    See 

Hunter I , 219 P.3d at 196 (citing Ebertz , 113 P.3d at 647) (describing the two-step 

process for custody modification). 



        26 

                Id . at 198 (citing Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005)). 



                                                  -18-                                                6663 

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