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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jack C. v. Tally C. (9/7/2012) sp-6706

Jack C. v. Tally C. (9/7/2012) sp-6706

        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 



JACK C.,                                       ) 

                                               )       Supreme Court No. S-13990 

                        Appellant,             ) 

                                               )       Superior Court No. 3AN-07-10724 CI 

        v.                                     ) 

                                               )       O P I N I O N 

TALLY C.,                                      ) 

                                               )       No. 6706 - September 7, 2012 

                        Appellee.              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Sharon Gleason, Judge. 



                Appearances: David R. Edgren, Edgren Law Offices, LLC, 

                Wasilla,    for  Appellant.     Tally    C.,   pro  se,  Anchorage, 

                Appellee. 



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

                Stowers, Justices. 



                CARPENETI, Chief Justice. 

                STOWERS, Justice, concurring. 



I.      INTRODUCTION 



                A couple divorced in 2008, and the mother was granted sole legal custody 



and primary physical custody of their three children.            At the time of the divorce, the 



superior court stated that if the father met certain conditions he could return to the court 



to seek modification of the child custody order.          In 2009, he filed a motion to modify 



custody, seeking joint legal custody and increased visitation.  The superior court, largely 


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adopting a master's report and recommendations, left sole legal custody and primary 



physical custody with the mother, but expanded the father's visitation. 



                The father appeals from   the superior court's 2010 custody modification 



order. Because the superior court neither committed clear error nor abused its discretion, 



we affirm the majority of the superior court's order.           But because the superior court's 



order fails to explain why it did not order any changes to the father's visitation during 



the children's summer vacation, we remand for further explanation regarding summer 



visitation. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 

                Jack    and  Tally1   met   in  Colorado    during   the  mid-1990s     and   began    a 



relationship. In August 2000, they married in California. They had three children during 



the course of their relationship: Kaleb, born in 1997; Jason, born in 1998; and Charles, 



born in 2001.     Jack and Tally separated in July 2007. 



        B.      Proceedings 



                Tally   filed   for   divorce   in   October   2007   and   petitioned   for   a   domestic 



violence protective order against Jack a week later.   Although the present appeal relates 



to the superior court's September 7, 2010 child custody modification order, many of the 



issues raised on appeal regard the same factual circumstances that have existed since the 



original divorce filing. 



                1.      December 2007 domestic violence protective order hearing 



                Following   Tally's   petition   for   a   domestic   violence   protective   order,   a 



hearing   was held in December 2007.            In that hearing, the superior court found that 



domestic violence had occurred with regard to two incidents: (1) Jack destroyed Tally's 



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



                                                  -2-                                              6706 


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cell phone; and (2) Jack made harassing phone calls to Tally at work.  The superior court 



ordered Jack to enroll in a domestic violence intervention program and the court put in 



place a temporary visitation schedule providing that Jack would see the children every 



Thursday   from   3:30   p.m.   to   8:00   p.m.   when   school   was   in   session,   10:00   a.m.   to 



8:00 p.m. when school was not in session, and every Sunday from 10:00 a.m. to 8:00 



p.m.   The court noted that once Jack found suitable housing he could file a motion to 



modify custody. 



                2.      Interim hearings 



                Between the December 2007 protective order hearing and the fall 2008 



divorce trial, the parties each filed numerous motions and several hearings were held. 



These   hearings addressed issues similar to those presently on appeal, including: (1) 



visitation; (2) Jack's desire to have the custody order from the domestic violence case 



modified; (3) ongoing harassment by Jack and general failure to communicate between 



             2 

the parties;  (4) Jack's failure to complete anger management courses as ordered by the 



trial court at the protective order hearing; (5) mental health treatment for the children, 



particularly Kaleb; (6) property division; and (7) scheduling activities for the children. 



                3.      The custody investigator's findings 



                On April 10, 2008, the superior court ordered a full custody investigation 



to obtain recommendations regarding any custody modification that would be included 



        2       Jack and Tally have had such serious communication problems that they do 



not   talk   on   the   telephone;   at   first   they   communicated   by   email,   but   text   messages 

eventually became their primary means of communication. 



                                                   -3-                                               6706 


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

in the final divorce order.      The custody investigator issued his report on September 4, 



2008, after meeting with Tally, Jack, and the children several times.3 



                The investigator primarily described Jack and Tally's relationship through 



reports from each side: "Mother reports Father was controlling and critical.                 She states 



she   was   the   primary   parent   through   the   relationship.   .   .   .   Mother   notes   Father   was 



manipulative and mentally abusive."            On the other hand, "Father said there was a lot of 



yelling in the relationship. Father reports Mother had a drinking problem which remains 



an issue."    Jack also alleged that Tally used drugs and drove while intoxicated.  The 



investigator, however, found no evidence that Tally had "an addiction that impair[ed] her 



behavior."  The custody investigator noted the parties' involvement with the Anchorage 



Police Department, including Jack's July 2007 arrest for breaking Tally's cell phone and 



Tally's October 2007 arrest for allegedly punching Jack in the mouth (charges related 



to this incident were later dropped).          The investigator also spoke with the children's 



therapist.   She indicated that all the children were "deeply stressed about the custody 



battle" and recommended that Kaleb receive further psychological evaluation at North 



Star, a behavioral health provider. 



                The      custody     investigator      made     several     relevant     findings     and 



recommendations.        He noted that "[t]he children need to be shielded from the parents' 



conflict."    He indicated that both parents can meet the children's physical needs but 



found that Jack "would likely struggle more . . . since his work has been sporadic and has 



taken him out of town."  He emphasized the parents' communication issues, stating that 



Jack "appears to pressure the children and his obvious depressed mood likely affects the 



        3       The investigator noted that Jack had yet to complete parent information 



forms and that none of his references had responded to the investigator's inquiries. Tally 

completed her parent information forms and two of her references responded. 



                                                   -4-                                               6706 


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children. . . . [His] tendency to feel persecuted and always feel he is correct appears to 



make it hard for him [to] compromise and work with [Tally]."              Similarly, he noted that 



Tally "has done things in front of the children that can easily be anticipated to cause 



conflict."  He found that Tally "appears [cavalier] about ignoring court orders. . . . [and] 



these actions are provocative to [Jack] and put the children in the middle of even more 



conflict."   Although he found no domestic violence, child abuse, or neglect present in 



either household, the investigator remarked that Jack's questioning and pressuring of the 



children was "inappropriate and harmful to the children." He found that Jack's repetitive 



calls to the police for welfare checks exposed the children to the parents' conflict and 



were "definitely harmful."  He also noted that Jack had not completed his court-ordered 



anger   management   classes   and   "appears   to   have   delayed   starting   until   there   were 



repercussions from the court."  The investigator found that Jack presented as "depressed 



and overwhelmed.  He appears to feel persecuted and makes many claims which he does 



not back up. . . .  He asks for things he needs or wants as necessary for the children." 



                The custody investigator concluded that Tally "maintained a more stable 



home     and   work.     She   appears    more    stable  psychologically."      The    investigator 



recommended that Tally have primary physical custody, but that Jack get the children 



three weekends out of every four once he completed anger management and his health 



was adequate. He also recommended that during the summer, custody be equally shared 



on a week on/week off basis.   He recommended that the parents share legal custody and 



that each inform the other of important events in the children's lives -   he   felt that 



arrangement was the only way that one parent would not exclude the other from major 



parenting decisions.  The investigator suggested that the children remain in counseling, 



that Jack get a psychological assessment to determine if therapy would be beneficial for 



him, and that Jack should follow all recommendations of the counselor.                  Finally, the 



                                                 -5-                                           6706
 


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

investigator expressly recommended that neither parent speak negatively about the other 



nor question the children about the other parent. 



                4.      Fall 2008 divorce trial 



                Jack and Tally's divorce trial was held in fall of 2008.            At the conclusion 



of the trial, Superior Court Judge Sharon Gleason awarded sole legal custody and primary 



physical custody of the children to Tally and kept Jack's visitation schedule from the 



December 2007 domestic violence case in place.                In doing so, the court examined the 



statutory factors, in particular the relative ability of both parents to meet the children's 



needs   and   provide   stability.   The   court   confirmed   that   Jack   had   committed   acts   of 



domestic violence against Tally on at least two occasions, so the statutory presumption 



affecting custody applied.4      Thus, the court required Jack to take an intervention program 



for batterers, which could be satisfied by completion of anger management classes, before 



gaining additional unsupervised visitation with the children. 



                The court also ordered both parents to take a minimum of eight parenting 



classes, finding that they were both responsible for putting their children in the middle of 



their conflict and noting the "risk of mental harm to the children because of their coerced 



participation in these adult issues."   It echoed the sentiments of the custody investigator 



that Tally's drinking did not rise to a problematic level and that Jack's repeated calls to 



the police were much more traumatic for the children.  Instead of following the custody 



investigator's suggestion to automatically change the visitation schedule upon Jack's 



        4       See AS 25.24.150(g) ("There is a rebuttable presumption that a parent who 



has a history of perpetrating domestic violence against the other parent, a child, or a 

domestic living partner may not be awarded sole legal custody, sole physical custody, 

joint legal custody, or joint physical custody of a child.").             AS 25.24.150(h) defines 

"history of perpetrating domestic violence" and specifies ways in which the statutory 

presumption may be overcome. 



                                                   -6-                                            6706
 


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completion of anger management courses, the court required Jack to return to court upon 



completing a psychological assessment and anger management classes if he wished to 



modify the visitation schedule.   The court expressly noted that it rejected the custody 



investigator's suggestion because it wanted an update on each parent's progress with 



parenting classes and relationship with the other parent before modifying the existing 



custody schedule.   It also ordered counseling for the children to continue and specified 



that Tally must give Jack 60 days notice if she wished to change the children's school. 



              5.     Jack's 2009 motion to modify custody 



              On August 28, 2009,   Jack   filed a motion to modify custody asking for 



shared legal custody because Tally was allegedly "making poor decisions" regarding the 



children and violating court orders, and he felt that he was entitled to 50/50 physical 



custody because he had met all the court's requirements.        Tally opposed the motion, 



claiming that Jack had continued to harass her and there had been no substantial change 



in circumstances justifying a change.   The matter was referred to Master Jonathan Lack 



in November 2009 and a hearing was scheduled for January 26, 2010. 



              Before the hearing on the motion to modify custody, the parties continued 



to have communication problems regarding the children.         On September 21, 2009, a 



hearing was held in front of the master on Jack's motion to change the children's school. 



Jack alleged that he did not receive adequate notice before Kaleb was moved.          Tally 



claimed that she had given Jack notice at the end of the previous school year, sending him 



a letter that she would allow Kaleb to attend a different school if he got his grades up at 



the German language school he had been attending with his brothers.       The master took 



these issues under advisement. 



              At the January 26, 2010 hearing, Jack asked for a continuance on his motion 



for shared physical custody because he had reported Tally to the Office of Children's 



                                            -7-                                       6706
 


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

Services (OCS) for child abuse and called the Anchorage Police Department to report an 



assault on a child arising out of the same incident; Jack reported that both of these cases 



were still under investigation.  Thus, instead of deciding the custody dispute, this hearing 



dealt   with   other   issues   between   the   parties   including   whether   Jack's   psychological 



evaluation was adequate, Kaleb's school problems, and visitation issues. 



                On April 27, 2010, the master held a hearing on Jack's motion to modify 



custody. Jack claimed that he had completed the "few issues [from the divorce order] that 



[he] needed to take care of in order to have the 50/50 custody."           He also told the master 



that he had made a referral to OCS because he believed the children were being abused, 



but he did not have any witnesses from OCS appear at the hearing because they had 



temporarily closed the file pending the receipt of a report from the Anchorage Police 



Department.     Tally's attorney later pointed out during cross-examination that the OCS 



case was closed because the allegations were unsubstantiated.                Jack also asserted that 



Tally had not satisfied her obligation to complete child parenting classes.             Lastly, Jack 



claimed that "the co-parenting issues . . . . are just running out of control," specifically 



regarding Kaleb's schooling and behavior outbursts, and visitation with the children. 



                Tally denied the claims of abuse and recounted what happened during the 



alleged abuse incident.      She called her own expert to question the adequacy of Jack's 



psychological   evaluation.      She   also   maintained   that   she   did   complete   the   requisite 



parenting classes through an online program.            She noted repeated problems involving 



Jack, including: when he took Kaleb to get his ear pierced; when he angrily confronted 



her attorney at the attorney's office; when he allegedly bumped her in the locker room at 



one of the children's hockey games; and ongoing behavioral problems with the children 



that she believed resulted from Jack's influence.  The master took all of this information 



under advisement and indicated he would issue his report at a later date. Another hearing 



                                                  -8-                                           6706
 


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was held between the parties in front of the superior court in June 2010 in order to arrange 



summer travel. 



                 The master issued his Report and Order in July 2010 and the superior court 



issued its final decision on the motion to modify custody in September 2010.   In its order, 



the   superior   court   adopted   the   findings   and   conclusions   of   the   master   with   a   few 



interlineations.     The court found that there had been a change in circumstances and that 



both parties had substantially complied with its requirements from the November 2008 



order.    It   then   went   through   a   best   interests   analysis,   noting   that   "[b]ecause   of   the 



complete breakdown in the ability of the parties to effectively communicate, joint legal 



custody is not appropriate in this matter."  While elaborating on the best interests factors, 



the court stated that it was clear that both parents loved their children.               However, it also 



found both parents at fault for their substandard communication; "[Tally] does what is 



minimally   required   to   notify   [Jack]   of   decisions   regarding   the   children,"   but   Jack's 



behavior in the locker room and especially at Tally's attorney's office was "unreasonable 



in   light   of   the   prior   allegations   in   this   matter   and   shows   a   lack   of   insight   into   his 



behavior."  The superior court ordered that Tally maintain sole legal custody and primary 



physical custody of the three children.            Jack was granted visitation one day during the 



school week and overnights on alternate weekends.                  No change for summer was found 



in this schedule.      The court also laid out specific notice provisions if Tally wished to 



change the children's schools or take the children for medical or mental health treatment. 



The   court   set   provisions   for   Tally   to   substitute   visitation   periods   if   the   children   had 



extracurricular activities that would take them out of state, and explicitly allowed Jack to 



attend    school   or   extracurricular   activities     outside    of   his  scheduled     visitation   time, 



provided he gained prior approval from the child's teacher and notified Tally. 



                 Jack appeals the superior court's custody order. 



                                                     -9-                                                6706
 


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III.    STANDARD OF REVIEW 



                A motion to modify custody is governed by AS 25.20.110, which provides 



that "[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 . . . and the 



modification      is  in  the  best  interests   of  the  child."5   "We     will   reverse   a  custody 



modification   order only   if the record   shows an   abuse of discretion   or if   controlling 

factual findings are clearly erroneous."6       "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."7               Findings of fact will not 



be set aside unless clearly erroneous, which means that "a review of the record leaves us 

'with the definite and firm conviction that the superior court has made a mistake.' "8 



                The    findings    of  a  master   that  are  adopted     by  the  superior    court   are 



considered the findings of that court.9       "The trial court's factual findings enjoy particular 



deference when they are based primarily on oral testimony, because the trial court, not 



        5       AS 25.20.110(a). 



        6        William P. v. Taunya P., 258 P.3d 812, 814 (Alaska 2011) (quoting Long 



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



        7       Id . (quoting Long , 816 P.2d at 150) (internal quotation marks omitted). 



        8       Id. (quoting D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 



207-08 (Alaska 2000)); see also Alaska R. Civ. P. 52(a) ("Findings of fact shall not be 

set aside unless clearly erroneous . . . ."). 



        9       Alaska R. Civ. P. 52(a). 



                                                  -10-                                             6706
 


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this court, performs the function of judging the credibility of witnesses and weighing 



conflicting evidence."10 



IV.    DISCUSSION 



       A.      The Trial Court's Findings Of Fact Were Not Clearly Erroneous. 



               In its final custody order, the superior court largely adopted the Master's 



Report   and   Order,   which   contained:   a  section  entitled  "Findings   of   Fact,"  which 



summarized the information presented at the April 27, 2010 custody hearing before the 



master; a section entitled "Conclusions of Law," which tied additional specific facts to 



the statutory best interests factors; and a section entitled "Recommendations," which 



made specific recommendations regarding custody and visitation. 



               Jack argues that the superior court's "findings of fact section . . . is entirely 



devoid of any coherently stated finding[s], much less ones that are stated 'specially' as 



required under Civil Rule 52."11     He points out an "absence of numbered paragraphs" 



and believes that the mere summary of testimony presented at the April           2010 hearing 



leaves "the reader with no sense that any particular fact is being cited for any specific 



reason."   Jack does acknowledge that the court made discrete findings of fact in the 



section   entitled  "Conclusions    of  Law,"   but  he  contends    that  the  court's  analysis 



regarding those additional facts was insufficient. 



               Tally responds that "[t]here is no finding referenced by the appellant as 



being a clearly erroneous finding."      She argues that, while Jack disagrees with some of 



the conclusions drawn from the court's findings, his arguments effectively address the 



       10      William P., 258 P.3d at 814 (quoting Misyura v. Misyura , 242 P.3d 1037, 



1039 (Alaska 2010)) (internal quotation marks omitted). 



       11      Alaska Civil Rule 52(a) provides that "[i]n all actions tried upon the facts 



without a jury or with an advisory jury, the court shall find the facts specially." 



                                              -11-                                          6706 


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

weight given to these findings rather than any alleged "impropriety." She then concludes 



that "given that the majority of the evidence placed before the court at the hearing was 



through oral testimony . . . , the court's findings should be given 'particular deference.' " 



                The   section   of   the   court's   report   entitled  "Findings   of   Fact,"   as Jack 



correctly points out, primarily summarizes the parties' respective presentations from the 



April 2010 hearing.       In particular, the court identified facts regarding Jack and Tally's 



respective efforts to take child parenting classes, Jack's anger management classes, and 



Jack's psychological examination.           Each of these findings was important to the court's 



conclusion   that   Jack   and   Tally   had   "substantially   complied   with   the   requirements 



outlined by Judge Gleason in November of 2008." 



                After   finding   changed   circumstances,   the   court   then   conducted   a   best 



interests analysis pursuant to AS 25.24.150, which is set forth in the section entitled 



"Conclusions of Law." As Jack emphasizes, the court's best interests analysis references 



additional discrete findings of fact not included in the section entitled "Findings of Fact." 



In particular, these facts include that: the children all have difficulty in school; Kaleb in 



particular has "significant mental health issues" that need to be addressed; Tally is more 



in tune "to the children's mental health issues and has a greater desire to meet those 



needs";   Jack   cannot   separate   himself   from   what   occurs   with   the   children   and   sees 



changes to the children's school and activities as attacks against him; both parents have 



"substantial love and affection for the children and the children love their parents"; there 



have    been    "significant    upheavals"     in  the  children's    schooling,     but   these  do   not 



necessarily represent bad choices; the children may need more stability in their lives; 



Tally   does   "what   is   minimally   required   to   notify   [Jack]   of   decisions   regarding   the 



children" and the communication between Jack and Tally is "still, even when limited to 



email and text messaging, openly hostile"; Jack is "reactionary" to Tally's texts and her 



                                                   -12-                                             6706
 


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

attempts to inform him of events in the children's lives; since the divorce "there has been 



no domestic violence, but the hostility and anger between the parties has not subsided"; 



the "failure of [Jack] to take every precaution to avoid physical contact with [Tally] 



reflects a complete lack of situational and historical awareness"; and the "numerous 



motions to modify the visitation schedule" and resulting "return to court to address these 



issues is placing exceptional strain on the parties,   and   .   .   . is most likely negatively 



affecting the children." 



                Although Jack takes issue with the court's overall organizational scheme, 



he acknowledges that the court made numerous specific findings of fact.                    And as Tally 



correctly points out, Jack does not identify a single, specific finding as having been made 



in   clear   error   -   rather,   Jack   insists   that   the   findings   should   have   been   stated   more 



"coherently" or "specially."        But the fact that the report was not drafted in a particular 



format   does     not   constitute   a   basis   for   challenging   the   court's   findings   on   appeal. 



Additionally, we agree with Tally that the majority of Jack's argument addresses the 



weight accorded specific findings of fact, rather than the factual findings themselves, and 



is therefore instead relevant to a consideration of the court's discretion.                The superior 



court's findings are sufficient to allow us to discern what factors and considerations the 



court deemed important in ruling on Jack's motion to modify custody. We conclude that 



the superior court's findings were not clearly erroneous. 



        B.	      The Superior Court Did Not Abuse Its Discretion In Making Its Final 

                 Custody Determination. 



                 Jack argues that the superior court incorrectly weighed its factual findings 



in conducting its best interests analysis and then reached improper legal conclusions 



from the evidence presented.  Jack effectively contends that the superior court abused its 



                                                   -13-	                                             6706
 


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

discretion by considering "improper factors," failing "to consider statutorily mandated 



factors," and giving "too much weight to some factors."12 



                Alaska      Statute   25.24.150(c),     which    governs     custody    determinations, 



mandates that a court "determine custody in accordance with the best interests of the 



child."   In determining custody the court must consider: 



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

                needs of the child; 



                (2)  the   capability   and   desire   of   each   parent   to   meet   these 

                needs; 



                (3) the child's preference if the child is of sufficient age and 

                capacity to form a preference; 



                (4) the love and affection existing between the child and each 

                parent; 



                (5)    the  length   of   time   the  child   has   lived   in  a  stable, 

                satisfactory environment and the desirability of maintaining 

                continuity; 



                (6) the willingness and ability of each parent to facilitate and 

                encourage a close and continuing relationship between the 

                other parent and the child . . . 



                (7) any evidence of domestic violence, child abuse, or child 

                neglect in the proposed custodial household or a history of 

                violence between the parents; 



                (8) evidence that substance abuse by either parent or other 

                members of the household directly affects the emotional or 

                physical well-being of the child; 

                (9) other factors that the court considers pertinent. [13] 



        12      See William P., 258 P.3d at 814. 



        13      AS 25.24.150(c). 



                                                   -14-                                             6706 


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

                 In    adopting     the   master's     conclusions      of   law    and    ultimately     his 



recommendations, the superior court identified each of the best interests factors and 



specifically analyzed each factor in turn. Based on its analysis of the enumerated factors, 



the    superior    court   made     its  final  custody     determination.        The    court's   custody 



determination ordered that Tally would continue to have sole legal custody of the three 



children, Tally would continue to have primary physical custody of the children, Jack 



would continue to have visitation on Thursdays, Jack would have alternate weekends 



from Friday at 6:00 p.m. to Sunday at 3:00 p.m., Jack and Tally could submit a proposed 



schedule   for   Thanksgiving   and   Christmas,   Tally   would   be   permitted   to   substitute 



visitation   times,   and   Jack   would   be   permitted   to   attend   school   and   extra-curricular 



activities outside of his specified visitation times. 



                 Jack advances a number of arguments that the superior court abused its 



discretion. Jack primarily contends that the superior court abused its discretion by failing 



to give consideration to the "very specific findings" of the 2008 custody investigation, 



which   had   recommended   increased   visitation   with   Jack,   or   to   at   least   omit   specific 



findings as to why the custody investigator's recommendations were no longer in the 



best   interests   of   the   children. Jack   believes   that   the   superior   court   made   him   "the 



equivalent   of   a   judicial   promise"   in   its   2008   divorce   order   and,   now     that   he   has 



completed   the   court's   requirements,   its   failure   to   modify   custody   according   to   the 



investigator's report is a "grossly unjust and erroneous situation." 



                 Regarding the court's specific best interests analysis, Jack argues that there 



are    a  number      of  facts   that  should     have    weighed     more    heavily    in   the  court's 



determination, particularly in regard to the court's consideration of Jack's and Tally's 



respective capability and desire to meet the children's needs.                  These facts specifically 



include: the "significant upheavals" caused when Tally changed the children's schools; 



                                                    -15-                                              6706
 


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

the court's conclusion that Tally's continuing   to   bring matters before the court was 



negatively affecting the children; the children, particularly Kaleb,  performing poorly in 



school   since   Tally   was   granted   full   legal   and   primary   physical   custody;   and   Kaleb 



continuing to suffer significant mental health issues.  In conclusion, Jack argues that "the 



facts developed . . . in modifying the parties' custody order were woefully inadequate." 



                 Jack    also   defends     certain   actions    he   took    that  he   feels   the   court 



characterized   in   a   negative   manner.     In   particular,   Jack   argues   that:   the   fact   he   felt 



threatened by Tally's actions was warranted "[i]n light of the complete failure of the trial 



court over the ensuing course of years to do anything to [Tally] when he complained 



about her violations," the incident between Jack and Tally's attorney demonstrates Jack's 



recognition that his behavior needs to be controlled and channeled away from Tally, and 



the physical encounter between Jack and Tally in a locker room was merely an accidental 



touching. 



                 Tally counters that the superior court did not abuse its discretion.  She 



asserts    that  the   "court   appropriately      made    the  necessary     [f]indings    of  [f]act   and 



considered the relevant statutory criteria to support the modified custody award issues." 



                 The   superior   court   did   not   abuse   its   discretion   in   issuing   its   custody 



modification order.       The superior court properly identified the statutory best interests 



factors and then applied its factual findings to each enumerated factor.                  Although Jack 



disagrees with the court's analysis, the court's findings of fact are well supported by the 



evidence and the court's conclusions properly align with its stated findings. Overall, the 



court found the best interests factors favored leaving sole legal custody and primary 



physical custody with Tally, but the court did expand Jack's visitation by granting him 



alternate weekends, which included overnights on Friday and Saturday.  Although Jack 



would characterize some of his actions differently, he has presented no evidence that the 



                                                    -16-                                              6706
 


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

court considered improper factors, failed to consider the appropriate statutory factors, or 



improperly weighed the relative factors. 



                 Much of Jack's argument focuses specifically on the custody investigator's 



report completed in September 2008, before the divorce trial had even occurred and well 



before the present motion to modify custody was filed.  Jack's argument, however, fails 



to consider the proper focus of a motion to modify custody, which is statutorily required 



to focus on a change in prior circumstances before any modification to custody may be 



made.14    Thus, the superior court properly focused on the parties' present circumstances. 



Moreover, since 2008 the parties have had frequent court involvement and it became 



apparent to the court that their inability to effectively communicate precluded any sort 



of joint custody award.         Even the custody investigator recognized the importance of 



communication         -    testifying    during    the  divorce     trial  that  "if  [Jack   and   Tally's] 



communication   didn't   improve   and   stayed   the   way   it   is   now,   in   the   future   I   might 



recommend differently, that it may not be possible for them to share legal custody." 



Moreover,   the   custody   investigator   also   stated   that   his   recommendations   would   be 



different if Jack did not learn to control his behavior.   Jack's behavior since 2008 led the 



court to different conclusions than the custody investigator had originally recommended, 

and the superior court properly considered the parties' current circumstances.15                   Finally, 



we   reject   Jack's   assertion   that   the   superior   court's   prior   statements   amounted   to   a 



"judicial     promise."     Despite     Jack's    characterization      otherwise,    the   superior    court 



         14      AS    25.20.110(a)      provides     that  "[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." 



         15      Nor was the superior court required to make any special findings regarding 



why the court chose not to follow the 2008 custody investigator's report. 



                                                    -17-                                               6706
 


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

explicitly noted in 2008 that, if and when Jack returned to court, a best interests analysis 



would then be conducted.         The superior court did not abuse its discretion. 



        C.	     The   Superior   Court   Failed   To   Adequately   Explain   Its   Decision   To 

                Make No Change To Jack's Summer Visitation Schedule. 



                Jack   challenges   the   "absence   of   any   summer   recommendation"   in   the 



superior   court's   September   2010   order.      In   its   December   2007   Domestic   Violence 



Protective Order, the superior court put in place a visitation schedule providing that Jack 



would have visitation every Thursday from 3:30 p.m. to 8:00 p.m. when school was in 



session, from 10 a.m. to 8:00 p.m. when school was not in session, and every Sunday 



from 10:00 a.m. to 8:00 p.m.           The court did not modify this visitation schedule in its 



order following the fall 2008 divorce trial.   The superior court's September 2010 order 



put   in   place   a   visitation   schedule   providing   that   Jack   would   have   visitation   every 



Thursday from 4:00 p.m. to 8:00 p.m. and alternate weekends from Friday at 6:00 p.m. 



to Sunday at 3:00 p.m.         The order did not provide for any changes to Jack's regular 



visitation schedule when school is not in session.  Neither the superior court's order nor 



the record on appeal provides adequate explanation as to why the court's September 



2010 visitation   order   failed to provide for any changes to Jack's visitation with the 



children   when   school   is   not   in   session,   and   it   is   possible   that   the   lack   of   any   such 



provision was merely an oversight. Because an adequate explanation regarding visitation 



when school is not in session does not appear in the record, we therefore remand to the 



superior court for further explanation on this one limited issue. 



V.	     CONCLUSION 



                Because the superior court's factual findings were not clearly erroneous, 



and because the superior court did not abuse its discretion in modifying custody, we 



AFFIRM   the   majority   of   the   superior   court's   final   custody   order.   But   because   the 



superior court did not explain why its final order provided no changes to the visitation 



                                                  -18-	                                            6706
 


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

schedule during the children's summer vacation, we REMAND to the superior court for 



further explanation on this one limited issue. 



                                          -19-                                     6706
 


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

STOWERS, Justice, concurring. 



                Though I agree generally with the court's opinion, I conclude there is no 



requirement for the superior court to explain why it did not change the father's summer 



visitation. Under the superior court's custody order, the father will have visitation in the 



summer on the same schedule as the rest of the year.   Given the facts of the case, can this 



court conclude that such a summer schedule is an abuse of discretion?                    I cannot.  I 



understand that the court does not find an abuse of discretion, but the court apparently 



concludes some additional explanation by the superior court is necessary to evaluate 



whether   the   failure   to   modify   the   summer schedule   was within   the   superior   court's 



discretion.   Again, I conclude that it was an acceptable exercise of discretion for the 



superior court not to modify the summer visitation schedule.              In my view, no further 



explanation is required.   But no harm arises from a remand order to provide the superior 



court with an opportunity to explain its thinking, so I do not dissent from the opinion. 



                                                -20-                                           6706
 

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