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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nancy M. v. John M. (9/13/2013) sp-6823

Nancy M. v. John M. (9/13/2013) sp-6823

         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  



NANCY M.,                                               )  

                                                        )        Supreme Court No. S-14791  

                            Appellant,                  )  

                                                        )        Superior Court No. 3AN-09-07901 CI  

         v.                                             )  

                                                        )  

JOHN M.,                                                )        O P I N I O N  

                                                        )  

                            Appellee.                   )        No. 6823 - September 13, 2013  

                                                        )  



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

                                                                    

                   Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                   Appearances:  Robin A. Taylor, Law Office of Robin Taylor,  

                                                                       

                   Anchorage, for Appellant.  Allen M. Bailey,  Anchorage, for  

                                                                                   

                   Appellee.  



                   Before:  Fabe, Chief Justice, Winfree, Maassen, and Bolger,  

                   Justices.  [Stowers, Justice, not participating]  



                   BOLGER,  Justice.  



I.       INTRODUCTION  



                   The parties to this custody dispute initially lived together in Alaska, but  



their relationship ended before the birth of their daughter, and the mother relocated to  



California to attend graduate school.  After lengthy litigation, the superior court awarded  



the father primary custody based on its findings that:  (1) the father was more likely to  

                                                



foster a close and continuing  relationship between the mother and the child; (2) the  

                                            


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

stability factor slightly favored the father; and (3) the mother's flexibility in caring for     



the child would be slightly limited due to the impending birth of her second child.  



                    The mother appeals, arguing that the superior court's findings are clearly  



                                                                                                     

erroneous.  She also argues that the court erred in its application of the custody statute,  



in disregarding the custody investigator's recommendations, and in formulating various  



                                                                                                            

aspects of the final custody order.  We affirm the custody order, but we remand on the  



issue of visitation costs to clarify ambiguity in the court's order.  



                                                             

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                             1  

                                                                                                                The couple  

                    John M. and Nancy M. are the parents of four-year-old Nina. 



had an on-again, off-again relationship between 2007 and 2009, when Nina was born.  



                    In  2010, Nancy relocated to California to attend graduate school.   She  



                                                                                                      

resided in an apartment in Los Angeles.  At the time of trial, Nancy was in the process  



                             

of  completing  her  master's  degree  and  had  applied  to  various  doctoral  programs  in  



                                                                                                                 

California.        Nancy  became  pregnant  again  in  2011,  and  she  was  due  to  give  birth  



sometime in the spring of 2012.  



                    John  continued  to  reside  in  Alaska,  employed  as  a  professor  at  the  



University  of  Alaska.    His  job  involved  occasional  travel  to  conferences  outside  of  



                                                                    

Anchorage.  In 2011, John purchased a home in Anchorage.  John has family in the Los  



Angeles area, including his mother, father, and brother.  



          B.        Proceedings  



                                                   

                    Shortly after Nina's birth, John initiated legal proceedings to obtain sole  



                                                                                                 

legal and physical custody of Nina.  Although Nancy wished to relocate with Nina to  



                                                                                 

California to attend graduate school, the superior court prohibited Nancy from taking the  



          1         Pseudonyms have been used to protect the privacy of the parties.  



                                                              -2-                                                           6823  


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child out of Alaska until the custody hearing had taken place.  Following hearings in  



February  and  August  2010,  the  court  issued  an  interim  custody  order  awarding  the  



                                                                                                           

parties joint legal custody and John primary physical custody of Nina.  In October 2010,  



                                                                                                         

the superior court issued another interim order stating that the parties had agreed to share  



                                                                                                                      

interim legal and physical custody of their daughter until trial.  It provided that Nina  



                                                          

would spend alternating three-month periods with her parents in their respective homes,  



which were now in different states because Nancy had relocated to California.  



                    The superior court appointed a custody investigator.  The investigator's  



                                                                                     

final report recommended that the parties continue to share physical custody equally  



                                                                            

(continuing the then-current schedule alternating three-month periods of custody) until  



Nina began kindergarten in 2014.  The custody investigator acknowledged that once  



                                   

Nina began attending school, the schedule would need to be altered so that one parent  



                                                                              

had custody during the school year and the other during the summer, but declined to  



recommend which parent should take which role.  



                                                                                                            

                    The final, two-day custody trial occurred on January 31 and February 1,  



                                                                  

2012.    The  court  heard  testimony  from  both  parties,  as  well  as  from  the  custody  



                                                                                                                       

investigator and from John's mother, Lisa.  John argued at trial that he was the more  



                                  

stable parent and was more willing to foster a close and continuing relationship between  



          

Nina  and  the  other  parent.    He  proposed  a  custody  schedule  that  would  gradually  



                                   

increase his custodial time over the next three years until he had primary custody once  



Nina began school.  



                                                        

                    Nancy  proposed  that  the  parties  continue  to  share  custody  equally,  



                                                                     

alternating custody every three months until Nina began kindergarten.  But she argued  



                                                                                  

that  once  school  started,  she  should  be  awarded  primary  custody.    The  custody  



investigator's testimony echoed her 2012 report.  She recommended that the parties share  



                                                                -3-                                                         6823
  


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

custody equally until 2014, when Nina began kindergarten; at that point, she proposed  

                                                                                           



that the court determine which parent should have primary custody.  



                  The  superior  court  granted  the  parties  joint  legal  custody  and  shared  



physical custody of Nina.  The order provided that over the next three years, physical  



                                                             

custody would transition to a schedule under which John had primary physical custody.  

The superior court considered the statutory custodial factors under AS 25.24.150(c).2  



         2        AS 25.24.150(c) provides:  



                                                                              

                           The court shall determine custody in accordance with  

                  the best interests of the child under AS 25.20.060--25.20.130.  

                  In determining the best interests of the child the court shall  

                  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, except that the court  

                                                                        

                  may not consider this willingness and ability if one parent  

                                                                                                  (continued...)  



                                                        -4-                                                   6823
  


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

It found that Nina had no special needs and that the second, fourth, and seventh factors  

                                                                                             



favored neither party.  It gave no weight to the third and eighth factors.  But the court  

                                                                                                           



found that the fifth and sixth factors - the length of time that the child has lived in a  

                                  



stable environment and the desirability of maintaining continuity, and the desire and  



ability of each parent to allow an open and loving relationship between the child and the  



other parent - both favored John.  Finally, the court noted that due to the impending  



birth of her second child, Nancy's flexibility to meet Nina's needs was slightly more  



limited than John's.  Nancy appeals.  



III.	    STANDARD OF REVIEW  



                                                                          

                  "The superior court has broad discretion in determining custody awards so  

                                                                            3  We will not reverse a custody  

long as the determination is in the child's best interests." 



order unless the superior court abused its discretion or its controlling factual findings are  

                                                                       



         2	       (...continued)
  



                  shows that the other parent has sexually assaulted or engaged
  

                  in domestic violence against the parent or a child, and that a
  

                                                                

                  continuing relationship with the other parent will endanger
  

                  the health or safety of either the parent or 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.  



         3        Stephanie  F.  v.  George  C.,  270  P.3d  737,  745  (Alaska  2012)  (quoting  



Misyura v. Misyura , 242 P.3d 1037, 1039 (Alaska 2010)) (internal quotation marks  

omitted).  



                                                         -5-	                                                  6823
  


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

                            4  

clearly erroneous.   The superior court abuses its discretion if it "considers improper  



factors  in  making  its  custody  determination,  fails  to  consider  statutorily  mandated  



                                                                                                                                 5  

                                                                     

factors, or assigns disproportionate weight to particular factors while ignoring others." 



"Factual findings are clearly erroneous if a review of the record leaves us 'with a definite  

                                                                                                                      



                                                                               6  

and firm conviction that a mistake has been made.' "   "We give 'particular deference'  



to the trial court's factual findings when they are based primarily on oral testimony,  



                                                                                              

because the trial court, not this court, performs the function of judging the credibility of  

witnesses and weighing conflicting evidence."7  



IV.	      DISCUSSION  



          A.	       The Superior Court Did Not Clearly Err In Finding That John Was  

                                                             

                    More  Likely  To  Facilitate  A  Relationship  Between  Nina  And  The  

                    Other Parent.  



                    Nancy argues that the superior court's finding that John was more likely to  

                                                                                                               



facilitate a relationship between Nina and the other parent is clearly erroneous.  John  

                                     



replies that the record supported the superior court's finding.  



                                                              

                    The court's conclusion was based primarily on John's behavior throughout  



the proceedings.  The court noted that John had a strong track record of supporting  



Nancy's relationship with Nina, and it stated that "[a]t almost every turn, [John] has  



taken the extra step to afford [Nancy] opportunities to visit[] with Nina that she might  



not otherwise have enjoyed."  The record supports this finding.  While John allowed  



Nancy visitation time with Nina in addition to court-ordered visitation, Nancy never  



          4	        Id. (quoting Misyura , 242 P.3d at 1039) (internal quotation marks omitted).            



          5         Id. (quoting Misyura , 242 P.3d at 1039).  



          6         Misyura , 242 P.3d at1039 (quoting Jenkins v. Handel , 10 P.3d 586, 589  



(Alaska 2000)) (alteration omitted).  



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



                                                               -6-	                                                        6823
  


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

                                                                              

offered  John  extra  time  with  Nina  -  and  she  even  shortened  John's  court-ordered  



visitation.    There  also  was  evidence  that  John  was  more  likely  to  facilitate  open  



communication between the parties regarding Nina.  Between July 2010 and January  



2012, John sent Nancy 18 update emails regarding Nina's progress, but only received  



four update emails from Nancy.  



                   The superior court contrasted John's actions with Nancy's; it noted that  



                                                         

while there had been no "overt efforts" to exclude John, Nancy had "consistently, albeit  



subtly[,] demonstrated a posture that does not include [John] or his family in [Nina]'s  



life."  The court cited the questionnaires both parties filled out as part of the custody  



                                                                                            

investigation as an example of this.  In response to the question, "Who else is important  



                                       

in each child's life?" John identified Nancy; but Nancy only named members of her own  



family and did not mention John or his family.  



                   Nancy correctly points out that the custody investigator testified that it is  



common for parents to interpret that question as asking about people other than the  



                                                                               

parents themselves:  "I actually have that happen a lot. And the question probably needs  



to be reworded so that I specifically say someone other than Mom and Dad, who's  



                                                                                                               

important in the child's life."  The custody investigator further testified that it was clear  



                               

from her discussions with Nancy that Nancy "recognizes that her daughter loves her dad,  



has a good relationship with him[,] and that he needs to be part of her life."  With respect  



                                                                                          

to this finding and others, Nancy argues that the superior court erred in disregarding the  



custody investigator's testimony and recommendations and in failing to make findings  



                                                                           

explaining why it rejected those recommendations.  But a trial court is not obligated to  

adopt a custody investigator's recommendations or opinion,8 nor must it make specific  



          8         Chesser v. Chesser-Witmer, 178 P.3d 1154, 1159 (Alaska 2008) (citing  



 Ebertz , 113 P.3d at 647).  



                                                            -7-                                                        6823  


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

findings  regarding  those  recommendations  as  long  as  it  considers  the  appropriate  

statutory factors when making a custody determination.9  We have identified the "critical  



                                                                   

question" as "not whether the superior court erred in rejecting the custody investigator's  



                                                                                                                               10  

                                                                          

proposed decision, but whether the evidence as a whole supports the court's decision." 



                    In  this  case,  there  is  significant  evidence  in  the  record  supporting  the  



                                                                      

superior  court's  conclusion.    John  testified  that  even  before  Nina's  birth  he  was  



                                                       

concerned  Nancy  would  not  allow  him  to  be  involved  in  his  daughter's  life.    John  



                                                                          

testified that Nancy would not permit him to see Nina from the time that Nancy moved  



                                                                                  

out of his house in late June 2009 (a month after Nina's birth) until the court ordered that  



John receive visitation about a month later.  He further testified that once supervised  



visitation had been ordered Nancy would interfere with his visitation time by demanding  



                                          

that he return Nina to her if the baby needed to be fed or changed, or if she became fussy  



and needed to be soothed.  



                                             

                    There was also evidence that Nancy was somewhat unsupportive of the  



                                                                                                                

relationship between Nina and John's family in California - particularly with John's  



                                                      

mother, Lisa.  Lisa, who lives about an hour from Nancy,  testified that she had requested  



                                                                                 

visitation time with Nina six times, and that Nancy  had refused to permit visitation  



except on one occasion, for three hours.  Lisa also testified that Nancy did not make her  



        

feel welcome to visit her home to see Nina and that Nancy never spoke to her during  



exchanges.  



                                                                                    

                    Nancy testified that Lisa was hostile to her and refused to tell Nancy where  



she was taking Nina.  She also testified that her "door is always opened" to John's  



extended family, though she admitted that she had never contacted any of his family  



          9         Chase v. Chase, 109 P.3d 942, 946 (Alaska 2005).  



          10        Ebertz , 113 P.3d at 647-48.  



                                                              -8-                                                            6823  


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

                                                                            

members  with  an  opportunity  to  spend  time  with  Nina.    Perhaps  most  revealing  of  



Nancy's attitude toward facilitating a relationship between Nina and John's extended  



family, though, was her testimony that it would be "impossible" to give members of  



John's family their own personal time with Nina during Nancy's custodial time:  



                                              

                    I think right now given both of our limited time with [Nina]  

                   with      the     three-months-on/three-months-off                     that     it   is  

                                     

                    impossible for [John's] extended family to have their own  

                                                            

                   personal time because that would require a lot of time taken  

                    away  from  me  because  I'm  out  here  with  both  extended  

                    families.  And I'm already splitting my time with Nina six  

                   months out of [the] year plus . . . school.  And for extended  

                    family  to spend time with her while she's with me would  

                               

                   require us all to be together.  



                   We have explained that the close and continuing relationship factor takes  

                                                                            



on  "increased significance" when the parties reside in different cities, and thus it is  

      



reasonable for the court to place "enhanced importance" on this factor in a custody  

determination.11  

                         There was ample support for the court's conclusion that this factor  



                                           

favored John:  The evidence indicated that John was more willing to facilitate visitation  



between Nina and Nancy and that he was more likely to foster open communication.  



The court's finding is not clearly erroneous.  



                                                    

          B.	       The Superior Court Did Not Err In Finding That The Stability Factor  

                    Favored John.  



                                                                

                    The superior court found that the stability factor "slightly favor[ed]" John.  



It explained:  



          11        Blanton v. Yourkowski            , 180 P.3d 948, 951 (Alaska 2008) ("It is essential  



to have a custodial parent willing to foster an open relationship with the other parent       

when a great distance separates the children   from the non-custodial parent, and it is  

reasonable  for  the  superior  court  to  place  enhanced  importance  on  this  factor  when  

making its decision.") (quoting Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005)).  



                                                             -9-	                                                      6823
  


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

                                                                      

                    [John] lives in a house in a quiet residential neighborhood.  

                    [Nancy] lives in a an apartment in a busy urban area. Neither  

                   is  necessarily  better-suited  to  meet  [Nina]'s  needs.    The  

                   choice between these two neighborhoods is more a matter of  

                                                                                 

                   personal  preference  than  of  [Nina]'s  needs.    That  said,  

                                                           

                    [John]'s home is better-suited for long-term stability as he  

                   owns his home and has lived and worked in the area for a  

                                                  

                   long period of time.  In addition,  [Nancy] has some unknown  

                                                                                      

                   variables in her life regarding her future college and work  

                   career.    Considering  those  factors,  [John]  is  in  a  better  

                    situation to provide a more certain forecast of educational  

                   options for [Nina].  This factor slightly favors the father.  



                   Nancy argues that the superior court determined that Nancy's status as a  

                                                     



graduate student and a renter evinced a lack of stability.  She contends that favoring a  

home owner over a renter and penalizing a parent for attending graduate school is error.12  

                                                                        



                                                                                        

John replies that the superior court did not determine that the stability factor favored him  



                        

merely because he owned his own home; rather, the court considered a variety of factors  



                               

indicating that John would be able to provide long-term stability - including John's  



                                                            

long residence in the community and his tenured position at the university.  He contends  



that the court appropriately contrasted these indicators of stability with the unknown  



variables in Nancy's life, including where she would live, work, and attend graduate  



school over the next several years.  

                                                                                              13  which  concerned  a  

                   Nancy  primarily  relies  upon  Veselsky  v.  Veselsky,  



                                                                          

mother who desired to move out of state to attend graduate school and was nonetheless  



                                                                                              

awarded primary custody of the parties' children.  But Nancy's reliance on  Veselsky is  



          12       Nancy  also  frames  her  argument  as  a  challenge  to  the   superior  court's  



factual  findings,  contending  that  its  finding  under  subsection   .150(c)(5)  was  clearly  

erroneous.  But her brief only discusses the alleged error in the court's legal reasoning,   

and she does not identify any evidence the superior court failed to consider.   



          13        113 P.3d 629, 631 (Alaska 2005).  



                                                            -10-                                                       6823
  


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

                                                                                                 

misplaced.  The  Veselsky court recognized that graduate school and the desire to be  

                                                                                           14  but the legitimacy  of  

                                                                                                           

closer to extended family are legitimate reasons for a move, 



Nancy's motivation to move to California is not disputed.  The superior court addressed  

                                                                                      



this issue in an earlier order, when it recognized that Nancy had legitimate motives for  

               



her move to California,  and that the move was a "non-factor" in determining custody.  



                   We  have  recognized  that  stability  and  continuity  "can  encompass  a  



multitude of factors, including, but not limited to, the relationship with the custodial  



                                                 

parent, the home provided by the custodial parent, the children's school, the community  



                                                                                          

of friends and family, the cultural community, the children's relationship with the non- 



                                                            15  

custodial parent[,] and stability of place."                    "It is the trial court's task to examine all of  

these factors and determine, in each case, which predominate."16  

                                                                                                



                   Because  the  continuity  factor  includes  both  emotional  stability  and  



                                  17  

geographical   stability,              courts   must   consider   both   geographical   and   emotional  



                18                                                                                    19 

continuity.         And as Justice Rabinowitz cautioned in Craig v. McBride,   "[a]though the  



          14       Id. at 633 (citing House v. House , 779 P.2d 1204, 1208 (Alaska 1989);  



Vachon v. Pugliese, 931 P.2d 371, 379 (Alaska 1996)); see also Williams v. Barbee, 243  

P.3d 995, 1000 (Alaska 2010) ("In cases involving a parent's relocation out of state, as  

                                                                            

long as the relocating parent's reasons for moving are legitimate, the trial court must  

examine the best interests of the child.") (citing Eniero v. Brekke , 192 P.3d 147, 150  

(Alaska 2008); Barrett v. Alguire , 35 P.3d 1, 7 (Alaska 2001)).  



          15        Williams, 243 P.3d at 1006 (quoting Moeller-Prokosch v. Prokosch , 99  

                                          

P.3d 531, 534 (Alaska 2004)) (alterations omitted).  



          16       Id. (quoting Barrett , 35 P.3d at 9) (internal quotation marks omitted).  



          17  

                                                 

                   Blanton ,  180  P.3d  at  954  (citing Meier  v.  Cloud ,  34  P.3d  1274,  1279  

(Alaska 2001)).  



          18       Moeller-Prokosch ,  99  P.3d  at  535  (holding  that  failure  to  consider  



                                                                                                           (continued...)  



                                                            -11-                                                       6823
  


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

                                                                                

stability of the home environment is one of the factors that must be considered in making  



a custody decision, the fact that the physical location of a child's home changes may  



                                                                                20  

                                                                                    Justice Rabinowitz also noted  

have little or no bearing on the stability of the home." 



                                                                                                                   

that "[s]tability is often a function of parental attitude and not of geography . . . .  [T]he  



                          

fact that a parent remains rooted in one community provides no guarantee that his or her  



                                                        21                                            22 

child will have a stable, loving home."                     Moreover, in Evans v. Evans ,                we held that the  

                                                                                                               



trial court properly "broadened its consideration" of the stability factor "to encompass  



                      

the children's more general needs for stability in their overall living environment . . . not  



                                               

just in relation to each parent, but in relation to the totality of the circumstances they  

were likely to encounter in their respective parents' homes."23  



                    But we have also held that a trial court did not err in concluding that the  



                                                                                                  

stability factor favored the father where the father had resided in the same community  



for a long period of time and his living arrangements were "settled" and the mother's  



                                                                                                  24  

                                                                                                        And  in  Craig  v.  

future  living  situation  was  unclear  in  light  of  a  potential  move. 



          18        (...continued)  



emotional  stability  was  abuse  of  discretion);  Blanton ,  180  P.3d  at  954  ("[A]  court  

considering the child's need for continuity and stability in this context must examine not  

                                                                                            

only the desirability of maintaining geographical continuity, but also the importance of  

                                                                                                

maximizing relational stability.") (quoting Meier , 34 P.3d at 1279).  



          19        639 P.2d 303 (Alaska 1982).  



          20        Id . at 308 (Rabinowitz, C.J., concurring).  



          21        Id .  



          22        869 P.2d 478 (Alaska 1994).  



          23        Id . at 482.  



          24        Blanton , 180 P.3d at 954-55.  



                                                             -12-                                                        6823
  


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

McBride , we recognized that "the fact that the mother had only recently attempted to   



                                                                                                25  

create a stable home environment was entitled to consideration."                                    In this case, we do  



                                                   

not interpret the superior court's remarks to suggest that it gave home ownership an  



overriding preference over home rental.  The court explained that the choice between  



Nancy's home and John's home was "a matter of personal preference" and noted that  



                                                                                                     

Nancy's future plans with respect to her education and career were still undetermined.  



The superior court's finding on the stability factor is supported by the record.  



          C.	       The Superior Court Did Not Err In Considering The Birth Of  

                    Nancy's Second Child.      



                                 

                    At trial, John argued that the birth of Nancy's second child would interfere  



with her ability to care for Nina.  The superior court noted that "[a]lthough a new and  



                                                                                        

additional child certainly introduces a new challenge into [Nancy]'s life, whether that  



new baby will have a significant impact either positive or negative is not measurable at  



                                                                            

this time." Accordingly, the court simply noted that Nancy's "flexibility to meet [Nina]'s  



                                                                                                            

need is slightly more limited" than John's due to the newborn, second child.  Nancy  



                                                                                                 

contends that this finding is clearly erroneous; she notes that no evidence was offered  



                                                                                               

that the addition of a sibling would negatively impact Nancy's ability to care for Nina.  



                                                     

She also argues that, to the extent that this factor weighed against her in the custody  



                                                    

determination, it was legal error.   Nancy does not cite any case law in support of her  



argument.  



                    A court should not determine custody based on the number of children a  



                                                                                     

party is caring for; the determination should be based on case-specific evidence of each  



          25        639 P.2d at 305.  



                                                             -13-	                                                          6823  


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

                                                                                                            26  

parent's capability to care for the child or children in question.    But we do not read the                                   



superior court's comment to mean that it gave this factor improper significance; it was   



careful to state that the impact of Nancy's new baby "is not measurable at this time."                                                            We  



interpret the court's comments to be largely responsive to - and dismissive of - John's     



argument at trial that Nancy's newborn would negatively impact Nina.  We therefore   



conclude that the superior court did not err.  



            D.          Other Issues  



                        1.         The custody schedule  



                       The superior court ordered that Nina spend gradually increasing time in   



John's custody until 2014, when an approximate nine-month/three-month division would  



begin when Nina began to attend kindergarten.  Nancy argues that the superior court  



                                                                                                                              

erred by failing to explain how this custody schedule was in the best interests of the  



                                                             

child.  She correctly points out that the court's order regarding the changes in the custody  



schedule are at odds with the custody investigator's recommendations.  The custody  



investigator recommended continuing the alternating three-month periods of custody  



until 2014, and she testified that gradually increasing John's custodial time with Nina  



over a period of several years was potentially more disruptive to Nina.  



                              

                       As noted above, a trial court is not obligated to follow the recommendations  



of a custody investigator.  Moreover, here the custody investigator acknowledged that  



gradual  change  often  worked  for  children  and  sometimes  made  more  sense  than  an  



                                                                                                                                     

abrupt change.  John testified that he thought such a schedule would  be  in the best  



                                                                                                                     

interests of his daughter, and the court may have chosen to credit such testimony over  



            26         Id. at 953 ("The necessary inquiry requires an examination of 'case-specific  



evidence' of each parent's capability to care for the child.") (quoting  West v. West, 21  

P.3d 838, 843 (Alaska 2001)).  



                                                                        -14-                                                                        6823  


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

                                                                           

the  custody  investigator's.    The  superior  court  did  not  abuse  its  discretion  when  it  



ordered this gradual change in the custody schedule.  



                                           

                    2.        John's travel  



                    Nancy contends that the superior court erred by failing to address John's  



travel schedule - which she characterizes as "frequent[]" and "extensive."  Specifically,  



she argues that the court ought to have ordered that Nina stay with Nancy while John  



traveled.  



                                                                                    

                    But Nancy mischaracterizes John's travel obligations.  John testified at trial  



                                                                                                                       

that  if  he  had  primary  custody  of  Nina,  he  would  expect  to  travel  to  two  or  three  



                                                                                                 

conferences a year and that those conferences typically last three days.  It would not have  



                                                                                                                    

been reasonable for the court to order that Nancy take custody of Nina during these trips,  



                                    

especially considering the amount of travel and expense involved.  The superior court  



did not err by failing to address John's travel schedule in its order.  



                         

                    3.        Allocation of visitation expenses  



                                                                                                   

                    Nancy argues that the court erred in allocating the bulk of travel costs to  



Nancy because her income is significantly lower than John's.  John responds that the  



                                                   

allocation of visitation expenses is appropriate because he has to pay for eight trips per  



                                                       

year (adult and child tickets), while Nancy is only responsible for the cost of two to four  



trips per year (adult ticket only).  



                           

                    We remand this issue for clarification because the superior court's order is  



                                                                               

ambiguous with respect to travel costs.  The section of the order concerning travel costs  



provided  that  Nancy  was  responsible  for  the  first  $500  of  travel  costs,  John  was  



                                                                                         

responsible for the second $500 of travel costs, and Nancy was responsible for any costs  



                                                            

exceeding $1,000.  But in the section of the order dealing with physical custody, the  



                                                                                            

court adopted the schedule as proposed by John in two trial exhibits.  While one of the  



exhibits is simply a schedule, the other exhibit resembles a proposed order in that it  



                                                               -15-                                                        6823
  


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

addresses topics such as the allocation of travel costs.                          The exhibit provides that John is  



responsible  for  the  bulk  of  travel  costs.    It  is  unclear  whether  the  court  intended  to  



incorporate in its order the allocation of travel costs proposed in the exhibit.  



                                                                                        

                    John seems to read the decree to incorporate an allocation that is favorable  



                                                                                                         

to Nancy, and Nancy seems to agree with this reading.  The superior court may wish to  



incorporate this reading on remand.  



                    4.        Federal tax exemption  



                                                                          

                    Nancy contends the superior court erred in awarding John the entitlement  



                                                                                   

to claim Nina as a dependent for federal tax purposes. She argues that the trial court was  



                                                                                                              

required  to  make  specific  findings  explaining  why  this  arrangement  was  "just  and  



proper" and that its failure to do so is reversible error.  



                    Alaska Civil Rule 90.3(k) provides that, consistent with AS 25.24.152 and  



                                                                                                        

federal law, the trial court may allocate the federal tax exemption for a child between the  



                                                                                               

parties "as is just and proper and in the child's best interests."  Alaska Statute 25.24.152  



                                                                                              

places limitations on the circumstances under which the court may grant a noncustodial  



                                                                                             

parent the right to claim a child as a dependent under federal income tax laws, but does  



                                                                  27  

not otherwise restrict the court's discretion.                         



          27        AS 25.24.152 provides, in relevant part:  



                                                

                    (a)  In  an  action  for  divorce,  dissolution,  or  to  declare  a  

                    marriage void, the court may not unconditionally grant to a  

                    noncustodial parent the right to claim a child as a dependent  

                                                                  

                    under federal income tax laws . . . .  



                    (b) In this section, "noncustodial parent" means the parent  

                    who has actual physical custody of the child for less time  

                                                           

                    than the other parent.  



                                                               -16-                                                        6823
  


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

                                                 

                    The  court  ordered  that  the  parties  share  physical  custody  until  John  



                                                           

becomes  the  primary  custodial  parent  in  2014.    But  John  will  actually  exercise  the  



majority of this physical custody as Nina approaches a school-year schedule.  Moreover,  



John may be paying some amount of child support until he has primary custody of Nina  



                                                                  

due to the disparity in the parties' incomes.  We conclude that it was within the court's  



                                                                                               

discretion to award John the federal tax exemption.  Under these circumstances, further  



findings on this issue were unnecessary.  



V.        CONCLUSION  



                                                                                                     

                   We REMAND for the superior court to clarify its order with respect to the  



                                                                        

allocation of visitation expenses.  We AFFIRM the superior court's order in all other  



respects.  



                                                            -17-                                                       6823
  

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