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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stephanie W. v. Maxwell V. (2/28/2014) sp-6869

Stephanie W. v. Maxwell V. (2/28/2014) sp-6869

         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  



STEPHANIE W.,                                         )  

                                                      )        Supreme Court No. S-15065  

                           Appellant,                 )  

                                                      )        Superior Court No. 3PA-09-02329 CI  

         v.                                           )  

                                                      )        O P I N I O N  

MAXWELL V.,                                           )  

                                                      )       No. 6869 - February 28, 2014  

                           Appellee.                  )  

                                                      )  



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

                                     

                  Judicial District, Palmer, Eric Smith, Judge.  



                  Appearances:  Richard W. Postma, Jr., Law Offices of Dan  

                                                                        

                  Allan     &    Associates,       Anchorage,        for   Appellant.         No  

                                                                    

                  appearance by Appellee.  



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

                                                                                  

                  Bolger, Justices.  



                  FABE, Chief Justice.  



I.       INTRODUCTION  

                  Stephanie W. and Maxwell V. have a son, Terrance.1  

                                                                                            Maxwell sued for  



custody of Terrance, and the superior court granted him primary physical custody and  



         1        We use pseudonyms throughout this opinion to protect the privacy of the          



persons involved.  


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

                                                                       2 

joint legal custody.  In        Stephanie W. v. Maxwell V.,  we reviewed that first custody order 



and  affirmed  it  in  most  respects  but  remanded  for  reconsideration  of  two  custody  



           3  

factors.     On  remand,  the  superior  court  again  granted  Maxwell  primary  physical  



custody.   



                   Stephanie  appeals  this  second  custody  order.    Two  of  her  arguments,  



relating to discovery, were not preserved for appeal, are therefore forfeited, and do not  



                                                                                   

constitute plain error.   A third fails on the merits.   She also challenges the superior  



court's determination of two custody factors in light of this court's remand instructions  



                                                                                     

in  Stephanie  W.,  arguing  that  the  superior  court  abused  its  discretion  by  failing  to  



consider  Maxwell's  child  support  arrears  in  its  stability  determination,  and  that  the  



                                                                  

superior court abused its discretion by holding against her, in the continuing-relationship  



                                                                                           

determination, her allegations that Maxwell was manufacturing methamphetamine with  



Terrance present.  



                   We affirm the superior court's order in all respects.  



II.       FACTS AND PROCEEDINGS  



                   Terrance was born to Stephanie and Maxwell in December 2002 in New  



                                        

Mexico.  His parents never married.  Maxwell moved to Alaska and left Stephanie while  



she was pregnant.  Maxwell had no relationship with Terrance for three and a half years  



until Maxwell's mother, who had maintained a relationship with Stephanie and Terrance,  



brought Terrance to Alaska for the summer of 2005.  Terrance came to Alaska to live  



         

with Maxwell and Maxwell's mother from May 2006 to January 2007.  He then lived  



                                                                                                           

with  Maxwell  for  a  full  year  starting  in  June  2008.    Maxwell  returned  Terrance  to  



                                                                                                      

Stephanie in New Mexico in June 2009 for what Maxwell thought was to be a summer  



          2        274 P.3d 1185 (Alaska 2012).  



          3        Id. at 1193.  



                                                            -2-                                                        6869  


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

                                                                         

visit.  When Stephanie refused to send Terrance back to Alaska at the end of the summer,  



                                                                                                    

Maxwell filed a motion for custody in Alaska, seeking sole legal and primary physical  



custody.  



                    1.        First custody order and first appeal  



                                                                           

                    In  the  superior  court's  first  order  granting  Maxwell  primary  physical  



                                                                                              

custody during the school year and Stephanie custody during the summers, with shared  



                                                                                                                            

legal custody, the court relied on a number of statutory custody factors.  Relevant to the  



first  appeal  was  the  superior  court's  determination  under  AS  25.24.150(c)(5),  the  



                       4 

                                                                           

stability factor,  that Maxwell had a "more stable situation and more stable personality" 



and  could  therefore  "provide  [Terrance]  with  a  consistent  living  situation,"  while  



                                                                                                     

Stephanie was "in a considerably more fluid situation" because she worked four 12-hour  



                                                                                        

shifts as a nurse at a hospital 70 miles from her home and could therefore not provide a  



stable environment for Terrance.  In making this finding, the superior court did not  



                                               

consider the fact that Maxwell owed Stephanie $23,855.14 in outstanding child support  



arrears.  The superior court also determined under AS 25.24.150(c)(6), the continuing- 



                             5 

                                                                       

relationship factor,  that Maxwell was willing to foster a relationship between Terrance 



and Stephanie but that Stephanie was not willing to reciprocate.  The court relied, in part,  



                                                                                  

on the fact that Stephanie had alleged that Maxwell had sexually abused Terrance in  



          4         AS 25.24.150(c)(5) provides that a court determining custody in light of the  



best interests of the child shall consider "the length of time the child has lived in a stable,  

                                                                                 

satisfactory environment and the desirability of maintaining continuity."  



          5         AS 25.24.150(c)(6) provides that a court determining custody in light of the  



best interests of the child shall consider "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  

                                                                                                                     

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."  



                                                               -3-                                                         6869
  


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

Alaska and that, even though the superior court found that Stephanie had not proved that  



                                                                                                                 

allegation  by  a  preponderance  of  the  evidence,  Stephanie  was  unlikely  to  let  the  



allegation go and would likely "convey[] her fears to [Terrance]."  



                    In  Stephanie's  first  appeal  of  the  superior  court's  custody  order  in  



                                           6  

Stephanie W. v. Maxwell V.,   we upheld the order in most respects but reversed and  

remanded for reconsideration of the stability and continuing-relationship factors.7                                        On  



                                                                        

the stability issue, we surmised that "Maxwell's failure to pay child support was likely  



a contributing factor to Stephanie's grueling work schedule" and concluded that the  



                                

superior court must "reconsider the continuity and stability factor taking account of  



Maxwell's  failure  to  provide  any  meaningful  monetary  support  for  Terrance  and  



                                                                                              8  

Stephanie's  efforts  to  provide  economically  for  her  children."     On  the  continuing- 



relationship factor, we noted that AS 25.24.150(c)(6) creates a statutory exception that  



precludes a court from holding against a parent her unwillingness to foster a relationship  



                                                                                                                

with another parent who has engaged in domestic violence or sexual abuse against the  



                          9  

                                                                                                           

parent  or  a  child.     On  policy  grounds,  we  adopted  a  rule  protecting  allegations  of  



                                                                                                                      10  

                                                                                                                          We  

conduct that could constitute sexual abuse but are ultimately not proved at trial. 



                 

noted that the superior court in this case found Stephanie's allegations of sexual abuse  



"troubling" and that Stephanie had introduced expert opinion testimony supporting her  



          6         274 P.3d 1185 (Alaska 2012).  



          7        Id. at 1193.  



          8        Id.  



          9        Id. at 1190-91.  



          10       Id. at 1191.  



                                                             -4-                                                        6869
  


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

                11  

allegation.           We  remanded  with  instructions  "not  [to]  consider  this  factor  against  



Stephanie unless she has continued her unwillingness to facilitate such a relationship in  



                                                  

the period after the superior court made its evidence-based finding that Maxwell had not  

abused Terrance."12  



                    2.       Second custody order and arguments on appeal  



                    On remand, the superior court held an initial hearing on August 3, 2012.  



                                                                

Stephanie and her attorney participated by telephone, as did the judge, but Maxwell did  



not appear or participate by telephone.  Stephanie's attorney told the superior court that  



                                                                

"[Maxwell] ha[d] pretty much dropped off our radar," that calls and letters had bounced  



back undelivered, that Stephanie did not know when or where to return Terrance to  



                                                                                             

Alaska, and that Maxwell had a history of disappearing.  Based on these representations,  



                                                                                             

the superior court invited Stephanie to file an expedited request for custody modification  



to permit Terrance to stay with Stephanie in New Mexico rather than return to Alaska.  



                                                                                                        

                    Maxwell filed a motion with the superior court on August 20, 2012, stating  



that he had miscalendared the hearing and arguing that Stephanie had "misl[ed] this court  



                                                                                                              

by  saying  that  [Maxwell]  has  'fallen  off  the  planet.'  "    Maxwell stated  that  he  was  



attaching his telephone records "showing that there has in fact been communication"  



                                               

between himself, his son, and Stephanie, but he did not attach those records.  At the  



                                                         

subsequent trial-setting conference on August 30, 2012, the superior court told Maxwell,  



                                                            

"You do need to supplement what you filed, because . . . the phone records were not  



                                                            

attached to your paperwork. . . . Since you said it was there you need to supply it."  



Maxwell never supplied his phone records.  



          11       Id.  



          12       Id.  



                                                             -5-                                                           6869  


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

                         In  preparation  for  the  rescheduled  hearing  on  remand,  Stephanie  sent  



Maxwell ten requests for production of evidence, eight interrogatories, and three requests  



for admission in two sets of discovery requests dated September 6 and 7, 2012.  The  



                                   

three  requests  for  admission  requested  Maxwell  to  admit  the  truth  of  the  following  



statements:  (1) "that [Terrance] has lived with [Maxwell's] mother . . . for the majority  



of the time between August 15, 2011 and May 30, 2012"; (2) "that [Maxwell] refused  



                                                                                                  

to communicate with [Stephanie] about [Terrance's] return to Alaska prior to August 6,  



                            

2012"; and (3) that "[Maxwell] stopped [Terrance's] counseling without first consulting  



                                                                                                                      

with [Stephanie] as his joint legal custodian."  Maxwell did not timely respond to these  



requests for admissions; indeed, he never responded at all.  



                                                                                                                       13 

                                                                                                                          relief on October 31,  

                         Stephanie filed a motion for Alaska Civil Rule 37(d) 



                                  

2012, noting that Maxwell had not responded to her interrogatories and requests for  

production14 and seeking discovery sanctions that would take the stability factor "as  



established in [Stephanie's] favor" and preclude Maxwell "from introducing evidence  



                                                                                                                         

to support or oppose these factors."  Stephanie also requested the superior court to take  



as established "[Maxwell's] unwillingness to foster or allow a close  and continuing  



relationship"   between   Terrance   and   Stephanie   and   to   preclude   Maxwell   "from  



introducing evidence to support or oppose this finding."  



                                                                                         

                         At the final hearing on remand on November 13, 2012, the superior court  



                                                                                           

denied Stephanie's motion for Rule 37(d) relief.  The superior court correctly reasoned  



            13           Alaska Rule of Civil Procedure 37(d) provides, "If a party . . . fails . . . to                                              



serve answers or objections to interrogatories submitted under Rule 33 . . . or . . . to serve                                      

a written response to a request for inspection submitted under Rule 34, . . . the court in                                    

which the action is pending on motion may make such orders in regard to the failure as       

are just . . . ."  



            14           Her motion omitted any reference to unanswered requests for admission.  



                                                                             -6-                                                                      6869
  


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

that it could not impose "litigation-ending sanctions" without first exploring alternatives  

                                                                              



such as a continuance, a show-cause hearing, or a motion to compel.  At the hearing,  

             



Stephanie and Maxwell testified and presented evidence regarding the three facts that  



Stephanie had requested that Maxwell admit. Stephanie never asked that the unanswered  

                                                                   



requests for admission be deemed admitted and conclusive of the alleged facts, and she  



                     

never argued that the superior court erred by not reiterating its requirement that Maxwell  



produce his telephone records.  



                                                                          

                    The superior court granted Maxwell primary physical custody and shared  



                                                                                                      

legal custody.  On the stability issue, the superior court noted that "it has had some  



                                                                                                                

difficulty implementing the [supreme court's] orders on remand" because it could "find  



                                                     

no support in the record of the first hearing for the statement that [Stephanie] chose her  



nursing job in part because she had not been receiving child support."  The superior court  



                                                   

noted that "when directly asked at the recent hearing why she took the job, she stated that  



it paid well and was close to family."  The superior court concluded that the supreme  



                                                                             

court's remand instructions on this issue were moot because Stephanie's circumstances  



                                                 

had changed:  She lived near her work and had a normal working schedule, such that the  



stability factor now "favors [Stephanie] to some extent, since she is financially more  



stable than [Maxwell]."  



                          

                    On the continuing-relationship issue, the superior court determined that  



because  Terrance  "has  admitted  he  lied  about  the  sexual  abuse,"  Stephanie  "has  no  



                                                                              

reason to be concerned about this issue any more, thereby rendering the allegations  



irrelevant to the close relationship factor."  The superior court went on to conclude that  



"[t]he  close  relationship  factor  .  .  .  strongly  favors  [Maxwell]."    The  superior  court  



provided  a  number  of  reasons  leading  to  its  conclusion,  including  its  finding  that  



Maxwell "has not allowed his feelings to preclude [Terrance] from having a relationship  



with his mother," while "[t]he same cannot be said for" Stephanie because "she monitors  



                                                             -7-                                                        6869
  


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

                                                     

[Terrance's] calls with his father."  The superior court "found credible . . . [Maxwell's]  



allegation  that  [Stephanie]  would  tell  [Terrance]  what  to  say  [on  the  phone]."    The  



                                      

superior court also noted that the "most important" factor in its continuing-relationship  



                                            

determination was its finding that Stephanie "simply was not completely straightforward  



with the court at the [first] hearing [on remand]" when she "led the court to believe that  



                                                                                  

[Maxwell]  no  longer  was  involved  with  his  son  and  that  she  had  no  way  to  reach  



[Maxwell]."  "[Stephanie] basically took advantage of [Maxwell's] absence from the  



                                                                                                 

[August 3] hearing to keep [Terrance] to herself, even though she knew that [Maxwell]  



                                                    

had not abandoned [Terrance] and that it was perfectly possible for her to communicate  



with [Maxwell]."  



                   In   addition   to   these   factors   underlying   the   continuing-relationship  



determination, the superior court also relied on the fact that "[Stephanie] made . . . [a]  



very negative allegation[] for which she had almost no support" when she "contended  



that [Maxwell] was cooking and using methamphetamine."  Stephanie had alleged at trial  



that she had noticed a powerful chemical and diesel-like smell coming from Terrance's  



clothing when she picked him up at the airport and that she thought that Maxwell had  



                                                                                                     

been manufacturing methamphetamine with Terrance in the garage.  The superior court  



determined that Stephanie had almost no basis for this claim.  



                    Stephanie  filed  a  number  of  motions  for  post-order  relief.    She  filed  a  



                                                                                                      

motion to reconsider the custody order that also included a motion for Judge Eric Smith  



                                                                                         

to  recuse  himself.    The  motion  to  recuse  was  denied,  and  the  court  granted  limited  



reconsideration  on  certain  issues,  including  the  accusation  of  methamphetamine  



manufacturing and Maxwell's child support arrears.  The superior court concluded that  



                                              

it had not violated this court's remand instructions on both issues, maintaining that (1)  



                              

the   Stephanie   W.   protections   for   allegations   do   not   extend   to   accusations   of  



manufacturing methamphetamine because that does not constitute domestic violence;  



                                                             -8-                                                       6869
  


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

(2)  because  Stephanie  was  now  found  to  provide  more  stability  than  Maxwell  the  

                                                                                                                          



supreme court's instructions were moot; and (3) Maxwell could adequately provide for  

                                                                                                 



the needs of the child.  Stephanie then filed an Alaska Civil Rule 59 motion to reopen  



evidence, arguing in relevant part that she should be allowed to present evidence of her                               



experience detecting smells resulting from methamphetamine manufacturing because she  



                                                                                                       

was reluctant to present such evidence in the hearing for fear of being punished by the  



                                                                            

superior court.  The superior court denied her motion to reopen evidence stating that the  



evidence  was  not  new  and  that  Stephanie  could  have  presented  it  at  trial.    Finally,  



                                           

Stephanie filed a motion to reconsider the court's order denying her Rule 59 motion to  



                                                         

reopen evidence, arguing for the first time that the superior court erred by refusing to  



deem  admitted  Stephanie's  unanswered  requests  for  admission.    The  superior  court  



denied Stephanie's motion because she did not seek to provide new evidence and she  



relied on an argument not raised in her initial Civil Rule 59 motion.  



                                                                                                                             

                      Stephanie appeals.  She raises five primary points on appeal.  Three of her  



                                             

points on appeal deal with issues of civil procedure, discovery, and evidence relating to  



the procedure on remand: She alleges that the superior court abused its discretion by  



                                                                                              

refusing to accept unanswered requests for admission as conclusively established in her  



                                                                                                      

favor under Alaska Civil Rule 36; she alleges that the superior court abused its discretion  



by denying her motion to establish certain custody factors and key facts in her favor as  



discovery  sanctions  under  Civil  Rule  37(d);  and  she  alleges  that  the  superior  court  



                                                                

abused  its  discretion  by  refusing  to  enforce  its  own  order  for  Maxwell  to  produce  



telephone  records.    The  final  two  points  on  appeal  address  the  superior  court's  



determination  of  two  custody  factors  in  light  of  this  court's  remand  instructions:  



Stephanie  argues  that  the  superior  court  abused  its  discretion  by  failing  to  consider  



Maxwell's child support arrears in its stability determination, and Stephanie also argues  



                                                    

that the superior court abused its discretion by holding against her in the continuing- 



                                                                      -9-                                                              6869
  


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

relationship factor her  allegations that Maxwell was manufacturing methamphetamine  

                                



with Terrance present.  



III.     STANDARD OF REVIEW  



         A.        Standards Relevant To The Discovery Issues  



                  "The  trial  court's  decision  to  allow  or  disallow  the  withdrawal  of  an  

                                                                        

admission [under Civil Rule 36] is subject to reversal for abuse of discretion."15  



                  "The superior court generally has broad discretion in sanctioning discovery  



violations [under Civil Rule 37], 'subject only to review for abuse of discretion.'  But  



'the  trial  court's  discretion  is  limited  when  the  effect  of  the  sanction  it  selects  is  to  



                                                                                        

impose liability on the offending party, establish the outcome of or preclude evidence on  

a central issue, or end the litigation entirely.' "16  



                                                                                         

                  "When interpreting the Civil Rules we exercise our independent judgment,  



adopting  the  rule  of  law  that  is  most  persuasive  in  light  of  reason,  precedent,  and  

policy."17  



         B.        Standards Relevant To Custody Factor Issues  



                                                                                          

                  "A trial court's determination of custody will be set aside only if the entire  



                                                                                                              

record demonstrates that the controlling findings of fact are clearly erroneous or that the  



         15       Hughes v. Bobich , 875 P.2d 749, 755 (Alaska 1994) (citing City of Kenai   



v. Ferguson , 732 P.2d 184, 190 (Alaska 1987)).  



         16       Hikita v. Nichiro Gyogyo Kaisha, Ltd. , 12 P.3d 1169, 1175 (Alaska 2000)  



(quoting  Sykes  v.  Melba  Creek  Mining,  Inc.,  952  P.2d  1164,  1169  (Alaska  1998))  

(footnotes omitted).  



         17       DeNardo v. ABC Inc. RVs Motorhomes , 51 P.3d 919, 922 (Alaska 2002)  



(quoting  Peter  v.  Progressive  Corp.,  986  P.2d  865,  867  (Alaska  1999))  (internal  

                                                                      

quotation marks omitted).  



                                                         -10-                                                   6869
  


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

                                                  18  

                                                           

trial court has abused its discretion."              "A finding of fact is clearly erroneous only when  



                                                                                                               

a review of the entire record leaves us with a definite and firm conviction that the trial  



                                       19  

court has made a mistake."                 "An abuse of discretion has occurred if the trial court  



considered  improper  factors  in  making  its  custody  determination,  failed  to  consider  



                               

statutorily mandated factors, or assigned disproportionate weight to particular factors  

while ignoring others."20  



                                                                                                   

                   "Whether a lower court on remand has correctly applied our mandate is a  

question of law which we review de novo."21  



IV.	     DISCUSSION  



         A.        Stephanie's Three Arguments Relating To Discovery On Remand  



                   1.	      Stephanie failed to preserve for appeal her argument that the  

                            superior  court's  failure  to  deem  unanswered  requests  for  

                            admission  conclusively  admitted  under  Civil  Rule  36  was  an  

                            abuse of discretion.  



                   Stephanie argues that her three requests for admission to which Maxwell  

never responded should have received conclusive effect under Civil Rule 3622  

                                                                                                             and that  



         18       Melendrez  v.  Melendrez ,   143  P.3d   957,   959  (Alaska  2006)  (internal  



quotation marks omitted).  



         19	      Evans v. Evans , 869 P.2d 478, 479 (Alaska 1994).  



         20	      Id. at 479-80.  



         21       Moeller-Prokosch v. Prokosch , 53 P.3d 152, 154 (Alaska 2002) (internal  



quotation marks omitted).  



         22        Alaska Rule of Civil Procedure 36 establishes a procedure for parties to  

                                                                                                       

request admission of the truth of any matter within the general scope of discovery under  

                                                             

Civil Rule 26(b)(1).  Rule 36 also provides that "[t]he matter is admitted unless . . . the  

                                      

party to whom the request is directed serves upon the party requesting the admission a  

written answer or objection addressed to the matter. . . . The party who has requested the  

                                                                                   

                                                                                                      (continued...)  



                                                         -11-	                                                   6869
  


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

                                                       

the superior court erred by denying that conclusive effect.  She specifically argues that  



Rule  36  is  "self-executing,"  and  that  unanswered  requests  for  admission  should  be  



                                                                            

automatically deemed admitted upon non-receipt of a timely response.  She maintains  



                                                                

that the superior court "had no discretion to ignore [Stephanie's] unanswered Rule 36  



               23 

                                        

requests,"        and that Rule 36 permits withdrawal of deemed admissions only on motion.  



                                                                                                                              

                    But Stephanie failed to preserve this argument for appeal because she  did  



not timely present it to the superior court.  In order to preserve an issue for appeal,  



                                                                             24  

                                                                                 But "[a]n issue raised for the first  

appellants "must show they raised the issue below." 



time in a motion for reconsideration is not timely" and is therefore not preserved for  



           25  

                                                                                                                    

appeal.        Because Stephanie did not raise her deemed-admission argument before the  



                                                                                                                      

superior court until her motion to reconsider the superior court's order denying her Civil  



          22(...continued)  



admissions may move to determine the sufficiency of the answers or objections.  Unless  

                                       

the court determines that an objection is justified, it shall order that an answer be served."  

                                                         

Alaska R. Civ. P. 36(a). Finally, Rule 36 provides that "[a]ny matter admitted under this  

                                                                                            

rule  is  conclusively  established  unless  the  court  on  motion  permits  withdrawal  or  

amendment of the admission."  Alaska R. Civ. P. 36(b).  



          23        Emphasis in original.  



          24  

                                                         

                    Stadnicky v. Southpark Terrace Homeowner's Ass'n, 939 P.2d 403, 405  

(Alaska 1997).  



          25        Id. (citing Miller v. Miller , 890 P.2d 574, 576 n.2 (Alaska 1995) ("[T]he  



                                                                      

issue  was  improperly  raised  in  the  motion  for  reconsideration,  since  it  had  never  

                                                       

previously been raised.")); see also McCarter v. McCarter , 303 P.3d 509, 513 (Alaska  

2013) ("[Appellant] made this statutory argument for the first time in his motion for  

reconsideration, and it is therefore waived."); Howe v. Howe , Mem. Op. & J. No. 1306,  

                                                                                                             

2008  WL  1914361,  at  *1  n.4  (Alaska,  Apr.  30,  2008)  (characterizing  Stadnicky  as  

"noting that issue raised for first time in motion for reconsideration is untimely and  

insufficient to preserve claim for appeal").  



                                                              -12-                                                         6869
  


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

                                                     26  

                                                                                     

Rule 59 motion to reopen evidence,                      she cannot raise it on appeal.  We decline to reach  



                                                                                                   

the merits of Stephanie's unpreserved argument and note that the superior court did not  

commit plain error in this case.27  



          26        Despite   Stephanie's statement to the contrary in her brief in this court,  



Stephanie's motion for Rule 37(d) relief did not request that the court deem admitted   

Stephanie's unanswered requests for admission.  Nor did Stephanie ever raise this issue  

during the hearings, in her motion for reconsideration of the custody order, or in her Rule  

                                                                                                      

59 motion to reopen evidence.  



          27  

                                                                         

                    "[W]aiver will not be found where an issue raises plain error."  Fernandes  

                                                                                                                                

v. Portwine , 56 P.3d 1, 9 n.27 (Alaska 2002) (citing Hoffman Constr. Co. of Alaska v.  

                               

U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 355 n.29 (Alaska 2001)).  But here, no  

"obvious  mistake  has  been  made  which  creates  a  high  likelihood  that  injustice  has  

resulted."  Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  

                               

276 P.3d 422, 436 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 668 (Alaska 2001)).  



                    Without  engaging  in  a  full  merits  analysis,  we  note  that  implicit  in  

                                  

Rule 36's structure is a requirement that the party seeking deemed admissions must make  

                

a  timely  request  that  the  unanswered  requests  be  deemed  admitted.    For  instance,  

                                         

Rule  36's  procedure  for  determining  the  sufficiency  of  an  answer  or  objection  to  a  

request  for  admission  puts  the  onus  on  the  party  seeking  the  admission  to  make  an  

appropriate request before the court's duty under the Rule is triggered.  See Alaska R.  

                                                                                                                    

Civ.  P.  36(a).        This  is  confirmed  by  the  more  general  proposition  that  "in  the  vast  

                                                                                                                      

majority of instances, the discovery system will be self-executing."  Hikita v. Nichiro  

Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1175 (Alaska 2000) (quoting 7 J 

                                                                                                      AMES WM .  MOORE  



ET AL       

         ., MOORE 'S FEDERAL PRACTICE  37.90, at 37-141 (3d ed. 1997)).  We also note  

that in all of our prior cases discussing Rule 36, the party seeking unanswered requests  

                                                                    

for admission to be deemed admitted has always made such a request in the superior  

court.  See, e.g.,  Gladden v. City of Dillingham, Mem. Op. & J. No. 1253, 2006 WL  

1668029, at *1 (Alaska, June 14, 2006) ("The city further moved to have its unanswered  

                        

requests for admission deemed admitted."); Kaiser v. Sakata , 40 P.3d 800, 802 (Alaska  

                                                                                             

2002) ("[T]he defendants moved for summary judgment.  They  argued that because  

                                                                                                    

Kaiser had failed to timely respond to discovery requests, the defense's requests for  

                                                         

admission  must  be  deemed  admitted  .  .  .  ."); Hughes  v.  Bobich ,  875  P.2d  749,  751  

(Alaska 1994) ("In his summary judgment motion, Bobich argued that, under Alaska  

                                                                                                               

Civil Rule 36(a), the Hughes' failure to file a timely response to his request should be  

                                                                                 

                                                                                                              (continued...)  



                                                              -13-                                                         6869
  


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

                                                                                       

                    2.	      The  superior  court  did  not  abuse  its  discretion  by  denying  

                              Stephanie's Rule 37(d) motion for discovery sanctions.  



                    Stephanie argues that the superior court abused its discretion by denying  



                                                       28  

                                                                                                               

her  motion  under  Civil  Rule  37(d)                     to  sanction  Maxwell's  failure  to  respond  to  



                                                                                                       

Stephanie's discovery requests.  Her Rule 37(d) motion requested that the superior court  



establish the stability factor in Stephanie's favor, find that Maxwell was unwilling to  



foster a close and continuing relationship between Terrance and Stephanie, and preclude  



Maxwell from introducing contrary evidence on those two issues.  



                    Under  Rule  37,  "the  trial  court's  discretion  [to  sanction  discovery  



violations] is limited when the effect of the sanction it selects is to . . . establish the  



                                                                                                                        29  

                                                                                                                            In  

outcome of or preclude evidence on a central issue, or end the litigation entirely." 



particular, "the trial court's discretion to impose [litigation-ending] sanctions is narrowly  



          27(...continued)  



construed as an admission that they had already been paid."); Pletnikoff v. Johnson , 765  

                    

P.2d 973, 974-75 (Alaska 1988) ("Johnson moved for partial summary judgment . . .  

                

argu[ing] that, since Pletnikoff did not respond to the requests, the requests were deemed  

                                                                                           

admitted  and  therefore  no  genuine  issue  of  material  fact  remained  on  the  issue  of  

damages."); City of Kenai v. Ferguson, 732 P.2d 184, 189 (Alaska 1987) ("[T]he City  

moved for summary judgment, relying on the requests for admissions being deemed  

admitted because of Ferguson's failure to respond.").  



          28  

                                                                    

                    Alaska Rule of Civil Procedure 37(d) provides, "If a party . . . fails . . . to  

                                                                                                         

serve answers or objections to interrogatories submitted under Rule 33 . . . or . . . to serve  

                                                                                                     

a written response to a request for inspection submitted under Rule 34, . . . the court in  

                                                                                            

which the action is pending on motion may make such orders in regard to the failure as  

are just . . . ."  



          29       Hikita , 12 P.3d at 1175 (quoting Sykes v. Melba Creek Mining, Inc., 952  



P.2d 1164, 1169 (Alaska 1998) (internal quotation marks omitted)).  



                                                             -14-	                                                      6869
  


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

limited  to  extreme  situations,"  and  such  sanctions  cannot  be  imposed  "where  an  

alternative remedy would suffice to make the adverse party whole."30  



                   Here, the superior court did not abuse its discretion by denying Stephanie's  

                                                                  



Rule 37(d) motion for discovery sanctions.  Stephanie did not seek an order compelling  

                                                                                           



production in response to her unanswered interrogatories and requests for production  

                  



or other, less-draconian options before filing her Rule 37(d) motion seeking to establish  

                                                                                                               



key custody factors in her favor.  Indeed, it is likely under these facts that the superior  

                                                  



court would have abused its discretion had it granted such litigation-ending sanctions  



without first exploring alternative remedies.  



                   3.	       Stephanie  failed  to  preserve  her  argument  that  the  superior  

                             court abused its discretion by not enforcing an order compelling  

                                                       

                             Maxwell to produce his telephone records.  



                    Stephanie  argues  that  the  superior  court  abused  its  discretion  by  first  

                                               

ordering Maxwell to produce certain telephone records31  and then not enforcing its own  

                                                                                    



order when Maxwell did not produce the records.  



                   As with her Rule 36 argument above, Stephanie failed to timely present this  

                                                                                                     



argument to the superior court. In order to preserve an issue for appeal, appellants "must  

                                                                               

                                                   32  "An issue raised for the first time in a motion for  

show they raised the issue below."                                                         



          30	      Hughes , 875 P.2d at 752-53.  



          31       Maxwell  had  indicated  that  he  was  attaching  telephone  records  to  his  



motion to the superior court following the first hearing.  He did not attach the records  

with  the  other  exhibits.  The  superior  court  stated  at  the  subsequent  trial-setting  

                                                                                     

conference, "You need to supplement what you filed, because . . . the phone records were  

not attached to your paperwork. . . . Since you said it was there you need to supply it."  

                                                                                              

Maxwell never supplied his phone records.  



          32       Stadnicky, 939 P.2d at 405.  



                                                            -15-	                                                      6869
  


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

                                                                                                                33  

reconsideration  is  not  timely"  and  is  therefore  not  preserved  for  appeal.                                    Here,  



Stephanie  did  not  raise  this  argument  with  the  superior  court  until  her  motion  to  



reconsider the superior court's order denying her Rule 59 motion to reopen evidence.  



                                                                                                              

The superior court correctly concluded that the argument was not timely raised.  We  



decline  to  reach  the  merits  of  Stephanie's  unpreserved  argument  and  note  that  the  

superior court did not commit plain error in this case.34  



                                                                                  

          B.	      The Superior Court Did Not Abuse Its Discretion Or Clearly Err In  

                   Awarding Primary Physical Custody To Maxwell.  



                    1.	      The      superior        court      did     not     abuse      its    discretion        in   its  

                             reconsideration of the stability factor, AS 25.24.150(c)(5), on  

                             remand.  



                                

                   Alaska  Statute 25.24.150(c)(5) requires a court determining custody to  



                                                             

consider "the length of time the child has lived in a stable, satisfactory environment and  



the desirability of maintaining continuity."  The superior court's initial order granting  



                                                                           

Maxwell primary physical custody concluded that this factor favored Maxwell because  



he had a stable job and living situation while Stephanie worked four 12-hour shifts 70  



                            

miles from home, which "provide[d] some roadblocks in terms of her working with the  



kids."  On review in this court, we were "troubled by the reliance on Maxwell's more  



stable economic status compared to Stephanie's long commute and hard working hours  



          33	      Id. (citing Miller v. Miller , 890 P.2d 574, 576 n.2 (Alaska 1995)).  



          34       "[W]aiver will not be found where an issue raises plain error."                            Fernandes  



v. Portwine , 56 P.3d 1, 9 n.27 (Alaska 2002) (citing                        Hoffman Constr. Co. of Alaska  v.  

U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 355 n.29 (Alaska 2001)).  But here, no   

"obvious  mistake  has  been  made  which  creates  a  high  likelihood  that  injustice  has  

resulted."  Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  

                                                                                                     

276 P.3d 422, 436 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 668 (Alaska 2001)).  

                                                                     



                                                            -16-	                                                      6869
  


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

                                                                                                                           

while ignoring Maxwell's failure to pay . . . child support over the course of his child's  



          35                                                                                                                36 

life."         We remanded for reconsideration of the stability factor.  



                                                                     

                          Stephanie argues that the superior court improperly questioned this court's  



                                                                                                                                                              

remand instructions.  In its order, the superior court stated:  "With all due respect to the  



Alaska Supreme Court, the court . . . notes that it has had some difficulty implementing  



the Court's orders on remand" because "the court simply can find no support in the  



                                                                                                                                                             

record of the first hearing for the statement that [Stephanie] chose her nursing job in part  



                                                                                                                  

because she had not been receiving child support."   The superior court proceeded to  



                                                                                                                            

characterize Stephanie's testimony at the hearing on remand as indicating that she took  



the nursing job because "it paid well and was close to family."  



                          We can understand why the superior court's remarks questioning the basis  



                             

of this court's ruling could have caused some confusion and might have been troubling  



to  Stephanie as a successful appellate litigant.  But the superior court's remarks are  



                                                                                                                                           

irrelevant to the question raised in this appeal because the superior court determined that  



                                                

the stability factor now favors Stephanie rather than Maxwell.  As the superior court  



                                                                                                                      

concluded on remand, "the factual predicate for the Court's decision [in Stephanie W.]  



.  .  .  is  moot"  because  Stephanie  "no  longer  is  working  the  grueling  hours  that  had  

concerned this court, and she is living near where she works."37  



             35           Stephanie W. v. Maxwell V., 274 P.3d 1185, 1193 (Alaska 2012).  



             36           Id.  



             37           Cf.  State v. Oriental Fire & Marine Ins. Co.                                      , 776 P.2d 776, 778 n.4 (Alaska     



 1989) (noting that a change in a factual predicate to a motion for remand - in that case,                                                   

a stipulation by the parties to dismiss the relevant complaint - "render[s] moot the                                                                   

question raised on remand").  



                          Because we hold that the superior court did not abuse its discretion in its   

                                                                                                                                              (continued...)  



                                                                                -17-                                                                           6869
  


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

                    2.	       The superior court did not abuse its discretion in determining  

                              that  the  continuing-relationship  factor,  AS  25.24.150(c)(6),  

                              favors Maxwell.  



                    Alaska Statute 25.24.150(c)(6) requires a court determining custody to  



                                                         

consider "the willingness and ability of each parent to facilitate and encourage a close  



                                                                                                      

and continuing relationship between the other parent and the child."  The statute goes on  



              

to carve out an exception, directing the court not to "consider this willingness and ability  



                               

if one parent 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  



                                                                                                             38  

parent will endanger the health or safety of either the parent or the child."                                     



                    In the first custody hearing in the superior court, Stephanie expressed her  



                                                                                                                      

concern about Terrance's sexually aggressive and age-inappropriate behaviors after he  



                                                                                                 39  

                                                                                                       Stephanie  further  

returned  to  New  Mexico  from  a  year  in  Alaska  with  Maxwell. 



claimed  that  Terrance  told  her  that  he  had  suffered  sexual  abuse  from  Maxwell  in  



           40  

                                                                                             

Alaska.        Stephanie notified the police and pressed the issue in her custody dispute with  



                                                                       41  

Maxwell as a reason to grant her sole custody.                             The superior court determined that  



          37(...continued)  



handling of the stability factor and do not remand, Stephanie's argument that Judge  

                                                       

Smith "departed from the role of an impartial fact-finder and instead assumed the role  

                                                                                                        

of [Maxwell's] advocate" and should therefore be disqualified from hearing the case on  

remand is also moot.  



          38        AS 25.24.150(c)(6).  



          39        Stephanie W., 274 P.3d at 1188.  



          40	       Id.  



          41	       Id.  



                                                             -18-	                                                       6869
  


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

                                                                                                           42  

Stephanie had not proved abuse by a preponderance of the evidence.                                             The superior  



court's initial order granting Maxwell primary physical custody concluded that Maxwell  



was more likely than Stephanie to foster a relationship between Terrance and the other  



                                                                                                                  

parent  in  part  because  of  Stephanie's  continued  anxiety  relating  to  the  alleged  but  



                                    43  

unproved sexual abuse.                  



                                             44 

                    In Stephanie W.,   we noted that AS 25.24.150(c)(6)'s explicit exception  



                              

was "silent on the procedure to be followed if the court finds that abuse has not been  



shown," and we quoted Stephanie's argument "that it would be bad policy to hold her  



                                                                                                        

good faith belief that Maxwell sexually abused Terrance against her" because "no parent  



                                                                                      

in their right mind would ever make a good faith report of domestic violence or sexual  



                               45  

abuse" in the future.              We concluded that "[i]n light of the apparent good-faith basis of  



                                                                      

Stephanie's allegations, . . . the superior court should re-weigh the 'willingness to allow  



             

a close and continuing relationship' factor.  On remand, the court should not consider  



                                                                                                            

this factor against Stephanie unless she has continued her unwillingness to facilitate such  



                                                                             

a relationship in the period after the superior court made its evidence-based finding that  

Maxwell had not abused Terrance."46  



                    On  remand,  the  superior  court  determined  that  because  Terrance  "has  



                                                              

admitted he lied about the sexual abuse," Stephanie "has no reason to be concerned about  



                                            

this issue any more, thereby rendering the allegations irrelevant to the close relationship  



          42        Id.  



          43        Id. at 1188-89.  



          44        Id.  



          45        Id. at 1191.  



          46        Id.  



                                                              -19-                                                         6869
  


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

                                           

factor."  But in the hearing on remand, Stephanie made another allegation that Maxwell  



                                            

was endangering Terrance.  Stephanie alleged that she had noticed a powerful chemical  



and diesel-like smell coming from Terrance's clothing when she picked him up at the  



                                                                   

airport and that she thought that Maxwell had been manufacturing methamphetamine  



with Terrance in the garage.   



                     The  superior  court  concluded  that  "[t]he  close  relationship  factor  .  .  .  



                                                                      

strongly favors [Maxwell]" for a number of reasons, including the fact that Stephanie  



"made . . . [a] very negative allegation[] for which she had almost no support."  "Her  



                                                   

only basis for this claim was that [Terrance] smelled of chemicals when he arrived at the  



                                                                                    

airport this summer.  But [Terrance] himself explained what was going on - [Maxwell]  



                                                                                                      

was making fuel for his car.  And [Maxwell] did not present at all at trial as a person on  



                                                                                        

methamphetamine."  The superior court later concluded that "her belief about the meth  



                                                                                                   

lab was emblematic of her general proclivity to assume the worst about [Maxwell]."  The  



                                                                                                          

superior court denied the applicability of the Stephanie W.  rule in this case because  



                                                                                                                     

Stephanie's allegation "has no connection to any domestic violence, much less sexual  



abuse, and hence is not precluded by AS 25.24.150(c)(6)."  



                     Stephanie  argues  in  this  court  that  the  superior  court  has  repeated  its  



                                                            

original error of holding against her a good-faith allegation of the other parent acting in  



                                                                                                   

a way that could bring harm to the child.  Stephanie argues that her methamphetamine- 



                                                                                                                 

manufacturing allegation should receive the benefit of protection under Stephanie W.  



                                                                              

She   offers   a   complex   argument   interpreting                           "domestic   violence"   as   used   in  



                                                                      

AS 25.24.150(c)(6) to include allegations of actions constituting the crime of "reckless  



                                                               -20-                                                          6869
  


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

                                                      47 

                                                                                             

endangerment" under AS 11.41.250                          and further argues that her allegations, if proved  



correct, would constitute reckless endangerment and thus domestic violence.  



                                                                                                                

                    We do not reach the question of statutory interpretation raised by Stephanie  



                                                                                                     

because it is unnecessary for us to do so.  Even without the specific statutory protections  



provided by AS 25.24.150(c)(6), it is common sense that in a custody proceeding, good- 



                          

faith allegations by one parent against the other parent regarding behavior relevant to the  



custody decision and the child's best interests should not be held against the reporting  



parent in the superior court's continuing-relationship determination where the allegations  



                                                                                                          

are based on supporting evidence.   That supporting evidence might be found in the  



                                                                                                        48  

court's objective credibility determination or in extrinsic evidence.                                       In making the  



decision  whether  a  reporting  parent's  good-faith  but  unproved  allegations  can  be  



                                                                                                                

considered in the continuing-relationship determination, the superior court must balance  



two competing goals: the desire of the court to encourage good-faith, objectively credible  



                                                                                               

reports of parental behavior relevant to the custody dispute, and the need to guard against  



          47        AS 25.24.150(c)(6)'s exception is triggered for "domestic violence" by "the  



other  parent  .  .  .  against  the  parent  or  a  child."    AS  25.90.010  defines  "domestic  

          

violence"   as   used   in   that   title   by   cross-referencing   "the   meanings   given   in  

AS 18.66.990."  In turn, AS 18.66.990(3)(A) provides that "domestic violence" includes  

"a crime against the person under AS 11.41" that is committed "by a household member  

                                          

against  another  household  member."    Finally,  AS  11.41.250(a)  makes  "reckless  

                                            

endangerment" a crime against the person and specifies that "[a] person commits the  

                                                 

crime  of  reckless  endangerment  if  the  person  recklessly  engages  in  conduct  which  

creates a substantial risk of serious physical injury to another person."  



          48  

                                                                 

                    Both types of evidence were at play in Stephanie W., where we noted that  

                                                                                                 

"the superior court acknowledged that the allegations of sexual abuse were 'troubling'  

                                                                                                                     

and that neither party had been able to demonstrate what had caused Terrance to act out  

sexually" and that "Stephanie had adduced expert opinion testimony from 'a highly  

                                                       

experienced forensic interviewer of children' and from a children's counselor who were  

generally supportive of Stephanie's suspicions."  274 P.3d at 1191.  



                                                              -21-                                                         6869
  


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

                                                                                                   

false reports and to consider a parent's actual unwillingness to foster a relationship with  



                          

the other parent.  As with other determinations under the custody statute, we will review  



the superior court's balancing determination for abuse of discretion.  



                   In this case, if Stephanie's allegation were true and Maxwell had been  



manufacturing methamphetamine in Terrance's presence, that would certainly have been  



relevant information for the ultimate custody determination.  Even without the statutory  



                                                                                                        

protection that we interpreted in Stephanie W., it would be inappropriate to fault a parent  



      

for reporting such a dangerous situation if the allegations were made in good faith and  



were sufficiently supported to merit protection in the balancing test.  Here, we cannot  



conclude that the superior court abused its discretion in determining that Stephanie had  



                                                  

not presented sufficient evidence in support of her allegation to warrant removing the  



unfounded allegation from consideration in the continuing-relationship factor.  As the  



                                                   

superior court reasoned, Stephanie had "almost no support" for her allegation, testifying  



                                                                                             

only that she observed a chemical smell on Terrance's clothing.  The superior court did  



                                                          

not  abuse  its  discretion  in  concluding  that  "she  did  not  have  an  adequate  basis  for  



                                                                  

[concluding that Maxwell was manufacturing methamphetamine with Terrance] and that  



her belief about the meth lab was emblematic of her general proclivity to assume the  



worst about [Maxwell]."  



V.        CONCLUSION  



                   For  these  reasons,  the  superior  court's  orders  are  AFFIRMED  in  all  



respects.  



                                                           -22-                                                      6869
  

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