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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. James R. v. Kylie R. (3/7/2014) sp-6872

James R. v. Kylie R. (3/7/2014) sp-6872

         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  



JAMES R.,                                               )  

                                                        )         Supreme Court No. S-15128  

                            Appellant,                  )  

                                                        )         Superior Court No. 3AN-12-05207 CI  

         v.                                             )  

                                                        )         O P I N I O N  

KYLIE R.,                                               )  

                                                        )         No. 6872 - March 7, 2014  

                            Appellee.                   )  

                                                        )  



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

                                       

                   Judicial District, Anchorage, Mark Rindner, Judge.  



                   Appearances:  Mitchell K. Wyatt and Rhonda F. Butterfield,  

                                                                   

                   Anchorage, for Appellant.  Gayle J. Brown, Anchorage, for  

                   Appellee.  



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

                                                                                      

                   Bolger, Justices.  



                   FABE, Chief Justice.  



I.       INTRODUCTION  



                   Two parents shared joint custody of their child during the pendency of their  

                                                                                                   



divorce, but the father's plans to move out of state led both parents to seek primary  

                                     



physical  custody  upon  the  father's  relocation.    The  superior  court  granted  primary  

                                   



physical custody to the mother, concluding that all of the statutory factors but one were  

                                                                             


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

neutral  between  the  parents  but  that  the  mother  was  more  likely  than  the  father  to  

                                                                                                             



facilitate a close and continuing relationship between the other parent and the child.   



                                                                   

                    The father appeals.  He argues that the superior court erred in two ways:  



                                                                                                      

first, by failing to find that the father had superior capability to meet the child's needs,  



                                                                                                

and second, by prompting the father to discuss his concerns about the mother's parenting  



                                                                 

and  then  holding  those  concerns  against  the  father  in  the  continuing-relationship  



determination.  We affirm the superior court's determinations in all respects.  



II.       FACTS AND PROCEEDINGS  



          A.        The Relationship  

                                                                                           1  Kylie gave birth to their  

                    Kylie R. and James R. were married in July 2010. 



daughter in July 2011.  



                                                                                                                    

                    James deployed with his Army unit to Afghanistan in December 2011 on  



a  tour  that  was  originally  slated  to  last  until  October  2013.    James  and  Kylie's  



                                                                                  

relationship soured in the following months, and Kylie and their daughter moved out of  



                                                                                                            

the  marital  home at some point.   (The exact date was disputed by the parties.)    On  



                                                      

February 5, 2012, Kylie sent James a message on Facebook that James paraphrased at  



                                                                                 

trial  as  saying,  "I'm  moving  out,  James.                   I'm  filing  for  divorce."    Worried,  James  



obtained permission to leave Afghanistan early and returned to Alaska on February 13,  



2012 to deal with his deteriorating family situation.  



          B.        Preliminary Proceedings And Domestic Violence Petitions  



                                                                                                        

                    On February 9, 2012, Kylie filed a complaint for divorce against James in  



which she sought primary physical and sole legal custody of their daughter.  James  



          1  

                                                                                                              

                    We use initials in lieu of the parties' last names to protect the family's  

privacy.  



                                                             -2-                                                           6872  


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

                                                            

counterclaimed  for  divorce  on  March  13,  2012,  seeking  primary  physical  and  legal  



custody.  



                                                                                                      

                    The parents filed a total of five petitions for 20-day and long-term domestic  



                                                                                                                           

violence protective orders against each other in the course of their divorce action.  In all  



but  one  petition,  the  court  initially  granted  the  20-day  protective  order  ex  parte  but  



                                                                                                                         

subsequently dissolved the short-term protective order and denied the petition for a long- 



                                                                                                                  2  

term protective order after a hearing or on the mutual request of the parties.    



                    One petition ultimately led to a long-term domestic violence protective  



order.  James petitioned for 20-day and long-term domestic violence protective orders  



                                                                                                           

against Kylie on February 22, 2012.  Among other allegations, James focused on two  



                                                                                         

particular incidents: one in December 2011, in which Kylie allegedly smoked marijuana  



                                                                                                             

and neglected their daughter for an evening, and another on February 21, 2012, in which  



                                  

Kylie allegedly came to James's house, grabbed their daughter without his permission,  



                                                                                                           

put their daughter with Kylie's sister in the back seat of a car, and sped off without their  



daughter having appropriate winter clothing or a car seat.  The court granted a 20-day  



ex parte domestic violence protective order the same day.   



                                                                                         

                    In the subsequent hearing on March 6, 2012, the superior court found that  



the marijuana incident did not constitute domestic  violence because "[t]he evidence  



          2         Kylie  petitioned  for  short-  and  long-term  domestic  violence  protective  



orders on February 9, 2012.  After initially granting the short-term order ex parte, the  

                                                                                                                

court dissolved the short-term order and denied the long-term order by mutual request  

                                                                          

of the parties.   Kylie petitioned again on May 10, 2012 on behalf of herself and her  

                                                                                                                       

daughter. The 20-day order was granted ex parte but dissolved after a hearing in which  

                                                  

the petition for a long-term protective order was denied.  The judge warned the parties  

to "stop playing the DV [domestic violence] game."  James petitioned on behalf of his  

                                                      

daughter  on  August  14,  2012.  The  court  granted  a  20-day  ex  parte  order  that  was  

subsequently dissolved after a hearing in which the superior court also denied the motion  

for a long-term protective order.  



                                                               -3-                                                         6872
  


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indicates that regardless of whether or not there was marijuana smoking or drinking of  



                                                                                 

five or six beers over a six-hour period, [the parties' daughter] was properly cared for."  



                                                                                         

But the court found that the February 21 incident, in which Kylie "grab[bed]" the parties'  



daughter, constituted domestic violence on the ground that driving a child in winter  



                                                                                                      3  

                                                                                                         Nevertheless, the  

without a snowsuit or car seat constituted reckless endangerment. 



               

superior court found that this was a "short one-time incident" and that "there was no  



                                                                                                   

history  involving  domestic  violence"  such  that  "there  is  [no]  need  .  .  .  for  further  



protection  of  the  child  from  the  mother."    The  superior  court  entered  a  long-term  



                                                                                                                   

domestic  violence  protective  order  on  March  6  requiring  Kylie  to  "not  threaten  to  



commit or commit acts of domestic violence."  



                                             

                    At the close of this domestic violence hearing, the superior court ordered  



the parents to share interim custody with a schedule of two days on, two days off.  



          C.        Custody Hearing And Evidence Presented  



                                                                                              

                    Both James and Kylie sought primary physical custody of their daughter.  



Even if the parents so desired, shared custody could not continue indefinitely:  James was  



                                                                                 

slated to separate from his military service on March 7, 2013, and he planned to relocate  



                                                                                                  

to North Carolina at that time to be closer to family and to start his studies to become a  



nurse.  



                                                                      

                    The final hearings to determine custody of the parties' daughter were held  



                                                                                                        

on December 18 and 31, 2012.  James began his direct testimony by introducing several  



                                                                             

exhibits of pictures showing him and his daughter at bath time and various holidays and  



celebrations.  After 15 minutes of detailed direct testimony relating to these pictures,  



Kylie's attorney interrupted to stipulate that James is a fit parent and can meet their  



          3  

                                                                                            

                    Because the issue is not raised here, we do not consider or decide whether  

                                                                            

the    superior   court          correctly   concluded   that                this   incident        constituted   reckless  

endangerment that could form the basis of a finding of domestic violence.  



                                                                -4-                                                             6872  


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daughter's needs.  The superior court responded by reminding the parties about the time  



                                                                                                               

available for the hearing, acknowledging Kylie's stipulation, and stating, "I'm not going  



                                                

to decide dad versus mom on a primary parent basis based on pictures. . . . I'm just  



telling you that the fact that there's a lot of pictures of holidays and events isn't . . . why  



                                                         

I'm going to decide this case."  The trial court notified James what it was interested in  



                                              

hearing about: the purpose of the move to North Carolina, an alleged Army disciplinary  



issue involving James, proposed visitation schedules, "issues about substance abuse,"  



                

and "any allegations as to issues with the other parent.  I mean, you've raised them in  



your trial brief, so it's no surprise that some sort of neglect, if you will, and the home  



condition it was left and what all that was - why all that was."  The court was quick to  



                                                                                           

assure James, "You can use your time [as] you want to . . . but you don't need to show  



                                                                                            

me pictures[.]  I'm going to make a finding that he's capable of . . . meet[ing] her needs."  



The superior court clarified, "I'm certainly interested in hearing if there is a marked  



                                                                                           

difference in attitude and capabilities.  I'm not sure I know that at this point that there's  



                                                                                  

a marked difference so far, but I'm certainly willing to hear evidence to the contrary."  



                    James testified that when he returned from Afghanistan on February 13, the  



                                                  

house was a mess with bags of trash blocking the front door, moldy baby bottles and  



                                             

dirty dishes scattered around (including a dish James thought had not been washed since  



                                                                                          

he deployed in early December), fly strips covered in flies, food containers and old food  



                                   

throughout the house, unsanitary conditions in the bathroom and sinks, and dirty diapers  



                                                    

on the floor.  James argued that this evidence indicated that Kylie "can't maintain a  



                                                                                                          

household" when she is parenting alone.  He argued that the pictures were indicative of  



their daughter's living conditions while James was away because he asserted that Kylie  



moved out mere hours before James moved back in.  In turn, Kylie testified that she  



                         

moved  out  of  the  marital  house  in  January  2012  "shortly  after"  James  left  for  



                                                 

Afghanistan.  She had taken on a female boarder to help pay the rent before she moved  



                                                                -5-                                                         6872
  


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

                                     

out, and she thought that the female boarder's boyfriend had moved into the house once  



Kylie left and before James returned home.  In response to the court's question about  



              

whether she recalled the house looking like James's description while Kylie and their  



                                                                                                      

daughter were living there, Kylie responded, "No, I don't remember it looking like that  



at all."  She testified, "I know that I wasn't the clean[est] person back then.  Not all of  



that was me. . . . I had a messy roommate.  I was not in the house for a certain amount  



                          

of time. . . . [I]f I could go back, I would have spent more energy taking care of the  



house, which is what I do now and what I will continue to do."  



          D.       Superior Court Findings Of Fact And Conclusions of Law  



                                                                                            

                   At the conclusion of the hearing, the superior court speculated that "there's  



no doubt in my mind that the Court would order that [the parents] share custody" if  



                                                                     

James were going to stay in Alaska, but James's impending relocation to North Carolina  



                            

required awarding custody primarily to one parent.  The superior court awarded primary  



physical custody to Kylie once James has left the state, finding that all but one of the  



                                                                                                     4 

                                                                                                       and that Kylie  

statutorily mandated custody factors were neutral between the parents 



          4        The   superior   court   found   that   the   parties'   daughter's   needs   under  



AS 25.24.150(c)(1) were those of a "typical 17-month-old girl"; that their daughter was  

                                                                

"too young to express a custodial preference" under AS 25.24.150(c)(3); that "[b]oth  

parents have love and affection for [their daughter], and both express a desire to care and  

                                                                          

provide for [their daughter]'s needs" under AS 25.24.150(c)(4) and AS 25.24.150(c)(2);  

                                           

that     "both      [parents]       have      stable      lives      to    an    appropriate         degree"        under  

AS 25.24.150(c)(5); that neither parent had abused substances under AS 25.24.150(c)(8)  

                                                         

in a way that "directly affected [the parties' daughter]"; and that abuse, neglect, and  

domestic violence were not factors in this case under AS 25.24.150(c)(7).  



                   The superior court elaborated upon the latter conclusion by explaining that  

                                                                                    

the court "would not have likely found domestic violence" in the car seat incident had  

it known about facts that later came to light.  The superior court also stated that it was  

                                                                   

not concerned about James's accusations about the unsanitary conditions of the home  

                                                                                                         (continued...)  



                                                            -6-                                                      6872
  


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

                                            

was more likely than James to facilitate a close and continuing relationship between their  



daughter and the other parent.  



                                                                                                          

                    The superior court stated in its written findings that "both parents meet a  



minimal        level     of     capacity       to    meet      [their     daughter]'s         basic      needs"       under  



AS 25.24.150(c)(2), and that the court "declines to make a comparative finding as to  



                                                          

which parent is more capable or most capable to meet [their daughter]'s needs."  The  



superior court's oral findings elaborated that the parents had been sharing custody since  



                                                                                                       

the prior February; that "[t]hey both recognize that if they were living in the same state,  



they'd share custody"; that James and Kylie have "different approaches" to parenting;  



that both James and Kylie were "still learning" to be parents; and that "they're both  



capable of meeting [their daughter]'s needs."  



                                                                               

                   Finally, the superior court found that the "most important custody factor in  



this  case"  was  AS  25.24.150(c)(6):  "the  willingness  and  ability  of  each  parent  to  



                                                                                                                

facilitate and encourage a close and continuing relationship between the other parent and  



the child."  In its written findings, the superior court observed that "James has a poor  



                                                                                          

opinion of Kylie" and that "if James were awarded primary physical custody, it is not  



likely  that  he  would  foster  or  encourage  a  close  and  continuing  mother-daughter  



                                                                              

relationship."  In its oral findings, the superior court elaborated that this factor is about  



"more than just saying . . . 'we're happy to have you see your kid.'  It involves telling  



                                                                  

the kids that their mom or their dad is a good person, that their mom or their dad should  



                        

be encouraged to have contact with [the child]."  The court explained that "what I'm  



          4(...continued)  



when James returned on February 13 because it was unclear "whether these photographs  

                                                                                                     

depict [the parties' daughter]'s actual living conditions while she was in Kylie['s] . . .  

                                                                  

physical custody before James returned" and because "there was no evidence of such  

living conditions in Kylie's present household."  



                                                             -7-                                                       6872
  


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

getting  from  [James]  throughout  these  proceedings  .  .  .  is  that  mom  is,  pardon  my  



language, a stripper slut who[] . . . neglects her child, who smokes dope. . . .  I realize  



                                                                                                                

that people dirty each other up in the context of these hearings . . . [b]ut this is by far one  

                                                                  5   The court concluded that although James  

of the worst examples I've ever seen of that."                                                             



"tells me sure, he thinks it's important for mom to have contact with [our daughter], I  

                                      



frankly don't believe it."  The superior court made it clear that this finding was the  



                                                                                                               

deciding factor in awarding primary physical custody to Kylie:  Because "Kylie . . . is  



                                                                                                                 

more likely to foster and encourage a father-daughter relationship, . . . it is in [the parties'  



                                                                 

daughter]'s best interest to place her in the primary physical custody of the parent who  



                                                                                                          

is more likely to make visitation work."  "For this reason, once James relocates out-of- 



state primary physical custody of [their daughter] will be awarded to Kylie . . . ."  



          E.        Issues On Appeal  



                    James argues on appeal that the superior court erred by finding that both  



                                                                                      

Kylie and James were capable of meeting their daughter's needs and by refusing to make  



                   

a finding of the relative superiority of James's capability based on the evidence presented  



                                                                                               

at trial.  He also argues that the superior court erred by finding that James is less likely  



                                                                      

than Kylie to facilitate a relationship between their daughter and the other parent after  



the superior court first requested that James disclose his concerns about Kylie's parenting  



and then used those concerns against James.  We reject both arguments and affirm the  



superior court's custody order.  



          5  

                                                                                                                  

                    Kylie was a stripper when she and James first met and married. But she has  

since left that job, and at the time of trial she worked for her parents' company doing  

payroll processing from home.  



                                                              -8-                                                            6872  


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

III.      STANDARD OF REVIEW
  



                   A  superior  court  "has  broad  discretion  in  determining  child  custody  

             6  We "will not reverse a superior court's custody determination unless we are  

matters."                          



'convinced that the trial court abused its discretion or that its controlling factual findings  

                                           

                                  7  In the custody context, a superior court abuses its discretion  

are clearly erroneous.' "  

                                                                                      



"when it 'fails to consider statutorily mandated factors, weighs factors improperly, or  

                                                           8  A superior court's factual finding "is clearly  

                                                                 

includes improper factors in its decision.' " 



erroneous  when  a  review  of  the  entire  record  leaves  us  with  the  'definite  and  firm  

                                                                                                             

                                                            9  This court will "not 'readily second guess  

conviction' that a mistake has been made."  

                                                                



a trial court's custody determination because it is the function of the trial court, not of  



                                                                                                              10  

this court, to judge witnesses' credibility and to weigh conflicting evidence.' "                                  



                   Questions  of  law,  such  as  interpreting  the  requirements  of  the  custody  



                                                                                   

statute and the proper legal tests to be used in the superior court, are reviewed de novo  



in this court, "adopting the rule of law that is most persuasive in light of precedent,  

reason and policy."11  



         6         Williams  v.  Barbee,   243   P.3d  995,  1000  (Alaska  2010)  (citing  Wee  v.  



Eggener , 225 P.3d 1120, 1124 (Alaska 2010)).  



         7         Id. (quoting Michele M. v. Richard R. , 177 P.3d 830, 834 (Alaska 2008)).  

                                                                                       



         8         Id. (quoting Michele M. , 177 P.3d at 834).  



         9         Id. (quoting  Wee, 225 P.3d at 1124).  



          10       Id. (quoting Michele M. , 177 P.3d at 834).  



          11       Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).  



                                                           -9-                                                    6872
  


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

IV.	      DISCUSSION  



                                                                                                               

          A.	       The Superior Court Did Not Clearly Err In Finding That Both Kylie  

                    And  James  Were  Equally  Capable  Of  Meeting  Their  Daughter's  

                    Needs.  



                                                                                               

                    Alaska  Statute  25.24.150(c)(2)  states  that  "[t]he  court  shall  determine  



custody" by "consider[ing]," among other factors, "the capability and desire of each  



parent to meet the[] needs [of the child]."   



                    The superior court in this case made oral findings that James and Kylie  



                                                                                    

have "different approaches" to parenting, that both James and Kylie were "still learning"  



                                                                       

to be parents, and that "they're both capable of meeting [their daughter]'s needs."  The  



superior court elaborated that it could not "distinguish[] . . . one [parent] [a]s a better  



parent than [the] []other. . . . You're different parents from each other with different  



                                                               

styles and different ways of approaching life and [your daughter], quite frankly, will  



                                                                                               

benefit from both of those experiences in her life."  The court went on in its written  



                                                                                                             

findings to "decline[] to make a comparative finding as to which parent is more capable  



or most capable to meet [their daughter]'s needs."  



                    James  argues  that  the  superior  court  committed  legal  error  by  using  a  



                             

"pass/fail" test for the capability factor and refusing to decide that James had superior  



capability to meet his daughter's needs.  He "ask[s] this court to require trial courts to  



                                                                                                 

implement a 'relative capability' standard, and to reject the use of a 'minimally capable'  



                               

type of standard . . . in order accurately to determine a child's best interests."  He further  



                                                                     

argues   that   the   evidence   at   trial   showed   that   James's   capability   was   "vastly  



                                                             

disproportionate"  to  Kylie's  capability  such  that  the  superior  court  clearly  erred  in  



             

finding  otherwise.  We do not reach James's legal arguments because we reject his  



                                                             -10-	                                                      6872
  


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

                                                                                                               

factual predicate.  Parents can be different, as here, without one being more capable than  



                  12  

the other.             And the superior court found both parents to be capable.  



                         James  points  to  the  conditions  under  which  Kylie  and  their  daughter  



                                                                                                                     

allegedly lived while James was deployed in Afghanistan and draws a comparison with  



the  conditions  that  James  allegedly  created  for  their  daughter  and  himself  when  he  



                                                

returned.  He argues that the superior court abused its discretion in refusing to consider  



                                                                                     

"direct evidence of Kylie's inability to meet [their daughter]'s needs" and the fact that  



                                                                                                                                                        

she "had created an unsafe environment for a baby" based on the photographs of the  



                                                                                                                   

messy house that James returned to in February 2012.  But the superior court did not  



                                                                                 

clearly err when it concluded that pictures of the family home taken on James's return  



from Afghanistan do not indicate that the parties' daughter and Kylie lived in those  



conditions while they lived in the family home.  The date that Kylie and her daughter  



                                                                                    

moved out of the home was disputed at trial, and the court did not make a finding of fact  



on this issue.  The superior court should be entitled to conclude that photographs of a  



                                                                                                                                        

messy  home an  indeterminate  number of hours, days, or  weeks  after Kylie  and  her  



daughter moved out, at a time when there were other roommates still living in the house,  



                                                                           

do not necessarily mean that Kylie was an incapable parent while James was deployed.  



                                                                                                              

The superior court's determination is supported by Kylie's testimony indicating that she  



did not recall the house looking that way when she lived there.  



                         James also argues that the superior court could not reasonably conclude that  



                                                                                                    

Kylie was a fit parent based on her recent parenting of their daughter because she has  



             12          See   Borchgrevink  v.  Borchgrevink ,  941  P.2d  132,  138  (Alaska  1997)  



(upholding a superior court's determination of equal capability in a case where "there   

was no evidence either parent was significantly superior to the other; each had different         

strengths and there was evidence each was genuinely trying to deal with the children's     

needs" such that "[t]he evidence was largely in balance").  



                                                                             -11-                                                                        6872
  


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

                                                                                

been living in Kylie's parents' home and allegedly "a large part of the parenting of [their  



daughter] seem[s] to be done by Kylie's mother."  He then contrasts Kylie's alleged  



                                                                                

incapability with his own parenting of their daughter upon his return from Afghanistan,  



including  "giving  her  daily  baths,  washing  her  hair,  establishing  a  bedtime  routine,  



                                                                            

teaching her how to brush her teeth, ensuring she had enough sleep, preparing healthy  



                                                             

meals for her, and playing with her."   But the only evidence he points to is Kylie's  



                                                                  

testimony that her mother often gives their daughter baths, as well as Kylie's testimony  



                                                                 

that her "first couple months of parenting were really hard" because she was "doing it  



                                                           

by [her]self."  The superior court did not clearly err when it balanced these pieces of  



                                                                                                       

information against the voluminous testimony of Kylie providing for her daughter's  



                                                                                           

needs by herself. Indeed, the litany of parenting services that Kylie testified to providing  



                                                                 

to the parties' daughter is nearly identical to the parenting services that James testified  



to providing.  



                                                                       

                    In sum, the superior court did not clearly err by refusing to find that James  



has superior capability to provide for the parties' daughter's needs.  There was ample  



evidence to support the superior court's conclusion that both parents are equally capable  

of meeting their daughter's needs.13  



          13        James also argues in a short paragraph in the appellant's brief that the  



superior court clearly erred by finding that Kylie and James have equal "desire" to meet  

                                                                                                           

their daughter's needs.  We reject this argument for two reasons.  First, because it is  

raised in a cursory paragraph with no citation to legal authority, we conclude that the  

                                                                                    

argument is forfeited for inadequate briefing.  See Wilkerson v. State, Dep't of Health &  

                                                                            

Soc.  Servs.,  Div.  of  Family  &  Youth  Servs.,  993  P.2d  1018,  1021  (Alaska  1999)  

("[S]uperficial briefing and failing to cite any authority constitute abandonment of a  

                                                                                                                             

point on appeal.").   Second, James does not support this argument with independent  

                                                                                                        

reasoning  but  rather  states  that  "[a]  parent  demonstrates  his  or  her  'desire'  to  do  

something by actually doing it" and points to his theory that Kylie has delegated her  

                                                                        

parenting duties to her mother.  Moreover, James's argument that the superior court  

                                                                                                              (continued...)  



                                                              -12-                                                         6872
  


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

                                                                                                            

                     Finally,  James  argues  that  the  superior  court  abused  its  discretion  by  



                                                                

"finding, early in the direct examination of James, that he was 'capable of meeting [his  



daughter]'s  needs,'  thus  precluding  further  evidence  regarding  James's  superior  



                                                                                                       

capability."  But the superior court never precluded James from offering evidence of  



                                                                                                  

James's superior capability.  The superior court indicated that it was prepared to find that  



                                                                                                            

James and Kylie were equally fit, and it reminded James that the court would like to hear  



                                                                                                       

about other custody factors.  But the superior court was also clear that it was "certainly  



                                                                                                                           

interested in hearing if there is a marked difference in attitude and capabilities.  I'm not  



                                                                                                      

sure I know that at this point that there's a marked difference so far, but I'm certainly  



                                                                                              

willing to hear evidence to the contrary."  The superior court did not abuse its discretion  

                                                                                                   14  rather, it gave useful  

                                                                                                       

because it did not refuse to hear and consider relevant evidence; 



indications to counsel about its preliminary thinking and suggested how counsel could  

                                                                                         



most  efficiently  use  the  time  remaining  in  the  hearing.                              This  was  well  within  the  

                                                                                             

appropriate discretion of the superior court.15  



          13(...continued)  



clearly  erred  in  finding  that  James  and  Kylie  are  equally  capable  of  meeting  their  

                                                                                                                 

daughter's needs is premised on the same factual reasoning we have already rejected.  



          14         Indeed, immediately after receiving the superior court's warning, James  

                                                       

went  on  to  introduce  a  large  amount  of  additional  evidence  attempting  to  show  his  

                                                                                                  

superior capability to care for his daughter's needs.  



          15  

                                                        

                     James also argues in  a  short paragraph in the appellant's brief that the  

superior court abused its discretion by making no findings about the "emotional stability"  

of James or Kylie.  He reasons that emotional stability is particularly important when a  

                                                                        

parent is relocating such that failing to make a finding of emotional stability of either  

parent is an abuse of discretion.  We reject this argument.  While a relative-stability  

finding is within the permissible discretion of a superior court, see, e.g., Elliott v. Settje ,  

                           

27 P.3d 317, 320 (Alaska 2001), we have never stated that a finding of relative emotional  

                                                                                         

stability is mandatory in cases where one party is relocating.  We decline to do so now.  

                                                                                                                  

                                                                                                                 (continued...)  



                                                                -13-                                                          6872
  


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

                                                                                                             

          B.	       The Superior Court Did Not Clearly Err By Finding That James Is  

                                                                  

                    Less Likely Than Kylie To Facilitate A Relationship Between Their  

                    Daughter And The Other Parent.  



                    Alaska  Statute  25.24.150(c)(6)  states  that  "[t]he  court  shall  determine  



                                                                                                                    

custody" by considering, among other factors, "the willingness and ability of each parent  



                                                     

to facilitate and encourage a close and continuing relationship between the other parent  



and the child."  



                                                                                             

                    As noted above, the superior court in this case found that the continuing- 



                                                                   

relationship factor was the "most important custody factor in this case" and that "if James  



                                                                                              

were awarded primary physical custody, it is not likely that he would foster or encourage  



a close and continuing mother-daughter relationship."  The court concluded that although  



James  "tells  me  sure,  he  thinks  it's  important  for  mom  to  have  contact  with  [their  



                                                                                                  

daughter], I frankly don't believe it."  The superior court made it clear that this finding  



                                                        

was the deciding factor in awarding primary physical custody to Kylie:  Because "Kylie  



                                                                                          

. . . is more likely to foster and encourage a father-daughter relationship, . . . it is in [their  



                                                                   

daughter]'s best interest to place her in the primary physical custody of the parent who  



                                                                                                            

is more likely to make visitation work."  "For this reason, once James relocates out-of- 



state primary physical custody of [their daughter] will be awarded to Kylie . . . ."  



                                                 

                    James raises two challenges to the superior court's determination of the  



continuing-relationship factor.  First, he argues that the superior court clearly erred by  



                                                                                               

concluding that James was less likely than Kylie to facilitate a relationship between their  



          15(...continued)  



Indeed, we have upheld superior court findings of fact and conclusions of law in custody  

                                                                                   

cases even when the superior court omits discussion of certain factors.  See, e.g., Ebertz  

                                                                                 

v. Ebertz, 113 P.3d 643, 649 (Alaska 2005) (holding that the superior court did not err  

                                                                                                                     

as a matter of law by addressing "most [but not all] of the statutory custody factors that  

                                                                                    

were actively disputed").  



                                                               -14-	                                                        6872
  


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

                                                                                            

daughter and the non-custodial parent.  Second, he argues that the superior court abused  



                                                                                         

its discretion "when it directed James to discuss his concerns about Kylie's capability (or  



incapability) to meet [their daughter]'s needs, then used James's concerns against James  



                                                         

to support the Judge's conclusion that James would not facilitate a relationship between  



Kylie and [their daughter]."  (Emphasis removed.)  



                    We reject both arguments.  First, the superior court's finding that James was  



less likely than Kylie to facilitate a close and continuing relationship rests on the superior  



court's credibility determinations and is further supported by ample evidence on the  



record.  Accordingly, it is not clearly erroneous.  The superior court concluded that  



James's testimony asserting his willingness to foster a relationship was not credible,  



            

stating that "[James] tells me sure, he thinks it's important for mom to have contact with  



[her daughter], [but] I frankly don't believe it."  Because it is "the function of the trial  



                      

court,  not  of  this  court,  to  judge  witnesses'  credibility  and  to  weigh  conflicting  

evidence,"16 we decline to disturb the superior court's credibility determination in this  



case.  



                                                                

                    There  is  ample  evidence  on  the  record  that  could  support  the  superior  



                                   

court's  determination  that  Kylie  would  better  facilitate  a  relationship  between  her  



daughter and James, including: a comparison of James's and Kylie's testimony regarding  

their willingness to facilitate a relationship between their daughter and the other parent;17  



          16        Ebertz , 113 P.3d at 650 (quoting                Knutson v. Knutson, 973 P.2d 596, 599-  



600 (Alaska 1999)).  



          17        At trial, James testified, "If I get full custody, . . . I'm willing to give Kylie  

                                                               

whatever time she wants with [our daughter].  I'm not that comfortable right now with  

                                                                            

[our daughter] coming up to Alaska for long periods of time [because of my concerns  

about Kylie's parenting]. . . . I feel that [she] might get neglected.  Kylie's welcome to  

go to North Carolina." By contrast, Kylie testified, "I would do anything to establish and  

                                                                               

                                                                                                            (continued...)  



                                                             -15-                                                        6872
  


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

                                          

Kylie's testimony that "the communication with the child about the other parent was the  



most informative" component of a recent parenting class she took; Kylie's testimony that  



                                                                                              

it is "very unfortunate" that James will not have daily personal contact with his daughter  



after he moves; Kylie's testimony that "I was a child of a divorced family, so . . . I know  



                                                                       

how it works[;] . . . it's nothing that anybody needs to spend anytime fighting over";  



              

James's repeated willingness to draw the worst possible inference about Kylie from  

uncertain information;18 and Kylie's testimony that James had sent her messages on  



                                                                                    

Facebook that she took to mean that "he does not want me to be part of her life, that he  



                                                                           

thinks that I am a bad influence and he does not want me to have anything to do with  



                                                                                                       19  

                                                                                                           But we decline  

that."   To be sure, there was some countervailing evidence as well. 



          17(...continued)  



keep a relationship between [our daughter] and James [and James's family].  I will do  

whatever it takes to do that . . . [.] I will be completely flexible like I have always been  

                                                    

and I will do what it takes to give them that time."  



          18        James testified that he was concerned about a picture that Kylie had posted  

                                                  

on the internet with text reading, "Children are a blessing:  You never know when you'll  

                                                                       

need blood or a spare kidney."  James worried, "Is she going to take [our daughter]'s  

                                                  

kidney if she needs one?  Is . . . it a parts thing for her?"  The superior court, critiquing  

                                                                                      

James's literal interpretation of dark humor and sarcasm, asked, "Do you watch South  

                                             

Park or [T]he Simpson's?"  



                    Similarly, James introduced into evidence pictures of Kylie changing her  

hair color and argued that those changes indicated worrisome shifts in Kylie's mental  

state.  The superior court responded, "If you're trying to convince me that because a 22- 

                                                                                                         

year-old woman changes her appearance that that's like something unusual or significant,  

you got a ways to go."  



          19  

                                                                                                            

                    James testified that "Kylie will always be [our daughter]'s mom. . . . Kylie  

                                                

can  spend  as  much  time  with  [our  daughter]  as  she  wants  .  .  .  .  I  have  no  problem  

                       

maintaining a relationship between the two of them."  James also contacted Kylie to  

                                              

solicit pictures of Kylie for a scrapbook he was preparing for their daughter, but Kylie  

                                                                                                              (continued...)  



                                                              -16-                                                         6872
  


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

James's invitation to reweigh the conflicting evidence in this case.  We conclude that the  



                                                                   

superior court did not clearly err in finding that Kylie was more likely than James to  



facilitate a relationship between their daughter and the other parent.  



                    We also conclude that the superior court did not abuse its discretion by  



holding  James's  concerns  about  Kylie's  parenting  against  James  in  the  continuing- 



                                        20  

                                                                          

relationship determination.                James cites no legal authority to support his argument.  But  

in Stephanie W. v. Maxwell V. (Stephanie W. I),21 we held that "[i]n light of the apparent  



                                                                                                        

good-faith basis of [the mother's] allegations [of sexual abuse by the father against the  



                                        

child]," the superior court in that case must "re-weigh the 'willingness to allow a close  



          19(...continued)  



had not given James the pictures by the time of the hearing.  



          20        James also argues that the superior court clearly erred in its continuing-  



relationship  determination  insofar  as  it  relied  on  the  finding  that  James  held  a  low  

opinion of Kylie.  James maintains that his low opinion of Kylie does not ineluctably  

lead to the conclusion that James would not obey a court order that James facilitate a  

                                                                            

relationship between Kylie and their daughter.  But the continuing-relationship factor  

involves more than mere willingness to follow a court order; the superior court correctly  

                                                                         

concluded  that  facilitating  a  relationship  occurs  throughout  the  custodial  parent's  

interactions with the child, many of which would be difficult to police through court  

                                                    

order.    It  is  within  the  broad  discretion  of  the  superior  court  to  consider  evidence  

probative of whether a custodial parent is likely to engage in the myriad activities and  

                                                  

communications  that  will  foster  a  real  relationship  between  the  child  and  the  non- 

custodial parent.  While evidence of willingness to obey a court order would likely be  

                                                                                                                    

relevant to this determination, it is not the  only relevant evidence.  Accordingly, we  

conclude that the superior court did not err by looking beyond the narrow question of  

                                                                                               

whether James was unlikely to follow a court order to facilitate a continuing relationship  

                                                            

between Kylie and her daughter.  



          21        274 P.3d 1185 (Alaska 2012).  



                                                             -17-                                                        6872
  


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

                                                        22  

and continuing relationship' factor."                         We instructed that "[o]n remand, the court should     



not consider this factor against [the mother] unless she has continued her unwillingness  



                                                                               

to facilitate such a relationship in the period after the superior court made its evidence- 



                                                                                               23  

based finding that [the father] had not abused [the child]."                                       In a more recent case,  



                                                                             24  

                                                                                        

Stephanie  W.  v.  Maxwell  V.  (Stephanie  W.  II),                              we  reaffirmed  this  commonsense  



                                                                 

approach and announced a general rule, holding 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  



                                                       25  

                                                                  

are based on supporting evidence."                         We noted that sufficient evidence might be found  



                                                               

either in the superior court's "objective credibility determination" or in other "extrinsic  

                 26   To  determine  when  there  is  sufficient  evidence  to  exclude  good-faith  

evidence."                   



allegations from the continuing-relationship determination, we announced a balancing  

                                 



test:  "[T]he superior court must balance two competing goals: the desire of the court to  

                                                                                                                             



encourage good-faith, objectively credible reports . . . and the need to guard against false  

                                                                                                         



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

                                                                                                         

other parent . . . ."27  



           22        Id. at 1191.
  



           23        Id.
  



           24
       ___ P.3d ___, Op. No. 6869 (Alaska, Feb. 28, 2014).  



           25        Id. at 21.  



           26        Id.  



           27        Id. at 21-22.  



                                                                 -18-                                                           6872
  


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

                           Balancing those competing interests is a difficult line-drawing problem, and  



                                                                                                                                             28  

                                                                                                                                                   We do not see  

we review the superior court's decision only for an abuse of discretion. 



such an abuse in this case.  In the ordinary course of litigation in child custody cases, we  



                                                                                          

expect good-faith allegations of misconduct by the other parent when it is relevant to the  



                                                                                                                       

custody  decision  and  supported  by  sufficient  evidence,  even  if  the  allegations  are  



                                                                                                                            

ultimately unproven.  But some unsupported allegations fall outside the normal course  



                                                                                                                                                                

of litigation and may speak to a parent's unwillingness to foster a relationship.  In such  



               

a case, the court may consider the parent's litigation conduct to ensure that child custody  



is ultimately decided in light of the child's best interests, including the child's interest  



                                                                 

in  having  the  custodial  parent  foster  a  relationship  between  the  child  and  the  non- 



                                                                                                                                 

custodial parent.  Here, the superior court noted, "I realize that people dirty each other  



up in the context of these hearings . . . [b]ut this is by far one of the worst examples I've  



                      

ever seen of that."  The superior court elaborated that this conclusion was based on a  



                                                                                                                                                 29  

                                                                                                                                                        Given  this  

global  assessment  of  James's  conduct  throughout  the  proceedings. 



                                                                                                                                        

background of behavior, we do not conclude that the superior court abused its discretion  



                       

by relying  on James's accusations about Kylie and what they reveal about James in  



              28           Id.  



              29           The superior court stated, "I base this on observations of testimony, reading                              



the briefs and hearing the language and the descriptions that were used."  



                           Some of the specific facts on the record that the superior court might have               

relied on include James's repeatedly drawing the worst inference possible about Kylie's   

parenting based on insufficient information,                                              see  supra  note 18, and the superior court's   

earlier warning to James during a hearing on a petition for a domestic-violence protective                         

order that he "need[s] to . . . stop playing the DV [domestic violence] game" of filing   

meritless petitions for domestic-violence protective orders because "dirtying each other   

up will do nothing to create the kind of relationship you need to have."  



                                                                                    -19-                                                                             6872
  


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

determining that James was unlikely to facilitate a close and continuing relationship  



between Kylie and her daughter.  



V.     CONCLUSION  



             For these reasons, the superior court's order is AFFIRMED.  



                                         -20-                                    6872
  

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