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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Houston v. Wolpert (9/5/2014) sp-6950

Houston v. Wolpert (9/5/2014) sp-6950

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

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         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                       

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



GARY JAY HOUSTON,                                       )  

                                                        )        Supreme Court No. S-15232  

                            Appellant,                  )  

                                                        )        Superior Court No. 3PA-10-00959 CI  

         v.                                             )  

                                                        )        O P I N I O N  

MEREDITH JANE WOLPERT,                                  )  

                                                        )        No. 6950 - September 5, 2014  

                            Appellee.                   )  

                                                        )  



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

                   Judicial District, Palmer, Gregory Heath, Judge.  



                   Appearances: Regina Largent, Largent Law, LLC, Soldotna,  

                                                                          

                   for Appellant. John Parsi, Law Offices of Kenneth Goldman,  

                                                               

                   PC, Palmer, for Appellee.  



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

                                                                                    

                   Bolger, Justices.  



                   BOLGER, Justice.  



I.       INTRODUCTION  



                   Upon dissolution of their marriage, a father and a mother agreed to give  

                                                                                                     



primary custody to the mother and "open and liberal visitation" to the father.  The father  



filed  a  motion  for  modification  of  custody,  alleging  the  mother  had  unreasonably  



restricted his visitation.  The superior court found the mother had been uncooperative,  



but concluded it was in the best interests of the child to remain in the mother's custody  

                                                                   



with a specific visitation schedule for the father.  The father appeals the superior court's  

                                                                     


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

                                                                          

decision, arguing the superior court abused its discretion when it did not award him  



                                       

custody. He also appeals the superior court's denial of his motion for attorney's fees and  



                                                      

costs.  We conclude there was no abuse of discretion in the custody decision, but we  



must remand the attorney's fee issue for further findings.  



II.       FACTS AND PROCEEDINGS  



                                                                  

                    Gary  Houston  and  Meredith  Wolpert  dissolved  their  marriage  in  April  



                                                                                                         

2010.   They agreed Meredith would have primary custody of their daughter, born in  



2007, subject to Gary's  "open and liberal" visitation.  



                    Meredith  moved  to  Soldotna  about  seven  months  after  the  dissolution.  



                                                                                                    

Once she moved, Meredith restricted Gary's visits to only one  weekend a month in  



                                          

Soldotna.  Gary could not afford many overnight visits in Soldotna, which meant he  



                                                                                                     

could  only  visit  his  daughter  for  the  day.    A  little  more  than  two  years  after  the  



                                                                           

dissolution, Gary moved to Soldotna to be closer to his daughter.  But even though Gary  



now lived in the area, Meredith only allowed one weekend overnight visit per month.  



                                      

                    In  August  2012  Gary  filed  a  motion  to  modify  custody.    Gary  sought  



primary physical and sole legal custody and alleged Meredith "arbitrarily impose[d]  



severe limitations upon [his] visitation" - enough "to substantially interfere with the  



                                                

parent-child relationship."  He also sought temporary orders asking for their daughter to  



have equal access to both parents in the interim.  



                                                                                

                    The parties disputed the circumstances of their interactions and the reasons  



                                                      

the visitations were so infrequent.  Gary argued Meredith interfered with his visitation  



                                                

by   refusing   to   let   him   see   their   daughter   and   by   refusing   to   respond   to   his  



communications.  Meredith attributed the difficulty of scheduling visitation to conflicting  



availability and implied Gary did not make enough of an effort to see their daughter.  



                                                                                                                  

                    The  superior  court  referred  the  matter  to  a  family  court  master  and  



scheduled  a  hearing  regarding  interim  visitation.    At  the  hearing,  the  master  heard  



                                                               -2-                                                          66995500
  


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arguments from both sides and found that, while the parties needed a visitation schedule,  

                                                         



there was no need for a modification of custody.  



                    Gary  filed  an  objection  to   the  master's  report,  and  the  superior  court  



                                                                    

rejected the master's recommendations. The superior court determined Gary had shown  



                                    

a substantial change in circumstances and was "entitled to a hearing to address the best  



                                                     

interests of [the child]."  The court again referred the case to the master to hold a hearing  



on the motion to modify custody.  



                     At  the  end  of  the  custody  modification  hearing,  the  master  expressed  



                                                                                                               

concern about Meredith's unreasonable attitude toward Gary's visitation. But the master  



                                                                                                            

ultimately concluded Meredith should retain primary custody because she had a better  



history of providing the child with continuity and a stable home.  



                    In his written findings, the master stated Gary had not been an involved  



                                                                            

parent, although Gary's parenting had improved.  The master noted Meredith had been  



                                                                                                      

the child's primary caregiver for the child's entire life, and opined that Meredith could  



provide more appropriate boundaries and structure for the child.   The master found  



                                                                               

Meredith had provided a stable environment for her daughter.  The master had concerns  



about Meredith's willingness to facilitate a relationship between Gary and their daughter  



                                     

because  Meredith  had  exercised  "excessive  control"  and  displayed  "unreasonable  



                 

concerns" over visitation.  But the master recognized Meredith had provided Gary with  



visitation consistent with the interim visitation plan and seemed diligent about following  



                                      

rules.   The master  also  recommended Meredith retain legal custody since Gary and  



Meredith did not seem to communicate or cooperate well with one another.  



                                                              

                    Gary filed an objection to the master's recommendations.  The superior  



court  concluded  Gary's  arguments  "center[ed]  on  the  concern  that  Meredith  ha[d]  



                                                                                                 

willfully and consistently interfered with his custodial time in the past, including denying  



him overnight visitation for over 300 consecutive days."  The court agreed with the  



                                                               -3-                                                         66995500
  


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master that continuing primary custody with Meredith would provide the child with  

                  



stability  and  would  best  meet  her  "physical,  emotional,  and  spiritual  needs."    The  



superior court ordered visitation on two weekends a month, from Thursday evening to  



Sunday evening, and every Wednesday evening from 5:00 p.m. to 7:00 p.m.  



                                                                              

                   Following the superior court's decision, Gary filed a motion for attorney's  



                                                                                                          

fees and costs.  The superior court denied Gary's motion for fees and costs without  



making specific findings.  Gary now appeals to this court.  



III.      STANDARD OF REVIEW  



                   We will uphold a superior court's custody and visitation determinations  



                                                

"unless the record shows that its controlling findings of fact are clearly erroneous or the  

                                        1  "A finding of fact is clearly erroneous when a review of  

court abused its discretion."                                    

the record leaves us with a definite and firm conviction that a mistake has been made."2  

                                                                                



And  a  superior  court  abuses  its  discretion  when  it  "consider[s]  improper  factors  in  

                                                                             



determining  custody,  fail[s]  to  consider  statutorily  mandated  factors,  or  assign[s]  

disproportionate weight to certain factors while ignoring others."3  



IV.       DISCUSSION  



                   The superior court has broad discretion when determining the best interests  

                                                             

of a child in a custody modification.4   When considering statutory best interests factors,  



                   the trial court need not make express findings on all statutory  

                                        

                   factors;  instead,  its  findings  "must  either  give  us  a  clear  



          1        Borchgrevink v. Borchgrevink , 941 P.2d 132, 134 (Alaska 1997) (citing                 



Evans v. Evans , 869 P.2d 478, 479 (Alaska 1991)).  



          2        Blanton  v.  Yourkowski,  180  P.3d  948,  951  (Alaska  2008)  (quoting  



Borchgrevink , 941 P.2d at 134) (internal quotation marks omitted).  



          3        Id. (citing Borchgrevink , 941 P.2d at 134).  



          4        Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011); see AS 25.24.150(c).  



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

                    indication of the factors which the superior court considered  

                    important  in  exercising  its  discretion  or  allow  us  to  glean  

                                                                             

                                                                                                 [5] 

                    from the record what considerations were involved."  



In  this  case,  the  master  identified  three  factors  that  were  particularly  important  in  

                                                                                                            



determining custody:   "the capability and desire of each parent to meet [the child's]  

                                          

needs";6  "the length of time the child had lived in a stable, satisfactory environment and  

                                                                                     

the desirability of maintaining continuity";7 and  "the willingness and ability of each  

                                                                         



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

                                8  Gary appeals the superior court's findings on the stability and  

parent and the child."                                        



continuing relationship factors as well as the court's decision on the award of attorney's  



fees.  



          A.	       The  Court  Did  Not  Abuse  Its  Discretion  When  It  Concluded  The  

                                      

                    Stability Factor Favored The Mother.  



                    In a custody determination, the superior court must consider "the length of  

                                                                                       



time  the  child  has  lived  in  a  stable,  satisfactory  environment  and  the  desirability  of  

maintaining continuity."9  The court, in its stability analysis, may consider circumstances  



                                                                                                         10  In this case,  

affecting the child's geographic, emotional, and relational environment.  

                                                                                                              



          5         Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008) (quoting   



Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003)).  



          6	       AS 25.24.150(c)(2).  



          7	       AS 25.24.150(c)(5).  



          8	       AS 25.24.150(c)(6).  



          9        AS 25.24.150(c)(5).  



          10       See, e.g., Blanton v. Yourkowski, 180 P.3d 948, 954 (Alaska 2008) ("The  

                                                                                                             

continuity factor includes both emotional stability and geographic stability."); Melendrez  

v. Melendrez, 143 P.3d 957, 963 (Alaska 2006) (quoting McQuade v. McQuade , 901  

                                                                                                           (continued...)  



                                                             -5-	                                                      66995500
  


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

the master found Meredith had given the child a "stable, satisfactory environment for a  



                                        

long time," and stated that it was "desirable to maintain this continuity." The master also  



                                                                                                                  

noted Meredith had been the child's primary caregiver, and that she had provided a  



stable home for a longer period of time than Gary had.  



                                                                             

                    Gary challenges the superior court's findings on the stability factor.  He  



argues  the  court  abused  its  discretion  because  it  never  "offered  any  commentary  or  



                                                            

findings on [Gary's] ability to maintain stable and satisfactory relations between himself  



                                                                                           

and  the  child."    He  relies  on  Meier  v.  Cloud  to  contend  Alaska  law  "commands  a  



comprehensive  inquiry  into  each  parent's  respective  ability  to  maintain  stable  and  



                                                                                      11  

satisfactory relations between themselves and the child."                                   



                                                                                                 

                    But Meier is not directly applicable here.  In Meier , the parents shared legal  



and physical custody and lived in the same community before the mother decided to  



                                                         12  

                                                                   

move to Seattle with her new husband.                       We explained that when parents transition from  



living in the same community and sharing custody to one relocating to another state, "a  



                                                         

court considering the child's need for continuity and stability . . . must examine not only  



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



          10(...continued)  



P.2d  421,  426  (Alaska  1995))  (upholding  the  court's  decision  to  weigh  sibling  

                                                                                                            

relationship  as  an  essential  component  of  maintaining  the  emotional  continuity  and  

                                                                  

stability of a child's home); Barrett v. Alguire , 35 P.3d 1, 9 (Alaska 2001) (upholding  

the finding that "maintaining the children's relationships with their school, community  

                  

of friends and family, the cultural community, and their mother outweighed maintaining  

                                                                      

the relationship with their father.").  



          11        34 P.3d 1274, 1279 (Alaska 2001) (quoting McQuade , 901 P.2d at 426)  



(internal quotation marks omitted).  



          12        Id. at 1275.  



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

                                                 13  

                                                                                         

maximizing relational stability."                    And in that context, the continuity and stability factor  



requires  an  examination  of  "each  parent's  respective  ability  to  maintain  stable  and  

satisfactory relations between themselves and the child."14  



                                                                                                                 

                    In Evans v. Evans , we held that the stability and continuity factor should  



                                   

be assessed not only  in relation to each parent "but in relation to the totality of the  



                        

circumstances  [the  children]  were  likely  to  encounter  in  their  respective  parents'  



             15  

                                                                        

homes."          We concluded it was not an abuse of discretion to consider the potentially  



                                                      

negative emotional consequences  the children might have suffered if they had been  

required to live in their mother's new marital residence.16                                  Similarly in this case, the  



                                                                                                         

superior court considered that the child had been in Meredith's care for most of her life  



and  that  this  stability  would  be  disrupted  if  custody  were  awarded  to  Gary.                                      This  



consideration was not unreasonable.  



                    In a related argument, Gary contends the court improperly gave preference  



to  Meredith's  role  as  the  primary  caregiver.    Gary  correctly  notes  that  there  is  no  

automatic custody preference for the primary caregiver.17                                  But the superior court may  



                                                          

properly consider which parent was the child's primary caregiver as a circumstance  



          13        Id.  at 1279.  



          14        Id. (quoting McQuade , 901 P.2d at 426) (internal quotation marks omitted).  



          15         869 P.2d 478, 482 (Alaska 1994).  



          16        Id.  at 483.  



          17        Blanton v. Yourkowski, 180 P.3d 948, 953 (Alaska 2008) (citing                                     Elliott v.  



Settje, 27 P.3d 317, 320 (Alaska 2001));                        I.J.D. v. D.R.D. , 961 P.2d 425, 430 (Alaska  

1998); Evans , 869 P.2d at 483 n.4; McDanold  v. McDanold , 718 P.2d 467, 470 n.4  

(Alaska 1986).  



                                                                -7-                                                          66995500
  


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

                                                       18  

relevant to the best interests analysis.                   In this case, Meredith has had primary custody  

                                                                              



since the dissolution of the marriage and has provided a stable, satisfactory home.  We  

                                                              



find no abuse of discretion in the court's consideration of Meredith's status as a primary  

                                                                                                                   



caregiver.  



          B.	       The  Court  Did  Not  Abuse  Its  Discretion  When  It  Weighed  The  

                    Continuing Relationship Factor.  



                    Gary argues the court  abused its discretion by failing to give adequate  

                                                       



weight to the "continuing relationship" factor: "the willingness and ability of each parent  

                                                                      



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

                                                    

and the child."19         On this issue, the master expressed  



                    concerns with regards to Meredith's being willing and able to  

                                                                                   

                    facilitate and encourage a close and continuing relationship  

                    between Gary and [his daughter].  Prior to the September 7,  

                    2012 hearing, Meredith did not make visitation easy for Gary.  

                                                                           

                    She exercised excessive control and unreasonable concerns  

                                                                            

                    for [the child's] safety with Gary.  



The superior court adopted this finding and further stated Meredith had "manipulated the  

                                                                           



process" and "restricted Gary's visitation."  



                    Gary primarily argues this factor should have been dispositive, and the  



court  should  have  granted  Gary  primary  physical  custody  based  on  Meredith's  



misconduct.  We have held that "[t]he superior court abuses its discretion if it . . . fails  

                                                                                                               



to consider statutorily mandated factors, or assigns disproportionate weight to particular  



                                             20  

                                                        

factors while ignoring others."                  But there is no rule giving automatic preference to any  



          18        See Veselsky v. Veselsky, 113 P.3d 629, 635 (Alaska 2005).  



          19        AS 25.24.150(c)(6).  



          20        Nancy  M.  v.  John  M. ,  308  P.3d  1130,   1133  (Alaska  2013)  (quoting  



                                                                                                            (continued...)  



                                                              -8-	                                                       66995500
  


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

single factor.  Rather, the superior court's findings must clearly indicate which factors  



                                                                            

it "considered important in exercising its discretion or allow us to glean from the record  



                                                      21  

what considerations were involved."                       



                    In  this  case,  the  master  clearly  identified  the  best  interests  factors  he  



considered  most  important.    And  Gary  does  not  challenge  the  court's  finding  that  



                                                                     

Meredith followed the interim visitation order.  Based on this finding, the superior court  



could  have  reasonably  concluded  that  a  permanent  visitation  schedule  would  be  



                                                              

sufficient to ensure that Meredith did not repeat her previous misconduct and that she  



                                    

would facilitate Gary's relationship with the child.  We conclude there was no abuse of  



                                  22  

discretion on this issue.                



                                                    

          C.	       The  Court  Did  Not  Abuse  Its  Discretion  In  Other  Aspects  Of  The  

                    Custody Order.  



                                                                                                 

                    Gary  makes  several  related  arguments  challenging  the  superior  court's  



                                                                                                  

custody and visitation determinations.  First, Gary argues the court abused its discretion  



                                                            

when  it  denied  him  primary  custody  because  the  court  had  found  a  change  in  



circumstances based on the parties' inability to communicate about or agree on visitation.  



But the court's conclusion that there was a change in circumstances only provided the  



basis for a full custody modification hearing.  This conclusion did not control the best  



          20(...continued)  



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

                                         

omitted).  



          21        Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008) (quoting  



Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003)) (internal quotation marks omitted).  

                                               



          22       We  are  not  convinced  by  Gary's  argument  that  the  superior  court  



committed  clear  error  when  it  found  Meredith  to  be  uncooperative  rather  than  

intentionally  interfering  with  Gary's  visitation.    The  superior  court's  findings  are  

supported by the record.  



                                                             -9-	                                                      66995500
  


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

interests analysis; at that stage of the analysis, the inability of the parents to communicate  



was simply one of many statutory factors the court was required to consider.  



                                                              

                   Gary also argues the superior court abused its discretion when it denied him  



                  

joint  legal  custody.           But  Gary  did  not  request  joint  custody  during  the  custody  



modification  proceeding;  he  requested  sole  legal  custody.                           And  even  if  Gary  had  



                                                                                                      

requested  joint  custody,  such  an  award  "is  only  appropriate  when  the  parents  can  



                                                                                  23  

                                                                                      Joint legal custody may be  

cooperate and communicate in the child's best interest." 

denied if the parents cannot communicate effectively.24  In this case, the record supports  



                                

the  master's  finding  that  the  parties  could  not  cooperate  sufficiently  to  allow  joint  



custody.  



                   Gary also argues the visitation schedule is unreasonably restrictive.  The  



court-ordered  schedule  consists  of  Wednesday  evening  and  weekend  visits.                                      This  



schedule was an increase in Gary's visitation, and it reasonably addressed the court's  



concern with stability.  We conclude this schedule was not an abuse of discretion.  



                                                                                     

          D.	      The Court Should Have Explained Why It Denied Gary's Motion For  

                   Attorney's Fees.  



                                                                                  

                   Gary argues the court erred when it denied his motion for attorney's fees.  



Under AS 25.20.115, the court must "consider the relative financial resources of the  



parties and whether the parties have acted in good faith" when making an attorney fee  



          23	      Farrell v. Farrell , 819 P.2d 896, 899 (Alaska 1991).  



          24       See Co v. Matson, 313 P.3d 521, 524-26 (Alaska 2013) (awarding sole legal  



custody to the mother even though both were parents of "considerable talent and ability"  

                                                                                                    

because the mother and the father could not communicate with each other);  Jaymot v.  

                                                                                                                           

Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009) (affirming that joint legal custody was  

                                                                                                            

inappropriate   because   both   parents   were   "arrogant,"   "selfish,"   and   could   not  

                                                                                                             

communicate  with  each  other); Littleton  v.  Banks ,  192  P.3d  154,  161(Alaska  2008)  

(upholding award of sole legal custody because communication was poor).  



                                                           -10-	                                                     66995500
  


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

             

award.   To that end, the "court must make explicit findings as to the parties' relative  



                                                                                                   25  

                                                                                                                 

financial resources and whether the parties acted in good faith."                                       Gary argues  the  



                       

superior court erred because it denied his motion for attorney's fees without providing  



any explanation.  



                                              

                    Our case law has thus far required explicit findings when making an award  



                                                    26  

                                                         But we have not previously required the superior  

of attorney's fees under this statute.  



                       

court to make similar findings when it denies such a motion.  We now conclude these  



findings are ordinarily necessary when the superior court denies a motion for attorney's  



                                                                                      27  

fees, so that we may properly review the court's decision.                                



                                                             

                    In his motion, Gary argued Meredith had much greater financial resources.  



He also argued Meredith threatened to ruin him financially, and he submitted evidence  



at the modification hearing that supported this claim.  Gary also noted the court found  



                                                                          

Meredith manipulated the process to restrict his visitation.   He argues this finding is  



equivalent to a conclusion that Meredith engaged in bad faith behavior, which would  



support an award of attorney's fees in his favor.  



                                                                                                

                    From this record, we cannot determine whether the superior court actually  



                                                                                                            

considered the issues Gary now raises on appeal.  We remand this matter to the superior  



court for findings regarding Gary's attorney's fees request.  



          25        Collier  v. Harris, 261 P.3d 397, 410 (Alaska 2011) (quoting                               S.L. v. J.H.,  



883 P.2d 984, 985 (Alaska 1994)) (internal quotation marks omitted).  



          26        See, e.g., id.; Smith v. Groleske, 196 P.3d 1102, 1108 (Alaska 2008); S.L.,  



883 P.2d at 985-86.  



          27        We have come to the same conclusion in cases involving the denial of  



attorney's fees under Alaska Civil Rule 82 and Alaska Appellate Rule 508. See Conway,  

                                                                                                                    

Inc. v. Ross , 627 P.2d 1029, 1032 (Alaska 1981); Curran v. Haistreiter, 579 P.2d 524,  

                                                    

530-31 (Alaska 1978).  



                                                             -11-                                                        66995500
  


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

V.           CONCLUSION  



                          We REMAND this matter to the superior court for further proceedings on                      



Gary's request for attorney's fees and costs. We AFFIRM on all remaining issues.  



                                                                                   -12-                                                                      66995500
  

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