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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Graham R. v. Jane S. (9/19/2014) sp-6955

Graham R. v. Jane S. (9/19/2014) sp-6955

         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, e-mail  

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



GRAHAM R.,                                            )  

                                                      )        Supreme Court No. S-15158  

                           Appellant,                 )  

                                                      )        Superior Court No. 3CO-04-00002 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

JANE S.,                                              )  

                                                      )       No. 6955 - September 19, 2014  

                           Appellee.                  )  

                                                      )  



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

                                                                  

                  Judicial District, Cordova, John R. Lohff, Judge pro tem.  



                  Appearances: John C. Pharr, Law Offices of John C. Pharr,  

                                                                 

                  P.C., Anchorage, for Appellant.  Kathryn Ruff, ANDVSA  

                  Legal Advocacy Project, Anchorage, for Appellee.  



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

                                              

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  

                  Graham  R.  and  Jane  S.  have  one  child.1  

                                                                               A  2006  court  order  granted  



                                                                                                     

Graham sole legal and primary physical custody.  In 2012 Graham traveled to California  



                                                               

for heart surgery and took the child with him, cutting off contact with Jane and causing  



                                                         

her to miss a number of scheduled visits.  When Graham returned to Alaska Jane moved  



         1        We use pseudonyms to protect the parties' privacy.  


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

                                                     

for sole legal and primary physical custody, and the superior court granted her motion  



                                                                                                                       

after an evidentiary hearing.  Graham appeals the superior court's order, arguing that it  



was barred by principles of res judicata and collateral estoppel; that the court erred in  



finding that his interference with Jane's visitation rights was an act of domestic violence  



                                                                  

that constituted changed circumstances; and that the court erred in admitting evidence  



                                                                                     

of his criminal convictions and of the child's preferences. We affirm the superior court's  



                                                                                                 

order modifying custody, concluding that there was no error in its decision not to apply  



res judicata or collateral estoppel; that there were changed circumstances justifying a  



modification of custody; and that any evidentiary errors were harmless.  



II.       FACTS AND PROCEEDINGS  



                                                                                                        

                    Graham and Jane were both married to others when their daughter Gabby  



was born in May 2003.  According to Graham, Jane had agreed to carry a child to be  



                                                                                       

adopted by him and his wife; according to Jane, Graham coerced her into it.  In any  



                                                                                    

event, Jane signed a document purporting to give Gabby to Graham and his wife a few  



                                                                            

days after the child was born. But Jane revoked that document less than a year later, and  



a dispute over Gabby's custody began.  



          A.        The First Custody Order Grants Graham Primary Custody.  



                                        

                    Graham  and  Jane  reached  a  custody  and  visitation  agreement  that  was  



                                           

approved by court order  in  March 2006.  The order granted sole legal and primary  



                                                                                               

physical custody of Gabby to Graham but allowed Jane visitation on alternate weekends,  



with additional visitation in the summer.  Graham was allowed to take extended winter  



vacations  with  Gabby,  so  long  as  Jane  was  given  make-up  visits;  the  order  also  



specifically authorized travel to the Philippines, where both parents have family.  But  



travel  required  30  days'  advance  notice  to  the  other  parent,  a  copy  of  the  itinerary,  



contact information, and a copy of the return tickets.  



                                                            - 2 -                                                      6955
  


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

                

          B.        Graham Travels To California With Gabby.  



                    On March 13, 2012, Graham suffered a heart attack and was transported  



                                                       

from  Cordova  to  Anchorage  for  emergency  treatment.    Graham's  wife  went  to  



                                                                              

Anchorage as well, taking Gabby along with her.  Jane, according to the schedule, was  



                                                                                      

supposed to have Gabby on the weekend; but Graham's wife called the Cordova Family  



                                                                              

Resource Center, the usual location of the parents' custody exchanges, and, as she later  



                                                                                                          

testified, told someone there "we can't have the exchange for [Jane's] visitation because  



                                                    

of emergencies [that] happen[ed] in our family."  Nicole Songer, the executive director  



of the Family Resource Center, testified about this message as well; she described its  



                                                                  

substance as only "that there would not be a visitation today due to . . .  [Graham] being  



                                                                                                                            

in Anchorage," with no information about how to call Graham back or how to get in  



                                                                                                

touch with Gabby.  Jane also testified that she had no contact number for Graham and  



did not know where Gabby had gone.  



                    On  March  28,  Graham  left  Anchorage  for  Los  Angeles,  California,  



                                                                                          

accompanied by his wife and Gabby.  He underwent heart surgery in Los Angeles, was  



                                                                                                  

discharged from the hospital in stable condition on April 10, but remained in California.  



                    Gabby continued to miss her scheduled weekend visits with Jane; according  

to Jane, she still did not know her daughter was in California.2  After a month of this, the  



Cordova  Family  Resource  Center  received  a  faxed  letter  from  a  California  attorney  

                                                                        



representing Graham.  The letter, addressed to Songer, informed her that Graham had  



                                                               

undergone  "a  12-hour  heart  surgery  in  Los  Angeles,"  that  "his  doctors  estimated  3  



          2         Graham's wife testified that at every visitation time, "I call[ed] them [at the     



Family Resource Center] to notify them that we can't make it because [there was] still   

a  problem  with  [Graham]."     It  is  unclear  whether  the  superior  court  accepted  this  

testimony.  In any event, Graham's wife did not testify that she ever explained where   

they  were  or  provided  any  contact  information;  she  testified  that  when  she  left  her  

messages, she was never asked for a phone number.   



                                                               - 3 -                                                        6955
  


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

                                                                               

months  of  recovery,"  that  Gabby  "wanted  to  stay  with  [her]  dad,"  and  that  Gabby  



                                                                                                      

therefore had been enrolled at a local elementary school "in order not to disrupt her  



                                                              

education."  The letter stated that "[w]ith no complications in his recovery, [Graham's]  



                                                     

family plans to go back to Cordova in 3 months."  The letter advised Songer to direct any  



                                                                              

inquiries "to the undersigned," Graham's attorney.  It provided no contact information  



for Graham or Gabby.  



                    On  May  24,  Graham  called  the  Cordova  Family  Resource  Center.  



                                                                                                     

According to Songer, Graham said "that if [Jane] wanted visitation, then he would send  



                                                                                          

[Gabby]  back  but  [Jane]  needed  to  pay  for  the  ticket[,]  and  he  needed  to  know  



                                                                                          

immediately because he was going to send her the very next day."  Songer testified that  



                                                                                    

she passed this message on to Jane; when Graham called again the next day, Songer told  



him "that if he would send the receipt along with [Gabby], I would make sure that [Jane]  



                            

got that receipt."  But Graham demanded assurance that Jane would pay for the ticket,  



and when Songer failed to give it he hung up on her.  



                                                                                             

                    Fearing Gabby would never return, Jane sought a protective order to end  



Graham's interference with her visitation rights.  The court issued an ex parte 20-day  



                          

protective order on May 25, granting Jane temporary custody and granting visitation  



                                        

rights to Graham "[o]nce a week telephonically arranged and supervised by [the Cordova  



                                                  

Family Resource Center]."                  But the order had no immediate effect, as neither Graham  



nor Gabby could be found.  



                    A  few  days  later,  Songer  received  another  faxed  letter  from  Graham's  



                                                                                                    

California attorney.  The letter stated that Graham had returned to Anchorage "for his  



rehabilitation and visitation by his cardiologist" but that his wife and Gabby "will be  



back in Cordova within this week."  The letter enclosed a proposed summer visitation  



schedule and invited Songer to email the attorney with any questions.   



                                                             - 4 -                                                       6955
  


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

                    On June 1, Graham's wife brought Gabby to the Cordova Family Resource  



Center for the start of summer visitation with Jane.  During a July 16 hearing, the parents  



stipulated to a long-term protective order that prohibited either of them from taking  



Gabby away from Alaska.  The magistrate judge heard no evidence about Graham's  



                                                   

interference with Jane's visitation and, with the parties' concurrence, expressly declined  



                                                                       

to  make  any  findings  of  domestic  violence,  child  support,  custody,  or  visitation.  



                                                                           

Through her attorney, Jane noted that she would be seeking custody modification in  



superior court.   



                

          C.        The Modification Order Grants Jane Primary Custody.  



                    Jane filed a motion to modify the existing custody order in October 2012,  



                                                                                                                

seeking sole legal and primary physical custody.  The superior  court held a hearing on  



                                

the  motion  in  April  2013.    The  court  rejected  Graham's  arguments  that  the  earlier  



                                                                                                

domestic violence proceeding barred Jane's modification motion under principles of res  



judicata or collateral estoppel, then granted sole legal and primary physical custody to  



           

Jane.  Graham received alternating weekend visits as well as six consecutive weeks of  



summer visitation; essentially, the previous custody arrangement was reversed.  



                    The  modification  order  was  based  in  part  on  the  court's  finding  that  



                                                                                   

Graham committed the crime of custodial interference when he traveled to California  



with Gabby in the spring of 2012.  The court found that this constituted a crime of  



                                                                                       

domestic violence and therefore a change in circumstances under AS 25.20.110(c).  The  



                                                                                                                

court then assessed the statutory best interest factors and concluded it was in Gabby's  



                                                                                                     3  

best interests that Jane have primary physical and sole legal custody.   



                    Graham appeals the modification order, challenging (1) the superior court's  



                               

refusal to apply res judicata or collateral estoppel to the domestic violence petition in  



          3         See AS 25.24.150(c).  



                                                             - 5 -                                                         6955  


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

                              

order to bar Jane's later motion to modify custody, (2) the finding that modification was  



proper under the circumstances, and (3) two evidentiary decisions:  the admission of  



                                                                                                               

Gabby's  hearsay  statements  about  her  preferences  and  the  admission  of  Graham's  



misdemeanor convictions from 1996 and 1997.  



III.      STANDARDS OF REVIEW  



                           

                    "A determination that a claim or issue is precluded is a question of law  

which we review de novo."4  



                    In appeals of custody determinations and modifications, we allow broad  



discretion to the superior court, reversing only if the superior court's findings of fact are  



                                                                      5  

                                                                               

clearly erroneous or if it abused its discretion.                        "A factual finding is clearly erroneous  



when a review of the record leaves the court with a definite and firm conviction that the  



                                                      6  

                                                                                                                  

superior court has made a mistake."                      "An abuse of discretion exists where the superior  



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



statutorily mandated factors, or assigned disproportionate weight to particular factors  



                                   7  

while ignoring others."   



          4         Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010) (citing                             Maness v. Daily ,  



184 P.3d 1, 5 (Alaska 2008)); Alaska Wildlife Alliance v. State                             , 74 P.3d 201, 205 (Alaska  

2003).  



          5  

                                                          

                    Ronny M. v. Nanette H., 303 P.3d 392, 399 (Alaska 2013) (citing Hamilton  

v. Hamilton , 42 P.3d 1107, 1111 (Alaska 2002)).  



          6  

                                                                                             

                    Id.  (quoting  Fardig  v.  Fardig ,  56  P.3d  9,  11  (Alaska  2002))  (internal  

quotation marks omitted).  



          7         Id. (quoting Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998))  



(internal quotation marks omitted).  



                                                              - 6 -                                                        6955
  


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

                    The  superior  court's  admission  of  evidence  is  reviewed  for  abuse  of  

                                                                           



                8  

discretion.    But even if admission was erroneous, "[w]e will reverse an evidentiary  

                                                                                               

ruling only if [the] error prejudicially affected a party's substantial rights."9  



IV.	      DISCUSSION  



          A.	       The Superior Court Correctly Ruled That Jane's Motion To Modify  

                    Custody Was Not Barred By Res Judicata Or Collateral Estoppel.  



                    Graham  contends  that  because  Jane  based  her  petition  for  a  domestic  



violence restraining order on her allegations of custodial interference, and because the  

                                        



parties resolved the petition by stipulating to the entry of a long-term order, Jane should  

                                               



have been barred from later relying on the same allegations of custodial interference  



                 

when she moved to modify custody.  But the parties clearly and explicitly declined to  



                                                                                               

litigate the issues of domestic violence and custody in the earlier proceeding, and neither  



res judicata nor collateral estoppel applies.  



                                                                                    

                    Res  judicata  bars  relitigation  of  a  claim  when  there  was  "(1)  a  final  



judgment of the merits, (2) from a court of competent jurisdiction,[] (3) in a dispute  



                                                                                               10  

between the same parties . . . about the same cause of action."      But as we noted in  



McAlpine v. Pacarro , res judicata does not apply to custody modifications; the governing  



                   

statute,  AS  25.20.110,  "provides  an  exception  to  the  general  principle  that  final  



judgments should not be disturbed - it allows parents to seek modification of child  



          8	        Samaniego v. City of Kodiak, 80 P.3d 216, 218 (Alaska 2003) (citing Buster  



v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994)).  



          9         Lum v. Koles , 314 P.3d 546, 552 (Alaska 2013).  



          10        Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                               ,  



233 P.3d 597, 600 (Alaska 2010) (alteration in the original) (quoting Plumber v. Univ.  

of  Alaska  Anchorage,  936  P.2d  163,  166  (Alaska  1977))  (internal  quotation  marks  

omitted).  



                                                             - 7 -	                                                      6955
  


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

                                                                                           

custody based on a change of circumstances if modification is in the best interests of the  



          11  

              On modification motions, thus, relitigation of the same issues is prevented in  

child."                                                                                                       



large  part  by  the  requirement  that   the   movant  prove  a  "substantial  change  in  

                                                                

circumstances" before being entitled to any relief;12  a parent who attempts to relitigate  

                                                                                 



the same set of circumstances will be unable to cross this threshold.   



                    We further held in McAlpine that although res judicata does not apply to  



                                                                              

modification motions, "the principle of finality does - parties should not be allowed to  

relitigate 'in the hope of gaining a more favorable position.' "13  But when a parent seeks  



to modify custody, both the statutory goals and the relevant considerations are much  



                                                                                                             

different  from  those  in  a  domestic  violence  proceeding.  We  explained  some  of  the  

                                                          14   The issue was whether a father's due process  

differences in Lashbrook v. Lashbrook .     



right to a hearing on a motion to modify custody was satisfied by the fact that he had  



                                                                         

earlier attended a hearing on a domestic violence petition, addressing some of the same  



                     15                                                                         16 

factual issues.          We held that the proceedings were too different.                           We also noted that  

                                                                                                     



"the  ultimate  focus  of  the  custody  modification  statute  is  the  best  interests  of  the  

                                                                                                        



children," which requires consideration of nine statutory factors, only one of which is  

                                                            



          11        262 P.3d 622, 625 (Alaska 2011).  



          12       Id.  at  626;  see  Frackman  v.  Enzor,  327  P.3d  878,  882  (Alaska  2014)  



(citations omitted) (holding that a parent moving for modification of a custody order  

bears the burden of proving a substantial change in circumstances).  



          13       McAlpine , 262 P.3d at 626 (quoting                 Bunn v. House         , 934 P.2d 753, 758 n.12  



(Alaska 1997)).  



          14        957 P.2d 326 (Alaska 1998).  



          15       Id. at 327-28.  



          16       Id. at 329.  



                                                             - 8 -                                                      6955
  


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

                             17  

domestic violence.                We noted that a finding of domestic violence in a modification   



proceeding  satisfies  only  the  movant's  "threshold  burden  of  establishing  changed  



circumstances";  the  movant  still  has  the  burden  of  proving  that  those  changed  



                                                                                                    18  

                                                                                                               

circumstances warrant modification of the existing custody order.                                       "In sharp contrast,"  



                                                                                                                  

we noted, "the exclusive focus of [a domestic violence proceeding under] AS 18.66.100  



                                   19  

is domestic violence."                 In the domestic violence proceeding, a finding of domestic  



                                

violence may result in a temporary change of custody, but the proceeding "is designed  



                                                                                          

to provide emergency relief from domestic violence on a short-term basis, presumably  

until  more  permanent  relief  can  be  sought  and  fashioned,"20  for  example  through  a  



motion to modify custody.  In McAlpine , these fundamental differences persuaded us that  



                                                     

a hearing on a domestic violence petition was not a good substitute for the hearing that  

due process requires on a motion to modify custody.21  



                                                                            

                     The differences were made explicit in this case.  At the hearing on the long- 



                                                                                                                         

term protective order, Jane's counsel repeatedly asserted that the hearing was not about  



                                                                                           

custody but only about protecting Jane's visitation rights; Graham's counsel countered  



                       

that the relief Jane requested was a de facto custody modification, which would keep  



                                                                                       

Gabby with Jane in Cordova.  But the parties agreed on the record to the essential relief  



                                                    

Jane was seeking:  that "[n]either party shall remove the child[] from Alaska" during the  



                                                                                                  

pendency of the order.  The parties also expressly agreed that this relief could be, and  



          17        Id. at 328-29 (citing AS 25.24.150(c)).  



          18        Id. at 329.  



          19        Id.  



          20        Id.  



          21        Id. at 329-30.  



                                                                - 9 -                                                         6955
  


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

                    

should  be,  ordered  without  a  finding  that  domestic  violence  had  occurred,  and  the  



                                                                                                        

magistrate judge therefore intentionally left blank the spaces on the form order that called  



                                                                                 

for  findings  about  past  domestic  violence  and  threats.    And  again  with  the  parties'  



express concurrence, the magistrate judge stated repeatedly that she was "not going to  



                                                                                                                          

address anything with child support, custody, or visitation":  "I am not changing the  



                                                                                            

custody order that is in effect by the superior court in this particular case.  That's not  



                                                                                                                              

what this hearing was about."  In short, the parties repeatedly and expressly declined to  



                                                               

litigate  issues  of  domestic  violence  or  custody  at  the  long-term  domestic  violence  



                                                                  

hearing, and there is no good argument that Jane, in her motion to modify custody, was  



attempting to relitigate issues that had already been decided.  



                                                                            

                      We acknowledged in McAlpine that collateral estoppel could apply in the  



                                                   

custody modification context, to prevent the relitigation of domestic violence allegations  



                                                                                                 22  

                                                                                                       Collateral  estoppel  bars  

that  had  already  been  "actually  raised  and  adjudicated." 



relitigation when issues of fact or law "were actually litigated and necessarily decided  

                                              



                                          23  

in  [a]  prior  proceeding."                    But  as  the  record  shows,  neither  domestic  violence  nor  

                                                        



custody  was  "actually  litigated  and  necessarily  decided"  in  the  protective  order  

                                                                                                            

proceeding, and collateral estoppel does not apply.24  

                                                                                        



           22         McAlpine v. Pacarro , 262 P.3d 622, 627 (Alaska 2011)  



           23         Campion v. State, Dep't of Cmty. & Reg'l Affairs, Hous. Assistance Div.                                                 ,  



876  P.2d  1096,  1098  (Alaska  1994)  (alteration  in  the  original)  (quoting Americana  

Fabrics v. L & L Textiles , 754 F.2d 1524, 1529 (9th Cir. 1985)) (internal quotation marks  

                                                                                                                      

omitted).  



           24         See Morris v. Horn, 219 P.3d 198, 201, 203, 209-10 (Alaska 2009) (holding  



that a stipulated protective order does not preclude later litigation of a parent's history  

of domestic violence).  



                                                                   -  10 -                                                             6955
  


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

          B.	       The Trial Court Did Not Err By Granting Jane's Motion To Modify  

                                                                                                              

                    Custody.  



                    The core of Graham's argument is that the superior court should not have  

                                                     



modified the 2006 order granting him Gabby's primary physical custody and sole legal  

                                                                                               



custody.  A court may modify a custody award if it determines that (1) "a change in  

                                                                               



circumstances requires the modification of the award" and (2) "the modification is in the  

                                       25  The superior court here found both requirements satisfied  

best interests of the child."                                                           



and modified Gabby's custody arrangement as requested by Jane; we see no error or  



abuse of discretion in its decision.  



                    1.	      Graham's interference with Jane's visitation rights constituted  

                                                                                                    

                             a change in circumstances.  



                    The   superior   court   found   a   change   in   circumstances   justifying   a  

                                                              



modification of custody because Graham committed custodial interference, a crime of  

                                                                                                                   

domestic violence.26  Under AS 11.41.330(a), a person commits second degree custodial  



interference  

                   



                   if, being a relative of a child under 18 years of age . . . and  

                         

                   knowing  that  the  person  has  no  legal  right  to  do  so,  the  

                                                           

                   person takes, entices, or keeps that child . . . from a lawful  

                                         

                   custodian with intent to hold the child . . . for a protracted  

                                           

                   period. [Emphasis added.]  



The 2006 custody order granted sole legal custody and primary physical custody to  



Graham.  Jane was not the custodial parent (although she had visitation rights), and the  

                                                                                     



"custodial interference" statute, by its terms,  does not apply.  



          25       AS 25.20.110(a).  



          26       Under AS 25.20.110(c), "a finding that a crime involving domestic violence  



has occurred since the last custody or visitation determination is a finding of change of  

                                                                                               

circumstances . . . ."  Jaymont v. Skillings-Donat , 216 P.3d 534, 543 (Alaska 2009)  

(citing AS 18.66.990(3)(A); AS 11.41.320-.330).  



                                                           -  11 -	                                                    6955
  


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

                    However, "[w]e may affirm a judgment on any grounds that the record  



                                                                                         27  

supports, even grounds not relied on by the superior court."                                 We have repeatedly held  



                                                                                    

that "actions by a custodial parent which substantially interfere with the noncustodial  



                                                                                                                       28  

                                                                                                                           Such  

parent's visitation rights are sufficient to constitute a change in circumstances." 



                                                            

interference can include "a detrimental and well-established pattern of behavior on the  



part of [the custodial parent] to 'erode the bonds of love and affection between the [other  



                                            29  

parent]  and  the  children.'  "                 It  can  also  include  a  custodial  parent's  attempt  to  



                                                                         

unilaterally impose conditions on a court order, or a parent's failure to comply with an  



                                                        30  

existing custody and visitation order.                      



          27        Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                ,  



168 P.3d 489, 493 (Alaska 2007) (quoting Van Sickle v. McGraw, 134 P.3d 338, 341  

n.10 (Alaska 2006)) (internal quotation marks omitted).  



          28        Kelly v. Joseph , 46 P.3d 1014, 1017 (Alaska 2002) (alterations omitted)  



(quoting  Hermosillo  v.  Hermosillo ,  797  P.2d  1206,  1209  (Alaska  1990))  (internal  

quotation marks omitted); see also  VinZant v. Elam, 977 P.2d 84, 87 (Alaska 1999)  

                                                                     

(concluding  that  a  custodial  parent's  interference  with  a  non-custodial  parent's  

"visitation        rights     is   sufficient       to    establish       the    threshold        burden        of   changed  

circumstances").  



          29  

                                                        

                    Kelly , 46 P.3d at 1017 (quoting Pinneo v. Pinneo , 835 P.2d 1233, 1238  

(Alaska 1992)).  



          30        Hermosillo ,  797  P.2d  at  1209.    In  Hermosillo ,  the  custodial  parent  



unilaterally imposed conditions on the custody order "which substantially interfere[d]  

with  the  noncustodial  parent's  visitation  rights."    Id.    Without  court  approval,  the  

                                                                 

custodian had required the visiting parent to provide three weeks' notice and created  

further  logistical  difficulties  involving  the  location  of  exchange  and  the  choice  of  

visitation supervisor.  Id. at 1208.  We concluded that this obstruction could constitute  

                

a change in circumstances and remanded for potential modification  of the visitation  

                                                                                                               

order.  Id. at 1209.  



                                                             -  12 -                                                       6955
  


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

                     The  custody  agreement  at  issue  in  Kelly  v.  Joseph  granted  the  father  



                                                                                                    31  

                                                                                                        The father inhibited  

primary physical custody and granted the mother visitation rights. 



                                          

phone contact between the children and their mother, denied one Christmas visit, and cut  



                                                               32  

                                                                                                                             

short another one without good reason.                              We agreed that the father's breach of the  



                                                     

visitation provisions satisfied the "changed circumstances" requirement for modifying  

custody.33  



                     In this case, Graham's interference with Jane's visitation rights was obvious  



                                                                                                         

and significant.  He took Gabby from Cordova to Anchorage, then from Anchorage to  



                                                                                                    

California, without informing Jane beforehand.  By so doing he caused Jane to miss six  



                                                                     34  

                                                                                                         

every-other-weekend  visitations  in  a  row.                              His  disregard  for  Jane's  rights  was  



                                            

compounded by his failure for over two months to inform her they had left Cordova,  



                                    

where they had gone, and when they could be expected to return, and by his failure to  



provide any contact information so that Jane could at least communicate with Gabby  



                                                                                                            

during their separation.  And even when Graham finally divulged the basic information  



                                                      

- via his attorney's letter, faxed to the Cordova Family Resource Center - he still  



           

failed  to  provide  any  means  of  contact  between  Jane  and  her  daughter.    Instead  he  



          31         46 P.3d at 1016.   



          32         Id. at 1017-18.  



          33         Id. at 1018-19.  



          34  

                                                                                          

                     Graham  appears  to  contend  that  he  had  a  right  to  retain  Gabby  in  his  

                                                                                                                     

custody so long as he compensated Jane with more visitation days later. But Graham had  

              

no right to unilaterally adjust the provisions of the order.  See  Hermosillo, 797 P.2d at  

                                                                                        

1209.  Any deviations from the order - whether or not they were made up for later -  

                                                                          

interfered  with  Jane's  visitation  rights  and   support  the  finding  of  a  change  in  

circumstances.  



                                                               -  13 -                                                        6955
  


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

informed Jane that he had enrolled Gabby in school in California and intended to remain             



there another three months.    



                                   

                     Graham  relies heavily on his critical medical condition as excusing his  



                                                                                                       

failure to inform Jane of Gabby's whereabouts. But he did manage to communicate with  



the Cordova Family Resource Center shortly before the next scheduled visitation, albeit  



                                                                                                

through his wife and cryptically.  Even after his release from the hospital in early April  



                                      

he continued to ignore Jane's visitation rights for two more weeks, and when he did  



                                                                              

communicate with her, through his attorney, he still failed to provide any means of  



                                                                                                            

contact between Gabby and Jane.  Another month went by before he called the Family  



Resource Center himself, only to demand that Jane pay Gabby's way back to Cordova  



if she wanted her visitation to resume.  



                     The superior court considered this evidence and found that Graham kept  



                                                          

Gabby away from Jane with an intent to continue doing so "for a protracted period."  The  



                                                   

court's  factual  finding  amply  supports  the  conclusion  that  Graham  substantially  



interfered with Jane's visitation rights.  This was a substantial change in circumstances  



justifying a modification of the existing custody arrangement.     



                                                                                                                                    

                     2.  	     The  superior  court  did  not  err  in  determining  that  it  was in  

                               Gabby's best interests to modify the custody order.  



                                                                                   

                     Once a court determines there has been a change in circumstances, it must  



                                                                                             

assess the factors of AS 25.24.150(c) to determine whether a custody modification is in  



                                                35  

the best interests of the child.                    The superior  court made findings on each relevant  



statutory  factor  and  on  balance  found  that  they  favored  an  award  of  sole  legal  and  

                                       



primary physical custody to Jane.  



           35         AS 25.20.110(g); Kelly, 46 P.3d at 1018.  



                                                               -  14 -	                                                           6955  


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

                    Graham challenges this award, reasoning that he had legal custody under  



                                          

the prior order; that it was therefore up to him to decide whether moving to California  



                                                                                 

was  in  Gabby's  best  interests;  and  that  his  stay  in  California  was  temporary,  and  a  



                                                                                                           

temporary  departure  from  the  visitation  schedule  cannot  amount  to  a  change  in  



                                                                                                                   

circumstances justifying a modification of custody. But as explained above, the superior  



                                  

court's  modification  order  was  clearly  supported  by  its  findings  about  Graham's  



interference with Jane's visitation rights.   



                                                                                   

                    Having found a change in circumstances, the superior court made a number  



                                                                                         

of other findings in support of its decision that modifying custody was in Gabby's best  



                                                                                          

interests. It found that there was love and affection between Gabby and both parents, "so  



                                                                                                                     

this factor does not change the balance of the other factors."   It found that while the  



                                                       

parents had been equally capable of caring for Gabby when the 2006 order was entered,  



                                                                                                

Graham's serious heart issues now jeopardized his capability; this factor favored Jane.  



It found that Jane was better positioned to provide Gabby a stable home in Cordova  



given Graham's frequent travel for medical appointments.  It found that Jane now had  



the "better ability and willingness to care for the emotional, religious and social needs  



                                                                                                                 

of [Gabby]" given Graham's medical limitations and the "little evidence" presented by  



Graham that he "has any willingness or ability to meet these needs."  



                    The  court  also  found  that  Jane  "appears  willing  to  facilitate  [Gabby's]  



                                                                        

relationship with [Graham] to some extent but by contrast [Graham] seems less willing  



to facilitate [Gabby's] relationship to [Jane]."  The court took into account Graham's  



                                        

travel to California with Gabby, which, as discussed above, amounted to substantial  



                                                                                                                  

interference with Jane's visitation rights and was appropriately considered, even though  



                                                        

not amounting to domestic violence.  Finally, it found no relevant evidence of substance  



abuse in either household.  



                                                              -  15 -                                                      6955
  


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

                   The superior court's factual findings are not clearly erroneous, and we see  



               

no abuse of discretion in its weighing of the best interest factors.  "We will not reweigh  

                                                                                                                     36  We  

the evidence when the record provides clear support for the trial court's ruling." 



affirm the superior court's conclusion that it was in Gabby's best interests to award sole  

                             



legal and primary physical custody to Jane.  



          C.	      Any Error In The Admission Of The Child's Hearsay Statements Was  

                                                                                                                        

                   Harmless.  



                   Graham challenges the court's consideration of testimony given by Jane  



and the executive director of the Cordova Family Resource Center, relaying statements  



Gabby allegedly made to them about her preference to be with Jane.  Graham argues that  



                                                                                                                            37  

                                                                                                  

Gabby's statements are hearsay and do not fall within any exception to the hearsay rule. 



But  we  need  not  decide  whether  the  evidence  was  properly  admitted,  because  the  



superior court expressly declined to rely on it in deciding Jane's motion.   



                                                                                                            

                   At the close of the evidentiary hearing, Graham's counsel reiterated an  



                                                                               

objection to any consideration of Gabby's preference "on the basis of the child's age";  



the judge responded that he had looked at relevant case law, concluded that he had "some  



                                                                           

leeway" given that Gabby was about ten years old, but that "frankly, that's certainly not  



                        

going to be the factor the court's going to make a decision on."  In its written findings  



                                                                                                          

and  conclusions,  the  court  declined  to  consider  the  evidence  at  all:                            "[Gabby]  has  



apparently a preference for [Jane], but this court does not consider the evidence it has on  



          36       Kelly , 46 P.3d at 1019.  



          37       See Alaska R. Evid. 801.  



                                                           -  16 -	                                                       6955  


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

                                                                        

[Gabby's] preferences nor her capacity to make any decision on this factor adequate to  



                                             38  

give weight to this factor."                     



                                                                                 

                      Graham  contends  on  appeal  that  the  superior  court  "had  to  have  been  



                                                                            

influenced  by  the  heart-warming  testimony  of  how  the  child  wants  to  live  with  her  



                                         

mommy," but we credit the superior court's express statement about its consideration of  



this issue.  Because the child's preference was given no weight in the superior court's  

analysis, we need not decide whether it was error to admit the evidence.39  



           D.	        Any Error In The Admission of Evidence Of Graham's Old Criminal  

                                                                                                                          

                      Convictions Was Harmless.  



                      Graham argues that the superior court erred by admitting evidence that he  

                                                                                       



was criminally convicted in 1996 and 1997 for concealment of merchandise.  Graham  

                                                                                                            



objected at the hearing on the basis of Alaska Evidence Rule 609(a), contending that the  

                                                           



convictions were more than five years old and also irrelevant.  The court admitted the  



                                                                             

evidence preliminarily, citing the Rule 609(b) exception which grants a judge discretion  



                                                                    

to "allow evidence of the conviction . . . after more than five years have elapsed if the  



                                     

court is satisfied that admission in evidence is necessary for a fair determination of the  



case."  



                      As Graham acknowledges, the superior court had already been informed  



                                                                                                                        

of  the  convictions  in  the  custody  investigator's  report.                                         And  the  evidence  was  



                                                                                                 

cumulative, given the evidence of similar and more recent charges that Graham does not  



challenge on appeal.  The superior court did not mention the convictions or the more  



           38         Under AS 25.24.150(c)(3), the court was required to consider "the child's         



preference if the child is of sufficient age and capacity to form a preference."  



           39         See Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007) ("[E]ven where  



the trial court errs  in  admitting evidence, we will reverse only if that error was not  

                                      

harmless." (citing Alderman v. Iditarod Props., Inc. , 104 P.3d 136, 142 (Alaska 2004))).  

                                                                                                       



                                                                    -  17 -	                                                            6955
  


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

recent criminal charges in its written findings and conclusions, and there is no indication  



that they influenced the court's decision.  With no reason to believe that Graham was   



unfairly  prejudiced  by  admission  of  the  evidence  of  his  criminal  convictions,  we  



conclude that any error in its admission was harmless.       



V.      CONCLUSION  



                 We AFFIRM the order of the superior court modifying custody.  



                                                  -  18 -                                            6955
  

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