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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Collier v. Harris (8/12/2016) sp-7117

Collier v. Harris (8/12/2016) sp-7117

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

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



BRANWEN  COLLIER,                                            )  

                                                             )         Supreme  Court  No.  S-15748  

                              Appellant,                     )  

                                                                                                                               

                                                             )         Superior Court No. 3AN-06-12452 CI  

          v.                                                 )  

                                                                                           

                                                             )         O P I N I O N  

                                                             )  

WILLIAM A. HARRIS,  

                                                                                                            

                                                             )         No. 7117 - August 12, 2016  

                              Appellee.                      )  

                                                             )  



                                                                                                        

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

                                                                                             

                    Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                         

                    Appearances: Jacob A. Sonneborn, Ashburn & Mason, P.C.,  

                                                                                                      

                    Anchorage, for Appellant.  David W. Baranow, Law Offices  

                                                                            

                    of David Baranow, Anchorage, for Appellee.  



                                                                                                           

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

                                  

                    Bolger, Justices.  



                                         

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                                      

                    A mother and father sharejoint legal and physical custody of their daughter.  



                                                                                                                      

The mother moved for sole legal and primary physical custody, alleging that a sustained  



                                                                                                                                

lack of cooperation between the parents and other changes in their lives justified  the  



                                                                                                                  

modification of custody she requested.  She moved in the alternative for a modification  



                                                                                                                                  

of the custody schedule.  The superior court found there was no substantial change in  



                                                                                                                               

circumstances justifying  a modification of custody and awarded partial attorney's fees  


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

to the father. We affirm these decisions, but we remand for the superior court to consider                                                                  



whether the mother's proposed modification of the custody schedule would be in the                                                                                    



daughter's best interests.      



II.          FACTS AND PROCEEDINGS          



                                                                                                                                              1  

                           Branwen Collier and Will Harris have a daughter, Zada,                                                                                

                                                                                                                                                born in 2004.  



                                                                                                  2  

                                                                                                                                                                  

Branwen and Will's relationship ended in 2006.                                                         In July 2007 they agreed to share  



                                                                                                                                                       

Zada's physical custody:  During the school year Will, who did not work weekends,  



                                                                                                                                                                     

would have custody three weekends per month, and Branwen, who was a student and  



                                                                                                                                                3  

                                                                                                                                                                      

had flexibility  during  the  week, would have custody most weekdays.                                                                                 During  the  



                                                                                                                                                                  

summer months they would share custody week on, week off.   The superior court  



                                                                                                                      4  

                                                                                                                                                             

                                                                                                                        then held a trial in October  

incorporated these agreed terms into a partial custody order, 



                                                                                                                                                                    

2008 to decide legal custody, concluding that joint legal custody was in Zada's best  



                  5  

interests.   



                           Less than four months later Branwen moved to modify custody, seeking  

                                                                                                                                                             

sole legal and primary physical custody of Zada.6  

                                                                                                                                                                    

                                                                                                   She alleged that communication with  



                                                                                                                                                                    

Will was no longer effective and that her graduation from school and assumption of full- 



                                                                                                                                                                      

time employment prevented her from having meaningful time with Zada under the  



             1             We  used  this  pseudonym  in  the  first  appeal  of  this  case.   Collier  v.  Harris,  



261  P.3d  397,  400  (Alaska  2011).  



             2            Id .  



             3            Id.  



             4            Id.  at  400-01.  



             5            Id.  at  401.  



             6            Id.  



                                                                                  - 2 -                                                                           7117
  

                                                                                         


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

                                                              7  

existing shared-custody schedule.                                 The superior court denied the motion without a                                          



hearing, explaining on reconsideration                               thatBranwen's voluntarychangesto                                her schedule   

                                                                                                  8  Branwen appealed to this court  

did not amount to a substantial change in circumstances.                                                                                           



and we affirmed on a different rationale.  Although we held it was error for the superior  

                                                                                                                                             



court to conclude "that a voluntary change in employment cannot be the basis of finding  

                                                                                                                                               



a substantial change in circumstances," we agreed that Branwen was not entitled to a  

                                                                                                                                                          



hearing onhermodification motion becausethechanged circumstances shealleged could  

                                                                                                                                                   



not justify granting her sole legal and primary physical custody, the only relief she  

                                                                                                                                                      

requested.9  

                      



                        In May 2013 Branwen filed the motion to modify custody at issue here,  

                                                                                                                                                   



again seeking sole legal and primary physical custody.  She asked in the alternative that  

                                                                                                                                                      



the  superior  court  modify  the  custody  schedule  to  reflect  both  parents'  changed  

                                                                                                                                            



schedules.   In support of her motion Branwen alleged that she had gotten married,  

                                                                                                                                             



graduated from college, started a new job with conventional working hours, enrolled in  

                                                                                                                                                         



a graduate program, and moved into a new home.   She alleged that Will had been  

                                                                                                                                                   



seriously injured and quit work, enrolled in college, changed residences, and also got  

                                                                                                                                                      



married. Branwen asserted that all these changes to the parties' living arrangements, her  

                                                                                                                                                       



limited ability to spend time with Zada during her scheduled custody time, and the  

                                                                                                                                                      



parties' continued inability to communicate with each other constituted a substantial  

                                                                                                                                        



change in circumstances that justified a modification of custody.  

                                                                                                                      



                        In June 2013 Branwen alleged an additional change - that Zada had been  

                                                                                                                                                    



sexually abused. Returning from her custody time with Will, Zada reported to Branwen  

                                                                                                                                            



            7           Id.  



            8           Id.  at  401-02.  



            9           Id.  at  407-409.  



                                                                             3 -                                                                   7117
  

                                                                          -     


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that a friend's father touched her inappropriately while she was on a camping trip with                                                                                                                                                     



them.  According to Branwen, the police determined that Will had met the father only   



once, the evening before the trip, and knew little about him.                                                                                                                 



                                      While Branwen's motion to modify custody was pending she asked the                                                                                                                    



court to appoint a custody investigator because, she alleged, the "parties have little                                                                                                                                                     



history of effective communication, and it will be impossible for either party to gather   



the   necessary   information   about   the   other  without   the   assistance   of   a   neutral  



investigator."   The superior court denied the request, finding that an investigator would                                                                                                                                             



not be helpful and would be unnecessarily intrusive.                                                                                                           Branwen renewed her request                                         



based on an affidavit Will's wife Leah had filed in a divorce action and a letter from                                                                                                                                                    

                                                                                                                                                                    10      The court again denied the  

Zada's counselor recommending a custody investigation.                                                                                                                                                                                          



request.  



                                       The superior court held a three-day evidentiary hearing on Branwen's  

                                                                                                                                                                                                                         



modification motion. The court heard testimony from Will, Branwen, Leah, Zada's Girl  

                                                                                                                                                                                                                                              



Scout leader, and the father of one of Zada's friends.  The evidence largely concerned  

                                                                                                                                                                                                                           



the parents' communication, their living situations, and the incident of sexual abuse.  

                                                                                                                                                                                                                                                     



                                       The superior court issued a written ruling on September 23, 2014, denying  

                                                                                                                                                                                                                                  



Branwen's motion to modify legal and physical custody.  The court held that there was  

                                                                                                                                                                                                                                              



"insufficient evidence to demonstrate that a substantial change in circumstances ha[d]  

                                                                                                                                                                                                                                         



occurred that would justify modifying custody" and that "[e]ven if there ha[d] been a  

                                                                                                                                                                                                                                     



substantial change, it [wa]s in the best interests of Zada to have equal access to both her  

                                                                                                                                                                                                                                                



parents."   The court also denied Branwen's request to change the physical custody  

                                                                                                                                                                                                                                 



schedule to a 5-5-2-2 system (five days with each parent followed by two days with each  

                                                                                                                                                                                                                                            



                   10                 Leah filed a petition to divorce Will in September 2013. She                                                                                                             later withdrew  



the petition, offered her support to Will in a letter, and gave testimony at the hearing that                                                                                                                                                 

favored his position.             



                                                                                                                       - 4 -                                                                                                               7117
  


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

parent), though the court found that some change was warranted. It granted leave for the                                                                                                                                                                                             



parties to request a hearing "on a workable schedule that benefits Zada and is compatible                                                                                                                                                                  



with the parties' schedules."                                                                    



                                             Branwen filed this appeal.                                                                  She argues that the superior court erred by                                                                                                  



 (1)  finding no substantial change in circumstances; (2) "failing to conduct a meaningful                                                                                                                                                             



best interest analysis"; (3) declining to modify the custody schedule to better suit the                                                                                                                                                                                            



                                                                                                                                                                                                           11  

parents' needs; and (4) awarding Will partial attorney's fees.                                                                                                                                                   



 III.                  STANDARDS OF REVIEW                                               



                                             "Wereviewatrialcourt's childcustody modificationdecisiondeferentially,                                                                                                                                  



                                                                                                                                                                                                                                                                                      

reversing the decision only when the lower court abused its discretion or when its  



                                                                                                                                                                        12  

                                                                                                                                                                                                                                                           

                                                                                                                                                                               "Abuseofdiscretion is established  

 controlling findingsoffact wereclearly erroneous." 



                                                                                                                                                                                                                                                                            

 if the trial court considered improper factors in making its custody determination, failed  



                                                                                                                                                                                                                                                                

to consider statutorily mandated factors,or assigneddisproportionateweighttoparticular  

                                                                                                                13              The  court's  broad  discretion  extends  to  its  

                                                                                                                                                                                                                                                                                    

 factors  while  ignoring  others." 



 determination whether, following an evidentiary hearing, the moving party has proven  

                                                                                                                                                                                                                                                                        



                       11                    Branwen also argues that the superior court erred by refusing to appoint a                                                                                                                                                                     



 custody   investigator   and   in   several   of   its   evidentiary   rulings.     We   address   these  

 arguments briefly. "Trial courts are granted wide discretion in deciding when to initiate                                                                                                                                                                              

 custody investigations."                                                         D.D. v. L.A.H.                                 , 27 P.3d 757, 761 (Alaska 2001) (citing                                                                                          Pearson  

 v.  Pearson, 5 P.3d 239, 242 (Alaska 2000)).                                                                                                        Evidentiary rulings are also reviewed for                                                                                       

 abuse of discretion.                                             Noffke v. Perez                                     , 178 P.3d 1141, 1144 (Alaska 2008) (citing                                                                                                     Bierria  

 v.  Dickinson Mfg. Co.                                                 , 36 P.3d 654, 657 (Alaska 2001)). We have considered Branwen's                                                                                                                     

 arguments on these issues but conclude that the superior court did not abuse its discretion                                                                                                                                                                   

 in making the challenged rulings.                                                    



                       12                   McLane v. Paul, 189 P.3d 1039, 1042 (Alaska 2008) (citing Barrett v.  

                                                                                                                                                                                                                                                                                        

Alguire , 35 P.3d 1, 5 (Alaska 2001)).  

                                                                                                   



                       13                    Chesser-Witmer v. Chesser, 117 P.3d 711, 715 (Alaska 2005) (quoting  

                                                                                                                                                                                                                                                                  

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

                                                                                                                                                                            



                                                                                                                                         - 5 -                                                                                                                                 7117
  

                                                                                                                                                 


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                                                                                                                                                                                                      14  

a substantial change in circumstances, meaning one that affects the child's welfare.                                                                                                                          



                                                                                                                                                                                                    

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



                                                                                                                                                                              15  

                                                                                                                                                                            

definite and firm conviction that the superior court has made a mistake.' " 



                                                                                                                                                                                                  

                                "An award of attorney's fees under AS 25.20.115 is subject to reversal only  



                                                                                                                                                                                            

for abuse of discretion or if the court's factual findings supporting the award are clearly  



                                                                                                                                                                                                

erroneous.  We use our independent judgment to determine whether the superior court  



                                                                                                       16  

                                                                                                             

applied the law correctly in awarding fees." 



IV.	            DISCUSSION  



                A.	             The Superior Court Did Not Abuse Its Discretion When It Denied                                                                                     

                               Branwen's Motion to Modify Custody.                                         



                                "AlaskaStatute25.20.110(a) provides                                                      that'[a]n award ofcustody                                     ofachild     



or visitation with the child may be modified if the court determines that a change in  

                                                                                                                                                                                                       



circumstances requires the modification of the award and the modification is in the best  

                                                                                                                                                                                                   

                                                        17    The concepts of legal and physical custody deserve separate  

interests of the child.' "                                                                                                                                                              

analysis.18   In the "two-step process" for modification, "the parent seeking modification  

                                                                                                                                                                              



must establish a significant change in circumstances affecting the child's best interests;  

                                                                                                                                                                                       



                14             Heather W. v. Rudy R.                                 , 274 P.3d 478, 482 (Alaska 2012).                                                   This abuse of   



discretion standard must be differentiated from the de novo standard we use to review                                            

a superior court's decision to deny a hearing on a motion to modify custody; then, "we                                                                                                             

review the record and arguments de novo to determine whether the party alleged facts                                               

which, if true, demonstrate a substantial change in circumstances."                                                                                          Collier, 261 P.3d at                       

405.  



                15	             William P. v. Taunya P., 258 P.3d 812, 814 (Alaska 2011) (quoting D.M.  

                                                                                                                                                                                                

v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207-08 (Alaska 2000)).  

                                                                                                                                                                       



                16              Collier, 261 P.3d at 402-03 (internal citations omitted).  

                                                                                                                                             



                17             Hunter v. Conwell, 219 P.3d 191, 196 (Alaska 2009) (alteration in original).  

                                                                                                                                                                                       



                18              Collier, 261 P.3d at 403.  

                                                                                           



                                                                                                 - 6 -	                                                                                         7117
  

                                                                                                        


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

 only if the parent makes this showing does the court proceed to determine whether                                                                                               

modification is in the best interests of the child."                                                           19  The best interests analysis is based  



                                                                                                                                    20  

                                                                                                                                          

                                                                                                   

 on "the statutory factors enumerated in AS 25.24.150(c)." 



                               1.	            The superior court did not abuse its discretion by concluding  

                                                                                                                                                                         

                                              there  was  no  substantial  change  in  circumstances  to  justify  

                                                                                                                                                                                    

                                              modifying legal custody.  

                                                                                     



                               Branwen contends that she and Will have demonstrated a "continued lack  

                                                                                                                                                                                           



 of  cooperation"  that  constitutes  "a  change  in  circumstances  sufficient  to  justify  a  

                                                                                                                                                                               



modification of [legal] custody under AS 25.20.110" and that the superior court erred in  

                                                                                                                                                                                                



 failing to recognize this. We have repeatedly observed that "[s]ustained noncooperation  

                                                                                                                                                                 



between the spouses is grounds for denying joint custody, because lack of cooperation  

                                                                                                                                                                         

hinders good communication in the best interests of the child."21  By denying Branwen's  

                                                                                                                                                                            



                19            Hunter, 219 P.3d at 196 (quoting                                                Ebertz v. Ebertz                       , 113 P.3d 643, 647                   



 (Alaska   2005)).     A   threshold   showing   of   a   significant   change   in   circumstances   is  

necessary "to maintain continuity of care and to avoid disturbing and upsetting the child                                                                                                

with repeated custody changes."                                            McLane v. Paul                       , 189 P.3d 1039, 1043 (Alaska 2008);                                 

see also Heather W. v. Rudy R.                                        , 274 P.3d 478, 482 (Alaska 2012) ("We have expressed                                                   

 concern that '[c]hildren . . .                                 not be shuttled back and forth between . . . parents unless                                   

there are important circumstances justifying such change as in their best interests and                                                                                                     

welfare.' " (alterations in original) (quoting                                                           Nichols v.                Nichols, 516 P.2d 732, 735                              

 (Alaska 1973))).                        



                20	           Heather W., 274 P.3d at 482-83.  

                                                                                       



                21             T.M.C. v. S.A.C., 858 P.2d 315, 319 (Alaska 1993); see also Houston v.  

                                                                                                                                                                                                

 Wolpert, 332 P.3d 1279, 1285 (Alaska 2014) ("Joint legal custody may be denied if the  

                                                                                                                                                                                             

parties cannot communicate effectively." (citing  Co v. Matson, 313 P.3d 521, 524-26  

                                                                                                                                                                                    

 (Alaska  2013)));  Collier,  261  P.3d  at  405  ("We  have  observed  that  'sustained  

                                                                                                                                                                           

noncooperation by one parent may constitute sufficiently changed circumstances to  

                                                                                                                                                                                               

justify terminating joint legal custody' . . . ." (quoting Peterson v. Swarthout, 214 P.3d  

                                                                                                                                                                                          

 332, 341 (Alaska 2009))); Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991) ("[J]oint  

                                                                                                                                                                                 

 legal custody is only appropriate when the parents can cooperate and communicate in the  

                                                                                                                                                                                              

                                                                                                                                                                      (continued...)  



                                                                                              - 7 -	                                                                                     7117
  

                                                                                                    


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

request for sole legal custody, the superior court implicitly decided that the parties' level                                                                                                                                                                                                                                                                                                                                                                                                                                                    



of cooperation had not deteriorated to the degree that the existing shared legal custody                                                                                                                                                                                                                                                                                                                                                                                                                                    



 should be changed.                                                                                                               



                                                                                       In support of her argument that this was error, Branwen asserts that Will                                                                                                                                                                                                                                                                                                                                                                                  



communicated with her only by email or text; ignored her communications for days on                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



 end; responded at times with aggression and insults; failed to keep her informed of                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



Zada's activities and important news such as the fact that Will was no longer working;                                                                                                                                                                                                                                                                                                                                                                                                                              



 and neglected to provide Branwen's contact information to Leah.                                                                                                                                                                                                                                                                                                                                                                                 Branwen points to   



 similar complaints by Leah to support her charge that the noncooperation is largely                                                                                                                                                                                                                                                                                                                                                                                                                                            



Will's fault.                                                                   



                                                                                       Will counters that the superior court properly relied on the record to find                                                                   



that the parties communicated "in sufficient detail and quality, though challenged in                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



doing so at times, to maintain their joint authority over Zada."                                                                                                                                                                                                                                                                                                                                                                 He contends that the                                                                                                     



 evidence did not support Branwen's claim that he was "passive-aggressive," that Leah's                                                                                                                                                                                                                                                                                                                                                                                                                                             



 supportive testimony at the hearing repudiated much of what she had alleged against him                                                                                                                                                                                                                                                                                                                                                                                                                                                               



in the divorce, and that the evidence showed Branwen's own failures in cooperating with                                                                                                                                                                                                                                                                                                                                                                                                                                                             



him.  



                                                                                       It is evident that the superior court considered the parties' positions about                                                                                                                                                                                                                                                                                                                                                                       



the alleged noncooperation and rejected Branwen's claim that it had deteriorated to such                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 an extent as to preclude shared legal custody.                                                                                                                                                                                                                                                                          Branwen's counsel questioned                                                                                                                                                                                                Will  



 extensively about his communications with Branwen, focusing on their emails and texts.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



Will characterized the parties' history as "a working communication," and many of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 emails in the record support this characterization.                                                                                                                                                                                                                                                                                        The superior court was in the best                                                                                                                                                                      



                                           21(...continued)  



                                                                            

child's best interest.").  



                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                            - 8 -                                                                                                                                                                                                                                                                 7117  


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

                                                                                                                                                                    22  

 position to determine whether it was accurate.                                                                                                                             Indeed, the questioning in this area                                                                           



 ended when the superior court had heard enough, observing that it was "ready to move                                                                                                                                                                                                  



 on."   The court continued:                                                                  "I understand [Will has] not been the most cooperative on                                                                                                                                          



 emails and hasn't responded as timely.                                                                                                     Frankly, that happens a lot when people get                                                                                                       



 divorced. I mean, it would be nice if everybody would cooperate timely, but it happens."                                                                                                                                                                                                                    



 We understand the court's point to be that the parties' ability to communicate, though                                                                                                                                                                                          



 not ideal, was not unusual in the circumstances and was adequate to support continued                                                                                                                                                                                  



joint decision-making.   



                                               The evidence was sufficient to support this conclusion. The superior court                                                                                                                                                               



 did not abuse its discretion when it rejected Branwen's claim that there had been a                                                                                                                                                                                                                 

 substantial change in circumstances warranting a change in legal custody.                                                                                                                                                                                     23  



                        22                     See Williams v. Barbee                                                            , 243 P.3d 995, 1000 (Alaska 2010) ("[I]t is the                                                                                                              



 function of the trial court, not of this court, to judge witness' credibility and to weigh                                                                                                                                                                                         

 conflicting evidence." (quoting                                                                              Michele M. v. Richard R.                                                                  , 177 P.3d 830, 834 (Alaska                                           

 2008))).  



                        23                     Branwen argues that the superior court "impermissibly consolidated its  

                                                                                                                                                                                                                                                                                                 

 physical and legal custody analyses" and in doing so failed to recognize that her claim  

                                                                                                                                                                                                                                                                                       

 to legal custody rested on the parties' failure to communicate rather than the other  

                                                                                                                                                                                                                                                                                       

 changed circumstances that the court addressed explicitly in its written order.  But the  

                                                                                                                                                                                                                                                                                               

 order explicitly recognized that Branwen sought modification of both legal and physical  

                                                                                                                                                                                                                                                                             

 custody, noting that the two types of custody had previously been decided on different  

                                                                                                                                                                                                                                                                            

 dates, and ultimately denied "Branwen's motion to modify custody seeking sole legal  

                                                                                                                                                                                                                                                                                         

 and primary physical custody."  We find it implicit in the superior court's order, and  

                                                                                                                                                                                                                                                                                             

 apparent from its on-record comments, that it rejected Branwen's only argument for a  

                                                                                                                                                                                                                                                                                                      

 modification of legal custody - the alleged sustained lack of cooperation - before  

                                                                                                                                                                                                                                                                                   

 going on to consider physical custody in greater detail.  

                                                                                                                                                                        



                                                                                                                                               - 9 -                                                                                                                                     7117
  

                                                                                                                                                      


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

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

                                                                                    there   was   no   substantial   change   in   circumstances   to   justify  

                                                                                    modifying physical custody.                                                            



                                                        Branwenalso                                              challenges thesuperiorcourt'sdenialofhermotionto modify                                                                                                                                                                    



the 50-50 physical custody arrangement and award primary physical custody of Zada to                                                                                                                                                                                                                                                                              



her. She alleges that the court "improperly relied on an arbitrary set of isolated changes,                                                                                                                                                                                                                                          



rather than aggregate change, in its determination that Branwen had not established a                                                                                                                                                                                                                                                                               



 substantial change."                                                                     Branwen contends that the superior court failed to assess                                                                                                                                                                                                          the  



aggregate impact of the many changes in the lives of Branwen, Will, and Zada, while                                                                                                                                                                                                                                                              



mistakenly narrowing its focus to gauge the separate impact of only three changes, listed                                                                                                                                                                                                                                                          



in   the   introductory   section   of   the   court's   written   order:     "(1)   the   parties'   financial  



positions have changed[ in that] Branwen got a new job and house while Will lost his job                                                                                                                                                                                                                                                                    



due to disability and returned to school; (2) Will left Zada unattended in his car while at                                                                                                                                                                                                                                                                       



work; and (3) Zada suffered sexual abuse as a result of Will's neglect."                                                                                                                                                                                                                                     Branwen also  



argues that the superior court's factual findings as to two of these three changes are                                                                                                                                                                                                                                                                      



clearly erroneous.                                                           



                                                        "A   change   in   circumstances   is   unlikely   to   be   substantial   enough   to  



 'overcome our deep reluctance to shuttle children back and forth between parents' unless                                                                                                                                                                                                                                                       



the change affects the children's welfare and 'reflect[s] more than mere passage of                                                                                                                                                                                                                                                                            

                                24         The analysis is heavily fact-intensive (though certain changes, like an out-of- 

time.' "                                                                                                                                                                                                                                                                                                                                    

 state move, are substantial as a matter of law).25  If a number of circumstances are alleged  

                                                                                                                                                                                                                                                                                                                                            



                            24                         Hope   P.   v.   Flynn  G.,   355   P.3d   559,   565   (Alaska   2015)   (alteration   in  



original) (quoting                                                         C.R.B. v. C.C.                                                , 959 P.2d 375, 381 (Alaska 1998)).                                                                                   



                            25                         Rego v. Rego, 259 P.3d 447, 452 (Alaska2011)(holding thataparent's out- 

                                                                                                                                                                                                                                                                                                                                                         

of-state move constituted a substantial change in circumstances as a matter of law).  

                                                                                                                                                                                                                                                                                                                                      



                                                                                                                                                                          - 10 -	                                                                                                                                                                    7117
  

                                                                                                                                                                                            


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

to have changed, the superior court is required to consider them in the aggregate to                                                                                                



                                                                                                                       26  

determine whether they amount to a substantial change.                                                                       



                            Here, the superior court's written order specifically addressed both parties'  

                                                                                                                                                                         



living arrangements, their respective employment, financial, and marital statuses, the  

                                                                                                                                                                                  



instance in which Will left Zada unattended in the car, and Zada's report of sexual abuse.  

                                                                                                                                                                                          



The  superior  court  specifically  found  that  the  changes  in  residence,  employment,  

                                                                                                                                   



finances, and marital status had not been shown to negatively impact Will's ability to  

                                                                                                                                                                                    



care for Zada and that the instances of alleged neglect were one-time events and not  

                                                                                                                                                                                 



likely to recur.  The court concluded:  "Considering all of the above in the aggregate,  

                                                                                                                                                                 



there is insufficient information to conclude that there has been a 'substantial change in  

                                                                                                                                                                                     



circumstances.' "  Branwen's argument does not persuade us that the superior court did  

                                                                                                                                                                                  

not do what it said it did - consider the changes in the aggregate, as the law requires.27  

                                                                                                                                                                   



                            Branwen argues that the superior court erroneously failed to consider the  

                                                                                                                                                                                  



improvements in her life, focusing solely on the changes in Will's. But when reviewing  

                                                                                                                                                                   



the court's order "we do not parse each alleged factual assertion of change, but instead  

                                                                                                                                                                         



[we] look  to  see whether  the circumstances in  the aggregate establish  a change of  

                                                                                                                                                                                   



              26            See Long v. Long                     , 816 P.2d 145, 152 (Alaska 1991) ("[W]e have reviewed                                              



multiplechanged circumstances                                      to determinewhether,                           in theaggregate,thechanges were                              

sufficient   to   justify   a   reevaluation   of   a   custody   decree."   (citing   Barrett   v.   Alguire,  

35 P.3d 1, 6 (Alaska 2001))).                 



              27            Branwen faults the superior court for failing "to establish any beginning  

                                                                                                                                                                   

point for the change in circumstances analysis" and failing to "establish the baseline facts  

                                                                                                                                                                               

for its comparison." We reject this argument. The superior court's order correctly stated  

                                                                                                                                                                            

that "[w]hether there is a change in circumstances is measured 'relative to the facts and  

                                                                                                                                                                                 

circumstances that existed at the time of the prior custody order that the party seeks to  

                                                                                                                                                   

modify' " and identified the dates of the prior orders from which it had to measure  

                                                                                                                                   

changes relevant to physical custody (2007) and legal custody (2008).  

                                                                                                                                                        



                                                                                      - 11 -                                                                                 7117
  

                                                                                                 


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

                                     28  

circumstances."                           The superior court heard evidence of all Branwen's asserted changes                                                                         



at the hearing; its written order addressed only those it considered important to its                                                                                                              



                                                                                                                          29  

decision.   It was under no duty to address every one.                                                                          



                                                                                                                                                                                             

                               Branwen also argues that "the court's factual findings on two of the three  



                                                                                                                                                                                      

changes it did consider were clearly erroneous."  She first takes issue with the superior  



                                                                                                                                                                                                  

court's finding that although Will left his job, "his wife still works and provides for the  



                                                                                                                                                                                                  

family," and that Will's loss of employment therefore had no significant impact on his  



                                                                                                                                                                                                 

ability to provide for Zada.  According to Branwen, the evidence showed that Will and  



                                                                                                                                                                                                 

Leah did not act as "a unified marital unit for financial and parenting purposes" and that  



                                                                                                                                                                                                  

Leah had not "accepted financial responsibility for [Zada]."  But Leah testified that the  



                                                                                                                                                                                              

couple maintained both separate and joint finances and that Will's attorney's fees were  



                                                                                                                                                                                                           

concerning to her because the money to pay them came out of "the household money."  



                                                                                                                                                                                                 

And Branwen points to no evidence that Will and Leah's changed financial situation had  



                                                                                                                                                                                         

a negative impact on Zada.  Giving " 'particular deference' to the trial court's factual  



                28             Heather W. v. Rudy R.                               , 274 P.3d 478, 482 (Alaska 2012).                                 



                29             Cf. Park v. Park                        , 986 P.2d 205, 207 (Alaska 1999) ("The court [when                                                                



                                                                                                                                                                                            

considering the best interest factors of AS 25.24.150(c)] needs only to discuss those  

factors that it considers actually relevant in light of the evidence presented in the case                                                                                                     

                                                                                                                                                                                                     

before it; express mention of each factor is not required, but the court's findings must at  

                                                                                                                                                                                                     

a minimum 'give us a clear indication of the factors which [it] considered important in  

exercising its discretion or allow us to glean from the record what considerations were                                                                                                       

                                                                                                                                                                                   

involved."   (second   alteration   in   original)   (internal   citations   omitted)   (quoting  

                                                                                                                                                  

Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 n.2 (Alaska 1997))).  



                                                                                                         

                                                                                              - 12 -                                                                                         7117
  


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

                                                                                                                                                                                                                                                                                        30  

 findings when they are based primarily on oral testimony,"                                                                                                                                                                                                                                      we see no clear error in the                                                                                       



 superior court's finding that Leah "still works and provides for the family."                                                                                                                                                                                                                                                       



                                                                  Second, Branwen contends that the superior court clearly erred in finding                                                                                                                                                                                                                                                    



that Zada's risk of exposure to sexual abuse was the same in her house as at Will's; the                                                                                                                                                                                                                                                                                                                           



trial court observed that "[t]estimony at trial showed both Branwen and Will previously                                                                                                                                                                                                                                                                                       



 allowed Zada around her abuser and trusted him up until Zada informed them of her                                                                                                                                                                                                                                                                                                                                



 abuse." Branwen points to her uncontradicted testimony "that she had never met [Zada's                                                                                                                                                                                                                                                                                                       



 abuser] and that [Zada] had never spent time with his daughter outside of school."                                                                                                                                                                                                                                                                                                                         The  



 superior court does appear to have erred in finding that Branwen knew Zada's abuser,   



but the evidence nevertheless supports its conclusion that Will's decision to allow Zada                                                                                                                                                                                                                                                                                                                 



to go camping with her friend did not warrant a modification of physical custody.                                                                                                                                                                                                                                                                                                                           The  



 court found that Will had no reason to believe that the "acquaintance was a threat to their                                                                                                                                                                                                                                                                                                                



 child prior to the incident" and that "in the aftermath of such trauma, it is important that                                                                                                                                                                                                                                                                                                                   



both parents be there for Zada."                                                                                                                             We see no clear error in these findings.                                                                                                                                                            



                                                                 The evidence supports the superior court's conclusion that the various                                                                                                                                                                                                                                                      

 changes Branwenalleged werenotsubstantial                                                                                                                                                                               enough, considering their effect                                                                                                                        on Zada,31  



to justify a modification of the order requiring that the parents share equally in Zada's  

                                                                                                                                                                                                                                                        



                                 30                              See Riggs v. Coonradt                                                                                           , 335 P.3d 1103, 1107 (Alaska 2014) ("We give                                                                                                                                                                              



 'particular deference' to the trial court's factual findings when they are based primarily                                                                                                                                                                                                                                                                                         

 on oral testimony, because the trial court, not this court, performs the function of judging                                                                                                                                                                                                                                                                                                

the   credibility   of witnesses and                                                                                                                             weighing   conflicting   evidence." (quoting                                                                                                                                                                     Ebertz  v.  

Ebertz, 113 P.3d 643, 646 (Alaska 2005))).                                                                                                                                                                           



                                 31                              Whether a change is substantial is appropriately gauged by its effect on the  

                                                                                                                                                                                                                                                                                                                                                                                                                    

 child.  See Long, 816 P.2d at 151 (holding that the superior court's findings regarding  

                                                                                                                                                                                                                                     

 substantial  change  in  circumstances  "correctly  focuses  on  the  children  .  .  .  .                                                                                                                                                                                                                                                                                                                    It  is  

                                                                                                                                                                                                                                                                                                                                                                                                           

 irrelevant that the parents' behavior patterns remained constantly contentious . . . . What  

                                                                                                                                                                                                                                                                                                                                                                                           

 is important is that the circumstances of the children  worsened  as a result  of their  

                                                                                                                                                                                                                                                                                                                                                                                                          

parents' actions.").  

                                         



                                                                                                                                                                                                     - 13 -                                                                                                                                                                                                7117
  

                                                                                                                                                                                                                          


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

physical   custody.     The   superior   court   did   not   abuse   its   discretion   when   it   denied  

Branwen's motion.                                                                32  



                                                                                                                                                                                                                                                                                                                                   

                            B.	                          It  Was  An  Abuse  Of  Discretion  Not  To  Make  A  Best  Interests  

                                                                                                                                                                                                                                                                                                                                     

                                                        Determination  For  Purposes  Of  Modifying  The  Existing  Custody  

                                                         Schedule.  



                                                                                                                                                                                                                                                                                                                                                                      

                                                         Branwen argues in the alternative that the superior court erred when it  



                                                                                                                                                                                                                                                                                                                                                                        

denied her motion to modify the parents' current custody schedule (three weekends a  



                                                                                                                                                                                                                                                                                                                                                           

month with Will during the school year and week on, week off during the summer).  The  



                                                                                                                                                                                                                                                                                                                                                                  

 superior  court  found  "a  change  in  circumstances,  versus  a  substantial  change  in  



                                                                                                                                                                                                                                                                                                                                                               

circumstances, such that the custody schedule should be modified to better serve the  



                                                                                                                                                                                                                                                                                                                                      

parties and Zada" but it concluded it could not grant the 5-5-2-2 schedule Branwen  



                                                                                                                                                                                                                                                                                                                                                             

requested because "insufficient testimony was provided as to whether this schedule was  



                                                                                                                                                                                                                                                                                                                                 

possible for the parties and in Zada's best interest."  The superior court then "grant[ed]  



                            32                          Although a best interests analysis was unnecessary once the superior court                                                                                                                                                                                                                      



decided there had been no substantial change in circumstances justifying a modification                                                                                                                                                                                                                            

of custody, the superior court went on to consider Zada's best interests as an alternative                                                                                                                                                                                                                                       

holding.   The court determined that it would not be in Zada's best interests "to give one                                                                                                                                                                                                                                                                    

parent primary custody and sole legal custody" even if there had been a substantial                                                                                                                                                                                                                                           

change in circumstances. Branwen takes issue with this alternative holding, contending                                                                                                                                                                                                                                        

that the superior court improperly limited its analysis to only one of the statutory best                                                                                                                                                                                                                                                                   

interest factors - "the capability and desire of each parent to meet [the child's physical,                                                                                                                                                                                                                                             

emotional, mental, religious, and social] needs," AS 25.24.150(c)(2) - and placed too                                                                                                                                                                                                                                                                           

much emphasis on it.  We disagree. "[I]t is sufficient if the court's findings provide 'a                        

clear indication of the factors [that the court] considered important in exercising its                                                                                                                                                                                                                                                                           

discretion or allows us to glean from the record what considerations were involved.' "                                                                                                                                                                                                                                    

 Caroline J. v. Theodore J.                                                                                       , 354 P.3d 1085, 1092 (Alaska 2015) (second alteration in                                                                                                                                                                                         

original)   (quoting   Rosenblum   v.   Perales,   303   P.2d   500,   504   (Alaska   2013)).     The  

 superior court's written order gives us "a                                                                                                                              clear indication" of how it viewed the evidence.                                                                                                                                                         

We conclude that it did not abuse its discretion in its consideration or its weighting of the                                                                                                                                                                                                                                                                    

 statutory factors, and the record supports its conclusion that assigning sole legal custody                                                                                                                                                                                                                                                

and primary physical custody to one parent would not be in Zada's best interests.                                                                                                                                                                                                                                                                         



                                                                                                                                                                            - 14 -	                                                                                                                                                                      7117
  


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

leave to the parties to request a status hearing on a workable schedule that benefits Zada                                                                                



and is compatible with the parties' schedules."                                                         On appeal Branwen argues that the                                     



superior court, after hearing three days of testimony, had the evidence it needed to decide                                                                            



whether her proposed custody schedule was in Zada's best interests.                                                                             



                            The   superior   court   may   modify  an   existing   custody   schedule   if   "it  



determines that 'a change in circumstances requires the modification of the award and  



                                                                                                             33  

                                                                                                                                                                         

the modification is in the best interests of the child.' "                                                        Alaska law is clear that "a lesser  



                                                                                                                                                                         

showing is required for a 'change in circumstances' determination when a parent seeks  



                                                                                     34  

                                                                                                                                                                             

                                                                                          The superior court did not err in finding that  

to modify visitation rather than custody." 



                                                                                                                                                                     

a change had occurred that warranted modifying the custody schedule; both parents  



                                                                                                                                                                          

agreed that the schedule was "confusing" and they would benefit from a change.  



                                                                                                                                                                       

                            Having received all the evidence the parties believed necessary and having  



                                                                                                                                                                       

decided that some modification to the schedule was warranted, the superior court should  



have gone on to analyze Zada's best interests and modify the schedule as necessary to  



                                                                                                                                                                 

satisfy them.  We therefore remand for a best interests analysis relating to the requested  



                                                                                                                                                                          

modification to the custody schedule; whether to take new evidence is a matter we leave  



                                                

to the superior court's discretion.  



                                                                                                                                                                           

              C.	           The Superior Court Did Not Abuse Its Discretion In Awarding Will  

                                                                                                 

                            50% Of His Actual Attorney's Fees.  



                                                                                                                                                                            

                            Branwen also alleges error in the superior court's award of attorney's fees  



                                                                                                                                                                               

to Will.   "In an action  to modify . . . an order providing for custody of a child or  



              33            Morino   v.   Swayman,                              970         P.2d          426,         428        (Alaska             1999)            (citing  



AS 25.20.110(a)).                       



              34            Martin v. Martin, 303 P.3d 421, 425 (Alaska 2013) (quoting Collier v.  

                                                                                                                                                                                 

Harris, 261 P.3d 397, 408 (Alaska 2011)); see also Morino, 970 P.2d at 428 ("The  

                                                                                                                                                              

change in circumstances required to modify visitation, though, is not as great as that  

                                                                                                                                                                            

required for a change in custody.").  

                                                    



                                                                                     - 15 -	                                                                              7117
  

                                                                                               


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

visitation with a child, the court may, upon request of a party, award attorney fees and                                                   



                                   35  

costs   of   the   action."                                                                                                       

                                         In  doing  so,  "the  court  shall  consider  the  relative  financial  

                                                                                                                        36   The superior  

                                                                                                                                    

                                                                                                              

resources of the parties and whether the parties have acted in good faith." 



court's order on fees in this case addressed both considerations:   It first found that  

                                                                                                                                           



"[t]here is a clear financial inequity between the parties" with Branwen having "vastly  

                                                                                                                                      



greater earnings and financial abilities to litigate"; it then found that "[w]hile it is true  

                                                                                                                                           



[Branwen] has been highly litigious, the court does not reach the conclusion that she has  

                                                                                                                                            



acted in 'bad faith.' "  The court awarded Will 50% of his actual reasonable attorney's  

                                                                                                                                 



fees. Branwen asserts that given the superior court's express finding that she did not act  

                                                                                                                                             



in bad faith, the award was in effect a "litigation penalty" penalizing her "for exercising  

                                                                                                                                



a substantial right."  

                                   



                      However, an award of attorney's fees in this context is not necessarily  

                                                                                                                              



predicated on a finding of bad faith; AS 25.20.115 requires only that the court consider  

                                                                                                                                   



the issue when deciding an award.  In support of her contrary argument Branwen cites  

                                                                                                                                          



House v. House,  in which we held that attorney's fees should be awarded in custody  

                                                                                                                                    

modification  cases  only  if  "one  party  acts  'willfully  and  without  just  excuse.'  "37  

                                                                                                                                                   



Branwen observes that House  has never been expressly overruled.   She also notes,  

                                                                                                                                       



however,  that  it  predated  the  legislature's  enactment  of  the  controlling  statute,  

                                                                                                                                    



AS 25.20.115.   In our first decision interpreting that statute, we explained that the  

                                                                                                                                            



superior court was now required to consider both bad faith and the parties' relative  

                                                                                                                                    



           35         AS  25.20.115.  



           36         Id.  



           37          779  P.2d  1204,  1209  (Alaska  1989)  (quoting  L.L.M.  v.  P.M.,  754  P.2d  262,  



265  (Alaska   1988)).    



                                                                    -  

                                                                            

                                                                       16 -                                                             7117
  


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

                                           38  

financial circumstances.                         And neither factor necessarily takes precedence over the                                          

other.39  



                        When  the  superior  court  properly  applies  the  statute,  "[a]n  award  of  

                                                                                                                                                     



                                                                                                                                                      40  

attorney's fees under AS 25.20.115 is subject to reversal only for abuse of discretion."                                                                   

                                                                                                                                  



The superior court's findings in this case are supported by the record; it did not abuse its  

                                                                                                                                                     



discretion in awarding attorney's fees to Will.  

                                                                         



V.          CONCLUSION  



                        We REMAND for findings on Zada's best interests as they relate to a new  

                                                                                                                                                  



custody schedule.  In all other respects we AFFIRM the judgment of the superior court.  

                                                                                                                                                           



We do not retain jurisdiction.  

                                



            38         S.L. v. J.H.        , 883 P.2d 984, 985-86 (Alaska 1994).                    



            39         Id. ; see also Otto v. Otto, No S-8411, 2000 WL 34545648, at *3 (Alaska  

                                                                                                              

Mar. 8, 2000) ("We have never construed [AS 25.20.115] to establish a presumptive  

                                                                                                                                   

entitlement to an award of full fees; rather, we have emphasized that neither relative  

                                                                                                                                            

financial resources nor the absence of good faith has primacy in determining an award."  

                                                                                                                                            

(internal citations omitted)).  

                                 



            40          Collier v. Harris, 261 P.3d 397, 402-03 (Alaska 2011).  

                                                                                                              

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