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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Judd v. Burns (7/7/2017) sp-7184

Judd v. Burns (7/7/2017) sp-7184, 397 P3d 331

           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                                       



TRAVIS  M.  JUDD,                                                )  

                                                                 )          Supreme  Court  No.  S-16213  

                                Appellant,                       )  

                                                                                                                                      

                                                                 )          Superior Court No. 4FA-13-01989 CI  

                      v.                                         )  

                                                                                                

                                                                 )         O P I N I O N  

                                           

AMANDA BURNS f/k/a JUDD,                                         )  

                                                                                                           

                                                                 )         No. 7184 - July 7, 2017  

                                Appellee.                        )  

                                                                 )  



                                                                                                          

                      A            

                        ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                    

                      Fourth Judicial District, Fairbanks, Michael P. McConahy,  

                      Judge.  



                                                                                                  

                      Appearances:  Mila A. Neubert, Neubert Law Office, LLC,  

                                                                                                             

                      Fairbanks, for Appellant.  Margaret O'Toole Rogers, Foster  

                                                                          

                      & Rogers, LLC, Fairbanks, for Appellee.  



                                                                                                           

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                          

                      Divorced  parents  shared  custody  of  their  son  equally  pursuant  to  a  



                                                                                                                                          

parenting agreement.  The mother asked the superior court to modify the agreement to  



                                                                                                                                    

allow her to move with the child to Hawaii.  Following a two-hour hearing the court  



                                                                                                                                     

modifiedcustody, granting primary physical custody to the mother; it also modified legal  



                                                                                                                                    

custody  to  allow  the  mother  final  decision-making  authority,  subject  to  later  court  


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ratification, though neither party had asked that legal custody be modified.  The father                                                             



appeals.  



                                     We   conclude   that   the   superior   court   did   not   clearly   err   or   abuse   its  



discretion when it granted modification and awarded primary physical custody to the                                                                                                                                            



mother, and we affirm that part of the court's decision.                                                                                               But we hold that it was an abuse                                         



of discretion to modify legal custody when neither party had requested it, the parties                                                                                                                                       



were not on notice that it was at issue, and the evidence did not demonstrate a need for                                                                                                                                                



it.   We therefore vacate the modification of legal custody.                                                                             



II.                FACTS AND PROCEEDINGS                    



                   A.                The Parenting Agreement                      



                                     Travis Judd and Amanda Burns were married in 2008 and have a son, H.,                                                                                                                             

                                                                                                                                                                                                                               1     The  

who was born in 2011.                                            Amanda also has another son, K., from a prior marriage.                                                                                                            



couple separated in May 2013.  Amanda received a default divorce, but when Travis  

                                                                                                                                                                                                                              



appeared with new counsel the court set the default aside in August 2014 and scheduled  

                                                                                                                                                                                                                    



a custody trial for the following year.  

                                                                                                         



                                     In the meantime the court left in place the custody order entered after  

                                                                                                                                                                                                                                  



default, granting Amanda sole legal and primary physical custody, with reasonable  

                                                                                                                                                                                                                 



visitation for Travis.  The court also referred the case to a child custody investigator for  

                                                                                                                                                                                                                                        



early evaluation, possible settlement discussions, and an investigation if the parties could  

                                                                                                                                                                                                                                 



not settle.  

                             



                                     In October 2014 Travis moved for temporaryordersgranting joint legal and  

                                                                                                                                                                                                                                       



shared physical custody.  In February 2015, as the scheduled hearing on the motion was  

                                                                                                                                                                                                                                     



about to begin, the parties stipulated to temporary orders by which they shared legal  

                                                                                                                                                                                                                                  



                   1  

                                                                                                                                                                                                                                   

                                     We identify the children by their initials in order to better protect their  

privacy.  



                                                                                                                    -2-                                                                                                                      7184  


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custody,   Amanda   had  primary   physical   custody,   and   Travis   had   regular   daytime  



visitation. They                                           agreed that Travis's visitation wouldincreaseto                                                                                                                            includeovernights                                                    once  



he    obtained    a    substance    abuse    assessment    and    complied   with   any    resulting  



recommendations.  



                                                 Through   mediation,   the   parents   were   then   able   to   reach   a   permanent  



parenting agreement before trial. They agreed to joint legal custody and that they would                                                                                                                                                                                                              



gradually transition to shared physical custody as Travis satisfied certain conditions,                                                                                                                                                                                            



including moving fromhis dry cabin to more conventional housing, undergoing an anger                                                                                                                                                                                                                    



management assessment,                                                                            and   completing any recommended treatment.                                                                                                                                    Travis and   



Amanda   would   ultimately   share   physical   custody   50-50   once   the   conditions   were  



satisfied.  



                                                 By August 2015 Travis had obtained conventional housing, had completed                                                                                                                                                                



the assessment, and had attended recommended classes.                                                                                                                                                                  The parties began sharing                                                



custody equally a month later.                                                                                   



                         B.                      Amanda's Motion To Modify Custody                                                                                    



                                                 In   September   2015   - shortly                                                                                    after   the   parties   began   sharing   custody  



equally - Amanda filed a motion to modify the custody agreement to award her primary                                                                                                                                                                                                            



physical custody.                                                 She explained that she planned to move to Hawaii before the start of                                                                                                                                                                               



the 2016 school year with                                                                       her new husband and K., her older son, and she wanted H. to                                                                                                                                                          

                                                             2        She asserted that the move would provide "opportunities for a larger  

move with them.                                                                                                                                                                                                                                                                                     



income, increased family stability, and a better environment" as well as "open doors for"  

                                                                                                                                                                                                                                                                                                              



the two boys.  She wanted H. to live with her in Hawaii during the school year and have  

                                                                                                                                                                                                                                                                                                           



"liberal summer and holiday visitation" with Travis in Fairbanks.  

                                                                                                                                                                                                         



                         2                       The parties agree that Amanda's possible move to Hawaii was at least                                                                                                                                                                                     



mentioned during the mediation that resulted in the parenting agreement, though the                                                                                                                                                                                                                             

consequences of the move were not formally addressed or resolved at that time.                                                                                                                                                                                                                         



                                                                                                                                                         -3-                                                                                                                                               7184
  


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                                             Travis opposed the modification, arguing that the move was intended to                                                                                                                                                                          



avoid sharing custody and was not in H.'s best interests. He pointed to Amanda's history                                                                                                                                                                                     



with K. and contended that he and Amanda "actually got married when they did . . .                                                                                                                                                                                                          



because Amanda believed that being married and planning to move out of state (at that                                                                                                                                                                                                  



time, Texas) would make it easier for her to obtain primary physical custody of [K.]."                                                                                                                                                                                                                 



According to Travis, Amanda's history with K.'s father demonstrated the unlikelihood                                                                                                                                                                     



that she would help maintain a strong long-distance relationship between Travis and H.                                                                                                                                                                                                                 



Travis also requested appointment of another custody investigator, a request the court                                                                                                                                                                                            



denied.   



                                             The court found that Amanda's allegations justified an evidentiary hearing                                                                                                                                                    



and scheduled a two-hour hearing to decide two relevant issues:                                                                                                                                                                   whether Amanda's   



proposed move was legitimate and whether moving to Hawaii with Amanda was in H.'s                                                                                                                                                                                                     

                                              3   Following the hearing, the court agreed with Amanda's position on both  

best interests.                                                                                                                                                                                                                                                                      



issues.                       It  granted  the  requested  modification,  awarding  Amanda  primary  physical  

                                                                                                                                                                                                                                                                      



custody  and  Travis  summer  and  holiday  visitation.                                                                                                                                    The  court  also  modified  legal  

                                                                                                                                                                                                                                                                                  



custody, granting Amanda final say on legal custody issues but requiring her to seek the  

                                                                                                                                                                                                                                                                                          



court's approval within ten days of a disputed decision.  

                                                                                                                                                             



                                             Travis appeals, raising these issues:  (1) whether the superior court clearly  

                                                                                                                                                                                                                                                                             



erred in finding that Amanda's planned move was legitimate; (2) whether the court  

                                                                                                                                                                                                                                                                                  



abused its discretion when it failed to order a custody investigation; (3) whether the court  

                                                                                                                                                                                                                                                                                   



abused its discretion by limiting the evidentiary hearing to two hours; (4) whether the  

                                                                                                                                                                                                         



court abused its discretion when it decided that it was in H.'s best interests to move to  

                                             



Hawaii with Amanda; and (5) whether the court abused its discretion by modifying legal  

                                                                                                                                                                                                                                                                                    



custody.  

                               



                       3                     See  Rego  v.  Rego,  259  P.3d  447,  453  (Alaska  2011).  



                                                                                                                                              -4-                                                                                                                                                7184  


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III.          STANDARDS OF REVIEW                      



                           "Superior courts have broad discretion in child custody decisions, and we                                                                     



will reverse only if findings of fact are clearly erroneous or if the superior court abused                                                                      



                              4  

its discretion."                  "A factual finding is clearly erroneous when a review of the record                                                            



                                                                                                                                                                            

leaves the court with a definite and firm conviction that the superior court has made a  



                   5  

mistake."                                                                                                                                                    

                      "An abuse of discretion exists where the superior court 'considered improper  



                                                                                                                                                          

factors in making its custody determination, failed to consider statutorily mandated  



                                                                                                                                                            

factors,  or  assigned  disproportionate  weight  to  particular  factors  while  ignoring  



                   6  

                                                                                                                                              

others.' "             "Additionally, an abuse of discretion exists if the superior court's decision  

                                                                                                                                 7  We apply "the abuse  

                                                                                                                                                                   

denied a substantial right to or substantially prejudiced a party." 



of discretion standard to review a trial court's decisions relating to appointment of a child  

                                                                                                                                                                    

custody investigator."8  

                  



IV.          DISCUSSION  



                           "Alaska Statute 25.20.110 authorizes courts to modify child-custody and  

                                                                                                                                                                       



visitation  awards  if  (1)  there  has  been  a  change  in  circumstances  that  justifies  

                                                                                                                                                             

modification and (2) the modification is in the best interests of the child."9                                                                            "We have  

                                                                                                                                                                     



             4             Riggs v. Coonradt, 335 P.3d 1103, 1106 (Alaska 2014) (citing                                                                   Ronny M.  



v.  Nanette H.             , 303 P.3d 392, 399 (Alaska 2013)).                       



             5             Id.  (quoting  Ronny  M.,  303  P.3d  at  399).  



             6             Id.  (quoting  Ronny  M.,  303  P.3d  at  399).  



             7             Ronny  M.,  303 P.3d  at  400  (citing  House  v.  House,  779  P.2d   1204,   1206  



(Alaska   1989)).  



             8             Littleton  v. Banks,  192 P.3d  154, 157 (Alaska 2008) (quoting  Ogden v.  

                                                                                                                                                                           

Ogden, 39 P.3d 513, 516 n.2 (Alaska 2001)).  

                                                                             



             9             Rego  v.  Rego,  259  P.3d  447,  452  (Alaska  2011)  (citing Melendrez  v.  

                                                                                                                                                                          

                                                                                                                                                   (continued...)  



                                                                                    -5-                                                                             7184
  


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held that a custodial parent's decision to move out-of-state . . . amounts to a [substantial]                                  



change   in   circumstances   as   a   matter   of   law"   for   purposes   of   physical  custody  



                         10  

                                                                                                                                     

modifications.                Accordingly, both parties in this case agree that Amanda's proposed  



                                                                                                                                      

move constitutes a change in circumstances that may justify a modification of physical  



custody.  



                                                                                                                                       

                       When deciding whether to modify custody because of a parent's planned  



                                                                                                                                               

move, the superior court must determine "whether there are legitimate reasons for the  



             11  

move."                                                                                                                                     

                 If the move is legitimate, "there is no presumption favoring either parent when  



                                                                             12  

                                                                                                                                       

the court considers the child's best interests."                                 "The relocating parent secures primary  



                                                                                                                                               

custody by showing that living with that parent in a new environment better serves the  



                                                                                                                        13  

                                                                                                                                       

child's interests than living with the other parent in the current location."                                               "The ultimate  



                                                                                                                                    14  

                                                                                                                    

focus of the custody modification statute is the best interests of the children." 



            9          (...continued)
  



                                                                    

Melendrez, 143 P.3d 957, 962 (Alaska 2006)).
  



            10         Id.  (alterations  in  original)  (quoting  Barrett  v.  Alguire ,  35  P.3d  1,  6  (Alaska  



2001)).  



            11         Id.  at  453  (citing  Barrett,  35  P.3d  at  6).   



            12         Id.  (citing  McQuade  v.  McQuade,  901  P.2d  421,  424  (Alaska   1995)).  



            13         Id.  



            14         Lashbrook  v.  Lashbrook,  957  P.2d  326,  328-29  (Alaska   1998).   



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