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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mengisteab v. Oates (8/3/2018) sp-7267

Mengisteab v. Oates (8/3/2018) sp-7267

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

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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



                        THE SUPREME COURT OF THE STATE OF ALASKA  

NURIA MENGISTEAB,                                                        )  

                                                                         )     Supreme Court No. 15986  

                                  Appellant,                             )  

                                                                         )     Superior Court No. 3AN-13-08093 CI  

           v.	                                                           )  

                                                                         )     O P I N I O N  

AHLA-TAKI OATES,                                                         )            

                                                                         )     No. 7267 - August 3, 2018  

                                  Appellee.	                             )


                       Appeal from the Superior Court of the State of Alaska,

                       Third Judicial District, Anchorage, Patrick J. McKay, Judge.  

                       Appearances:      Nuria   Mengisteab,   pro   se,   Anchorage,  


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

                       and Carney, Justices.  

                       STOWERS, Chief Justice.  


                       Nuria Mengisteab filed a motion to modify custody to relocate with the  

parties' young son to another state, and then moved two days later.  After several months  


the superior court ordered that the child return to Alaska and conditionally awarded  

           *           The appellee, Ahla-Taki Oates, filed a pro se motion for reconsideration of         

our decision to accept Mengisteab's late-filed notice of appeal.  Oates did not file a brief   

on the merits of the case or otherwise participate in this appeal.  

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

primary custody to the father if Mengisteab chose to remain out-of-state.  Appealing pro  


se, Mengisteab argues that the superior court erred in several respects. We conclude that  


none of her arguments have  merit,  except for her contention that the court failed to  


consider the effect separation from his mother would have on continuity and stability in  

the child's life.  Because the court was required to consider the child's best interests  

based on the assumption that Mengisteab would remain out-of-state, we reverse and  

remand for further proceedings.  


         A.       Facts  


                   Saul was born in Alaska in March 2013 to Nuria Mengisteab and Ahla-Taki  


            Mengisteab and Oates never married, nor have they lived together.  Mengisteab  


also has two older sons and an adult daughter from two other relationships. Oates is  


married to another woman and is raising three other children.  

         B.       Proceedings  

                  In July 2013 Oates filed a complaint requesting sole legal and primary  

physical custody of Saul with visitation by Mengisteab to be determined by the court.  

Mengisteab responded by requesting shared legal custody and primary physical custody.  

She also requested that Oates's visitation be limited to two days a week for two hours a  

day because Saul was breast-feeding.  The parties participated in mediation and entered  


into an interim custody and child support agreement in September, giving Mengisteab  


primary physical custody, giving Oates visitation, and obligating Oates to pay $500 per  

month  in  child  support  for  October  and  November.    At  a  hearing  in  November  to  

determine whether the parties could resolve any of their issues without trial, the court  

was informed that Mengisteab planned to move to Las Vegas in February 2014.  

         1        We use a pseudonym for the child's name to protect his privacy.  

                                                          -2-                                                      7267  

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

                    In  February  2014  the  superior  court  held  a  half-day  custody  trial.  


Mengisteab testified that while she earlier had planned on moving out of state, she was  

not going to do so at that time, but she requested primary physical custody of Saul  


because it was in his best interests.  She also alleged that Oates had a drinking problem  


and that his wife abused heroin.  Oates testified that he sometimes had a few drinks at  


home  with  his  family  but  "never  did  drugs"  and  "never  had  any  abuse  problems."  


Oates's wife testified that she had used illegal substances in the past but denied an abuse  


problem.   Oates and Mengisteab's sister both testified that on several occasions when  


Oates had scheduled visitation, Mengisteab refused to let him see Saul.  Testimony by  

both Mengisteab and her sister also indicated that Mengisteab was resistant to using a  


breast pump so that Saul could remain on his feeding schedule while Oates exercised his  


visitation; this made it difficult for Oates to exercise any prolonged visitation with Saul.  

                    After the conclusion of the hearing, the court made written findings on all  

                                                   2  The court found that (1) Saul had no special needs;  

the statutory best interest factors.                                                                            

(2)  both  parents  were  capable  and  desirous  of  meeting  Saul's  needs;  (3)  Saul's  



preference was not applicable;  (4) love and affection existed between Saul and each 


parent; (5) the length of time Saul had lived in a stable, satisfactory environment and the  

desirability  of  maintaining  continuity  at  the  time  favored  Mengisteab  as  Saul  had  


primarily resided with Mengisteab in a stable, satisfactory environment; (6) Mengisteab  


was clearly reluctant to facilitate an open relationship between Oates and Saul except on  


her restrictive terms; (7) there was no substantiated evidence of domestic violence, child  


abuse, or child neglect; (8) there was no substantiated evidence of substance abuse; and  

          2         AS 25.24.150(c) requires the court to consider the best interests of a child  

based on a set of factors when making custody decisions.  

          3         The child's preference is only a relevant factor "if the child is of sufficient       

age and capacity to form a preference."  AS 25.24.150(c)(3).  

                                                                -3-                                                         7267

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


(9) Mengisteab's testimony was less persuasive because of her agenda to limit Oates's  


time with Saul, but she was a good provider and had met Saul's needs.  Based on these  


findings, the court awarded primary physical custody to Mengisteab and established a  

visitation schedule for Oates.  


                    At the end of May 2014 Mengisteab filed a motion to modify custody.  She  

informed the court that she would be moving out of state, that "[t]he current custody  

agre[e]ment  will  no  longer  work,"  and  she  repeated  her  concern  that  "there[was]  


substance and alcohol use in [Oates's] home."  She also requested back child support  


from May 2013 to September 2013, indicating that during the "Feb[ruary] 2014 court  

hearing, child support in arrears was not addressed."  Shortly after filing her motion,  


Mengisteab left Alaska with Saul without informing the court or Oates where she would  


be residing.  She later testified that the initial plan was to move with her boyfriend to Las  


Vegas, where her boyfriend's parents as well as her ailing grandfather lived, but she and  


her boyfriend had split up and she ended up staying in Las Vegas for only two days.  She  


then moved to Olympia, Washington where she had previously lived for ten years, where  


she had given birth to two of her children, and where she had extended family.  She also  

indicated she had secured a job and begun taking classes to renew a medical assistant  

license she had obtained in Washington in 2002.  

                    Due  to  several  scheduling  and  communication  conflicts,  the  court  was  


unable to hold a custody modification hearing until early October 2014, which continued  

in  late  November.    During  the  October  portion  of  the  hearing,  the  parties  had  a  

contentious discussion about visitation and back child support.  


                    After the November portion of the hearing, the court issued an oral ruling  


allowing Oates to travel to Washington to visit Saul at least three times before June 2015  

and authorizing half of the travel expenses to be credited against any child support Oates  


owed.  The court ordered that Saul was to return to Alaska by July 2015 and indicated  

                                                               -4-                                                         7267

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

that if Mengisteab chose to return as well, the court would reevaluate visitation at that  

time.  The court did not resolve the issue of back child support at the hearing.  

          The court thereafter issued a written order, memorializing the oral ruling and  


elaborating on its custody decision:  

                             Nothing  has  convinced  the  Court  to  change  the  

                    findings in the decision concerning mother's unwillingness  

                   to   let  father  be  involved  in  [Saul's]  life.    The  Court  


                    specifically finds that mother's move was motivated, in great  


                   part, by a desire to separate [Saul] from his father - or at  


                   least make it difficult to allow his involvement in [Saul's]  


                   parenting.    Mother  has  no  substantial  ties  to  Washington.  

                    She lived and worked in Alaska for 5 years prior to her move.  

                             A substantial change in circumstances has occurred -  

                   mother        unilaterally       has     moved        out    of    state    without  

                   notification.  Father's visits have been effectively terminated  


                   or diminished by her move.  The Court finds this is not in  

                    [Saul's] best interests.  [Saul's] best interests would best be  


                    served by having both parents available to [him].   If left in  


                   mother's primary custody in Washington, the court believes  

                   that mother would continue to interfere with father's access  

                   and parenting of [Saul].  

                             The Court finds that it will be in [Saul's] best interest  


                   to return to Alaska by July 15, 2015.  If mother moves back  


                   with  [Saul],  the  2/10/14  decision  shall  control  visits.    If  

                   mother doesn't move back, father will have primary physical  


                   custody and the parents shall submit proposed visitation plans  

                   to ensure mother's continued involvement in [Saul's] life.  

                   Mengisteab appeals.  She argues the superior court erred in (1) finding that  


Mengisteab's move out of state was primarily motivated by a desire to keep Saul's father  

away from Saul; (2) finding that there was no evidence of substance abuse in Oates's  


household; (3) failing to consider the potential consequences to Saul of separation from  


his  mother  were  Mengisteab  to  remain  out  of  state;  (4)  calculating  child  support;  


                                                             -5-                                                       7267

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


(5) establishing visitation and addressing associated costs; and (6) demonstrating alleged  

bias against Mengisteab.  


                      Trial courts have "broad discretion in deciding child custody disputes"4 and  


in determining whether a proposed child custody modification is in the best interests of  


the child.    We will overturn a court's best interests determination "only if the trial court  


abused its discretion or if the fact findings on which the determination is based are  


                                   "A finding of fact is clearly erroneous only when a review of the  

clearly erroneous." 


entire record leaves us with a definite and firm conviction that the trial court has made  



a mistake."   When reviewing a custody decision, we will find an abuse of discretion "if  


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

consider statutorily mandated factors, or assigned disproportionate weight to particular  


                                                      We review de novo whether the trial court applied the  

factors while ignoring others." 


correct legal standard.   

           4          Stephanie W. v. Maxwell V.                   , 274 P.3d 1185, 1189 (Alaska 2012) (quoting     

Melendrez v. Melendrez , 143 P.3d 957, 959 (Alaska 2006)).  

           5          Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011) (citing Ebertz v. Ebertz ,  


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

           6          Id. (citing Ebertz , 113 P.3d at 646).  



                      Stephanie W., 274 P.3d at 1189 (quoting Evans v. Evans , 869 P.2d 478, 479  

(Alaska 1994)).  

           8          Id. (quoting Evans , 869 P.2d at 479-80).  



                      Rego , 259 P.3d at 452 (citing McQuade v. McQuade , 901 P.2d 421, 423 n.3  

(Alaska 1995)).  

                                                                     -6-                                                               7267

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

                    We review visitation orders under an abuse of discretion standard.10                                       "A  


court abuses its discretion if it issues a decision that is 'arbitrary, capricious, manifestly  


unreasonable, or . . . stems from an improper motive.' "                                    "We review de novo the  

question  of  whether  a  judge  appears  biased,  which  is  assessed  under  an  objective  




          A.        The Two Step Moeller-Prokosch Approach  


                    We have established a two-step approach for determining the best interests  


of a child in a custody dispute where one parent plans to relocate out of state with the  



            The first step is to determine whether the planned move is "legitimate," which  


we have defined as "not primarily motivated by a desire to make visitation . . . more  



difficult."        The second step is to determine what is in the best interests of the child in  

          10        Red Elk v. McBride , 344 P.3d 818, 822 (Alaska 2015) (citing Skinner v.  

Hagberg , 183 P.3d 486, 489 (Alaska 2008)).   

          11        Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                        , 204 P.3d 1023, 1026  

(Alaska 2009) (alteration in original) (quoting Dobrova v. State, Dep't of Revenue, Child   

Support Servs. Div., 171 P.3d 152, 156 (Alaska 2007)).   

          12         Wells  v.  Barile,  358  P.3d  583,  588  (Alaska  2015)  (quoting  Sagers  v.  

Sackinger, 318 P.3d 860, 863 (Alaska 2014)).  



                    Moeller-Prokosch v. Prokosch  (Moeller-Prokosch I), 27 P.3d 314, 316  

(Alaska 2001); see also Rego , 259 P.3d at 453-55; Eniero v. Brekke , 192 P.3d 147, 150  

(Alaska 2008) (citing McQuade , 901 P.2d at 423-24).  



                    Moeller-Prokosch I , 27 P.3d at 316 (alteration in original) (quoting House  


v. House , 779 P.2d 1204, 1208 (Alaska 1989)); see also Eniero , 192 P.3d at 150 (quoting  

Moeller-Prokosch I , 27 P.3d at 316).  

                                                               -7-                                                         7267

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



light of all relevant statutory best interests factors and the reasons for the relocation.                                       If  


the move is legitimate, the court is not allowed to hold the move against a relocating  


parent, but if the move is primarily motivated by a desire to frustrate visitation, the court  


                                                              In conducting the best interests analysis in this  

must take that motivation into account. 


                                                                                        which means the court must  

context, the court must perform a "symmetric" analysis, 


assume that the move in question will take or has taken place and "make a determination  


as to whether it would be in the best interests of the parties' [child] to be in the physical  


custody of [one parent] or [the other]" in their respective locations.                                     

                    1.	       The   superior   court   did   not   clearly   err   in   finding that  


                              Mengisteab's  move  was  primarily  motivated  by  a  desire  to  

                              frustrate visitation.  

                    The superior court applied the first step in our two-step approach and found  


that Mengisteab's move was primarily motivated by a desire to deprive Oates of his  



ability to parent Saul.              Mengisteab argues that the court erred in making this finding.  


We disagree.  

          15        See  Moeller-Prokosch v. Prokosch  (Moeller-Prokosch II), 53 P.3d 152, 157  

(Alaska 2002); Moeller-Prokosch I , 27 P.3d at 316.  

          16        Moeller-Prokosch II , 53 P.3d at 157 (citing Moeller-Prokosch I , 27 P.3d  


at 316); Rego, 259 P.3d at 454 ("[W]e made it clear that the superior court may not hold  


a  legitimate  move  against  a  relocating  parent.    The Moeller-Prokosch  cases  set  the  

governing standard for custody decisions involving parental relocation.  Once a parent  


has shown that the decision to relocate is a legitimate one, then that parent is not required  


to defend the move a second time by showing that life with that parent is superior to life  


with both parents in the same city." (footnotes omitted)).  

          17        Moeller-Prokosch v. Prokosch (Moeller-Prokosch III), 99 P.3d 531, 535-36  

(Alaska 2004).  

          18        Moeller-Prokosch II , 53 P.3d at 153.  



                    See Eniero , 192 P.3d at 150 (citing Moeller-Prokosch I , 27 P.3d at 316).  

                                                               -8-	                                                        7267

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

                        While  Mengisteab  offered  several  legitimate  reasons  for  her  move,  

including  social  connections,  family  relationships,  and  schooling  opportunities  in  

Washington, the record provides clear support for the court's finding that Mengisteab's                      

move  was   primarily  motivated  by  an  illegitimate  purpose.    Mengisteab  repeatedly  

changed  her  plans  about  when  she  would  leave  Alaska,   did  not  provide  contact  

information or adequate notice of her move to the court, and did not provide either the   

court  or  Oates  with   a  forwarding  address.    These  actions  led  the  court  to  find  that  

Mengisteab was not credible and that she was motivated by a desire to interfere with     

Oates's ability to parent.  

                        The       court's         ultimately           unfavorable              determination               with       regard         to  


Mengisteab's move was made in the context of other instances evident from the record  

where  Mengisteab  resisted  allowing  Oates  to  visit  with  Saul,  such  as  her  repeated  


cancelling of scheduled visitations and her refusal to use a breast pump to accommodate  

Oates's  visitations  into  Saul's  feeding  schedule.  This  context  supports  the  court's  

ultimate finding with respect to Mengisteab's motivations.  


                        Mengisteab  argues  that  the  court  erred  in  finding  that  she  had  "[n]o  


substantial  ties  to  Washington."    Mengisteab  testified  that  she  previously  lived  in  

Washington  for  ten  years,  she  still  had  all  her  friends  from  when  she  was  18,  her  


children's aunts lived in Washington, she gave birth to two of her children there, and she  

had obtained a medical assistant license in Washington that she could renew after taking  


classes.    Thus,  she  argues  it  was  clear  error  for  the  court  to  find  that  she  had  no  


substantial ties to Washington.  But even if this specific finding was clearly erroneous,  

in  the  larger  context  this  error  was  harmless  and  does  not  undermine  the  abundant  


support the record  offers for the court's ultimate finding that Mengisteab's primary  

purpose for moving was to undermine a relationship between Saul and Oates, especially  


considering  Mengisteab  had  spent  the  five  most  recent  years  of  her  life  living  and  

                                                                          -9-                                                                    7267

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


working in Anchorage. We conclude the superior court did not clearly err in finding that  


Mengisteab's  move  was  primarily  motivated  by  a  desire  to  interfere  with  Oates's  

visitation and ability to parent.  

                     More  broadly,  Mengisteab  suggests  that  the  superior  court's  finding  


impermissibly restricted where she could live with her children and her family.  We have  


held that it would be error for a trial court to restrict where a parent can live.                                            A trial  


court does, however, have the authority to determine where a child will live by granting  


custody to a parent remaining in Alaska, so long as that determination is in the best  


interests of the child.  In this case, the superior court clearly stated in the November 2014  


custody modification hearing that it could not "order Ms. Mengisteab to be back.                                                   But  


[it could] order [Saul] to be back." This demonstrates that the court correctly applied this  


aspect of our case law, attempting to use its order to effectuate the best interests of Saul,  


not to control the location of Mengisteab. The superior court's finding that Mengisteab's  


move was primarily motivated by a desire to frustrate visitation and its resulting grant  


of custody to Oates may have restricted where Mengisteab could live with Saul, but it did  

not place any impermissible restrictions on her ability to relocate.  


                     2.	        It was legal error not to conduct a symmetrical analysis of the  

                                potential effect on continuity and stability in Saul's life.  


                     Mengisteab argues that "[r]emoving [Saul] from his mother and brother[]s  


would have been traumatic."  She asserts that this is "not in the best interest of [Saul] and  

would have caused severe separation anxiety."  In support, she claims that Saul had  


"fully lived with [her] since the day he was born" and "[a]t the time of the court decision  


[Saul] was not even 2 yet and hadn't had contact with his father in over 9 months."  She  

adds that "[Saul] is well bonded" to his two brothers, that the court "awarded [her] full  



                     See Moeller-Prokosch I, 27 P.3d at 317 ("We conclude that the trial court  


does not have the authority to place restrictions on a parent's ability to relocate . . . .").  

                                                                 -10-	                                                               7267  

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

physical custody," and that her "extended family love[s] [Saul] and cares for him."  We  


agree with Mengisteab that the court erred in failing to adequately consider the effect  


living in Alaska without his mother and siblings would have on continuity and stability  

in Saul's life.  

                     A symmetrical analysis does not require detailed parallel findings on every  


best interests factor.             In determining a child's best interests, "the superior court need  


not mention each factor by name; it 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.' "                                              And the  


court  may  give  enhanced  attention  to  a  factor  it  considers  particularly  relevant  to  a  


child's best interests, as long as it does not assign "disproportionate weight to particular  


factors while ignoring others."                    

                     Despite this flexibility, in the Moeller-Prokosch line of cases we expressed  


particular concern that the court conduct a symmetrical analysis with regard to a child's  



relational and geographical stability.                     In Moeller-Prokosch III , while we acknowledged  


that in its best interests analysis "[t]he superior court did recognize that [the child] would  


be devastated if he had to move to Florida away from [his father]," we concluded that the  

          21         See Rego, 259 P.3d at 455 ("While the superior court's analysis does not  

detail every aspect of [the child's] future in Alaska and in New Jersey, the court gives  


sufficiently detailed and 'symmetric consideration' to [the child's] experience if [the  


father] took him to New Jersey or relocated to New Jersey without him.").  



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

in original) (quoting Rosenblum v. Perales , 303 P.3d 500, 504 (Alaska 2013)).  



                     Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (quoting  

Evans v. Evans , 869 P.2d 478, 479-80 (Alaska 1994)).  

          24         See Moeller-Prokosch III, 99 P.3d 531, 535 (Alaska 2004).  

                                                               -11-                                                          7267

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


court erred because it "did not discuss the corresponding effect on [the child] if he had  


                                                                             In the parent relocation context,  

to stay in Alaska after [his mother] moved to Florida." 

we  also  warned  that  a  "continuity  test  centered  entirely  on  the  child's  geographical  

stability  would  always  favor  placing  the  child  with  the  non-moving  parent,"  and  


                                                                                              We explained that  

instructed the court to also consider relational aspects of stability.  


"the impact of separation is . . . properly considered as part of the stability analysis under  

                                                                              27  which requires the trial court  

the fifth statutory factor" provided in AS 25.24.150(c)(5),                        

to consider "the length of time the child has lived in a stable, satisfactory environment  


and the desirability of maintaining continuity."  This stability analysis, we explained,  

"requires symmetric consideration of the consequences to [the child] both if [the moving  

parent] leaves with him and if [the moving parent] leaves without him.' "28  

                   Consequently,  the  superior  court  here  was  required  to  evaluate  and  

symmetrically analyze the best interest factors clearly affected by Mengisteab's move,  

                                                                                                              29  The  

especially the stability factor singled out in the Moeller-Prokosch line of cases. 

court's February 2014 order, which was incorporated by reference into its November  

         25       Id.  In  Moeller-Prokosch III , we characterized the court's error as abuse  

of  discretion.    Id.    However,  as  discussed  further  below,  we  also  explained  that  

AS 25.25.150(c)(5) "requires" and "commands" a comprehensive inquiry into stability  


and continuity, with no room for discretion to entirely forgo a symmetrical analysis.  

Id. at 534-35.  Accordingly, while a custody award is subject to judicial discretion and  


reviewed for abuse thereof, it is legal error not to conduct the required comprehensive  

and symmetrical stability analysis.  

         26       Id. at 535 (quoting Meier v. Cloud , 34 P.3d 1274, 1279 (Alaska 2001)).  

         27       Id. at 535 n.17.  

         28       Id. at 536.  

         29       Id. at 534-35.  

                                                         -12-                                                   7267

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

2014 order, made specific findings about each of the statutorily required best interest  

factors.  With respect to most of these factors, it was acceptable for the court in its  

November order to rely on its prior best interests findings because the record gives no  

clear indication that they changed in the eight months between February and November  

                                                              30  We understand the trial court's omission  

or in light of Mengisteab's illegitimate move.                                              

of  these  factors  as  an  indication  that  it  considered  them  largely  unchanged,  a  

consideration we can "glean from the record."31  

                   But  Mengisteab's  move  clearly  had  potential  to  affect  continuity  and  


                               32  The superior court never explicitly discussed this factor or the  

stability in Saul's life.                                                                                        

effect that separating Saul from his mother were she to remain in Washington would  

have  on  him  as  required  by  our  Moeller-Prokosch  decisions.    Saul  had  been  in  

Mengisteab's primary physical custody from birth until the court's November 2014 order  


was issued.  In February 2014 the court gave Mengisteab  custody of Saul primarily  


because stability and continuity in Saul's life favored keeping him with Mengisteab.  By  

November   2014   Oates   and   Saul   were   largely   strangers,   as   the   superior   court  


acknowledged when it ordered Skype visits between Saul and Oates before their planned  


visitation, so that Saul would be familiar with Oates when Oates flew to Seattle and  

removed him from Mengisteab's physical custody.  

         30        The record supports that in November 2014 Saul still had no special needs,  

the  child's  preference  regarding  custody  remained  inapplicable,  both  parent-child  

relationships  remained  loving,  and  there  was  no  substantiated  evidence  of  domestic  

violence, neglect, or substance abuse. 

         31         Caroline J. v. Theodore J., 354 P.3d 1085, 1092 (Alaska 2015) (quoting     

Rosenblum v. Perales , 303 P.3d 500, 504 (Alaska 2013)).  

         32        See AS 25.24.150(c)(5).  

                                                         -13-                                                    7267

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

                   The record does not indicate how the court's position on this factor changed  


since February 2014 or how the court weighed it relative to other factors in modifying  


custody. The only clues to the superior court's reasoning on this issue are its abbreviated  

November 2014 best interests analysis, its February 2014 best interests analysis, and  


testimony from various hearings. This information is insufficient for determining the  

court's position on this factor.  As we have explained previously, the absence of any  

discussion of the impact on the child of separation from the out-of-state parent raises  


some question whether the best interests analysis was based on the assumption that the  

                                                             33                                                            34  

                                                                 To ignore this relational facet of stability 

separation would take place, as we require. 


ignores both the primary concern that a symmetrical analysis is intended to address and  

an important component of the best interests analysis in this case.  


                   We recognize that the court found that if Saul were "left in [his] mother's  

primary  custody  in  Washington,  .  .  .  [Mengisteab]  would  continue  to  interfere  with  


[Oates's] access and parenting of [Saul]."  We have also previously explained that "[i]t  


is essential to have a custodial parent willing to foster an open relationship with the other  



parent when a great distance separates the child[] from the non-custodial parent." 


                                                                                                                The trial  

so, the trial court may not rely on one factor to the exclusion of all others. 

          33       See Moeller-Prokosch III,  99 P.3d 531, 535 (Alaska 2004).  

          34       See  Barrett  v.  Alguire,  35  P.3d  1,  9  (Alaska  2001)  ("The  trial  court's  

consideration of the stability of the children's environment in a custody modification  

case can encompass a multitude of factors, including, but not limited to, the relationship  


with the custodial parent, the home provided by the custodial parent, the children's  

school, the community of friends and family, the cultural community, and the children's  

relationship with the non-custodial parent.  It also includes stability of place.").  

          35       Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005).  



                   See Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (citing  


                                                            -14-                                                      7267

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


court was required to consider the potential consequences to Saul both if he were to live  


                                                                                                                  and it was  

in Washington with Mengisteab and if he were to live in Alaska without her, 

legal error not to do so.  



                    We assume, but do not know, that Mengisteab now resides in Alaska.  We  


also are aware that considerations of stability and continuity in Saul's life may well have  


changed since the last hearing.  On remand, provided that Mengisteab still wishes to  


move, the superior court must conduct a symmetrical best interests analysis, including  


full consideration of the effect separating Saul from his mother would have on continuity  


and stability in his life were she to ultimately move to, or remain in, Washington.  The  

court may take additional evidence as necessary to conduct this symmetrical analysis.  

          B.	       Mengisteab's Other Claims Of Error  


                    1.	       The superior court did not clearly err in finding there was no  


                              substantiated evidence of substance abuse in Oates's household.  

                    Mengisteab argues that the superior court erred with regard to "[s]afety  


concerns involving drug and alcohol use in [the] father[']s home."  As part of its best  


interests analysis, the court should consider evidence of substance abuse.                                       However,  



"the scope of [this] inquiry is limited to facts directly affecting the child's well-being." 


In its February 2014 order the court found that there was no evidence of substance abuse  

          36        (...continued)

Evans v. Evans , 869 P.2d 478, 479-80).

          37        Cf.  Moeller-Prokosch III , 99 P.3d at 535-36.  

          38        See AS 25.24.150(c)(8).  

          39        S.N.E. v. R.L.B., 699  P.2d  875, 878 (Alaska 1985); see AS 25.24.150(c)(8)  

(providing that  the best interests analysis should consider "evidence that substance abuse  

by either parent or other members of the household directly affects the emotional or  

physical well-being of the child"); AS 25.24.150(d) ("In awarding custody the court may  


consider only those facts that directly affect the well-being of the child.").  

                                                             -15-	                                                       7267

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

substantiated by a preponderance of the evidence, and this finding is supported by the  


record.  Oates testified that he "never had any abuse problems."  Oates's wife testified  


that  she  had  used  substances  in  the  past  but  denied  an  abuse  problem.    During  the  


November 2014 hearing, the court pointed out that the only evidence supporting that  

there was substance abuse by Oates, his wife, or anyone else connected with Oates's  


household was Mengisteab's own allegations. The court's factual findings, including its  

credibility findings - especially when the court makes those findings based on oral  



testimony - are due particular deference.                         Based on this record, we conclude that the  

court did not clearly err in finding there was no substantiated evidence of substance  

abuse in Oates's household.  

                    2.	       The superior court did not abuse its discretion in calculating  

                              child support.  


                    Mengisteab appears to argue that Oates failed to pay child support during  


2013 and owes her $6,000 in back child support payments.  Mengisteab also claims that  


"Oates has been at the same job on the slope making over $130,000 a year [and] had the  


ability to financially support [their] son but refused to."  It appears that she is arguing  

that the court erred by failing to address Oates's failure to pay child support from the  


time of Saul's birth even though he had the ability to pay because of his job on the North  


                    But the court did not abuse its discretion by not addressing the effective  


date of Oates's child support obligation or his potential responsibility for back child  


support at the February 2014 trial or the November 2014 custody hearing.  The issue of  


custody and visitation took priority during those hearings, and the court signaled that  

child support would be addressed separately.  The court followed through, addressing  



                    Stephanie F. v. George C., 270 P.3d 737, 745 (Alaska 2012) (citing Millette  

v. Millette, 177 P.3d 258, 261 (Alaska 2008)).  

                                                             -16-                                                            7267  

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

child support in a separate order dated the same day as its November 2014 custody  

modification order.41  The court's prioritization and timing of its decisions in this regard  

were not an abuse of discretion.42  


                     3.	       The  superior  court  did  not  err  in  establishing  visitation and  

                               addressing associated costs.  


                     Mengisteab  claims  that  the  superior  court  erred  with  regard  to  the  

"[v]isitation   schedule   and   costs   associated   with   them"   but   does   not   elaborate.  


Mengisteab's  statement  appears  most  relevant  to  the  court's  November  2014  oral  


findings and  written order in which it determined that Oates "shall have reasonable  


phone and Skype/Facetime visits with [Saul]," and "shall elect 3 visits between now and  


next May[] when he can fly to Seattle and pick [Saul] up for a visit on his time off from  


the Slope."  The court also ordered that Oates could credit half of the direct transit costs  


of the visits toward his child support obligation.  In addition, the court found that if  


Mengisteab moved back to Alaska with Saul before the court's July 15, 2015 deadline,  

          41         Mengisteab has not formally appealed the superior court's child support  

order.    However,  Mengisteab  does  list  "Child  support"  in  her  statement  of  issues  


presented for review.  Because the child support order was entered on the same day as  


the custody modification order - November 21, 2014 - it is possible that Mengisteab  


meant to include the child support order in her reference to the court's "final judgment  


entered on November 21, 2014" in her notice of appeal.  That said, Mengisteab's brief  


does not discuss the issue of child support beyond repeated conclusory statements, and  

the child support order is not present in either Mengisteab's excerpt of record or the  

record  as  a  whole.    On  appeal,  "issues  not  briefed  or  only  cursorily  briefed  are  

considered waived."  Daggett v. Feeney, 397 P.3d 297, 304 n.19 (Alaska 2017) (citing  


Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)).  To the extent Mengisteab meant  


to challenge the separate child support order, her challenge is waived.  



                     See, e.g., Kailukiak v. State, 959 P.2d 771, 775 (Alaska App. 1998) ("Trial  


judges should, of course, be as free as possible to fashion procedures that expedite the  


business of their courts and that satisfy the litigation needs of the parties appearing  

before them.").  

                                                               -17-	                                                        7267

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

then  the  February  2014  order,  which  accounted  for  daycare  arrangements  and  

Mengisteab's  work  schedule,  would  control  visitation.    The  February  2014  order  

outlined  a  visitation  schedule  that  would  accommodate  Oates's  schedule  as  a  slope  

worker and Mengisteab's work and daycare considerations.  In the November 2014  


order, the court also tailored visitation to Mengisteab's potential geographical location  


and took into account the extra cost to Oates of visiting Saul in Washington. The court's  

decision was not an abuse of discretion.  

                   4.       The superior court's conduct did not demonstrate judicial bias.  


                   Mengisteab finally argues that the superior court was biased and prejudiced  


against her, and that the judge had a conflict of interest.  She raises this argument for the  

first  time  on  appeal,  which  would  typically  be  grounds  to  consider  the  argument  


waived.        However, in  Greenway v. Heathcott, we explained that it is unclear "what  

must be done to preserve for review a claim of judicial bias, if, as here, there has been  

no motion for recusal, disqualification, or new trial" - that is, where there was no  

                                                                     44  In that case, although we ultimately  

opportunity for the trial court to address the issue. 

found the claims of bias unwarranted, we assumed, without deciding, that the bias issues  


raised were properly preserved for review.                      We make the same assumption here.  


                   "A judge must recuse himself or herself if there is bias. If the appearance  

of bias is involved, we have held that the judge should give weight to preserving the  



appearance  of  impartiality."              "We  review  de  novo  the  question  of  whether  a  judge  

         43        See Mellard v. Mellard, 168 P.3d 483, 489 (Alaska 2007).  

         44        294 P.3d 1056, 1063 (Alaska 2013).  

         45        Id. at 1063, 1066.  

         46        Id. at 1063 (footnotes omitted) (citing             Amidon v. State , 604 P.2d 575, 577- 


                                                          -18-                                                    7267

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


appears  biased,  which  is  assessed  under  an  objective  standard."                               However,  as  we  


explained in Greenway, it is not obvious what standard of review - de novo review or  

abuse of discretion review - applies when a claim of actual bias is first raised on appeal  


                                                                                Like in  Greenway, we need not  

and the trial court had no opportunity to address it. 

decide this issue here, as we would reach the same conclusion under either standard.  


                   Mengisteab claims the trial court was "extremely bias[ed] and prejudice[d]  


and extremely harsh [in] ignoring [her] evidence and coming up with [its] own findings."  


She further claims that the judge had a conflict of interest in this case because "he was  


the Judge in [her] son's father['s] case when [the  father] was arrested for a DUI in  


2009."        Finally, she asserts that the judge "brought up several times [that] 'he doesn't  

know how I got the Supreme Court to overturn his decision,' " and that he told her  


                                                                                                               Unlike  the  

lawyer,  "She's  rude,  I  don't  like  her  and  she  does  this  all  the  time." 


appellant in Greenway, who cited five specific incidents in the record which she argued  

                                                                            51 Mengisteab does not support her  

demonstrated judicial bias or the appearance of bias,                                                          

          46        (...continued)  

78 (Alaska 1979)).  

          47        Wells  v.  Barile,  358  P.3d  583,  588  (Alaska  2015)  (quoting  Sagers  v.  

Sackinger, 318 P.3d 860, 863 (Alaska 2014)).  

          48        Greenway, 294 P.3d at 1062-63.  

          49       Mengisteab does not specify, and the record does not indicate, which case   

this refers to.  

          50       Mengisteab does not explain which supreme court decision she is referring  


to, and the record does not indicate when she appeared before this court in the past.  

Mengisteab also does not explain what conduct the statement "she does this all the time"  


refers to.  

          51        Greenway, 294 P.3d at 1061-62, 1064-67.  

                                                            -19-                                                       7267

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

contention with any citations to the record.  In our review of the record, we found no  

incidents matching Mengisteab's description.  On one occasion, the trial court did tell  


Mengisteab's attorney that it repeatedly "had to admonish [Mengisteab] to take her turn  


and she's just unwilling to do so," which bears some resemblance to Mengisteab's claim  


that  the  court  told  her  lawyer  "she  does  this  all  the  time."  However,  it  does  not  


reasonably appear to reflect any personal bias against Mengisteab, does not suggest the  

trial judge considered Mengisteab rude, and does not indicate the judge disliked her  

personally.  Rather, the court's statement may at most reflect simple frustration with  


Mengisteab's tendency - evident from the record - to interrupt the court, Oates, and  


her own counsel during court proceedings.  Our review of the record also did not reveal  


any instances of the court ignoring evidence, and as discussed above, the court's factual  


findings were supported by the record and not clearly erroneous. Finally, even assuming  


that the judge was the presiding judge in a prior DUI case involving Mengisteab's son's  



father, this does not by itself give rise to a conflict of interest that would require recusal. 

                     Having reviewed the record and trial proceedings, we conclude that there  


is no indication of any bias or prejudice.  The record instead indicates that the trial judge  


dealt  fairly  and  courteously  with  both  parties,  and  gave  Mengisteab  reasonable  

opportunities to explain her claims and evidentiary objections.  Mengisteab's allegations  


appear to reflect only her general dissatisfaction with the trial court's rulings. As we have  


explained, allegations of judicial bias are unfounded where they are "simply another  

          52        See Lacher v. Lacher, 993 P.2d 413, 420-21 (Alaska 1999) (holding that  

a judge's involvement in past cases with negative outcome for the appellant personally  


did not require recusal).  

                                                               -20-                                                          7267

----------------------- Page 21-----------------------

iteration  of  [the  appellant's]  own  discontent  with  the  court's  substantive  rulings."53  


Accordingly, we conclude that Mengisteab's contentions are unwarranted.  

V.        CONCLUSION  


                   We conclude that the superior court's failure to conduct a symmetrical best  


interests analysis was legal error and REMAND for a symmetrical best interests analysis  


consistent with this opinion.  We AFFIRM the superior court's decision in all other  



          53        Ward v. Urling        , 167 P.3d 48, 58 (Alaska 2007); see also Greenway, 294  

P.3d  at  1063("[E]ven  incorrect  rulings  against  a  party  do  not  show  bias  in  and  of  


                                                            -21-                                                      7267

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