Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Geldermann v. Geldermann (8/31/2018) sp-7281

Geldermann v. Geldermann (8/31/2018) sp-7281

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

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



DARCEY  GELDERMANN,                                              )  

                                                                 )          Supreme  Court  Nos.  S-16381/16401  

                                Appellant  and                   )  

                                Cross-Appellee,                  )          Superior  Court  No.  3AN-10-12834  CI  

                                                                 )  

                      v.                                                                        

                                                                 )         O P I N I O N  

                                                                 )  

                       

MATTHEW GELDERMANN,                                                                                               

                                                                 )         No. 7281 - August 31, 2018  

                                                                 )  

                                                 

                                Appellee and                     )  

                                Cross-Appellant.                 )  

                                                                 )  



                                   

                      A                                                                                       

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

                                                                                                    

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



                                                                                                           

                      Appearances: Allison Mendel and John J. Sherman, Mendel  

                                                                                                                 

                      Colbert & Associates, Inc., Anchorage, for Appellant and  

                                                                                                     

                      Cross-Appellee. Rhonda F. Butterfield, Wyatt & Butterfield,  

                                                                                

                      LLC, Anchorage, for Appellee and Cross-Appellant.  



                                                                                                           

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

                                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                 

                      The parents of a young son divorced in 2011, agreeing that the mother  



                                                                                                                                         

would have primary physical custody during the school year.   The father moved to  



                                                                                                                                  

California. When the child began experiencing behavioral problems, the parents agreed  



                                                                                                                                         

to  switch  custody  for  a  few  years,  giving  the  father  primary  physical  custody  in  


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

                                                                                                                    

California during the school year. The parties signed a custody modification agreement  



                                                                                                                               

to this effect in December 2014, including both parents' waivers of child support, but  



                                                              

they did not file the agreement in court.  



                                                                                                                          

                    The next year, following a dispute over the mother's visitation, both parties  



                                                                                                                                 

sought a judicial resolution of custody.  The father went to a California court seeking to  



                                                                                                                            

make the 2014 change in custody permanent. The mother went to Alaska superior court  



                                                                                                                                     

seeking to enforce the original 2011 agreement that gave her primary physical custody.  



                                                                                                                            

The Alaska court asserted jurisdiction; it ultimately modified physical custody in favor  



                                                                                                                      

of the father but maintained the parents' joint legal custody.  The court also modified  



                                                                                                                           

child support, ordering the mother to pay child support effective from the date the father  



                                                                     

first sought to modify custody in California.  



                                                                                                           

                    The  mother  appeals  the  physical  custody  and  child  support  orders,  



                                                                                                                           

challenging among other things the child support order's effective date.   The father  



                                                                                                                         

cross-appeals, challenging the decision on joint legal custody.  We affirm the court's  



                                                                                                                              

custody  and  child  support  orders,  concluding  that  they  are  well  supported  by  the  



                                                                                                                        

evidence and that the court did not abuse its discretion in selecting the child support  



                                    

order's effective date.  



                                  

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                           

                    Darcey and Matthew Geldermann married in 2005 and had a son in 2008.  



                                                                                                                              

They divorced in February 2011. The superior court approved a custody agreement that  



                                                                                                                            

established  joint  legal  custody  but  gave  primary  physical  custody  to  Darcey,  with  



                                                                                                                          

Matthew receiving visitation during summers and holidays.  Matthew thereafter moved  



                                                                                                                                    

to Washington, spent time as a contractor in Iraq, and eventually settled in California.  



                                                               -2-                                                         7281
  


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

                                                                 

                    1.        Custody experiment  



                                                                                                                                

                    The parties agree that their son exhibited behavioral problems when he  



                                                                                                                       

started kindergartenin2013;psychologists diagnosedhimwith autism, atypicalattention  



                                                                                                                         

deficit      and      hyperactivity          disorder,        unspecified         anxiety        disorder,       and      social  



                                                                                                                      

communication disorder.  To deal with these problems Darcey and Matthew agreed to  



                                                                                                                                

try  a  temporary  custody  switch:                   their  son  would  live  primarily  with  Matthew  in  



                                                                                                                         

California for two and a half years and visit Darcey over summers and holidays. Around  



                                                                                                                    

December 2014, when the child was six, the parties negotiated a new custody agreement  



                                                                                                                           

that acknowledged the switch, but they did not formalize their new agreement in court.  



                                                                                                                             

                    Theinformalnewarrangement workedwell for about 10months. Thechild  



                                                                                                                                  

started school in California in January 2015.  Matthew hired a nanny and established a  



                                                                                                                          

rigorous  routine,  including  many  extracurricular  activities.                                The  child  had  fewer  



                                                                          

behavioral problems, and his grades improved.  Matthew claims that his son "thrived"  



                        

under the new arrangement.  



                                                                                                                                  

                    But the arrangement broke down in the fall of 2015 after a dispute over a  



                                                                                                                          

planned visit by Darcey.  The superior court found that the dispute generated "some  



                                                                                                                            

angry  emails,"  including  threats  by  Darcey  that  she  would  retrieve  the  child  from  



                                                                                                                       

California and make it difficult for Matthew to see him again. The parties filed custody- 



                                                                                                                             

related motions in both California and Alaska courts; meanwhile the child remained with  



                   

Matthew in California.  



                                                                                                                             

                    While both cases were pending, the parties struggled to maintain civil  



                                                                                                                               

communication with each other.  The California court awarded Darcey a visit with her  



                                                                                                                        

son in November 2015 when she was there for a hearing; the visit was not a success,  



                                                                                                                              

though the parties disagree on why.  In March 2016 Matthew moved the child to a new  



                                                                                                                               

school following a bullying incident and failed to immediately inform Darcey of the  



                                                                                                                        

change.   In April the Alaska superior court, retaining jurisdiction, awarded Darcey  



                                                               -3-                                                         7281
  


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

  spring-break   visitation,   requiring   only   that   she   provide   an   itinerary.     The   parties  



 disagreed about how specific the itinerary needed to be, and Darcey ultimately canceled                                                                                                                                                                                                                                                                                                



 her   visit.     The   superior   court   described   the   "failure"   of   the   spring   break   visit   as  



 "disturbing" and "highly unfortunate."                                                                                    



                                                                  2.                              Child support   



                                                                 As   part   of   their   2011   divorce,   the   parties'   court-approved   settlement  



 agreement provided that Matthew would pay Darcey child support.                                                                                                                                                                                                                                                                     But when their son                                                          



 moved in with Matthew in December 2014, "[t]he parties agree[d] that neither party                                                                                                                                                                                                                                                                                                                    



  [would] owe child support to the other party as a result."                                                                                                                                                                                                                    In January 2015, accordingly,                                                         



 Darcey withdrew from the collection                                                                                                                                                         services provided by                                                                                         Alaska's Child Support                                                         



  Services Division (CSSD). But when their current dispute arose, Darcey again requested                                                                                                                                                                                                                                                                                            



 CSSD assistance, and Matthew received a letter from CSSD in October 2015 directing                                                                                                                                                                                                                                                                                                    



 that he pay Darcey the child support required by the 2011 agreement.                                                                                                                                                                                                                     



                                 B.                               Proceedings  



                                                                  1.                              Custody  



                                                                  In   early  October   2015   Matthew   filed   an   ex   parte   custody   action   in  



 California,  seeking  a  transfer  of  jurisdiction  from  Alaska,  a  temporary  emergency  

                                                                                                                                                                                                                                                                                                                                                                          



 custody order, and a modification of custody to reflect the parties' 2014 agreement                                                                                                                                                                                                                                                                                          



 giving him primary physical custody. Shortly thereafter Darcey commenced the current                                                                                                                                                                                                                                                                                                           



 Alaska proceedings; she filed a motion to enforce the original 2011 custody arrangement                                                                                                                                                                                                                                                                              



 that gave her primary physical custody.  The Alaska superior court conferred with the                                                                                                                                                                                                                                                                                                                             



 California court, held an evidentiary hearing on jurisdiction in January 2016, concluded                                                                                                                                                                                                                                                                                       



 that neither forum was convenient for both parties, and ultimately decided to retain                                                                                                                                                                                                                                                                                                                



jurisdiction in Alaska.                                                                                       



                                                                  Matthew had not filed a motion in Alaska to modify custody. The superior                                                                                                                                                                                                                                                 



 court concluded, however, that his opposition to Darcey's motion to enforce the 2011                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                            -4-                                                                                                                                                                                            7281
  


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

order amounted to, "at the very least, an implied custody modification request," and it  

                               



scheduled a trial on both physical and legal custody.  The parties presented a number of  

                                                                                                                                 



witnesses, including themselves, their respective new spouses, their son's California  

                                                                                                                    



nanny, and Darcey's mother.  

                                 



                    After hearing the evidence, the court denied Darcey's motion to enforce the  

                                                                                                                                



2011 order and awarded Matthew primary physical custody during the school year.  

                                                                                                                                     



Darcey was given summer vacations and alternating holidays as well as "generous and  

                                                                                                                              



liberal, unrestricted, unsupervised visits with [the child], whenever she is in the same  

                                                                                                                            



geographic location."  Although the court found significant communication problems  

                                                                                                                      



between  Darcey  and  Matthew,  it  continued  joint  legal  custody.                                      Darcey  sought  

                                                                                                                         



reconsideration, claiming that custody modification was inappropriate absent a formal  



motion  from Matthew.                  The  court  denied  the  motion,  explaining  that  custody  and  

                                                                                                                



visitation had been "always clearly at issue."  

                                                                      



                    2.        Child support  

                                         



                    In October 2015 Darcey filed a motion to reduce to judgment past-due  

                                                                                                                       



amounts of child support calculated under the 2011 order.  In early December Matthew  

                                                                                                                      



sought to stay enforcement of those child support provisions, and in January 2016 the  

                                                                                                                               



court issued an order precluding collection of child support arrears from December 2014  

                                                                                                                            



until it ordered otherwise.  

                        



                    Matthew did not file any other documents related to child support until  

                                                                                                                             



May 18, 2016, following the court's custody decision, when he filed a proposed child  

                                                                                                                            



support order.  He proposed an effective date of "November 1, 2015, which is the first  

                                                                                                                              



of the month after [Darcey] was formally served with notice of [Matthew's] custody  

                                                                                                                        



action  in  California."             Darcey  objected,  arguing  that  Alaska  Civil  Rule  90.3(h)(2)  

                                                                                                                    



prohibited a  retroactive date because Matthew had never filed a motion to modify child  

                                                                                                                            



support.  



                                                               -5-                                                         7281
  


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

                                 The court signed a new child support order on June 1, 2016, requiring                                                                                      



Darcey to pay support to Matthew.                                                      The order used Matthew's proposed effective date                                                                  



of November 1, 2015.                                    Darcey sought reconsideration, which was denied.                                                                              



                                Both parties appealed.                                   Darcey seeks review of the physical custody and                                                                  



child support orders, and Matthew challenges the award of joint legal custody.                                                                                             



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                                                                                                       



                                    1  

its discretion."                                                                                                                                                                                   

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



                                                                                                                                                                                                               

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



                       2  

                                                                                                                                                                                             

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  

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

                                                                                                                                                                            

others.' " 

denied a substantial right to or substantially prejudiced a party."4  

                                                                                                                                                                

                                 "We review an award  of  child support for abuse of discretion."5                                                                                                        But  

                                                                                                                                                                                                         



"[w]hether the superior court applied the correct legal standard to its child support  

                                                                                                                                                                                               



                1  

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

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



                2  

                                                                                                                       

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



                3  

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



                4  

                                                                                                                                                                                                      

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

                     

(Alaska 1989)).  



                5  

                                                                                                                                                                                                              

                                Limeres v. Limeres, 320 P.3d 291, 295 (Alaska 2014) (citing Swaney v.  

                                                                                           

Granger, 297 P.3d 132, 136 (Alaska 2013)).  



                                                                                                      -6-                                                                                             7281
  


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

determination is a question of law that we review de novo."                                                    6  Finally, "[t]he adequacy   



of the notice and hearing afforded a litigant in child custody proceedings involves due           



                                                                                                       7  

process considerations," which we also review de novo.                                                      



IV.	        DISCUSSION  



                                                                                                                                                            

            A.	          The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Finding  A  

                                                                                                                                                                  

                         Substantial Change In Circumstances For Purposes Of Modifying  

                                           

                         Physical Custody.  



                                                                                                                 

                         "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  



                                                                                                                                        8  

                                                                                                                                                          

modification and (2) the modification is in the best interests of the child."                                                               "Once the  



                                                                                                                                                              

movant meets [the initial] burden [of changed circumstances], he or she is entitled 'to a  



                                                                                                                                                   

hearing to consider whether, in light of such changed circumstances, it is in the child's  



                                                                                                            9  

                                                                                                           

best interests to alter the existing custodial arrangement.' " 



                         Darcey challenges only the court's decision on the first element of the  

                                                                                                                                                          



modification test: that there was a change in circumstances substantial enough to justify  

                                                                                                                                                     



a modification of custody.  We have held that "[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]  

                                                                                                                                              



             6  

                         Id.  (citing  Koller v. Reft                , 71 P.3d 800, 804 (Alaska 2003)).                 



            7  

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

                                                                                                                           



             8  

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

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



            9  

                                                                                                                                                         

                         Lashbrook, 957 P.2d at 329 (quoting A.H. v. W.P. , 896 P.2d 240, 244  

                

(Alaska 1995)).  



                                                                             -7-	                                                                     7281
  


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

                                                                      10  

more    than    mere    passage    of    time.'   "                        Whether    changed    circumstances    justify  



modification "is heavily fact-intensive" and "appropriately gauged by its effect on the                                                        



            11  

                                                                                                                                              

child."         "The change in circumstances 'must be demonstrated relative to the facts and  



                                                                                                                       

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



                  12  

                 

modify.' " 



                                                                                                                                              

                       The superior court in this case had to decide whether circumstances had  



                                                                                                            13  

                                                                                                                                             

substantially changed since the first custody agreement in 2011.                                                 In deciding that they  



                                                                                                                                       

had, the court relied on the change that prompted Darcey and Matthew to shift custody  



                                                                                                                                               

in 2014:  "[T]here ha[s] been a change in circumstances . . . that was recognized by the  



                                                                                                                                               

parties when they agreed that [the child] would reside, at least temporarily, with his  



                                                                                                                                            

father."  It is undisputed that the child had behavioral problems in Alaska, and both  



                                                                                                                                                      

parties agreed it would benefit him to live with Matthew in California for several years.  



                                                                                                                                  

Matthew had also had a change in employment that allowed for a more permanent  



                                                                                                                                    

residence, and both parents had remarried. The superior court did not abuse its discretion  



            10  

                       Collier v. Harris             , 377 P.3d 15, 22 (Alaska 2016) (second alteration in                                       

original) (quoting             Hope P. v. Flynn G.                , 355 P.3d 559, 565 (Alaska 2015)).               



            11  

                                             

                       Id. at 22, 23 n.31.  



            12  

                                                                                                                                                 

                       Nelson v. Nelson, 263 P.3d 49, 52 (Alaska 2011) (quoting Peterson v.  

                                                                                 

Swarthout, 214 P.3d 332, 341 (Alaska 2009)).  



            13  

                                                                                                  

                       The 2014 agreement was not filed with the Alaska court until the current 

                                                                                                                                    

litigation, so our baseline for assessing change is the court-approved 2011 parenting  

                                                                                                                            

agreement.  See McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986) ("Trial courts,  

                                                                                                                                         

not parents, are the ultimate decision makers as to custody and are not bound by private  

agreements.").  



                                                                        -8-                                                                7281
  


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

in concluding that these new circumstances, in combination, amounted to a substantial                                                                                     

change.14  



                                                                                      15   Darcey  argues  that,  as  a  matter  of  law,  her  

                              Citing McLane  v.  Paul,                                                                                                                                     

                                                                         



temporary  agreement  with  Matthew  should  not  qualify  as  a  substantial  change  in  

                                                                                                                                                                                              



circumstances because "parties should be allowed to experiment with new custodial  

                                                                                                                                                                              



arrangements without the fear that they will automatically become permanent."  But the  

                                                                                                                                                                                             



superior court did not point to the "newcustodialarrangement"as the substantial change;  

                                                                                                                                                                                  



rather, the court relied on the underlying circumstances that prompted the new custodial  

                                                                                                                                                                               



arrangement.   The fact that the parties themselves recognize the substantiality of a  

                                                                                                                                                                                                



change in circumstances and agree tentatively on how to deal with it cannot foreclose the  

                                                                                                                                                                                             



court from recognizing the same thing.  

                                                                                          



               B.	            The Superior Court Did Not Violate Darcey's Due Process Rights By  

                                                                                                                                                                                             

                              Considering A Modification of Custody Without A Formal Motion  

                                                                                                                                                                                 

                              From Either Party.  

                                                              



                              Darcey argues that Matthew's failure to file a motion to modify custody in  

                                                                                                                                                                                               



Alaska prevented her from understanding "what the alleged change in circumstances  

                                                                                                                                                                   



was," thus violating her due process rights to notice and a hearing.  "Procedural due  

                                                                                                                                                                                           



process under the Alaska Constitution requires 'notice and opportunity for hearing  

                                                                                                                                                                                 



               14  

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

reviewing whether a trial court was justified in finding a change in circumstances, we do                                                                                                     

not parse each alleged factual assertion of change, but instead look to see whether the                                                                                                     

circumstances   in   the   aggregate   establish   a   change   of   circumstances.");   Hunter   v.  

Conwell,   219   P.3d   191,   197   (Alaska   2009)   ("[T]he   allegation   that   the   boys   have  

exhibited   significant   anger   and  behavioral   issues   after   returning   from   Conwell's  

home[, among other things], could warrant modification of custody.").                                                                  



               15  

                               189 P.3d 1039, 1044-45 (Alaska 2008) (holding that temporary agreement 

                                                                                                                                                                            

to allow child to stay with her father for one school year did not qualify as substantial  

                                                                                                                                                                           

change).  



                                                                                              -9-	                                                                                      7281
  


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

                                                              16  

appropriate to the nature of the case.' "                          "To comply with due process, notice must be                          



given sufficiently in advance of scheduled court proceedings so that the parties have a                         

                                                            17   We  have  explained  that  "[i]t  is  essential  to  

reasonable   opportunity   to   prepare."                                                                                               



contested custody proceedings that the parties be afforded a hearing which grants them  

                                                                                                                                    



the opportunity to present the quantum of evidence needed to make an informed and  

                                                                                                                                     

principled determination."18                   But we have held that even without a formal motion from  

                                                                                                                                    



either party, "the trial court may decide [custody] issues on its own motion, as long as  

                                                                 

a party has raised them and both sides have the opportunity to present full testimony."19  

                                                                                                                       



                     Darcey argues that in theabsenceofaformal motion to modify custody, she  

                                                                                                                                       



"lacked notice as to the disputed issues and therefore had no ability to prepare to respond  

                                                                                                                               



to Matthew's case." Darcey acknowledges that she received "late notice" at the trial call  

                                                                                                                                      



that modification was at issue, but she argues that because she was unrepresented, the  

                                                                                                                                       



absence of a formal motion "deprived her of any understanding of the issues to be  

                                                                                                                                       



addressed at trial, or the case Matthew intended to present against her retaining custody."  

                                                                                                                                             



                     Wehavefound dueprocess violations in several cases when aparent lacked  

                                                                                                                                  



notice that permanent custody was at issue or the hearing was insufficient to determine  

                                                                                                                            



           16  

                     Lashbrook v.  Lashbrook,  957  P.2d 326, 328 (Alaska 1998)  (quoting  Wright  

v.  Black,  856  P.2d  477,  480  (Alaska   1993)).  



           17  

                                                                                                                                 

                      Childs v. Childs, 310 P.3d 955, 960 (Alaska 2013) (citing Fidler v. Fidler, 

                                               

296 P.3d 11, 13 n.5 (Alaska 2013)).  



           18  

                                                                                                                          

                     Lashbrook, 957 P.2d at 328 (quoting Cushing v. Painter, 666 P.2d 1044,  

                        

 1046 (Alaska 1983)).  



           19  

                                                                                                                                      

                      T.M.C. v. S.A.C., 858 P.2d 315, 318-19 (Alaska 1993).  Because "the two 

                                                                                                                                      

prongs  of the  [custody modification] test are  sufficiently interwoven," the  court has  

                                                                                                                                       

authority  "to  act  on  [its]  own  motion"  regarding  either  a  substantial  change  in  

                                                                                                              

circumstances or the subsequent best interests determination.  Id. at 319.  



                                                                  -10-                                                             7281
  


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

the child's best interests.                                                20  In  Siekawitch v. Siekawitch, on the other hand, we rejected                                                                                                   



a father's due process claim because of his actual "notice that [the mother] sought equal                                                                                                                                                             

                                                                      21  Although the mother had not filed a motion to modify physical  

time with the children."                                                                                                                                                                                                                      



custody, she had sought equal time through a change in visitation "in her memorandum  

                                                                                                                                                                                                                            



in support of her motion for a specific custody schedule, in her reply to [the father's]  

                                                                                                                                                                                                                                            

opposition to the motion, and in her proposed visitation order."22                                                                                                                                       Because the father's  

                                                                                                                                                                                                                                               



pretrial motions and his conduct at trial indicated that he "was aware of [the mother's]  

                                                                                                                                                                                                                   



intentions" to seek equal time, we concluded that the father had sufficient notice of a  

                                                                                                                                                                                                                                                                   

possible modification to satisfy due process.23  

                                                                                                                                             



                                         Darcey's case is not meaningfully distinguishable from Siekawitch.  First,  

                                                                                                                                                                                                                                                      



Matthew's filings and the court's comments clearly indicated that custody modification  

                                                                                                                                                                                                                                



                    20  

                                        Debra P. v. Laurence S.                                                  , 309 P.3d 1258, 1261 (Alaska 2013) (finding due                                                                                           

process violation where superior court based its custody decision on "hearing [that]                                                                                                                                                                 

would decide issues of interim custody" and had told parties "that another final hearing                                                                                                                                                        

 [on   permanent   custody]   would   be   scheduled   if   the   parties   were   unable   to   reach   a  

settlement");  Potter v. Potter                                                         , 55 P.3d 726, 728-29 (Alaska 2002) (holding due process                                                                                                

was violated where father "was given no notice that modification of decreed visitation                                                                                                                                                    

was at issue -indeed, based on the court's rulings, both parties reasonably expected that                                                                                                                                                                   

decreed visitation would not be at issue");                                                                                      Lashbrook, 957 P.2d at 329-30 (remanding   

custody determination where trial court relied on previous domestic violence hearing in                                                                                                                                                                          

determining custody rather than holding hearing to address the "eight other factors                                                                                                                                                              

specifiedin AS25.24.150(c)");                                                                 Cushing, 666 P.2d at 1046 (findingdueprocessviolation                                                                                         

where   mother   only   received   five   days   notice   and   "because   of   the   time   constraints  

imposed, the parties were limited to four witnesses apiece").                                                                                               



                    21  

                                         956 P.2d 447, 450 (Alaska 1998).  

                                                                                                                            



                    22  

                                        Id.  

                                                   



                    23  

                                        Id. ; see also Easley v. Easley, 394 P.3d 517, 521 (Alaska 2017) ("Because 

                                                                                                                                                                                                                                        

of the previous back-and-forth between the parties on the issue of enforcement of the  

                                                                                                                                                                                                                                                             

divorce decree, [the former husband] lacked neither notice of [the former wife's] desire  

                                                                                                                                                                                                                                                     

to be paid her share of the estate nor an opportunity to oppose her arguments.").  

                                                                                                                                                                                                          



                                                                                                                             -11-                                                                                                                       7281
  


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

                                          24  

 was at issue.                                   Although Matthew did not file a motion to modify custody in Alaska, he                                                                                                                                                                    



 did file one in California, served on Darcey on October 8, 2015. And Matthew's motion                                                                                                                                                                                      



 to transfer jurisdiction, filed two weeks later in Alaska, clearly conveyed his intent to                                                                                                                                                                                                  



 modify custody in whichever state took jurisdiction.                                                                                                                           His January 14, 2016 reply on the                                                                        



jurisdiction issue also discussed                                                                                 which state should "hear the custody modification                                                                                    



 action."    



                                              The superior court's interactions with Darcey clearly indicated its intent to                                                                                                                                                                  



 consider modifying custody.                                                                       When the court decided to retain jurisdiction in January                                                                                                             



 2015, it stated that modification would be the subject of a future evidentiary hearing and                                                                                                                                                                                            



 asked the parties when they would be ready for it.                                                                                                                                At trial call, 15 days before the                                                                    



 evidentiary hearing, the court clearly stated that physical and legal custody were at                                                                                                                                                                                                      

                    25  And at the beginning of the hearing the court again stated that the "hearing [was]  

 issue.                                                                                                                                                                                                                                                                          



 on custody modification."  

                                       



                                              Finally, the record supports a conclusion that Darcey understood from the  

                                                                                                                                                                                                                                                                                         

                                                                                                                                                                            26       She acknowledged that she knew  

 outset that Matthew was seeking to modify custody.                                                                                                                                                                                                                              

                                                                                                                                                



 Matthew was attempting to modify custody in California when she sought the protection  

                                                                                                                                                                                                                                                                 



 of Alaska's courts: "Matthew . . . is trying to modify custody in California. He filed our  

                                                                                                                                                                                                                                                                                        



 Alaska custody order in the court of Orange County and is trying to modify it through  

                                                                                                                                                                                                                                                                        



                       24  

                                             See Siekawitch                                     , 956 P.2d at 450.                          



                       25  

                                              Darcey pointed out that Matthew had not filed a motion to modify custody,                                                                                                                                                

 and the superior court noted that "there's an opposition to your motion to enforce which                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                            

 is at the very least an implied custody modification."  There is no written opposition to  

 Darcey's motion to enforce the 2011 custody order, as Matthew concedes. But his other                                                                                                                                                                                            

                                                                                                                                                              

 filings clearly indicated his opposing position.  



                       26  

                                             See Siekawitch, 956 P.2d at 450 ("[T]he record discloses that [the father] 

                                                                                                                                                                                                                                                             

 was aware of [the mother's] intentions; in his opposition to [the mother's] motion, he  

                                                                                                                                                                                                                                                                                          

 expressly acknowledged that [she] sought to share physical custody equally with him.").  

                                                                                                                                                                                                                                                                            



                                                                                                                                           -12-                                                                                                                                    7281
  


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

the State of California and not Alaska."  When the court advised her at the trial call to   



"be prepared for the court to rule on who should                                                                                                                                                       have physical and legal custody,                                                               



okay?,"   Darcey responded "Okay."                                                                                                        Her trial brief, filed the day before trial, addressed                                                                                                   



"Custody Modification/Enforcement," argued that "[t]here should be no modification of                                                                                                                                                                                                                                            



custody granted, and only enforcement                                                                                                             oftheexisting order,"andaddressed                                                                                                      thestatutory   



best interests factors.                                                          We conclude that the superior court did not err in concluding that                                                                                                                                                                       

Darcey had sufficient notice of a possible custody modification.                                                                                                                                                                                   27  



                                                   Darcey also had a sufficient opportunity to be heard; the hearing enabled  

                                                                                                                                                                                                                        

the superior court to make a principled custody  decision.28                                                                                                                                                                                     Both parties presented  

                                                                                                                                                                                                                                                                                                  



evidence on the best interests factors.  Darcey's witnesses addressed her ability to care  

                                                                                                                                                                                                                                                                                                                        



for the child and contrasted it with Matthew's. She cross-examined Matthew about their  

                                                                                                                                                                                                                                                                                                                       



relative abilities to foster their son's relationship with the other parent, Matthew's home  

                                                                                                                                                                                                                                                                                                                   



environment, and his relationship with his family.  She does not point to any additional  

                                                                                                                                                                                                                                                                                                  



evidence she would have presented if she had received earlier or more specific notice.  

                                                                                                                                                                                                                                                        



                         27  

                                                   See id.                  ;  seealso                       Childs v. Childs                                            , 310 P.3d 955, 961 (Alaska 2013) (holding                                                                                      

due process was not violated in a child support proceeding where father received notice                                                                                                                                                                                                                          

in   October,   "had   an   opportunity   to   make   his   legal   arguments   and   submit   relevant  

financial documents," and the superior court did not issue final custody order until the                                                                                                                                                                                                                                    

following February);                                                            Rebecca L. v. Martin C.                                                                   , No. S-14509, 2013 WL 1092714, at *3-4                                                                                                      

(Alaska Mar. 13, 2013) (concluding that eight days' notice satisfied due process where                                                                                                                                                                                                                          

"the parties had agreed years earlier" that they would revisit custody around that time,                                                       

"they had been negotiating a custody modification for over a year by the time of the                                                                                                                                                                                                                                        

hearing," mother had notice permanent custody was at issue, parents and court wanted                                                                                                                                                                                                                        

resolution before school started in the fall, and mother "was able to present sufficient                                                                                                                                                                                                           

evidence allowing the superior court to make a determination and the record does not                                                                                                                                                                                                                                       

reflect minimal preparation").                              



                         28  

                                                   See Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998) (quoting  

                                                                                                                                                                                                                                                                                                       

 Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983)).  

                                                                                                                                                                                              



                                                                                                                                                             -13-                                                                                                                                                     7281
  


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

Even taking Darcey's self-represented status into account, we conclude that her due                                                                                   

process rights were not violated.                                29  



                                                                                                                                                                    

              C.	          It Was Not Error To Select November 1, 2015, As The Effective Date  

                                                                                                 

                           Of The Modified Child Support Award.  



                                                                                                                                                              

                           We have observed that "a significant modification of the physical custody  



                                                                                                                                                                            

schedule is likely to require a new child support determination, regardless of whether a  



                                       30  

                                                                                                                                                                         

parent requests it."                         But whether a parent requested the modification  is relevant to  



                                                                                                                                                                    

whether the new order can have anything but prospective effect. Although Alaska Civil  



                                                                                                                                                        

Rule 90.3(h)(2) prohibits most retroactive modifications of "[c]hild support arrearage,"  



                                                                                                                                                                      

the rule further provides that a modification may be made effective "on or after the date  



                                                                                                                                    31  

                                                                                                                                                                       

that a motion for modification . . . is served on the opposing party."                                                                    Darcey points out  



             29  

                           Darcey relies heavily on                           VinZant v. Elam                  , in which we concluded that a                              

show-cause hearing on a motion to enforce custody was insufficient under due process                                                                           

to allow a modification of custody.                                      977 P.2d 84, 86-87 (Alaska 1999).                                        But unlike in           

 VinZant, the parties here had notice and an opportunity to address the best interests                                                                       

factors.   See id.              at 87.   



             30  

                           Wells v. Barile, 358 P.3d 583, 589 (Alaska 2015) (observing that court's 

                                                                                                                                                                

entry of a tentative child support order reflecting ordered change in custody "was plainly  

                                                                                                                                                                

the proper  course" even  though  party  moving  for  modification of custody  had  not  

                                                                                                                                                                       

requested change in support); see Swaney v. Granger, 297 P.3d 132, 137 n.15 (Alaska  

                                                                                                                                                              

2013) ("We note that  under  Rule 90.3(a) the change of a child's primary physical  

                                                                                                                                                            

custodian from one parent to the other ordinarily will require modification of an existing  

                                                                                                                                                              

support order."); Potter v. Potter, 55 P.3d 726, 729 (Alaska 2002) ("Ordinarily, when  

                                                                                                                                                                   

parties informally agree to make a change in decreed custody or visitation that is not  

                                                                                                                                                                       

merely temporary or experimental, the change should be reflected both in a changed  

                                                                                                                                                            

custody or visitation order and in a changed child support order.").  

                                                                                                                      



             31  

                           The full text of Rule 90.3(h)(2) is as follows:  

                                                                                                     

                           No Retroactive Modification.  Child support arrearage may  

                                                                                                                                          

                           not   be   modified   retroactively,   except   as   allowed   by  

                                                                                                                                            

                                                                                                                                                  (continued...)  



                                                                                   -14-	                                                                           7281
  


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

that Matthew never filed a motion to modify child support, and she argues that the                                                                                                                                                   



superior court violated the retroactivity bar when it modified child support effective                                                                                                                               



November   1,   2015,   the   first   day   of   the   month   after  Matthew   filed   his   motion   for  



modification of custody in California.                                                                    



                                     In light of the purposes of Rule 90.3(h)(2) and the realities of custody                                                                                                           



litigation, we reject Darcey's argument. We conclude that when, as here, a parent moves                                                                                                                                      



to modify custody based on an existing, de facto custody change, the prohibition on                                                                                                                                                    



retroactivity doesnot bar thesuperior court frommaking a corresponding changein                                                                                                                                                 child  



support effective from the date the modification motion is served on the opposing party.                                                                                                                                       



                                     A baseline principle is that child support calculations "must be                                                                                                       based on the              

                                                                                                                32      We explained in Turinsky v. Long that "[i]f  

custody actually ordered, not exercised."                                                                                                                                                                                          



the parties do not follow the custody order, they should ask the court to enforce the  

                                                                                                                                                                                                                                     

custody order or should move to modify the child support order."33   Although modified  

                                                                                                                                                                                                                      



child support may be calculated from the date a motion to modify child support is served  

                                                                                                                                                                                                                             



on the opposing party, "[w]e have read Rule 90.3(h)(2) to prohibit increases or decreases  

                                                                                                                                                                                                                    

in child support effective before" that date.34                                                                              Superior courts have discretion to choose  

                                                                                                                                                                                                                           



a later date, but "the motion service date" is the earliest available date and "should be the  

                                                                                                                                                                                                                                      



                  31  

                                     (...continued) 

                                     AS  25.27.166(d)  [where  paternity  is  disestablished].                                                                                                      A  

                                                                                                                                                                                                 

                                     modification which is effective on or after the date that a  

                                                                                                                                                                                                      

                                     motion   for   modification,   or   a   notice   of   petition   for  

                                                                                                                                                                                              

                                     modification  by  the  Child  Support  Services  Division,  is  

                                                                                                                                                                                                   

                                     served on the opposing party is not considered a retroactive  

                                                                                                                                        

                                     modification.  



                  32  

                                     Turinsky v. Long, 910 P.2d 590, 598 (Alaska 1996).  

                                                                                                                                                                  



                  33  

                                    Id. at 595.  

                                                     



                  34  

                                     Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998).  

                                                                                                                                                                                   



                                                                                                                  -15-                                                                                                          7281
  


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

                                                               35  

preferred   effective   date."                                         "[T]he   superior   court   should   exercise   its   discretion   in  

selecting a different effective date only if it finds good cause for doing so."                                                                                                       36  



                                We recognize that our case law has not been entirely consistent on the issue  

                                                                                                                                                                                                      



of what "motion for modification" can be used to satisfy Rule 90.3(h)(2).  We have not  

                                                                                                                                                                                                          



allowed the "functional equivalent" of a modification motion to determine the effective  

                                                                                                                                                                                             

date of a support order.37  In Millette v. Millette we held that the earliest date the court  

                                                                       



could use for a modification of child support was the date the father received notice of  

                                                                                                                                                                      



the mother's motion for modification of child support, which was months after the  

                                                                                                                                                                                                          



superior court had ordered a temporary change in custody; we noted that neither the  

                                                                                                                                                                                                          



court's  custody  order  nor  the  mother's  motion  seeking  modification  of  custody  

                                                                                                                                                                                             

mentioned child support.38                                         We explained that a formal motion to modify child support  

                                                                                                                                                                                                



was required "even where the circumstances have materially changed and a modification  

                                                                                                                                                                                  



                35  

                                Id.  



                36  

                                Id.   



                37  

                                See Millette v. Millette                               , 177 P.3d 258, 266 (Alaska 2008) ("We have held                                                                

that '[w]ithout a valid motion before the court, a modification of child support would be                                                                                                                   

retroactive  and  thus  prohibited.'                                                   This  is  true  even  where  the  circumstances  have  

                                                                                                                                                                                                     

materially   changed   and   a   modification   would   likely   be   permitted   upon   motion."  

(footnote omitted) (alteration in original) (quoting                                                                        Wright v. Wright, 22 P.3d 875, 879  

(Alaska  2001)));  Wright,  22  P.3d  at  879  ("The  only  documents  that  satisfy  the  

                                                                                                                                                                                                         

requirements of Rule 90.3 are motions or petitions for modification.");                                                                                                      State, Dep't of                 

Revenue, Child Support Enf't Div., ex rel. Husa v. Schofield, 993 P.2d 405, 409 (Alaska  

                                                                                                                                                                                               

 1999) ("[W]e specifically rejected the idea that documents not mentioned in the text of  

                                                                                                                                                                                                             

the rule can be the 'functional equivalent' of a motion or petition to modify."); Boone v.  

                                                                                                                                                                                                              

 Gipson, 920 P.2d 746, 749-51 (Alaska 1996) (explaining that because Rule 90.3(h)(2)                                                                                                     

"contains no indication that 'functional equivalents' of motions for modification . . .                                                                                                                      

suffice, we conclude that nothing short of a motion or petition for modification satisfies                                                                                                     

the requirement").   



                38  

                                Millette, 177 P.3d at 266.  

                                                                                    



                                                                                                    -16-                                                                                              7281
  


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

                                                                                 39  

would likely be permitted upon motion."                                               "In such cases, the burden remains on the                                     



                                                                                                                                                 40  

non-custodial parent to file a motion for modification of child support."                                                                                       

                                                                                                                                                       We have  



                                                                                                                                                               

further observed that "allowing the court to alter [a parent's] obligation absent the filing  



                                                                                                                                                        

of a motion for modification would undermine Rule 90.3's stated goal of ensuring  



                                                                                                                                       41  

                                                                                                                                            

predictability in determining the amount of child support to be paid." 



                          On  the  other  hand,  we  recently  indicated  that  a  modification  of  child  

                                                                                                                                                               



support could be effective as of the date of the mother's motion to modify custody  

                                                                                                                                                          

where, as in Millette, the motion was silent on child support.42   But because the father in  

                                                                                                                                                                      



that  case  "concede[d]  that  [the  mother's]  motion  to  modify  custody  satisfied  the  

                                                                                                                                                                   



[retroactivity] provision of Alaska R. Civ. P. 90.3(h)(2)," it was unnecessary for us to  

                                                                                                                                                                      

decide whether Rule 90.3(h)(2) was actually satisfied.43  

                                                                                         



                          Harmonizing these cases requires us to again look at the purposes behind  

                                                                                                                                                            



the retroactivity bar.   Rule 90.3(h)(2) restates the federal prohibition of retroactivity  

                                                                                                                                                 



found in the Bradley Amendment, which "specifies what laws a state must have in order  

                                                                                                                                                                

                                                                                                                              44   Among the Bradley  

to receive federal funds" for child support enforcement activities.                                                                                       

                                                                                                            



             39  

                          Id.  



             40  

                          Id.  



             41  

                          Schofield, 993 P.2d at 408.                  



             42  

                          Swaney v. Granger                     , 297 P.3d 132, 136-37 (Alaska 2013).                          



             43  

                          Id.   at 137 n.15.                Nevertheless we "note[d] that under Rule 90.3(a) the                                                   

change of a child's primary physical custodian from one parent to the other ordinarily                  

will require modification of an existing support order."                                                     Id.  



             44  

                                                                                                                                                                 

                          Karpuleon v. Karpuleon, 881 P.2d 318, 320 n.6 (Alaska 1994); see also 

                                                                                                                                                             

Alaska R. Civ. P. 90.3 cmt. X.B (explaining that Rule 90.3(h)(3) "is intended to restate  

                                                                                                                                                                    

[the Bradley Amendment's] prohibition").  The Bradley Amendment is shorthand for  

                                                                                                                                               (continued...)  



                                                                                 -17-                                                                           7281
  


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

Amendment's requirements is that states have procedures ensuring that child support                                                                          



payments not be "subject to retroactive modification . . . except that such procedures may                                                                          



permit modification with respect to any period during which there is pending a petition                                                                      



for modification, but only from the date that notice of such petition has been given . . .                                                                                 

                                                                                                                                         45  Discussing the  

to the obligee or (where the obligee is the petitioner) to the obligor."                                                                                               



policy reasons behind the federal retroactivity bar in Karpuleon v. Karpuleon, we noted  

                                                                                                                                                                  



commentators' concerns that evidence was sometimes not "easily attained or available"  

                                                                                                                                                         



to supportretrospectivearguments aboutchanged circumstancesand thatobligor parents  

                                                                                                                                                               



should be required to act diligently when petitioning for reductions in their child support  

                                                                                                                                                              

payments.46  



                           The United States Department of Health and Human Services (DHHS),  

                                                                                                                                                          



responding to comments on the Bradley Amendment's implementation,   repeatedly  

                                                                                                                                                       



emphasized that it is the obligation of the non-custodial parent - who "is in the best  

                                                                                                                                                                    



position to know of a change in circumstances" - "to take action promptly to seek  

                                                                                                                                                                   

                                                                         47  Changedcircumstances thattrigger theobligor's  

modification ofasupport obligation."                                                                                                                       

                                                   



responsibility to act "might include" the fact that "the child [has gone] to live with the  

                                                                                                                                                                       



             44  

                           (...continued) 

Section  9103(a)  of  the  Omnibus  Budget  Reconciliation  Act  of  1986,  42  U.S.C.  

                                                                                                                                                              

 666(a)(9) (2012).  

                         



             45  

                           42 U.S.C.  666(a)(9)(C).  

                                                                                



             46  

                          Karpuleon,   881   P.2d   at   321   (quoting   Prohibition   of   Retroactive 

                                                                                                                                                   

Modification ofChild Support Arrearages, 54Fed. Reg.15,757,15,758 (Apr. 19, 1989)).  

                                                                                                                                                              



             47  

                                                                                                                                                                        

                           Prohibition of Retroactive Modification of Child Support Arrearages, 54 

                          

Fed. Reg. at 15,761.  



                                                                                  -18-                                                                            7281
  


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

                48  

obligor."            As relevant here, DHHS reiterated:                             "We do not . . . believe that . . . even a                         



change of actual custody of the child should result in a modification of support liability                                                 



unless   the   court   or   administrative   authority   is   duly   notified   and   sanctions   such  

                          49     And  the  required  notice  is  the  formal  notice  required  by  state  

modification."                                                                                                                                 



jurisdictional rules:  

                                     



                        We believe Congress intended that "date of notice" or "date  

                                                                                                                        

                        notice is given" should be construed literally and in terms of  

                                                                                                                             

                        acquiring personal jurisdiction over the other party. State law  

                                                                                                                           

                        provides  rules  to  determine  when  personal  jurisdiction  is  

                                                                                                        

                        acquired  by  service  of  notice  of  an  action.                                Under  these  

                                                                                                                       

                        provisions,  the  "date  of  notice"  or  "date  notice  is  given"  

                                                                                                                     

                        should be interpreted by the State in the same way as it is  

                                                                                                                              

                        generally applied to commence other civil litigation within  

                                                                                                                      

                        the State. State law regarding the establishment of the date of  

                                                                                                                              

                        notice  that  a  petition  has  been  filed  dictates  when  the  

                                                                                                                          

                        modification may be effective.[50]  

                                                              



                        The federal agency comments do not interpret the Bradley Amendment as  

                                                                                                                                                     



dictating the title, form, or substance of the "motion for modification" necessary to  

                                                                                                                                                    



 satisfy the retroactivity bar.   They focus primarily on the importance of two factors:  

                                                                                                                                                         



 (1) notice that child support is at issue, and (2) that the notice be formal - that is, that  

                                                                                                                                                  



it involve the court.  In our view, a motion for modification of custody based on an  

                                                                                                                                                    



 existing, de facto change in physical custody will usually provide the other parent the  

                                                                                                                                                   



 same "fair warning that support may change" as the parent would receive from an  

                                                                                                                                                    



            48  

                       Id.  



            49  

                       Id.  



            50  

                       Id.  at 15,763.   



                                                                         -19-                                                                  7281
  


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

                                                                                              51  

explicit motion to modify child support.                                                           The requirements of federal law - focusing                                            



on notice and formal process - remain satisfied if the superior court has the flexibility                                                                                             



to choose the date of that custody motion as the effective date for a modification of child                                                                                                       



                   52  

support.                 



                                In this case, Matthew filed an ex parte custody action in California in early  

                                                                                                                                                                                                 



October 2015 that sought, among other things, a modification of custody to reflect the  

                                                                                                                                                                                                      



parties' 2014 agreement giving him primary physical custody.  Darcey acknowledges  

                                                                                                                                                                           



that Matthew informed her in late September that he was taking this action, and he later  

                                                                                                                                                                                                   



filed in Alaska a California "Proof of Personal Service" that showed she had been served  

                                                                                                                                                                                              



                51  

                                See Boone v. Boone                           , 960 P.2d 579, 585-86                               (Alaska 1998) ("[S]ervice of the                                    

motion [to modify child support] gives the opposing party both fair warning that support                                                                                                   

may change and an opportunity to reassess, even before the court rules, the correct                                                                                                         

amount  of   support.     This   gives   an   opportunity   to   adjust   consumption   patterns   in  

anticipation ofmodification, and thus minimize prejudice                                                                             when reliefisgranted                               effective  

as of the service date.").              



                52  

                                We overrule Millette v. Millette, 177 P.3d 258, 266 (Alaska 2008), to the 

                                                                                                                                                                                                      

extent it would require an explicit request for a change in child support to be included  

                                                                                                                                          

in a motion for a change of custody before that motion could be used in setting the  

                                                                                                                                                                                                     

effective  date  for  child  support.                                               Other  cases  that  have  applied  the  "no  functional  

                                                                                                                                                                                    

equivalents"  principle  are  distinguishable  as  not  involving  either  modifications  of  

                                                                                                                                                                                                       

custody or the formal invocation of judicial process that we require here.  In Wright v.  

                                                                                                                                                                                       

 Wright, 22 P.3d 875, 879 (Alaska 2001), the father filed motions to modify child support  

                                                                                                                                                                                            

but they were rejected as defective; we held that "[w]ithout a valid motion before the  

                                                                                                                                                                                                     

court, a modification of child support would be retroactive and thus prohibited."  In  

                                                                                                                                                                                                      

State, Dep't of Revenue, Child Support Enf't Div., ex. rel Husa v. Schofield, 993 P.2d  

                                                                                                                                                                                       

405, 407-09 (Alaska 1999), the father sought a retroactive change in child support based  

                                                                                                                                                                                                

on CSED's implicit agreement that the existing order was erroneous, but "neither CSED  

                                                                                                                                                                                              

nor [the parent had] filed or served a motion for modification." In Boone v. Gipson, 920  

                                                                                                                                                                                                    

P.2d 746, 749-51 (Alaska 1996), the mother sought a retroactive change in child support  

                                                                                                                                                                                           

based on letters from CSED informing the father that it was reviewing his child support;  

                                                                                                                                                                                          

we held that the earliest document that satisfied Rule 90.3(h)(2) was a formal motion to  

                                                                                                                                                                                                         

modify child support.  

                                                      



                                                                                                  -20-                                                                                           7281
  


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

with the pleadings on October 8, 2015.                                                                                                           At that time the child was already living with                                                                                                         



Matthew,   and   Darcey   acknowledges   she   had   actual  notice   of   Matthew's   intent   to  



formalize their de facto custody arrangement by seeking to modify custody in California.                                                                                                                                                                                                                                   



                                                We conclude that the superior court did not abuse its discretion when it                                                                                                                                                                                           



selected November 1, 2015 - the first date of the month immediately following the                                                                                                                                                                                                                            



filing of the California custody action - as the effective date of the new child support                                                                                                                                                                                                     



order.  



                        D.	                     The Superior Court Did Not Abuse Its Discretion By Continuing Joint                                                                                                                                                                                  

                                                Legal Custody.   



                                                Matthew argues in his cross-appeal that the superior court erred by refusing                                                                                                                                                               



to modify joint legal custody despite its finding - and both parties' testimony - that                                                                                                    



their communication had broken down.                                                                                                                    We conclude that this was not an abuse of                                                                                                               



                                      53  

discretion.                                   



                                                                                                                                                                              54  

                                                                                                                                                                                                                                                                                                           

                                                "Joint  legal  custody  is  preferred"                                                                                                  but  "is  only  appropriate  when  the  

                                                                                                                                                                                                                                                 55   Thus, "the test for  

                                                                                                                                                                                                                                                                                                              

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



                        53  

                                                Like modifications to physical custody, modifications to legal custody                                                                                                                                                                     

require a two-prong analysis.                                                                              Rego v. Rego                                     , 259 P.3d 447, 452 (Alaska 2011) ("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.").                                                                                                 



                        54  

                                                Jaymot v. Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009) (citing Farrell  

                                                                                                                                                                                                                                                                                               

v. Farrell, 819 P.2d 896, 899 (Alaska 1991)); Peterson v. Swarthout, 214 P.3d 332, 336  

                                                                                                                                                                                                                                                                                                           

n.6 (Alaska 2009) (citing Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990)).  

                                                                                                                                                                                                                                   



                        55  

                                                Jaymot, 216 P.3d at 540 (quoting Farrell, 819 P.2d at 899).  

                                                                                                                                                                                                                                                     



                                                                                                                                                     -21-	                                                                                                                                             7281
  


----------------------- Page 22-----------------------

evaluating the propriety of joint legal custody is whether or not the parties can cooperate                                                                      



                                                                                        56  

and communicate regarding the children."                                                      



                            Here, the superior court acknowledged "concerns about the parties' ability  

                                                                                                                                                                         



to communicate"but also foundthat DarceyandMatthewhad communicated "somewhat  

                                                                                                                                                               



effectively" before the current issues arose in the fall of 2015.  The court discussed its  

                                                                                                                                                           



"hope that the parties will be able to communicate again, once the current issues are  

                                                                                                                                                                               

resolved."57                   We  conclude  that  it  was  not  manifestly  unreasonable  under  the  

                                                                                                                                                              



circumstances for the court to base its decision on that hope, grounded in turn in its direct  

                                                                                                                                                                          

experience with the parties.58  

                                           



V.            CONCLUSION  



                            We AFFIRM the superior court's custody and child support orders.  

                                                                                                                                                            



              56  

                            Farrell, 819 P.2d at 900;                          see also Jaymot                 , 216 P.3d at 540 (quoting                            Farrell, 

819 P.2d at 899);                     Littleton v. Banks                    , 192 P.3d 154, 161 (Alaska 2008) ("[J]oint legal                                              

custody depends in large part on the ability of the parents to communicate.").                                                  



              57  

                                                                                                                                                                   

                            See Collier v. Harris, 377 P.3d 15, 21 (Alaska 2016) (affirming a superior 

                                                                                                                                                        

court's decision not to modify legal custody where "the parties' ability to communicate,  

                                                                                                                                                                     

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

                                                                           

continued joint decision-making").  



              58  

                                                                                                                                                                           

                            Matthew also argues on his crossappeal that thesuperior court clearly erred 

                                                                                                                                                                           

by finding that Darcey was "currently divorcing" her husband. The superior court made  

                                                                                                                                                   

a supplemental finding on this issue later, and we need not address it.  



                                                                                      -22-                                                                                 7281
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC