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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.  

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                       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  



                                                                 )         O P I N I O N  



MATTHEW GELDERMANN,                                                                                               

                                                                 )         No. 7281 - August 31, 2018  



                                Appellee and                     )  

                                Cross-Appellant.                 )  




                        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.  



                      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.  



          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  



                                                               -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                                                                                                       


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  



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  



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

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



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


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



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


(Alaska 1989)).  



                                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           


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  



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  



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]  



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


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



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

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



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


(Alaska 1995)).  

                                                                             -7-	                                                                     7281

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


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

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



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  



modify.' " 


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



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  


                       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)).               



                       Id. at 22, 23 n.31.  



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


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



                       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  


                                                                        -8-                                                                7281

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

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


                                                                                      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  



                              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.").                                                                  


                               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  



                                                                                              -9-	                                                                                      7281

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


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  



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

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



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


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



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


 1046 (Alaska 1983)).  



                      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  



                                        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").                                                                                               


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






                                        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-----------------------


 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                                                                                    


                                              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]  


 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  



                                             See Siekawitch                                     , 956 P.2d at 450.                          


                                              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.  


                                             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.  



                                                   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").                              


                                                   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  



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  



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


                           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.   


                           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.").  



                           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  



                                                                                   -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  




                                     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  




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



                                    Id. at 595.  



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


                                                                                                                  -15-                                                                                                          7281

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


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  







                                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").   


                                Millette, 177 P.3d at 266.  


                                                                                                    -16-                                                                                              7281

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


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


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  



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.                                                                                       







                          Schofield, 993 P.2d at 408.                  


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


                          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.  



                          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  


                                                                                 -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  



                           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  




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


 666(a)(9) (2012).  



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



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


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




                           Prohibition of Retroactive Modification of Child Support Arrearages, 54 


Fed. Reg. at 15,761.  

                                                                                  -18-                                                                            7281

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


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  


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  







                       Id.  at 15,763.   

                                                                         -19-                                                                  7281

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


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                                                                                                       



                                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  



                                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.").              


                                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                                                                                                                                                                                                     


                        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                                                                                                               





                                                "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." 


                                                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.").                                                                                                 


                                                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)).  



                                                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                                                                      


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.  



                            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.").                                                  



                            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").  



                            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

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