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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edith A. v. Jonah A. (12/7/2018) sp-7320

Edith A. v. Jonah A. (12/7/2018) sp-7320

           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                                         



EDITH  A.,  n/k/a  EDITH  W.,                                      )  

                                                                   )    Supreme  Court  No.  S-16818  

                                 Appellant,                        )  

                                                                                                                                   

                                                                   )    Superior Court No.  1JU-08-00802 CI  

           v.                                                      )  

                                                                                             

                                                                   )    O P I N I O N  

                

JONAH A.,                                                          )  

                                                                                                                  

                                                                   )    No. 7320 - December 7, 2018  

                                 Appellee.                         )  

                                                                   )  



                                    

                      A                                                                                           

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

                                                                                                  

                      Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                                       

                      Appearances:   Darryl L. Thompson, Darryl L. Thompson,  

                                                                                              

                      P.C., Anchorage, for Appellant.  Notice of nonparticipation  

                                                                                 

                      filed by Paul H. Grant, Juneau, for Appellee.  



                                                                                                             

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

                                            

                      and Carney, Justices.  



                                             

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                         

                      A divorced mother and father shared joint legal custody of their son.  The  



                                                                                                                                             

mother moved for a modification of legal custody, alleging that the father was failing to  



                                                                                                                                          

cooperate on important issues such as counseling, the selection of a middle school, and  



                                                                                                                                             

medical care; she also moved for a declaratory judgment that the parents did not have to  


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mediate their custody disputes before filing a modification motion, as required by their                                                                                                                                               



custody agreement.                                         The superior court denied the request for declaratory relief and                                                                                                              



denied the motion for modification of custody without a hearing.                                                                                                                          



                                      The mother appeals.                                        We agree with the superior court that the motion for                                                                                       



declaratory relief was properly                                                              denied, as neither party was seeking to enforce the                                                                                          



mediation provision and it presented no actual controversy.                                                                                                                But we conclude that the                                        



mother's allegations in her motion to modify legal custody made a prima facie showing                                                                                                                                       



that the parents' lack of cooperation was serious enough to negatively affect the child's                                                                                                                                        



well-being, and that the mother was therefore entitled to an evidentiary hearing on                                                                                                                                                         



modification.   We reverse and remand the denial of the modification motion.                                                                                                                       



II.                FACTS AND PROCEEDINGS                     



                   A.                 Background Facts And Early Proceedings                                                    

                                                                                                     1 were married in 2006 and have a son.  Jonah filed  

                                      Jonah A. and Edith W.                                                                                                                                                                            



for divorce in 2008, and the parties eventually reached an agreement for joint legal  

                                                                                                                                                                                                                                     



custody and alternating weeks of physical custody.  The agreement required that the  

                                                                                                                                                                                                                                          



parties mediate any custody disputes.  

                                                                                                           



                                      In April 2015 Edith filed a motion in superior court to modify custody,  

                                                                                                                                                                                                                            



seeking sole legal and primary physical custody.  The superior court denied the motion  

                                                                                                                                                                                                                                



in  June after  a  six-day  hearing  involving  14  witnesses  and more than  30  hours of  

                                                                                                                                                                                                                                             



testimony.  In a written order the court found that the parties were "remarkably unkind,  

                                                                                                                                                                                                                              



if not hateful, to each other," and that they "do not trust each other and their anger toward  

                                                                                                                                                                                                                                 



the other was almost palpable during their testimony." The court found that the parents'  

                                                                                                                                                                                                                             



behavior "is bad for [the child] and only causes further emotional and psychological  

                                                                                                                                                                 



injury."  Though not modifying legal or physical custody, the court required Edith and  

                                                                                                                                                                                                                                          



                   1                  We  use  pseudonyms  for  the  parties  in  order  to  protect  their  privacy.  



                                                                                                                      -2-                                                                                                                        7320  


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Jonah to "minimize contact with each other" and to communicate only by email except  

                                                                                                                          



in emergencies. The court also ordered that the child continue sessions with a particular  

                                                                                                                     



therapist "for so long as [the therapist] deems necessary."  

                                                                                          



                    In April 2017 Edith filed a motion for contempt, alleging that Jonah had  

                                                                                                                              



failed to bring the child to therapy as required by prior court orders. The court found that  

                                                                                                                              



Jonah had not complied and held him in contempt. In July Edith filed a second contempt  

                                                                                                                      



motion, alleging that Jonah was still failing to bring the child to therapy.  

                                                                                                  



          B.        Motions Underlying This Appeal  

                                                               



                    Also in July 2017, Edith filed a motion that made two requests.   First,  

                                                                                                                           



complainingthat Jonah was abusingthemediation requirementscontainedin theoriginal  

                                                                                                                        



custody order, the motion sought a declaration from the superior court that "mediation  

                                                                                                                   



is not [a] condition precedent to moving to modify legal custody."  Second, the motion  

                                                                                                                         



sought a modification of custody whereby Edith would have sole legal custody and  

                                                                                                                              



authority to make important decisions about the child's health and schooling. Edith cited  

                                                                                                                             



four areas of conflict demonstrating that continued joint legal custody was unworkable:  

                                                                                                                                     



(1) Jonah's "continued contempt"of the court order requiring the parties to continue the  

                                                                                                                               



child's therapy; (2) Jonah's "[b]ad faith negotiations . . . in selection of [the child's]  

                                                                                                                        



middle  school";  (3)  Jonah's  "[l]ack  of  meaningful  and  timely  engagement  with"  a  

                                                                                                                                  



psychiatrist the therapist had referred them to for the child's evaluation and treatment;  

                                                                            



and (4) Jonah's "[l]ack of deference to recommendations of and follow through with  

                                                                                                                             



[other] health care providers."  Edith supported the motion with an extensive affidavit  

                                                                                                                       



and a number of exhibits, including copies of the email exchanges pertinent to each area  

                                                                                                                              



of controversy.  

                         



                    Jonah filed an opposition in which he characterized shared legal custody  

                                                                                                                        



as "stumbl[ing] along" but argued that any change was unnecessary.  

                                                                                                          



                                                               -3-                                                         7320
  


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                               In August the superior court held oral argument on the contempt motion,                                          



denied the motion on the record, and denied the request for an evidentiary hearing on the                                                                                                         



modification motion.                               Later that month the court issued a written order denying Edith's                                                                    



motion for declaratory relief and denying her motion for modification of custody.                                                                                                              



                               Edith now appeals.                            



III.	           STANDARD OF REVIEW                         

                               We review the refusal to grant declaratory relief for an abuse of discretion.                                                                                           2  



                                                                                                                                                                                               3 

                                                                                                                                                                            

We review de novo the denial of the motion to modify custody without a hearing.   In  



                                                                                                                                             4 

this review "we take the moving party's allegations as true."                                                                                                                                     

                                                                                                                                                 We affirm denial of the  



                                                                                                                                                                                     

motion  without  a  hearing  if  "the  facts  alleged,  even  if  proved,  cannot  warrant  



                                                                                                                                                                          

modification, or if the allegations are so general or conclusory, and so convincingly  



                                                                                                                                                                                    

refuted by competent evidence, as to create no genuine issue of material fact requiring  



                          5  

                             

a hearing." 



IV.	           DISCUSSION  



                                                                                                                                                                                               

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

                                                                                                                 

                               Request For Declaratory Relief.  



                                                                                                                                                                                       

                               In the parties' original agreement on custody, they stipulated that "should  



                                                                                                                                                              

any disagreement arise concerning the interpretation or application of this agreement"  



                                                                                                                                                                                  

they would "first attempt to informally resolve it," then, "before going back to court,"  



                                                                                                                                                                               

they would "participate in at least two sessions with a qualified neutral third-party  



                                                                                                                                                                                      

mediator," asking the court to resolve the issue "[o]nly after mediation fails to produce  



               2               Lowell v. Hayes                      , 117 P.3d 745, 750 (Alaska 2005).                                                  



               3               Abby D. v. Sue Y.                        , 378 P.3d 388, 391 (Alaska 2016).                                                  



               4               Id.  (quoting  Collier v. Harris                                    , 261 P.3d 397, 405 (Alaska 2011)).                                                   



                5              Id . (quoting Bagby v. Bagby, 250 P.3d 1127, 1128 (Alaska 2011)).  

                                                                                                                                                                          



                                                                                                 -4-	                                                                                        7320
  


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

agreement."   Edith's motion requested a ruling that this provision did not preclude her                                                                                                                                                          



motion to modify custody; she conceded that she was raising the issue "as a preemptive                                                                                                                                   



measure," anticipating that Jonah would "attempt to stay [the] motion to modify legal                                                                                                                                                        



custody [by] claiming [that Edith] must first mediate."                                                                                                         



                                       In fact, however, Jonah agreed with Edith that the merits of modification   



should be addressed by the court.                                                                     The court accordingly denied declaratory relief as                                                                                             



unnecessary "[b]ased on this apparent agreement between" the parents.                                                                                                                                            



                                       Alaska Statute 22.10.020(g) empowers the superior court to "declare the                                                                                                                                     



rights and legal relations of an interested party" "[i]n case of an actual controversy." An                                                                                                                                                        



"actual controversy" is one "admitting of specific relief through a decree of a conclusive                                                                                                                                



character, as distinguished from an opinion advising what the law would be upon a                                                                                                                                                                      

                                                                                6    Here, Jonah's response to Edith's request for declaratory  

hypothetical state of facts."                                                                                                                              



relief - his agreement that mediation was not a necessary first step to Edith's request  

                                                                                                                                              



for modification - demonstrated that there was no "actual controversy" requiring the  

                                                                                                                                                                                                                                                   



court's attention at that time.  Rather than rule on a hypothetical dispute, the superior  

                                                                                                                                                                                                                                   



court properly exercised its discretion by refusing to issue declaratory relief.  

                                                                                                                                                                                                                                



                    B.	                It Was Error To Deny Edith's Motion For Modification Of Legal  

                                                                                                                                                                                                                              

                                       Custody Without A Hearing.  

                                                                                                      



                                       Edith was entitled to a hearing on her motion to modify legal custody if she  

                                                                                                                                                                                                                                                



alleged facts in support of her motion which, if true, demonstrated a substantial change  

                                                                                                                                                                                                                                       



                                                   7 

                                                                                                                              

in circumstances,  and which were not "so general or conclusory, and so convincingly  



                                                                                                                                                                                                                                 

refuted by competent evidence, as to create no genuine issue of material fact requiring  



                    6                 Jefferson  v.  Asplund ,  458  P.2d  995,  999  (Alaska   1969).  



                    7                 Abby  D.,  378  P.3d  at  391.  



                                                                                                                          -5-                                                                                                                            7320  


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                    8  

a   hearing."     We   have   consistently   recognized   that   "joint   legal   custody   is   only  



appropriate   when   the   parents  can   cooperate   and   communicate   in   the   child's   best  



               9  

                                                                                                                                       

interest."        Thus, "[a] 'continued lack of cooperation' between parents may be a change  



                                                                                                            10  

                                                                                             

in circumstances sufficient to justify a modification of custody." 



                                                                                                                                               

                       1.         The allegations in support of a modification of legal custody  



                                                                                                                                            

                       Edith's motion to modify custody - supported by a lengthy affidavit and  



                                                                                                                                              

exhibits - identified three areas that, she argued, showed how the parties' lack of  



                                                                                                                                       

cooperation made joint legal custody unworkable: (1) the child's therapy; (2) the middle  



                                                                                        

school selection process; and (3) "medical issues."  



                                                                   

                                  a.         The child's therapy  



                                                                                                                                     

                       The court's June 2016 custody order specifically addressed the parties'  



                                                                                                    

obligation to continue the child's therapy with a particular therapist:  



                                                                                                                      

                       Therapy is to continue with [the therapist] for so long as she  

                                                                                                           

                       deems  necessary.                The  parents  shall  follow  all  treatment  

                                                                                                        

                      recommendations or referrals.  Neither party is permitted to  

                                                                                                                

                      unilaterallywithdraw[thechild]fromtherapyor shifttherapy
  

                                                          

                      to another therapist.
  



                                                                                                                                     

                       Edith alleged that the therapist "has consistently recommended weekly,
  



                                                                                                                                        

parent supported, therapy sessions between herself and [the child],"  but that Jonah  



                                                                                                                                            

emailed Edith in December 2016 informing her that "he would no longer be taking [the  



           8          Id.  (quoting  Bagby, 250 P.3d at 1128).               



           9          Red Elk v. McBride               , 344 P.3d 818, 823 (Alaska 2015) (quoting                                Jaymot v.   



                                                                                                                                           

Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009)); accord Cusack v. Cusack, 202 P.3d  

 1156, 1161 n.8 (Alaska 2009);                       Farrell v. Farrell           , 819 P.2d 896, 899 (Alaska 1991).                            



           10         Riggs v. Coonradt, 335 P.3d 1103, 1107 (Alaska 2014) (quoting T.M.C. v.  

                                                                                                                                                

S.A.C., 858 P.2d 315, 319 (Alaska 1993)); see also T.M.C., 858 P.2d at 319 ("Sustained  

                                                                                                                               

noncooperation between the [parents] is grounds for denying joint custody, because lack  

                                                                                                                                            

of cooperation hinders good communication in the best interests of the child.").  

                                                                                                                         



                                                                       -6-                                                               7320
  


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

                                                                                                                               

child] to see [the therapist] during his weeks" because of "his belief that she was not  



                                                                                                                                  

helping" the child.  Edith related the subsequent history:  the court had found Jonah in  



                                                                                                                          

contempt in May 2017 "for unilaterally terminating therapy during his custodial times,"  



                                                                                                                        

but two months later Jonah had "yet to take [the child] to see his therapist"; he declined  



                                                                                                                             

appointments, failed to respond tosuggested dates, and failed to communicate with Edith  



                              

about alternatives.  



                                                                                                                            

                    In  his  opposition  to  Edith's  motion,  Jonah  asserted  that  he  tried  



                                                                                                                        

unsuccessfully to make a family appointment with the therapist in May; that the therapist  



                                                                                                                                  

said she would inform him if there were any cancellations; that during his two weeks of  



                                                                                                                       

custody in June, he and the child were out of town; and that the therapist also informed  



                                                                                                                      

him by email - without copying Edith - that she would "get back with [him] regarding  



                                                                                                                            

times in July" but did not do so.  Jonah said, "The suggestion that I am trying to avoid  



                                                                       

appointments with [the therapist] is absurd."  



                                                                 

                               b.        Middle school selection  



                                                                                                                                 

                    Edith alleged similar difficulties with "attempting to engage [Jonah] in  



                                                                                                                      

discussions regarding the selection of a middle school for [the child.]"  She explained  



                                                                                                                               

that  their  son  had  "social  and  emotional  challenges  in  fifth  grade"  and  would  "be  



                                                                                                                          

entering middle school at an extremely young age," making the choice of a middle  



                                                                                                                               

school important. She attached copies of the relevant email exchanges in which she first  



                                                                                                                               

broached  the topic of middle school,  suggested several schools  and  programs,  and  



                                                                                                     

proposed that the parents meet at the open house for one of the schools on April 26  



                                                                                                                               

before discussing the best way forward.  Jonah replied that they should postpone any  



                                                                                                                                

decision until they could mediate the issue.   Edith pointed out that the deadline for  



                                                                                                                         

submitting optional program applications was nine days away, on April 28; Jonah's  



                                                                                                                      

response was, "Hi, [Edith], then it is [the public middle school]," adding in a follow-up  



                                                                -7-                                                         7320
  


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

                                                                                                                        

email that he would "not provide [his] consent to the other options" and would "contact  



                                                                         

the other schools to make them aware of this."  



                                                                                                                         

                    An email from Edith a month later explained her further efforts to explore  



                                                                                                                                 

the child's middle school options; she described what she had learned at open houses for  



                                                                                                                                

a charter school and the public middle school.   She explained why she thought the  



                                                                                                                               

optional programs would be better for their child than a traditional middle school.  She  



                                                                                                                               

informed Jonah that their son was "now first on the wait-list for Charter School" and  



                                                                                                                            

asked him to allow her to accept a place there if one was offered (parents had 48 hours  



                                                                                                                          

in which to decide). Jonah responded that "mediation is really where we need to discuss  



                                                                            

this" and asked her when she had "time in July."  



                                                                                                                        

                    The next communication on the subject was between the parties' lawyers,  



                                                                                                                             

who were able to resolve it.  In his opposition, Jonah attested that their son had been  



                                                                                                                                  

"accepted into the alternative middle school on 7/25/17 as was discussed and agreed to  



                                                                                                                               

by [Edith] and I through our respective attorneys," that the parties had "worked . . . out"  



                                                                                                                        

their disagreement, and that it was not "appropriate to spin this success in a negative  



                 

fashion."  



                                                        

                               c.        Medical issues  



                                                                                                                             

                    Edith also alleged that Jonah failed to cooperate as necessary for their son's  



                                                                                                          

medical care.  She alleged that the therapist had made a referral to a child psychiatrist,  



                                                                                                                              

but that Jonah failed to cooperate in setting an appointment for both parents to meet with  



                                                                                                                               

him, failed to complete a parent survey the psychiatrist had asked them to fill out and  



                                                                                                                                

return, failed to attend a follow-up appointment, and failed to discuss the medication the  



                                                                                                                         

psychiatristrecommendedortoconsenttoits administration. In response, Jonah asserted  



                                                                                                                        

that  it  was  unproductive  for  him to  be  in  the  same  room  as  Edith  during  medical  



                                                                                                                               

appointments, that he had contacted the psychiatrist a number of times by telephone, and  



                                                                                                

that he did not believe he had delayed the child's medication.  



                                                                -8-                                                         7320
  


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

                                                                                              

                    Edith also alleged that in the fall of 2016 Jonah accused her "of having a  



                                                                                                                        

bedbug infestation in [her] home because he observed some red spots on [the child's]  



                                                                                                                              

back"; he claimed to have incinerated all the clothes the child was wearing.  He also  



asserted that Edith was "sprinkling white dust around," which was causing the child's  



                                                                                                                               

cough.  Edith denied that she had bedbugs or that the cleaning product - which she  



                                                                                                                                

claimed she used "to reduce dust mites which can be an allergic trigger" - could be  



                                                                                                                      

causing  the  child's  symptoms;  nonetheless,  she  suggested  that  they  get  a  doctor's  



                                                               

appointment for their son the next week.  



                                                                                                                     

                    According toher emails,Edithgot a doctor's appointment for thefollowing  



                                                                                                                        

Monday - while the child was in Jonah's care - and twice emailed Jonah to confirm  



                                                                                                                                

that he could attend.  Jonah did not reply until the day after the appointment, when he  



                                                                                                                             

said that he and the child had been unavailable.  Edith made an appointment for the next  



                                                                                                                         

week, during her custody time, when the doctor diagnosed the red marks as "likely  



                                                                                                                            

eczema  caused  by  dry  skin"  and  the  cough  as  "most  likely  the  remains  of  a  viral  



                                                                        

respiratory illness but might be due to reflux."  



                                                                                                              

                    In his response to the motion for modification of custody, Jonah asserted  



                                                                                                                       

that "[t]he bed bug accusations are ridiculous" and that he "was merely being cautious  



                                                                                                                                

about [the child's] health."   He did not address Edith's allegations that he failed to  



                                                                           

cooperate in presenting his concerns to a doctor.  



                                                                                                                              

                    Edith alleged one other incident related to the child's medical care.  She  



                                                                                                                   

alleged that in February 2017 the child fell and cut his head, requiring an emergency  



                                                                                                                            

room visit and stitches.  The follow-up "7 day wound check" was scheduled for a week  



                                                                                                                            

later, during Jonah's custody time.  According to Edith, Jonah refused to take the child  



                                                                                                                              

to the appointment and failed to respond to any of her attempts to communicate with him  



                                                                                                                          

about the issue for over a week, claiming that he was on jury duty and could not attend  



                                                               -9-                                                         7320
  


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

                                                                                                                                   

to any emails or texts " 'that might mitigate or compromise' his responsibilities as a  



            

juror."  



                                                                                                                         

                     In response to these allegations, Jonah asserted that the child's injuries  



                                                                                                                     

"were  minor  and  .  .  .  resolved  themselves  perfectly,"  that  "one  of  the  follow-up  



                                                                                                                   

appointments  was  scheduled  without  [his]  knowledge,"  that  another  "follow-up  



                                                                                                                                

appointment shouldn't have happened during [his] week because [the child] was not  



                                                                                                                             

finished with his medicine regime," and, generally, that "follow-up appointments don't  



                                                                             

need to be scheduled on the other parent's time."  



                                                                             

                     2.        The superior court's order  



                                                                                                                        

                     The superior court denied the motion to modify custody without a hearing,  



                                                                                                                                      

finding "no credible argument that there has been a material change of circumstances."  



                                                                                                                          

Having "reviewed the extensive record in this case," the court concluded that the parents  



                                                                                                                         

"differ in their approaches to parenting [their son] and meeting his needs," and "neither  



                                                                                                                           

party is maturely engaging with each other or in this process."  It found that the parties  



                                                                                                                                  

had been unable to cooperate since the beginning of the case, and "[t]his inability to  



                                                                                                                                

resolve issues cordially still continues to create conflict." The court described Edith "as  



                                                                                                                       

a parent who is very aware of [her son's] needs" and who "seeks an immediate solution"  



                                                                                                                            

when issues arise, whereas Jonah "appears to be a parent who believes that many issues  



                                                                                                                        

in  childhood  are  not  serious  and  will  likely  resolve  themselves  without  parental  



                                                                                                                                      

involvement."  It found that neither parenting style was inherently superior to the other.  



                                                                                                                            

                     Thecourt observed that Edith "makes anefforttocommunicatewith" Jonah  



                                                                                                                    

but, "[u]nfortunately, [Jonah] does not always respond to these efforts in an appropriate  



                                                                                                    

and timely manner."  The court chided Jonah for sometimes not responding to Edith's  



                                                                                                                               

emails "for weeks at a time," which was "in no way reasonable."  But it concluded that  



                                                                                                                                      

the issues Edith raised in her motion represented "the most [minute] of circumstances."  



                                                                                                                               

It  concluded  that  none  of  the  issues  "involve[d]  emergencies"  and  there  was  "no  



                                                               -10-                                                         7320
  


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

                                                                                                                         

indication that [Jonah] fail[ed] to meet [the child's] physical needs" or that "the parties'  



                                                                                                                

conflict negatively affect[ed] [the child]."  It concluded that each of the issues simply  



                                                                                                                                    

highlighted the parties' "fundamental disagreement about how to parent" their child.  



                                                                                                                            

                    Addressing Edith's allegation that Jonah was not taking the child to court- 



                                                                                                                              

ordered therapy, the court noted that she was correct in asserting that Jonah had "not  



                                                                                                                              

taken [the child] to see [the therapist] on his custodial weeks from December 2016 until  



                                                                                                                         

the present" (August 2017), a period of nine months.  The court called this a "blatant  



                                                                                                                                

disregard of the court's order." Nonetheless, the court excused Jonah's failures over the  



                                                                                                                      

preceding three or four months.  It accepted his affidavit testimony that he attempted  



                                                                                                                          

unsuccessfully to make appointments with the therapist in May, thus doing "his utmost  



                                                                                                                                 

to comply with the court's order"; that Jonah was out of town for his two weeks of  



                                                                                                                                  

custody in June and thus "could not have complied with the court's order"; and that as  



                                                                                     

for July, Jonah was waiting for the therapist to contact him, and therefore Jonah could  



                                                                                                                                

not have knowingly violated the court's order. Crediting Jonah's affidavit testimony, the  



                                                                                                                                

court concluded that "[Jonah] is now attempting to comply" with the court's order.  



                                                                                                                        

                    With regard to the middle school issue, the court found that each parent's  



                                                                                                                           

choice of school was reasonable but that both were at fault for the process:   Edith  



                                                                                

because she "severely delayed" in raising the issue with Jonah, and Jonah because his  



                                                                                                                         

dogmaticresponsewas "incredibly troublesome." But thecourt again found that because  



                                                                                                                                

"the issue has now been decided and resolved," this "demonstrates that the parents are  



                                                                                                       

able to communicate" sufficiently to maintain joint legal custody.  



                                                                                                                     

                    Addressing Edith's allegations that Jonah failed to cooperate in supporting  



                                                                                                                        

the therapist's referral to the child psychiatrist, the court noted that Edith's "actions  



                                                                                                                               

regarding  the  assessment  with  [the  psychiatrist]  were  considerable"  and  that  she  



                                                                                                                            

appropriately "recognized that [Jonah's] input was necessary to this process." He noted  



                                                                                                                               

that  Edith  emailed  Jonah  on  June  4,  asking  for  his  input  on  the  medication  the  



                                                               -11-                                                         7320
  


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

psychiatrist recommended, but that Jonah did not respond until over a month later, with                                                                                                                                                                                                              



 "no explanation for this failure."                                                                                        The court noted Edith's allegation that Jonah was                                                                                                                          



barely involved in the process but found this characterization "inaccurate"; again, rather                                                                                                                                                                                                      



than accepting Edith's allegations as true for purposes of deciding whether to grant a                                                                                                                                                                                                                          



hearing, the court explicitly credited Jonah's affidavit, in which he contended that he                                                                                                                                                                                                                had  



been in touch with the psychiatrist by telephone and wanted to avoid being in the same                                                                                                                                                                                                            



room with Edith for consultations, a preference the court found to "make[] sense."                                                                                                                                                                                                                  The  



 court concluded that although Jonah's involvement with the psychiatrist was "delayed,"                                                                                                                                                                                        



both parents were now "engaging in the process," and it did not appear that the child had                                                                                                                                                                                                               



                                                 11  

been harmed.                                            



                                                The court also addressed Edith's allegations that Jonah had failed to take  

                                                                                                                                                                                                                                                                                                      



their son to doctors' appointments she scheduled to address the red marks on his back  

                                                                                                                                                                                                                                                                           



 (which Jonah characterized as bedbug bites) and the follow-up inspection of the stitches  

                                                                                                                                                                                                                                                                                          

                                                                                 12          The court noted that Jonah considered the red marks to be  

 from the head wound.                                                                                                                                                                                                                                                                                      

                                                     



                        11                      The court stated that it "does not find that [the child] faces a serious risk of                                                                                                                                                                             



harm due to [Jonah's] delayed involvement in the process" and it "does not find that                                                                                                                                                                                                                   

 [Jonah's] failure to respond to an email [about the recommended medication] in a timely                                                                                                                                                                                                   

 fashion is of an emergency nature or that it harmed [the child] in any way."                                                                                                                                                                                                              It was   

inappropriate for the court to make findings one way or the other at this stage of the                                                                                                                                                                                                                   

proceedings; an evidentiary hearing may have provided support for those findings of                                                                                                                                                                                                                         

harm the court declined to make.                                                                



                        12                      The court noted that although Edith's allegations that Jonah had accused  

                                                                                                                                                                                                                                                                                        

her of having a bedbug infestation and had burned the child's clothes were "severe," she  

                                                                                                                                                                                                                                                                                                         

had "not attach[ed] any emails from[Jonah] which would support the above statements."  

                                                                                                                                                                                                                                                                                                                        

The supporting emails are in the record as Exhibit J to Edith's motion for modification.  

                                                                                                                                                                                                                                                                                                                        

In  any  event,  the  absence  of  emails  should  not  have  mattered  at  this  stage  of  the  

                                                                                                                                                                                                                                                                                                        

proceedings when, in deciding whether to grant a hearing, the court was required to take  

                                                                                                                                                                                                                                                                                                      

 as  true  the  allegations  of  Edith's  affidavit,  in  which  she  described  the  exchanges.  

                                                                                                                                                                                                                                                                                                                        

Fredrickson v. Hackett, 407 P.3d 480, 482 (Alaska 2017) (" '[W]e take the moving  

                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                     (continued...)  



                                                                                                                                                    -12-                                                                                                                                           7320
  


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

 serious enough that he contacted the child's therapist to elicit her support for his decision                                                                                                                                                                                                                                                                                                



 not to return the child to Edith's care, and that the therapist recommended instead that                                                                                                                                                                                                                                                                                    



 the child "be evaluated by his doctor." The court also noted that Edith immediately made                                                                                                                                                                                                                                                                                                                   



 an appointment but that Jonah failed to attend or even timely acknowledge it; yet the                                                                                                                                                                                                                                                                                                                                



 court found "[i]t appears that the issue regarding the bed bug bites was resolved in early                                                                                                                                                                                                                                                                                                                   



November 2016" and it "does not appear that [the child's] irritation was an emergency                                                                                                                                                                                                                                                                                           



 situation which required [Edith] to schedule an                                                                                                                                                                                                      appointment on [Jonah's] custodial                                                                                                



 week."   The court also found that Jonah believed the stitches were healing well and the                                                                                                                                                                                                                                                                                                                              



 child did not need to attend the follow-up appointment; the court again found that                                                                                                                                                                                                                                                                                                                              



 "[Jonah] is able to appreciate [the child's] medical needs," and no harm resulted.                                                                                                                                                                                                                                                                                                                          



                                                                  3.                               Our de novo review of Edith's allegations                                                                                                                      



                                                                  On de novo review of Edith's allegations in support of her modification                                                                                                                                                                                                                              



 motion, we conclude, unlike the superior court, that they show Jonah's unwillingness to                                                                                                                                                                                                                                                                                                                                    



 cooperate on important questions concerning counseling, schooling, and medical care                                                                                                                                                                                                                                                                                                                             



 significant enough to pose a threat to the child's well-being.                                                                                                                                                                                                                                          With regard to the court-                                                                      



 ordered therapy, Edith alleged that Jonah was evading all offered appointment times;                                                                                                                                                                                                                                                                                                                  



 these allegations were not "so convincingly refuted" by Jonah's affidavit - in which he                                                                                                                                                                                                                                                                                                                                   



 described the reasons why he had been unable to schedule an appointment for months                                                                                                                                                                                                                                                                                             

 -  "as to create no genuine issue of material fact requiring a hearing."                                                                                                                                                                                                                                                                              13  



                                                                  On the middle school issue, the superior court acknowledged that Edith  

                                                                                                                                                                                                                                                                                                                                                                                                          



 tried to engage Jonah in a conversation about it, that Jonah's conduct in response was  

                                                                                                                                                                                                                                                                                                                                                                                                                  



                                  12                              (...continued)  



                                                                                             

 party's allegations as true' to determine whether the moving party has demonstrated a  

                                                                                                                                                                                                                                                                                                                                                                                             

 sufficient change in circumstances to warrant a hearing." (alteration in original) (quoting  

                                                                                                                                                                                                                                 

Abby D. v. Sue Y. , 378 P.3d 388, 391 (Alaska 2016))).  



                                  13                             Id .  

                                                                                 



                                                                                                                                                                                                          -13-                                                                                                                                                                                                 7320
  


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

 "incredibly troublesome," but that the issue was finally resolved, "demonstrat[ing] that                                                                                                                                                                                                                                                                                                                                                                                  



the parents are able to communicate."                                                                                                                                                                                          But the allegations show instead that Jonah                                                                                                                                                                                   



resisted even discussing the options, and the issue was eventually resolved only because                                                                                                                                                                                                                                                                                                                                                            



the parties' lawyers got involved.                                                                                                                                                          



                                                                          With regard to the psychiatrist and the medical appointments for the rash,                                                                                                                                                                                                                                                                                                                 



the cough, and the stitches, we also find Edith's allegations sufficient to demonstrate a                                                                                                                                                                                                                                                                                                                                                                                                 



 serious failure of cooperation on Jonah's part.                                                                                                                                                                                                                             According to Edith, Jonah failed to                                                                                                                                                                   



 cooperate in or support the recommended psychotherapy, including an extended failure                                                                                                                                                                                                                                                                                                                                                                       



to discuss or consent to recommended medication; failed to cooperate in getting medical                                                                                                                                                                                                                                                                                                                                                              



 attention for the child's rash and cough even though he had raised the issues himself and                                                                                                                                                                                                                                                                                                                                                                                  



 considered   them   serious   enough   that   he   enlisted   the   therapist's   help   to   keep   from  



returning the child to Edith's care; and failed to take the child in for a scheduled seven-                                                                                                                                                                                                                                                                                                                                                                



 day wound checkup.                                                                                                  The fact (the alleged fact, that is) that Jonah's failures caused no                                                                                                                                                                                                                                                                                         



 serious harm to the child is fortunate but also fortuitous:                                                                                                                                                                                                                                                            a parent's failure to cooperate                                                                                   



in    medical    care    -    including    the    sometimes    necessary    scheduling    of    medical  



appointments during the parent's own custody time                                                                                                                                                                                                                                           - may have serious consequences.                                                                                                                                                                          



                                                                          We note that the superior court, in its written decision, referred extensively                                                                                                                                                                                                                                                                         



to findings from an earlier evidentiary hearing in which it questioned the credibility of                                                                                                                                                                                                                                                                                                                                                                                           



both   parties.     To   the   extent   these   findings  caused  the   court   to   favor   one   party's  



 allegations over the other's while deciding Edith's motion to modify custody, it was                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                                                                                                        14 but such findings  

 error. We generally defer to the superior court's credibility findings,                                                                                                                                                                                                                                                                                                                                                                           



 are  rarely  appropriate  in  the  context  of  determining  whether  a  parent  moving  for  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



modification is entitled to a hearing, when the movant's allegations are to be taken as  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



                                      14                                  Herring  v.  Herring,  373  P.3d  521,  531-32  (Alaska  2016).  



                                                                                                                                                                                                                                      -14-                                                                                                                                                                                                                                                      7320  


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

       15  

true.       We addressed this issue in                Collier v. Harris          , in which a mother sought to modify                



                                                                        16  

custody several months after a custody trial.                                                                                 

                                                                             Although we agreed with the superior  



                                                                                                                                   

court that the mother had not shown she was entitled to a hearing, we held that the court  



                                                                                                                                  

erred when it based its decision in part on a finding that "the affidavits of [the father  

                          17  We noted that "the parties' affidavits contained directly conflicting  

                                                               

were] credible." 

information" and "the superior court's credibility determinations were premature."18  

                                                                                                                                          



                     We  conclude  that  Edith's  allegations  that  Jonah  failed  to  engage  in  

                                                                                                                                       



discussion or otherwise cooperate on important issues such as counseling, schooling,  

                                                                                                                           



medication, and other medical care were sufficient to demonstrate a serious lack of  

                                                                                                                                        



cooperation and potential harm to the child's well-being.  It was therefore error to deny  

                                                                                                                                    

the motion to modify legal custody without holding an evidentiary hearing.19  

                                                                                                             



V.         CONCLUSION  



                     We AFFIRMthe superior court's denial of declaratory relief in the absence  

                                                                                                                               



of any controversy between the parties.  We REVERSE the superior court's denial of  

                                                                                                                                        



Edith's motion for modification of legal custody and REMAND for further proceedings  

                                                                                                                        



consistent with this opinion.  

                                 



           15        See  Fredrickson,  407  P.3d  at  482.  



           16        261  P.3d  397,  403-05  (Alaska  2011).  



           17        Id.  at  404.  



           18        Id.  at  405.  



           19        Because   of   our   disposition   of   this  case,   we   need   not   address   Edith's  



argument that the denial of a hearing violated her due process rights.   See Alaska Fish  

&  Wildlife  Conservation  Fund  v.  State,  347  P.3d  97,  102  (Alaska  2015)  ("If  'a  case  may  

be  fairly  decided  on  statutory  grounds  or  on  an  alternative  basis,  we  will  not  address  the  

constitutional  issues.'  "  (quoting  Wilber  v.  State,  Commercial  Fisheries  Entry  Comm'n,  

 187  P.3d  460,  465  (Alaska  2008))).    



                                                                  -15-                                                             7320
  

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