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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McLane v. Paul (08/01/2008) sp-6295
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SHARON A. McLANE, | ) |
| ) Supreme Court No. S- 12872 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-06-01594 CI | |
| v. | ) |
| ) O P I N I O N | |
| CHAD B. PAUL, | ) |
| ) No. 6295 August 1, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Jason A. Weiner, Terrance W.
Hall and Associates, Fairbanks, for
Appellant. Margaret OToole Rogers, Foster &
Rogers, LLC, Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
CARPENETI, Justice, dissenting, with whom
WINFREE, Justice, joins in Part IV(C).
I. INTRODUCTION
When Chad Paul and Sharon McLane divorced in 2006, they
entered into a court-approved settlement agreement granting
Sharon physical custody of their six-year-old daughter Alexis
during the school year in Alaska and Chad summer visitation in
Illinois. While Alexis was with Chad for the summer visitation,
Chad suggested to Sharon that they reverse their custody
arrangement. The parties discussed this possibility through the
end of the summer, but Sharon refused to formalize a custody
change and insisted that Alexis be returned to her. Chad then
filed a motion for modification of custody and Sharon filed a
motion for enforcement of the settlement agreement. The superior
court granted Chads motion for modification, awarding him school-
year custody and granting Sharon summer visitation. Sharon
appeals. Because a modification of custody requires a
substantial change in circumstances, and because no substantial
change of circumstances was demonstrated here, we reverse the
modification of custody awarding Chad custody during the school
year.
II. FACTS AND PROCEEDINGS
Chad Paul and Sharon McLane were married on February
14, 1999 and divorced on June 20, 2006. Their daughter, Alexis
Rose, was born on November 13, 2000. Before the divorce was
final, Chad and Sharon signed a settlement agreement drafted by
Sharons counsel. Among other things, the settlement agreement
divided the marital property and provided for spousal support.
The settlement agreement also incorporated a parenting plan
through which the parties agreed to share legal custody of
Alexis, providing Sharon with primary physical custody and giving
Chad scheduled summer and holiday visitation. The parenting plan
was drafted by Chad without the aid of legal representation.
The settlement agreement required that custody
modifications would be in writing, signed by both parties, or by
court order. The parenting plan allowed flexibility for special
events, changes in circumstances and to adjust to Alexis[s]
schedule if both parties agreed, but provided that the parties
agreement remained in effect when the parties did not agree to a
change.
Shortly after he signed the settlement agreement, Chad
moved to Illinois. The parties had anticipated this move and
included provisions in the settlement agreement that would take
effect when Chad and Sharon lived in different communities. The
settlement agreement and parenting plan were incorporated into
the divorce decree on June 20, 2006. In early 2007 Chad
remarried; his new wife had two young children from a previous
relationship.
In June 2007, while Alexis was with Chad in Illinois
for summer visitation, Chad suggested to Sharon that they reverse
their agreement to give Chad school-year custody. Discussions on
this topic took place throughout the summer. In late July Sharon
sent Chad $2,000 that she described as child support for Alexis,
along with some school clothes. Chad drafted a revised parenting
plan to reverse the custody arrangement and mailed it to Sharon.
But Sharon never signed the paperwork modifying custody.
On August 20, 2007, Alexis started first grade in
Illinois. Two days later, Sharon called Alexis to ask how school
was going. According to Sharon, Alexis said she wanted to come
back to Alaska. Sharon then heard Chad talking to Alexis in the
background, and Alexis told her mother, I got to go, Daddys mad.
Sharon concluded that Chad had been monitoring her phone calls
with Alexis, thwarting Alexiss attempts to tell Sharon that she
wanted to return to Alaska. Soon afterward, Sharon told Chad
that she would not agree to modify the custody arrangement and
insisted Alexis be returned to Alaska.
Chad filed a motion to modify custody on August 27,
arguing that the alleged informal agreement to allow Alexis to
remain in Illinois constituted a substantial change of
circumstances. Chad offered his e-mail correspondence with
Sharon as proof of the alleged informal agreement. The same day,
Sharon filed a motion to enforce the existing custody agreement
and to return Alexis to Alaska. She argued that Alexis should
have been returned on July 29, and that despite her willingness
to consider a different arrangement, the existing agreement
remained in effect because no modification had been agreed to in
writing, as the settlement agreement required. In her opposition
to Chads motion for modification of custody, she also contended
that her e-mails with Chad were protected settlement negotiations
and inadmissible under Alaska Rule of Evidence 408.
The motions were considered on an expedited basis, and
on August 29 the superior court held a hearing at which Sharon
and Chad were the only witnesses. After a short recess, the
superior court issued its decision from the bench, finding that
Sharon and Chad had agreed that Alexis would remain in Illinois
for the school year, although the agreement had not been placed
in writing or formalized and Sharon had later changed her mind.
The superior court then analyzed Alexiss best
interests, concluding that the parties were even-steven on the
factors listed in the statute and that they were equally capable
and loving parents. It nonetheless granted the modification of
custody in Chads favor, stating:
I believe and I find that a decision was made
for Alexis to stay and that Sharon thought
differently and changed her mind late. Now,
thats usually what a writing is for. Its so
that people actually have a written signature
that helps them realize, this is the point of
no return. . . .
In this case, though, I believe that the
point of not returning the decision point
was reached earlier and that was when Alexis
was not returned[,] when school clothes were
sent, money was sent, and that the decision
was made.
And based upon this finding . . . and the
childs expectations at this point . . . it is
appropriate to modify the custody . . . so
that Alexis stays with Mr. Paul for this
school year with the visitation as the
parties have agreed.
The superior court went on to clarify that the
modification was temporary, ruling that Alexis was to stay with
Chad for this school year but that future custody was open to
discussion: [I]t is appropriate to modify the custody . . . so
that Alexis stays with Mr. Paul for this school year . . . . The
parties need to discuss the future with either a child
development counselor [or] school counselors . . . . When
Sharons counsel asked whether there could be a modification of
custody at the end of the year, the superior court responded:
Yeah, and I hope the parties can sort [it] out by agreement, but
well do it by a motion, if not, . . . this is for one for the
next year or for the school year. And in response to whether the
modification of custody switched the prior arrangement, the
superior court responded, Yes. But based upon the testimony, the
parties were going to see how it went and then theyll reconsider
what theyre going to do. The parties agree that the superior
courts modification of custody was to last only through the 2007-
2008 school year, and during oral argument before this court,
they noted the superior courts recent sua sponte appointment of a
child custody investigator to re-evaluate custody at the end of
this temporary period.
Sharon filed a motion for reconsideration on September
10, in which she raised a number of arguments, including (1) that
there was no written agreement to change custody as the
settlement agreement required; (2) that there had been no change
in circumstances to support a modification; (3) that the
settlement agreement should have been enforced; and (4) that a
custody investigator should have been appointed. Three days
later, the superior court denied the motion for reconsideration.
Sharon appeals the custody modification in favor of Chad.
III. STANDARD OF REVIEW
We review a trial courts child custody modification
decision deferentially, reversing the decision only when the
lower court abused its discretion or when its controlling
findings of fact were clearly erroneous.1 Abuse of discretion is
established if the lower court considered improper factors in
making its custody determination, failed to consider statutorily
mandated factors, or assigned disproportionate weight to
particular factors while ignoring others.2 We conclude that a
finding of fact is clearly erroneous if, after reviewing the
record as a whole, we are left with a definite and firm
conviction that a mistake has been made.3
IV. DISCUSSION
A. The Superior Court Erred in Granting the Motion To
Modify Custody Because There Had Been No Substantial
Change in Circumstances.
Under AS 25.20.110(a), an award of custody may be
modified if the court determines a change in circumstances
requires the modification . . . and the modification is in the
best interests of the child. The movant must prove a substantial
change in circumstances as a threshold matter.4 We require this
showing to maintain continuity of care and to avoid disturbing
and upsetting the child with repeated custody changes.5 We have
cautioned that [c]hildren should not be shuttled back and forth
between divorced parents unless there are important circumstances
justifying such change.6
Here, the superior court concluded that the informal
agreement between Chad and Sharon constituted a substantial
change in circumstances and that modifying custody would serve
Alexiss best interests. Sharon agrees that she and Chad had
discussed and experimented with the possibility of changing their
custody arrangement but she maintains that no agreement was ever
finalized and that the experimental arrangement lasted no more
than three weeks.7 Therefore, she argues, the requisite
substantial change in circumstances was not established.
In Morino v. Swayman, we recognized that [c]ustodial
parents should have the flexibility to experiment with new
visitation schedules without fearing that every temporary change
could be the basis for modifying visitation.8 We concluded that
a change lasting ten months could warrant a modification in
visitation,9 but expressly noted that [o]f course, experimental
changes lasting only a few months should not qualify as a change
in circumstances.10 We warned that if temporary variations in
visitation schedules always constituted a substantial change in
circumstances, primary custodians would be discouraged from
allowing any favorable deviation from the visitation order.11 It
is important to allow parents leeway to cooperate and experiment
with custody. Characterizing a short-term temporary and informal
custody arrangement as a substantial change in circumstances
could discourage parents from being generous with each other in
custody matters and, to that extent, run[] counter to the goals
of Alaskas family law and the needs of Alaskas children of
divorce.12
In this case, it is undisputed that the informal
arrangement lasted only approximately three weeks.13 In Morino,
we emphasized that the change in circumstances required to modify
visitation . . . is not as great as that required for a change in
custody.14 Here, modification of primary physical custody is at
issue, setting an even higher bar to prove a change in
circumstances.
Chad concedes that the duration of the change was not
lengthy, but he claims the distinguishing factor is that there
was an actual agreement to modify custody here. The record
nonetheless indicates that the informal agreement was not only
short-lived but experimental. As Chad testified, we had
discussed that we were going to have her go to school here for
the year [in] Illinois, then we would readdress it next year to
see how she was doing and wed rediscuss custody next year also,
see what was in her best interest. Sharon confirmed that Chad
had agreed several times that we would see how it went; you know,
we could see how it goes. And the superior court recognized that
the parties were going to see how it went and then theyll
reconsider what theyre going to do, which impacted its decision
to grant a modification for this school year only and to leave
future arrangements open for discussion. Because temporary,
experimental arrangements do not constitute substantial changes
in circumstances sufficient to warrant modifications of custody,15
relying on the parties informal, temporary agreement to establish
a substantial change in circumstances was error.
Chad argues alternatively that the actions taken by the
parties and not the mere informal agreement were the basis of the
substantial change in circumstances. And although its oral
decision focused on the informal agreement, the superior court
included other elements in its order denying reconsideration of
its decision to modify custody:
There had been a change in circumstances.
Alexis had been integrated into her new
family. She had been advised of the parents
joint decision that she should remain and go
to school in Illinois. Her mother had sent
her personal items and clothing to support
and reflect that new arrangement. The
parties set this train in motion, and to
preserve her stability Alexis will reside
with Chad and go to school in Illinois.
But none of these elements constitutes a substantial change in
circumstances. First, Alexis was scheduled to spend the summer
with Chad in Illinois under the existing agreement. Her
integration into Chads household was a natural consequence of
visitation, not a substantial change in circumstances, and her
return to Alaska at the end of the summer was anticipated by the
custody arrangement, and did not amount to a disruption in her
stability. Similarly, Alexis had been in school for only two
days before her mother requested her return and only one week by
the time of the hearing. The superior court found in its oral
decision that in light of this short duration, and in light of
her young age, her starting the first grade in Illinois was not a
compelling consideration. The superior court stated:
The beginning of school is not an
overwhelming consideration. This is first
grade . . . . I mean, it wouldnt I know that
school is important . . . and being there
with everybody else at the start might be
important, but the first grade, I dont find
that . . . even a week or two weeks or to
start late, one or the other is compelling,
but that is not just because she started a
week ago isnt going to be dispositive.
Next, the superior court cited the school clothing Sharon sent as
evidence that the parties had an informal agreement, but as
discussed above, an informal, experimental agreement with a
duration of a few weeks is insufficient to warrant a custody
modification under our case law.
Nor does Alexiss expectation that she would remain in
Illinois warrant a modification of custody. To rule otherwise
would allow non-custodial parents to manufacture a substantial
change in circumstances merely by telling a child that she will
remain with the non-custodial parent. Notably, the statute does
not include consideration of the childs expectations in its best-
interests analysis.16 It does require consideration of the childs
preferences,17 but the record does not indicate that Alexis
expressed a preference to stay in Illinois rather than return to
Alaska. And even had she expressed such a preference, its
persuasiveness would be limited in light of her age.18 As one
commentator has remarked, involving young children in the process
of deciding child custody matters is generally not appropriate
because they have neither the emotional and cognitive maturity,
nor the capacity for moral reasoning, that is essential to
participation in meaningful dialogue regarding their perspectives
on divorce outcomes and parent behaviors.19
The superior courts finding that Chad had proven the
requisite substantial change in circumstances to support a
modification of custody was an abuse of discretion. Because we
reverse the modification of custody for this reason, we need not
reach Sharons other arguments.20
V. CONCLUSION
Because no substantial change in circumstances was
demonstrated, we REVERSE the superior courts decision and VACATE
the order modifying custody. Alexis shall spend summer 2008 with
Sharon. The parties shall then revert to the original custody
arrangement under which Sharon exercises school-year custody and
Chad is permitted visitation as outlined in the parenting plan.
CARPENETI, Justice, dissenting, with whom WINFREE, Justice, joins
in Part IV(C).
I. INTRODUCTION
During the summer of 2007 Sharon McLane unequivocally
agreed with Chad Paul to reverse the custody arrangement for
their daughter Alexis that Sharon and Paul had put into place the
previous year. The parties agreed that instead of returning to
Sharon in Fairbanks, Alexis should stay with Chad in Illinois and
attend school there. In recognition of this agreement which was
expressed both orally and in writing Sharon wrote eloquently (if
earthily) of the pain it caused her, sent Alexiss clothes to
Chad, prepaid child support to Chad covering a period of five
months, and notified the Child Support Services Division that it
should stop collecting child support from Chad. Alexis was
notified of the change, as she had to be, given that she was not
returning to Alaska at the scheduled time but indeed began school
in Illinois. Three days after Alexis began school in Illinois,
Sharon changed her mind. Because I cannot agree that the
superior court in Fairbanks abused its discretion in deciding
that there had been a substantial change in circumstances, I
dissent.
II. FACTS AND PROCEEDINGS
Sharon McLane and Chad Paul married in 1999. Their
union produced Alexis Rose Paul, who was born in 2000. In 2006
the parties divorced. They agreed in a parenting plan that was
attached to their settlement agreement that they would share
legal custody of Alexis, that Sharon would have primary physical
custody of Alexis, and that Chad would have summer visitation
from one week after the end of school to three weeks before the
beginning of school. Alexiss visitation with Chad during the
school year would depend upon his residence.1
About the time of the divorce, Chad moved from Alaska
to Illinois. In early 2007 Chad married a woman with two young
children of her own. Pursuant to the parties agreement, Sharon
sent Alexis to Illinois for her summer visitation with Chad in
May 2007.
During the next month, Chad and Sharon began
discussing, through e-mails, the possibility of changing Alexiss
primary physical custody from Sharon to Chad. Over the course of
several weeks, Sharon and Chad considered the pros and cons of
changing their custody arrangement. Sharon exhibited a
remarkable ability to analyze the strengths and weaknesses of
each parent and to consider what was best for Alexis. For
example, even while noting, in a June 14 e-mail to Chad, that
[y]ou and I have zero trust for each other, she was able to
recognize Chads strengths: Alexis loves you. I never said you
werent a good dad. I do think her leaving this town may be for
the best. But she also saw reasons not to change: I do think she
needs more time with you. I just dont know if she wont think Ive
abandoned her too. On July 10 Chad inquired of Sharon: We also
need to make a final decision on what we are going to do with
Lexy. If I am going to have to register her for school here it
needs to be soon . . . . Let me know what you think so that if
she is staying we can get the paper work done. In response,
Sharon asked Chad, Have you had a chance to see what Alexis
thinks? I realize she cannot make the decision, but as you said
she can either make it work or not.
During the following two weeks, Sharon agreed to the
custody change. On July 23 the parties exchanged a series of e-
mails concerning the paperwork to effect the change. On July 24
Sharon corrected a number of typographical errors in the
paperwork and requested that her summer visitation extend until
two weeks, not three weeks, before school started. In response
to Chads question, Sharon asked that he e-mail the final version
of the paperwork.
Beyond merely writing her assent, Sharon took unusually
concrete steps to verify her agreement that Alexis spend the
upcoming school year with Chad. On July 29 she notified Chad
that she had ordered clothes for Alexis for school that were
being sent to her. As she stated, I got Lexy lots of stuff. I
feel guilty and unbelievably lonely without her plus not being
there for her Im sure the shrink will call it guilt buying. But
even more than sending school clothes to her daughter, Sharon
also notified Chad that she was sending him five months of child
support in advance and additional money for school registration
and school supplies: I sent [$]2000.00 which is five months child
support and extra for the registration and some school supplies.
She in fact sent the money. She notified the child support
agency to stop collecting from Chad.
Finally, at the end of a string of e-mails on July 30
discussing details of visitation for upcoming school breaks,
Sharon wrote of the difficulty she was experiencing as a result
of having agreed to the custody change: Well, all I can say is
that[,] if this is what you went through missing her[,] it sucks
. . . . Completely and totally sucks the big one. But this is
the right thing to do I just dont have to like it. Go ahead and
mail the packet off. Ill sign it and well be done.
The parties proceeded to implement their agreement.
Chad mailed the revised agreement to Sharon that she had agreed
to and said she would sign. Sharon having sent school clothes
and money for school registration, as well as five months of
child support in advance, Chad registered Alexis in school in
Illinois. Alexis began school on schedule on August 21.
Shortly after Alexis began school, Sharon changed her
mind. She notified Chad on August 23 that she wanted him to send
Alexis back to Alaska. Chad, believing that the parties had
agreed to modify Alexiss custody so that she would attend that
school year in Illinois, declined to withdraw Alexis from school
and send her to Fairbanks. The parties cooperated in setting the
matter on for an expedited hearing in the superior court in
Fairbanks on August 29.
Superior Court Judge Randy Olsen conducted the hearing.
Sharon testified in person; Chad appeared and testified
telephonically. At the end of the hearing, the court found that
there was an agreement that Alexis was to stay in Illinois for
the school year: I am convinced I am absolutely convinced that
there was an agreement that she was to stay for the school year.
Treating this agreement as a material change in circumstances,
the court went on to consider whether a change in custody would
be in Alexiss best interests. After engaging in further colloquy
with both the parties and their counsel, Judge Olsen decided that
she should remain in Illinois for the school year:
I believe and I find that a decision was
made for Alexis to stay and that Sharon
thought differently and changed her mind
late. Now, thats usually what a writing is
for. Its so that people actually have a
written signature that helps them realize,
this is the point of no return. This is the
decision point. Thats one reason to have a
written agreement before a person is actually
bound to an agreement.
In this case, though, I believe that the
point of no[] return[] the decision point
was reached earlier and that was when Alexis
was not returned[,] when school clothes were
sent, money was sent, and that the decision
was made.
At the end of the hearing Judge Olsen clarified that his order
changing primary physical custody to Chad would last for the
current school year only. He encouraged the parties to attempt
to reach agreement for the time after that but noted that custody
would again be resolved by motion in the event that the parties
could not reach agreement.
Sharon appeals.
III. STANDARD OF REVIEW
The trial court has broad discretion in determining
child custody issues; resolution of those issues will be reversed
only if, after a review of the entire record, we are convinced
that the trial court abused its discretion or that the
controlling factual findings made by the trial court are clearly
erroneous. 2 An abuse of discretion may be found only where the
trial court considered improper factors in making its custody
determination, failed to consider statutorily mandated factors,
or assigned disproportionate weight to particular factors while
ignoring others.3 A factual finding is clearly erroneous only
if, after viewing the record as a whole, we are left with a
definite and firm conviction that a mistake has been made.4
IV. DISCUSSION
A. The Superior Court Did Not Clearly Err in Finding that
Sharon Had Agreed To the Custody Change.
Judge Olsens factual finding that Sharon had agreed to
the change of custody is unassailable. Apart from and beyond
Chads testimony that Sharon had agreed, her e-mail statements
lead ineluctably to that conclusion and her actions confirm it.
As to her e-mails, she went from honest consideration
of the proposal, to discussion of the specifics, to confirming
that Alexis had been consulted about the change, to final
acceptance. Her anguished e-mail of July 30, in which she
describes the pain of missing her child, leaves no doubt that she
had made her decision and that, though painful, it was right:
Well, all I can say is that[,] if this is what you went through
missing her[,] it sucks . . . . But this is the right thing to
do I just dont have to like it. Go ahead and mail the packet
off. Ill sign it and well be done.
But even beyond Sharons words, her actions speak
volumes. She bought school clothes for Alexis and sent them to
her in Illinois. She sent money to Chad specifically for Alexiss
school registration in Illinois. She sent five months of child
support payments to Chad in advance. She had inquired to make
sure that Alexiss input had been obtained before the decision was
made, and so she knew that Alexis had been informed of the change
in plans for the upcoming year. She allowed Alexis to start
school in Illinois pursuant to the agreement to change custody
for the year. In light of these facts, it cannot be said that
Judge Olsens factual finding that Sharon had agreed to the change
in custody is clearly erroneous. And, indeed, todays opinion
does not do so.
B. The Superior Court Did Not Abuse Its Broad Discretion
in Considering Whether To Change Custody Because There
Had Been a Substantial Change in Circumstances: The
Parties Had Agreed To Change Alexiss Custody, They Had
Taken Substantial Steps To Implement That Agreement,
and Alexis Was Aware of the Change.
Todays opinion rests on two formalities that, under the
facts of this case, are inconsequential: (1) Although Sharon had
undeniably agreed to the custody change, had taken substantial
steps to implement it, had made sure that Alexis was aware of it,
and knew that it was being implemented, Sharon had not signed the
formal agreement changing custody; and (2) although the agreement
covered a one-year period, it had been in effect for less than a
month when Sharon changed her mind. Given the practical
realities of planning for and implementing a change in custody
for a school-age child between households located thousands of
miles apart, and given the realities of the situation facing
Judge Olsen when the expedited case was brought to him in the
second week of an ongoing school year, these formalities should
not be enough upon which to base a finding of abuse of
discretion.
That Sharon had not signed the agreement should not be
dispositive. She had unequivocally stated her intention to sign
it ([T]his is the right thing to do I just dont have to like it.
Go ahead and mail the packet off. Ill sign it and well be
done.). Just as importantly, the lack of her signature is
immaterial in contract terms. As the Restatement of Contracts
makes clear, a party can manifest assent by performance as well
as by signing a contract: the offeree may choose to accept either
by promising or by rendering the requested performance.5 Judge
Olsen correctly looked to Sharons remarkable performance buying
and sending school clothes to Alexis in Illinois, sending money
to pay for her school registration in Illinois, prepaying five
months of child support to Chad, letting Alexis begin school in
Illinois, etc. in concluding that the parties had passed the
point of no return by their actions and that the lack of Sharons
signature should not be dispositive.
The court relies on general language in Morino v.
Swayman6 as support for its conclusion that the superior court
erred in finding that Sharons agreement that Alexis remain in
Illinois for the school year was not a substantial change in
circumstances. But Morino is entirely distinguishable. First,
Morino held that a superior court that had refused to hold an
evidentiary hearing on changed circumstances had erred;7
consequently, its statements as to what level of change might be
insufficient to trigger a hearing are necessarily dicta. Second,
and more importantly, Morino dealt with a minor change in a
weekly visitation pattern between two parents who lived in the
same city.8 Because the changed regime had been in effect for
ten months, we held that the superior court should have held a
hearing to determine whether it constituted a substantial change
that could justify a change in the custodial order.9 It simply
makes no sense to equate this minor visitation change10 that
merely adjusted the hours of weekly visitation between parents
living in the same city with the decision to change the childs
state of residence for an entire school year that we have in the
present case.
In characterizing the change as lasting only
approximately three weeks,11 the court misses the significance of
the change in Alexiss life and expectations that taking her out
of a school that she had already started would have entailed, an
impact that Judge Olsen did not fail to appreciate. While it is
true that Alexis had been in school for only a week when the
matter came before him, and while it is true that Judge Olsen
realized that a week of school for a first grader was not an
overwhelming consideration or dispositive, it remains that
Alexis had been told for several weeks that she would be
remaining in Illinois for the year, had prepared for the change,
and had begun to attend her new school. For Alexis, the decision
of her parents to change her custody for the upcoming year was
significant, and its significance could not have been lost upon
the child. It surely was not lost upon Judge Olsen:
There had been a change in
circumstances. Alexis had been integrated
into her new family. She had been advised of
the parents joint decision that she should
remain and go to school in Illinois. Her
mother had sent her personal items and
clothing to support and reflect that new
arrangement. The parties set this train in
motion, and to preserve her stability Alexis
will reside with Chad and go to school in
Illinois.
(Emphasis added.)
It is true, as todays opinion notes, that in Morino we
encouraged custodial parents to experiment with ongoing custody
arrangements in an effort to find what works best for children
without fearing that every temporary change could be the basis
for modifying visitation.12 But the change in this case was not
a temporary change as Morino used that term. As Judge Olsen
found, this change was set for the period of the school year. It
was intended by Sharon and Chad to last for a substantial period,
as Sharons act of sending five months child support to Chad in
advance clearly demonstrates. Finally, in a case like this,
where a major change that involves substantial pre-change
planning and execution are involved, there must come a time when
the train that the parties set . . . in motion, as Judge Olsen
termed it, leaves the station. It does not chill parents right
to experiment with ongoing custody arrangements to hold that at
some point they are bound, by their promises and their actions,
to proceed.
The court downplays the significance of Alexiss
integration into her new family by noting that it was the natural
result of her having spent the summer in Illinois under the
existing agreement.13 But that integration must have been
qualitatively different after a month of expectation that she
would be remaining with her new step-brother and step-sister not
for one more week14 but for the entire upcoming year. The court
downplays the significance of the stability achieved by Judge
Olsens order, relying on the existing order: her return to Alaska
at the end of the summer was anticipated by the custody
arrangement, and did not amount to a disruption in her
stability.15 This observation completely ignores the effect on a
six-year-old child of her parents preparing her for a month for a
major change in her life, substantially implementing that change,
and then abruptly cancelling the program. Of course taking her
out of school and sending her back to Alaska in late August 2007
would have amounted to a disruption in her stability!
The court similarly errs in its treatment of Alexiss
expectations, placing the blame on Chad for notifying Alexis of
the agreed-upon change: Nor does Alexiss expectation that she
would remain in Illinois warrant a modification of custody. To
rule otherwise would allow non-custodial parents to manufacture a
substantial change in circumstances merely by telling a child
that she will remain with the non-custodial parent.16 The truism
that non-custodial parents should not be allowed to manufacture a
substantial change in circumstances has nothing to do with this
case. First, Sharon raised the necessity of discussing the
planned change with Alexis, properly noting that while Alexis
should not make the decision she should be consulted about it.
Second, Sharons actions in sending clothes to Illinois for Alexis
could only reinforce whatever Alexis had been told by Chad.
Third, how could Alexis not have been notified that her parents
had agreed that she should remain in Illinois? She was going to
remain there and go to school there. She did go to school there.
There is no basis for the suggestion that Chad should not have
notified Alexis that her parents had decided that she would
remain in Illinois for the school year. And there is therefore
no way to avoid the necessity of considering Alexiss
expectations.
Equally unavailing is the courts suggestion that the
parents here, and especially Chad, involv[ed] young children in
the process of deciding child custody matters.17 Of course it is
a truism that young children should not be involved in the
decision process. But that did not happen here. What happened
is that, during the parents decision-making process, Sharon
checked with Chad to find out what Alexis thinks. Sharon even
quickly noted that it was not Alexiss decision, but that she
ought to be heard on the matter. What happened further is that,
after the parents made the decision, Alexis was informed of it,
as she necessarily had to be. What is really at stake in this
matter is the propriety of both parents telling their child one
thing and then doing another.
Judge Olsen was presented by both parents with a
Hobsons choice in late August 2007 when the matter came before
him. He correctly found that the parents had agreed to change
Alexiss custody to Chad so that she would remain in Illinois for
the upcoming school year. He correctly found that they had not
only agreed on that course of action, but had taken several
substantial steps to implement it. He correctly found that, as a
result of her parents actions, Alexis had the expectation that
she would remain in Illinois for the school year. On the basis
of these factual findings, I would conclude that Judge Olsen did
not abuse his discretion in holding that a substantial change in
circumstances had occurred. It was therefore proper for the
court to consider whether it was in Alexiss best interests to
change her custody for the upcoming school year.18
C. Alternatively, the Order Having Been Temporary and the
2007-2008 School Year Having Passed, the Question
Whether There Was a Substantial Change in Circumstances
Justifying the Custody Change for That Year Is Moot.
Judge Olsens order was to be in effect for the 2007-
2008 school year. That school year is now over. Both counsel at
oral argument agreed that Judge Olsens order was temporary.
Counsel for Chad agreed that by Summer 2008 all issues raised in
this appeal would be moot. Given that the order was temporary,
primary physical custody has now reverted to Sharon.19 Should
Chad desire to regain primary physical custody of Alexis, he will
have to show a substantial change in circumstances.20 While I
conclude above that Judge Olsen did not err in reaching the best
interests question, his decision to do so is now moot.
V. CONCLUSION
Because Alexiss parents had agreed that she should
remain in Illinois to attend school for the year, because they
had taken very substantial steps to put that plan into operation
(including Sharon sending clothes to Alexis for school, sending
money to Chad for school costs, and prepaying child support for
five months), and because Alexis was aware of this major change
in her life and had begun to attend school in Illinois, the
superior court did not abuse its discretion in determining that
there had been a substantial change in circumstances and
considering whether a custody modification would be in Alexiss
best interests. Alternatively, because the courts custody
change order was temporary and the period of its operation has
ended, the case is moot. For these reasons, I dissent from
todays opinion.
_______________________________
1 Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).
2 Chesser-Witmer v. Chesser, 117 P.3d 711, 715 (Alaska
2005).
3 Barrett, 35 P.3d at 5.
4 Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999).
5 S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985).
6 Nichols v. Nichols, 516 P.2d 732, 735 (Alaska 1973).
7 Under the settlement agreement, Alexis was to return to
Alaska three weeks before school began.
8 970 P.2d at 429.
9 Id. at 427, 429-30.
10 Id. at 429.
11 Id.
12 Id. at 433 (Fabe, J., dissenting).
13 See supra note 7.
14 970 P.2d at 428.
15 970 P.2d at 429; see also id. at 430-31 (Fabe, J.,
dissenting).
16 See AS 25.24.150(c); AS 25.20.110.
17 AS 25.24.150(c)(3); AS 25.20.110. The superior court
did not address Alexiss preference in its oral decision or its
order on reconsideration. The superior courts silence on this
factor suggests that it did not consider Alexis to be of
sufficient age and capacity to form a preference. AS
25.24.150(c)(3).
18 See Veazey v. Veazey, 560 P.2d 382, 386 (Alaska 1977),
superseded by statute on other grounds, ch. 63, 30, SLA 1977, as
recognized in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981)
(suggesting that a young childs preferences are often unreliable
as she can be easily influenced by the behavior of her parents,
but that a relatively mature teenagers reasoned preference
carries more weight).
19 Joan B. Kelly, Psychological and Legal Interventions
for Parents and Children in Custody and Access Disputes: Current
Research and Practice, 10 Va. J. Soc. Poly & L. 129, 151 (2002).
20 We do note, however, that the superior court appears to
have had little information regarding Alexiss best interests
beyond the testimony of Sharon and Chad. The superior court may
have felt that it had sufficient information to grant a
temporary, one-year modification of custody, but as we have
explained, such modifications should be granted only rarely.
Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157 n.10 (Alaska 2008)
(Generally, custody orders are considered final and permanent . .
. .While a temporary order may have been appropriate under the
unusual circumstances of this case, such instances should be
rare.).
1 If Chad remained in the same community as Sharon, he
would have visitation every weekend from Friday evening to Sunday
at 4:00 PM. If he lived in a different community, he would have
reasonable visitation as could be arranged.
2 Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001)
(citation omitted).
3 Chesser-Witmer v. Chesser, 117 P.3d 711, 715 (Alaska
2005).
4 Barrett, 35 P.3d at 5.
5 Restatement (Second) of Contracts, 50 cmt. a.
6 970 P.2d 426 (Alaska 1999).
7 Id. at 427.
8 The non-custodial parent was entitled to mid-week
visitation of three hours with the children as well as weekends.
The custodial parent had agreed to moving that visit by one day
and turning it into an overnight and combining it with weekend
visitation, leaving the same amount of actual visitation but
requiring less disruption of the childrens schedules. Id.
9 Id. at 429.
10 Id. at 430 (Fabe, J., dissenting).
11 Slip Op. at 8.
12 Slip Op. at 7.
13 Slip Op. at 9.
14 The parties prior agreement called for Alexis to be
returned to Fairbanks three weeks before the start of her school.
15 Slip Op. at 9.
16 Slip Op. at 10.
17 Slip Op. at 11.
18 When faced with a motion to modify custody, a superior
court must first determine whether a substantial change in
circumstances has occurred that might justify a change in
custody. AS 25.20.110(a). Long v. Long, 816 P.2d 145, 150
(Alaska 1991). Only if the court finds such a change does it go
on to consider whether the requested change in custody is in the
childs best interests. Id. Todays opinion holds that no such
change in circumstances had occurred, (Slip Op. at 11) and the
court therefore does not reach the question whether the requested
change of custody was in the best interests of the child.
Because I believe that Judge Olsen did not clearly err in finding
that a substantial change in circumstances had occurred, I
believe that he correctly proceeded to consider Alexiss best
interests.
19 See Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157
(Alaska 2008) (holding that temporary, one-year change in custody
during school year was not final custody order modifiable only
upon former custodial parent showing new change in
circumstances).
20 See Long, 816 P.2d at 150.
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