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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eniero v. Brekke (09/12/2008) sp-6306
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
| CHERYL ENIERO, | ) |
| ) Supreme Court No. S- 12873 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-99- 4383 CI | |
| v. | ) |
| ) O P I N I O N | |
| STEVEN BREKKE, | ) |
| ) No. 6306 September 12, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Dorothea G. Aguero, Anchorage,
for Appellant. Roy V. Williams, Eagle River,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Cheryl Eniero and Steven Brekke cohabited, had a
daughter, and later separated. They received joint legal and
physical custody of their daughter, but Eniero had the final say
over educational and non-emergency medical decisions. Eniero
filed a motion to modify custody so she could move to Oregon with
their daughter. After a hearing, the superior court decided that
Enieros move was, in part, driven by the illegitimate motive of
limiting Brekkes ability to be involved in their daughters life.
Analyzing the best interests of the child, the court concluded
that it was in the daughters best interests to stay with Brekke
in Alaska should Eniero move to Oregon. Eniero appeals, claiming
that the superior court employed the wrong legal standard when it
assessed the legitimacy of her motives for the move and that the
court abused its discretion in its custody determination.
We affirm because the superior court properly followed
our precedent by addressing Enieros illegitimate motive for the
move in its analysis of the best interests of the child. We
further conclude that the court did not abuse its discretion in
reaching its custody determination.
II. FACTS AND PROCEEDINGS
Cheryl Eniero and Steven Brekke cohabited for
approximately four years and are the parents of a daughter,
Miranda,1 born in 1997. They separated in 1998 and entered into
a stipulation regarding legal and physical custody of their
daughter, child support, and visitation, among other things. In
October 2000 Superior Court Judge Eric T. Sanders issued findings
of facts and conclusions of law that largely memorialized the
parties agreement. The court also issued a decree of child
custody incorporating the findings of fact and conclusions of
law, awarding Eniero and Brekke joint legal and shared physical
custody of their daughter, and making provisions for the
assessment of child support obligations.
The custody arrangement generally provided that Brekke
had Miranda during the weekends and parts of some Mondays and
Eniero had Miranda during the work week and parts of some
Sundays. Eniero received the right to choose Mirandas school,
but both parents were granted access to her school records.
Eniero also received the final say over non-emergency medical
decisions, but Brekke was entitled to provide his input on all
major medical decisions.
Steven Brekke later married. Stevens wife, Heather,
has a son from a prior relationship.
On July 15, 2006, Brekke filed a motion to modify
custody. Superior Court Judge Sharon L. Gleason conducted a
hearing and made oral findings of fact and conclusions of law in
January 2007. The court was critical of the generally hostile
communications between the Brekkes and Eniero. Determining that
there was a substantial change in circumstances because, among
other things, Miranda was no longer of pre-school age, the court
granted a week-on, week-off custody arrangement. Due to
hostility between Heather Brekke and Eniero, the court ordered
that Heather Brekke not be present during custody transfers. The
court further required that Steven Brekke and Eniero attend co-
parenting counseling. The court directed that the only form of
communication between the parties should be by e-mail, unless
there was an emergency or if the parties otherwise agreed to
other forms of communication. But the court retained the former
system of legal custody which accorded Eniero the final say over
some decisions. In February 2007 the court issued written
findings and an order generally restating its oral findings and
conclusions.
On June 14, 2007, Eniero filed a motion to modify child
custody and support. Eniero explained that she wanted to move
from Anchorage to Lakeview, Oregon. On August 20, 2007, Judge
Gleason conducted a hearing regarding Enieros motion.
At the hearing, Eniero testified that she wanted to
move to Oregon to work with her parents in their property
management business, assist her father in starting up an air
charter service, and help her father manage the local airport.
Eniero had no ownership interest in the businesses and there was
no written business agreement. She explained that she had
contemplated this move for a while and that the timing was right
as she had recently retired from Alaska Airlines, her older
daughters had finished high school, and she had finished her
masters degree in business administration.
As to the property management business, Eniero
testified that she and her parents were exploring right now to
see whats feasible in terms of development plans, though no
feasability studies had been conducted. As to the planned air
charter business, Eniero explained that were just waiting for
[FAA] certification before the business could open. The business
had one airplane. Eniero testified that the plan is I will get
paid. Her father, Bert Young, testified that he thought Eniero
would be paid a minimum of $25,000 a year. He planned to pay
Eniero this money from air charter contracts that he expected to
receive after the business received FAA certification. This work
was to be part-time and Eniero would have the opportunity to do
unspecified freelance work. Until such time as she could be
paid, Eniero explained that she would live off of the proceeds
from the sale of her home in Anchorage.
Apart from moving to Oregon for new job opportunities,
Eniero testified that many of her family members live near
Lakeview. She explained that she could travel with her daughter
on Alaska Airlines using flight benefits that were part of her
severance package.
There was also testimony regarding failures in
communication between Eniero and Brekke. Brekke signed Miranda
up for some extracurricular activities without consulting Eniero.
Eniero faulted Brekke for not informing her when Miranda was
sick, such as when Brekke sent Miranda to school with a low-grade
fever, Brekke sent Miranda to school with apparent flu-like
symptoms, and Brekke transferred Miranda to Eniero when Miranda
had a number of bug bites or a rash on her back (to document
this last event, Eniero drew circles on her daughters back in
washable marker and then took photographs). Eniero also
testified to difficulties talking on the phone with Miranda when
Miranda was with Brekke, due to time limits effectively set by
Brekke and Brekkes refusal to let Miranda use the phone in a
private area. Brekke explained that Enieros demands to speak
with Miranda for an extended time on a nightly basis became
unreasonable. Eniero also testified that Brekke took Miranda on
out-of-town trips without providing an itinerary, as required by
court order. Brekke responded that he thought the order only
applied to out-of-state trips and, regarding one of his out-of-
state trips, that he thought he gave Eniero enough information
when he provided his mothers home telephone number.
In an oral decision the superior court analyzed the
legitimacy of Enieros planned move and Mirandas best interests
should Eniero move. The court determined that Enieros reasons
for moving to Oregon were in part legitimate and in part
illegitimate, motivated by the desire to limit Brekkes
involvement in Mirandas life. In the best interests analysis,
the court found that stability and continuity favored Mirandas
staying in Anchorage and that Brekke was more willing to
facilitate and encourage a close and continuing relationship
between the other parent and the child. The court concluded that
if Eniero decided not to move to Oregon, then the current custody
situation would remain in place. But if Eniero moved to Oregon,
Brekke would receive primary physical custody of Miranda.
Miranda then would stay with Brekke during much of the school
year and would be with Eniero during much of the summer. This
oral decision was later reduced to written findings of fact and
conclusions of law and a modified custody order.
Eniero appeals.
III. DISCUSSION
A. The Superior Court Properly Applied the Law.
The superior court had concerns about the motives for
Enieros planned move to Oregon. The court questioned the
economic viability of Enieros plan and further determined that
Eniero was not required to move to Oregon to care for her
parents. Though the court found two legitimate reasons for the
move Enieros desire to live closer to her family and a desire to
get away from Brekke the court concluded that part of [Enieros]
motive [for the move] is a desire to limit Mr. Brekkes ability to
be involved in his daughters life.
Eniero contends that the superior court employed an
improper standard when analyzing the legitimacy of the reasons
for her move. Eniero argues that she was not required to show
more than a desire to get away from Alaska, be near family, or
educate her child in another state. We independently review the
relevant legal standards employed by the superior court.2
We have set forth a two-step approach for analyzing a
custodial parents desire to move out-of-state with a child.3
First, the superior court must consider if reasons for the
planned move are legitimate. A move is legitimate if it was not
primarily motivated by a desire to make visitation . . . more
difficult. 4 Second, if the move is legitimate, the superior
court must analyze the best interests of the child5 while
assuming that the planned move has already occurred.6
The primarily motivated standard used in the first
prong of the test should not be read to suggest that any
illegitimate reasons for a move must be ignored so long as those
reasons are not the primary motivation for the move. While a
court should not find a parent less willing to promote an open
and loving relationship between the child and the other parent
because of a legitimate move,7 we have not suggested that the
best interests analysis cannot take into account how a move would
exacerbate problems such as a parents willingness to foster
communication between the child and the other parent.8 Indeed we
have warned that [p]arents must be cognizant that their plans to
relocate may negatively affect maintenance of custody because of
the impact of the move on the child.9 Thus, even motives that
are not the primary motivation for a move can be taken into
account in the best interests analysis.
In this case, the superior court found two legitimate
reasons for Enieros move and did not find that the primary
motivation for the move was illegitimate. The court proceeded to
the best interests analysis. In the best interests analysis, the
court explained that Enieros illegitimate motive of limiting
Brekkes involvement in Mirandas life was a factor in its
determination.10 We conclude that the court properly considered
Enieros illegitimate motives when considering the best interests
analysis.
B. The Superior Court Did Not Abuse Its Discretion when It
Concluded that Mirandas Best Interests Would Be Served
by Staying with Brekke If Eniero Moved.
After determining that Enieros planned move was
legitimate not primarily motivated by an illegitimate purpose
the superior court analyzed Mirandas best interests should the
move occur. The court concluded that most of the statutory best
interest factors did not favor either parent. It found that both
parents were able to meet their daughters needs, that Miranda was
too young to form a parental preference, and that both parents
love Miranda and that Miranda loves her parents. The court noted
that Miranda has a stable life in Anchorage and determined that
keeping Miranda in this environment was preferable to moving
Miranda to a new environment. The court also found that Brekke
demonstrated a greater willingness to facilitate and encourage a
close and continuing relationship between Eniero and Miranda than
Eniero had demonstrated with respect to the relationship between
Brekke and Miranda. The court further determined that it would
be easier for Eniero to visit Miranda in Alaska than Brekke to
visit Miranda in Oregon due to Enieros family and friends in
Anchorage and Brekkes lack of family or friends in Lakeview.
Eniero argues that the superior court abused its discretion when
it concluded that the best interests analysis favored Mirandas
placement with Brekke. We review custody determinations for an
abuse of discretion.11 We will overturn the superior courts
factual findings only if those findings are clearly erroneous.12
1. The ability of each parent to meet Mirandas needs
Eniero argues that she demonstrated that she was better
able to meet Mirandas needs than Brekke and that the superior
court erred when it concluded that both parents were equally
capable of meeting Mirandas needs. She points out that under the
terms of the former custody agreement she had the ultimate power
to make medical and educational decisions. She also contends
that Brekke failed to notify her of Mirandas illnesses or
ailments.
Enieros arguments do not convince us that the superior
court abused its discretion. With regard to her final say over
decisions, Eniero ignores the terms of the prior custody order
providing Brekke a voice in any major decisions. And, given the
week-on, week-off shared physical custody arrangement, Brekke
regularly interacted with Miranda and had sufficient opportunity
to learn of her needs.
Enieros claim about the lack of communication from
Brekke to Eniero about Mirandas illnesses largely ignores that
the superior court addressed this issue. The court concluded
that both parents defined illness differently and that they both
had different approaches for treating illnesses. The court found
that both approaches were valid. Though Eniero believed that
Brekke should have told her when Miranda was sick, the court
determined that communication, while probably appreciated, was
not required given the minor nature of Mirandas ailments.
2. Stability and continuity
The superior court concluded that Miranda has had a
stable life in Anchorage and that it was desirable to maintain
continuity in Mirandas life. The court noted that [o]ften when
parents are conflicted the school can be the one safe harbor for
kids to go to. The court also found that [m]aintaining the same
home at dads house is a benefit as well.
Eniero argues that the superior court erred when it
found that it was more desirable for Miranda to remain in
Anchorage. While the continuity of care factor examines both
geographic and relational stability,13 Eniero argues that the
court placed too much weight on geographic stability. Brekke
responds that considerations of both emotional and geographic
continuity favored him.
Eniero claims that Oregon would provide a stable
environment for Miranda. She found a good school in Lakeview.
Miranda has relatives in Oregon. The superior court did not
contradict these arguments, though the court did note that there
was little testimony about how anxious people in the community of
Lakeview are to have Miranda there except for [Mirandas] cousin.
Eniero further contends that Brekke would not provide a
stable environment for Miranda. She claims that Brekke would
have less time for Miranda than she would and that Miranda would
be in daycare, or in Heather Brekkes care, if she stayed in
Anchorage. The court recognized that Eniero, presumably due to
her part-time work schedule, was able to structure her schedule
around Mirandas schedule. But the court accorded more weight to
stability provided by Mirandas current environment and determined
that it was desirable to maintain continuity by letting Miranda
stay in this environment. We are not convinced that the superior
courts determination must be overturned.
The court did not place too much weight on geographic
stability. While the court weighed geographic stability, the
court also noted that whatever decision it reached would put
stress on Miranda. Given this stress, the court found that
providing a safe harbor of familiarity, such as Mirandas school
in Anchorage, would be best for Miranda. While keeping Miranda
in familiar surroundings would typically emphasize geographic
continuity,14 the court took relational stability into account and
did not abuse its discretion.
3. Facilitating and encouraging a close and
continuing relationship between Miranda and the
other parent
The superior court noted that there continue to be
challenges with communication between the parents. The court
reviewed and commented on much of the testimony. It stated that
the parents should allow private phone conversations between
Miranda and the other parent. But the court agreed with Brekkes
decision to limit Enieros phone calls. The court criticized
Eniero for not having Miranda call Brekke during a three-week
trip to Oregon. With regard to medical issues, the court
concluded that Brekke was not required to inform Eniero of
Mirandas minor ailments but suggested that notification would be
appreciated. The court criticized Eniero for drawing circles in
marker on Mirandas back to document Mirandas rash or bug bites,
especially when the rash or bites could be treated at home and
healed in a short period of time. Weighing this evidence, the
court concluded that Brekke demonstrated that hes doing a
slightly better job in facilitating and encouraging a close
relationship between Miranda and the other parent than Eniero.
It noted that Dr. David Wilcox, who served as Eniero and Brekkes
counselor for court-ordered co-parent counseling and later
continued to counsel Brekke individually, testified that Brekke
demonstrated a greater willingness to have open communication.
The court also noted that, despite Enieros professed scheduling
flexibility when it came to caring for Miranda, Eniero was unable
to clear her schedule for counseling commitments with the first
co-parenting counselor they selected, requiring that they find a
counselor who had Friday appointments. The court suggested that
this demonstrated that communication with Brekke was pretty darn
low on the priority list for Ms. Eniero. And that was troubling
to me.
Eniero argues that the superior court accorded too much
weight to the testimony of Dr. Wilcox. Dr. Wilcox testified that
Brekke wanted to have more open communication with Eniero, but
that Eniero wanted limited communication. The superior court
found Dr. Wilcoxs testimony persuasive regarding the parties
level of cooperation. Eniero argues that a court order stated
that communication should primarily be by e-mail, meaning that
her desire to limit communication should not have been held
against her. But the court, when making the order, stated that e-
mail was the form of communication unless both [parties] agree
otherwise. Given Enieros planned move, the superior court
reasonably determined that Enieros reluctance to move beyond e-
mail communication could hamper Brekkes relationship with
Miranda.15
Eniero points out that the superior court did not
mention that Brekke failed to attend one of the court-mandated
counseling sessions. But Dr. Wilcox explained that this was a
scheduling error and that Brekke merely arrived one hour later
than he should have. The superior courts implicit acceptance of
this testimony was within its discretion.
Eniero also contends that the superior courts finding
that communication with Brekke was a low priority for Eniero was
clearly erroneous. Eniero asserts that her job at the time
prevented her from having counseling sessions on any day of the
week but Friday. Apart from Enieros failure to provide citations
to the transcript that support this claim, the superior court
could have reasonably rejected her contention based on Enieros
professed flexibility in her schedule to look after Miranda.
This is especially true because Enieros employment was part-time.
Eniero finally claims that there are many examples of
Brekkes animosity toward her. She cites Brekkes decision to
enroll Miranda in extracurricular activities without telling her,
Brekkes failure to provide complete itineraries of his trips with
Miranda, Brekkes refusal to approve Mirandas passport
application, Brekkes limitation of phone calls between Miranda
and Eniero, and Heather Brekkes alteration of Mirandas school
registration form removing Enieros contact information.
The superior court discussed many of these issues and
largely rejected Enieros characterization of the testimony. As
Brekke points out, the superior court found that Enieros frequent
phone calls with Miranda were stressful and that the steps Brekke
took to limit Enieros phone calls were appropriate. Brekke
likewise had an explanation for the changed school registration
records; the records were changed for the upcoming school year as
a precautionary registration in case Miranda stayed in Anchorage
after Eniero moved to Oregon. The superior court also changed
the itinerary requirement, explaining that a parent only needed
to file an itinerary for air travel.
As Brekke argues, there is also evidence suggesting
that Eniero failed to facilitate communication between Miranda
and Brekke. For example, Brekke testified that phone calls he
made to Miranda when she was with Eniero were never returned.
The superior court also faulted Eniero for not having Miranda
call Brekke during a three-week trip to Lakeview.
Finally, based on the weaknesses of Enieros reasons for
the move, the superior court could permissibly infer an unstated,
illegitimate motive of limiting Brekkes involvement in Mirandas
life. Given the lack of a business agreement, the lack of
feasibility studies for any real estate development, and that
Enieros salary was dependent on an air charter business with one
airplane that had yet to receive FAA approval or any contracts,
we conclude that the court did not abuse its discretion in
evaluating Enieros move.
4. Ease of visiting Miranda
As an additional consideration, the superior court
found that it would be more difficult for Brekke to visit Miranda
in Lakeview during the school year than for Eniero to visit
Miranda in Anchorage during the school year. The court reasoned
that Eniero had family or friends in the Anchorage area but that
Brekke did not have family or friends in the Lakeview area. The
court thus concluded that Eniero could be a more active
participant in Mirandas life during the school year if Miranda
was with Brekke than Brekke could be in the alternate situation.
Eniero argues that the superior courts conclusion is
clearly erroneous. Eniero contends that she has no family in
Anchorage other than her daughters, who live with her ex-husband.
She argues that the court erred when it assumed that Eniero could
stay with her ex-husband in Anchorage.
Enieros argument requires a selective reading of the
superior courts findings. The court stated,And Ms. Eniero would
have the benefit if she came up here to be able to stay with
family or friends and or, have family or friends here and be
able to really be a more active participant throughout the school
year, as well as in the summer, with her child. The superior
courts reasoning is acceptable. Eniero testified that she got
along well with her former husband who lives in Anchorage.
Enieros other daughters still live in Anchorage. Brekke
testified that he liked Enieros former husband. No testimony
demonstrated that Brekke had connections to Lakeview. While the
superior court did not appear to weigh this factor heavily, it
was appropriate to note the relative difficulty each parent would
have being involved in Mirandas life should Miranda live with the
other parent.
IV. CONCLUSION
We AFFIRM the decision of the superior court.
_______________________________
1 The daughters name has been changed to respect her
privacy.
2 Moeller-Prokosch v. Prokosch (Moeller-Prokosch I), 27
P.3d 314, 316 (Alaska 2001).
3 McQuade v. McQuade, 901 P.2d 421, 423-24 (Alaska 1995);
see also Moeller-Prokosch I, 27 P.3d at 316.
4 Moeller-Prokosch I, 27 P.3d at 316 (quoting House v.
House, 779 P.2d 1204, 1208 (Alaska 1989)).
5 AS 25.24.150(c).
6 Moeller-Prokosch v. Prokosch (Moeller-Prokosch II), 53
P.3d 152, 156-57 (Alaska 2002); Moeller-Prokosch I, 27 P.3d at
317.
7 Moeller-Prokosch II, 53 P.3d at 155.
8 Moeller-Prokosch I, 27 P.3d at 316-17 ([T]he best
interests analysis necessarily will include assessing the impact
of the parents move on the child.); Fardig v. Fardig, 56 P.3d 9,
13 n.12 (Alaska 2002) ([T]he impact of any potential move may be
taken into consideration by the court in assessing the best
interests of the child.).
9 Moeller-Prokosch I, 27 P.3d at 317 n.7.
10 Accordingly, Enieros claims that the superior court
abused its discretion because it did not find a legitimate reason
for her move and that the court abused its discretion when it
found that Enieros move was motivated primarily by an
illegitimate purpose are without merit.
11 McQuade, 901 P.2d at 424 n.9.
12 Rodvick v. Rodvick, 151 P.3d 338, 343 (Alaska 2006).
13 Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001).
14 Notably, however, in Vachon v. Pugliese, we concluded
that the continuity and stability factor favored the parent who
left Alaska. 931 P.2d 371, 380 (Alaska 1996); see also Meier, 34
P.3d at 1279.
15 We have recognized that communication is an important
consideration when one parent is planning to leave the state.
Silvan v. Alcina, 105 P.3d 117, 121 & n.9 (Alaska 2005).
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