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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brett M. v. Amber M. (8/2/2019) sp-7390

Brett M. v. Amber M. (8/2/2019) sp-7390

           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                                         

BRETT  M.,                                                         )  

                                                                   )    Supreme  Court  No.  S-17162  

                                 Appellant,                        )  


                                                                   )    Superior Court No.  1JU-17-00861 CI  

           v.                                                      )  


                                                                   )    O P I N I O N  


AMANDA M.,                                                         )  


                                                                   )    No. 7390 - August 2, 2019  

                                 Appellee.                         )  




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


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


                      Appearances:  Gabriel E. Sassoon, Baxter Bruce & Sullivan  


                      P.C., Juneau, for Appellant.  Kevin Higgins, Law Office of  


                      Kevin Higgins, Juneau, for Appellee.  


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


                      and Carney, Justices.  


                      BOLGER, Chief Justice.  



                      A Juneau couple with three children separated, and the mother filed for  


divorce.         Wishing  to  relocate with  the children  to Oregon  for  work,  she requested  


primary physical custody. The superior court concluded that it was in the children's best  


interests to relocate with the mother.  The father appeals.  We conclude that the superior  

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

court's custody decision is supported by the record and follows the appropriate legal                                                            

framework, so we affirm.          


            A.          Facts  

                        Brett and Amanda M. married in 2006.                                  They have three children:                      Jacob,  


Randall, and Marie.                                                                                                                                        

                                      Marie sees an ophthalmologist in Seattle to treat an eye condition.  


She has also experienced developmental delays, and an individual education program  


(IEP) has been created for her that includes speech and physical therapy.  


                        Brett and Amanda were living in Oregon when Jacob was born but moved  


to Juneau in 2008. They are both trained as physicians - Brett is a general surgeon and  


Amanda is a pediatrician - and they moved to Juneau for work.  After Randall's birth  


they agreed that Amanda would stop practicing medicine to raise the children and that  


Brett would work extra hours to support the family.  


                        The couple separated in August 2016 when Brett moved out of the family  


home.  The children thereafter stayed with Brett several nights a week.  


                       About a year after the separation, Amanda sought employment with a  


former colleague in Roseburg, Oregon. The former colleagueofferedAmandaa position  


in her practice in May 2018, and Amanda decided to relocate to Oregon.  

            B.          Proceedings  


                       Amanda filed for divorce in September 2017, requesting physical custody  


of the children.  The Juneau superior court held a three-day trial in June 2018.  Much of  


the trial concerned the legitimacy of Amanda's proposed move.  Amanda testified that,  


to allow for more time with the children, she did not want to work full time, and that  


there were no suitable part-time pediatric positions available in Juneau.  She explained  



                        Pseudonyms have been used for all family members to protect their privacy.  

                                                                          -2-                                                                        7390  

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 that she was familiar with Roseburg and believed she could ease back into her medical                                                                                                                                                                                                                                                                                                                                                                                                           

practice there in a way that ensured she had time to spend with the children.                                                                                                                                                                                                                                                                                                                                                                                                                                       She  

presented the testimony of two Juneau pediatricians to support her position about job                                                                                                                                                                                                                                                                                                                                                                                                                                         

 opportunities there.                                                                                                        Amanda's would-be Oregon colleague also testified about her                                                                                                                                                                                                                                                                                                                                    

practice in Roseburg.                                                                                                                 

                                                                                  Brett called the director of physician services at Bartlett Regional Hospital                                                                                                                                                                                                                                                                                                                                

 in Juneau to rebut this testimony.                                                                                                                                                                        Brett testified that he had alerted Amanda to three job                                                                                                                                                                                                                                                             

 openings while they were separated but that Amanda did not pursue them.                                                                                                                                                                                                                                                                                                                                                                                              He said that                                         

 it would be difficult for him to travel to Roseburg to visit the children and that Amanda                                                                                                                                                                                                                                                                                                                                                                                                    

 could have sought employment somewhere closer to Juneau.                                                                                                                                                                                                                                                                                                                               

                                                                                  Brett also testified that during the couple's separation, there were two                                                                                                                                                                                                                                                                                                                                                               

 incidents when Amanda refused to leave the children with him after an argument, taking                                                                                                                                                                                                                                                                                                                                                                                                                     

 them out of his car and interrupting a planned custody exchange. Amanda admitted that                                                                                                                                                                                                                                                                                                                                                                                                                                      

 these incidents occurred. Brett also testified that Amanda had sent him a text threatening                                                                                                                                                                                                                                                                                                                                                                                  

 to interrupt a trip he had planned with the children to Florida.                                                                                                                                                                                                                                                                                                                           

                                                                                  At the close of testimony, the superior court issued an oral decision on the                                                                                                                                                                                                                                                                                                                                                                  

record awarding physical custody of the children to Amanda.                                                                                                                                                                                                                                                                                                                           The court first found that                                                                                                           

Amanda's proposed move to Roseburg was legitimate and not motivated by a desire to                                                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                2             The court next addressed each statutory best  

 frustrate Brett's access to the children.                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

                                          2                                        "[D]etermining what custody arrangement is in the best interests of the                                                                                                                                                                                                                                                                                                                                                                    

 child" when a parent chooses to move out of Alaska includes "determining whether there                                                                                                                                                                                                                                                                                                                                                                                                                             

 are   legitimate   reasons   for   the   move."     Moeller-Prokosch   v.   Prokosch   (Moeller- 

Prokosch I  ), 27 P.3d 314, 316 (Alaska 2001).                                                                                                                                                                                                                                          A proposed move is legitimate if it is not                                                                                                                                                                                             

 "primarily motivated by a desire to make visitation more difficult."                                                                                                                                                                                                                                                                                                                                                         Rego v. Rego                                                                           , 259   

 P.3d 447, 453 (Alaska 2011).                                                                                                               

                                                                                                                                                                                                                                                                  -3-                                                                                                                                                                                                                                                 7390

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interests factor in AS 25.24.150(c),                                                                                                                                         finding that the fifth factor - geographic and                                                                                                                                                                                    

                              3                              Alaska Statute 25.24.150(c) provides:                                                                                              

                                                             The court shall determine custody in accordance with the best

                                                             interests   of   the   child   under   AS   25.20.060-25.20.130.     In

                                                             determining   the   best   interests   of   the   child   the   court   shall


                                                                                            (1)  the physical, emotional, mental, religious,                                                                                                                        

                                                                                            and social needs of the child;                                                                            

                                                                                            (2) the capability and desire of each parent to                                                                                                                                                            

                                                                                            meet these needs;                                 

                                                                                            (3)   the   child's   preference   if   the   child   is   of  

                                                                                            sufficient                                            age                       and                         capacity                                        to                  form                             a  


                                                                                            (4)  the love and affection existing between the                                                                                                                                                      

                                                                                            child and each parent;                                              

                                                                                            (5)  the length of time the child has lived in a                                                                                                                                                              

                                                                                            stable,                                 satisfactory                                                    environment                                                          and                        the  

                                                                                            desirability of maintaining continuity;                                                                                    

                                                                                            (6)  the willingness and ability of each parent to                                                                                                                                                          

                                                                                            facilitate and encourage a close and continuing                                                                                                                     

                                                                                            relationship between the other parent and the                                                                                                                                                         

                                                                                            child, except that the court may not consider                                                                                                                               

                                                                                            this willingness and ability if one parent shows                                                                                                                                        

                                                                                            that the other parent has sexually assaulted or                                                                                                                                                           

                                                                                            engaged in domestic violence against the parent                                                                                                                                          

                                                                                            or a child, and that a continuing relationship                                                                                                               

                                                                                            with the other parent will endanger the health or                                                                                                                                                           

                                                                                            safety of either the parent or the child;                                                                                                           

                                                                                            (7)  any evidence of domestic violence, child                                                                                                                                               

                                                                                            abuse, or child                                                   neglect in the proposed custodial                                                                         

                                                                                            household or a history of violence between the                                                                                                                                                         


                                                                                                                                                                                                -4-                                                                                                                                                                                    7390

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emotional stability - favored Amanda, while the remaining factors favored neither                                                                                                         

parent.     Exercising   its   discretion   under   AS   25.24.150(c)(9),   the   court   considered  

additional factors it deemed pertinent, finding that Brett had the resources to exercise                                                                                               

liberal visitation, despite the distance between Roseburg and Juneau, and expressing                                                                                             

confidence that he would continue to be involved in the children's lives.                                                                                                   

                               After trial Brett filed a motion for reconsideration, which the court denied.                                                                                                 

Brett appeals both the custody order and the denial of his motion for reconsideration.                                                                                                                   

III.            DISCUSSION  

                               Brett argues that the superior court violated the law governing custody  


determinations and made clearly erroneous factual findings when it awarded custody to  


Amanda and denied Brett's motion for reconsideration.  We conclude that the superior  


court did neither.  


                A.             The Superior Court Did Not Commit Legal Error.  


                               Brett contends that the superior court's order and its denial of his motion  


for reconsideration, taken together, fail to comply with the legal standards governing  


custody decisions.  He specifically argues that (1) the superior court's findings were  


inadequate as a matter of law, (2) the superior court impermissibly based its decision on  


Amanda's primary caregiver status, and (3) the superior court did not engage in the  


                3              (...continued)  



                                               (8)  evidence  that  substance  abuse  by  either  


                                               parent  or  other  members  of  the  household  


                                               directly   affects   the   emotional   or   physical  


                                               well-being of the child;  


                                               (9)   other   factors   that   the   court   considers  


                                                                                                  -5-                                                                                          7390

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symmetrical analysis required when one parent plans to relocate.                                                          We review de novo            

whether the superior court applied the correct legal standard.                                                  4  


                         1.          The superior court's factual findings were adequate.  


                         We have explained that "[i]n reaching a final child custody determination,  


 'a trial court is required to make findings on the various statutory factors which are  


sufficient to make the basis of its decision susceptible to review.' "                                                                    

                                                                                                                               This requirement  

                                                      6                                                                                      7 


stems from AS 25.24.150(c).   The court's findings "need not be extensive"  but must  


be sufficient  to  demonstrate which  of the nine best interests factors influenced  the  



custody decision as well as how they were weighed against each other. 


                         The superior court here explicitly addressed each best interests factor and  


made clear that factors five and nine - the length of time the child has lived in a stable  


home and desirability of continuity, and other factors the court deems pertinent -  

            4            Bruce H. v. Jennifer L.                   , 407 P.3d 432, 436 (Alaska 2017).                   

            5            Smith v. Weekley                , 73 P.3d 1219, 1222 (Alaska 2003) (quoting                                          Duffus v.   

Duffus, 932 P.2d 777, 779 (Alaska 1997)).  


            6            See AS 25.24.150(c) ("In determining the best interests of the child the  


court shall consider . . . ." (emphasis added)).  


            7            Borchgrevink v. Borchgrevink, 941 P.2d 132, 139 (Alaska 1997).  


            8            See Smith, 73 P.3d at 1227 ("Because it is not clear to us which factors the  


superior  court considered important or  what other  considerations were involved  in  


reaching its decision, we remand for the superior court to make specific findings on all  


relevant factors as required  by  AS 25.24.150(c).");  Borchgrevink,  941  P.2d  at 139  


(stating that findings supporting custody decision "must either give us a clear indication  


of the factors which the superior court considered important in exercising its discretion  


or allow us to glean from the record what considerations were involved").  


                                                                             -6-                                                                      7390

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formed the basis of its decision.                                         These findings are sufficient for meaningful appellate                                                

review and not inadequate as a matter of law.                                                          9  


                              2.	            The superior court engaged in proper symmetrical analysis of  


                                             best interests factor five.  


                              In a custody decision when one parent intends to move from Alaska, the  



trial court must use a two-step process to determine the children's best interests.                                                                                                        The  



court must first "determine whether the planned move is 'legitimate.' "                                                                                              If the move is  


legitimate, the court must assume that the move will occur and engage in "symmetric  


consideration of the consequences to [the child] both if [the parent] leaves with [the  



child]  and  if  [the  parent]  leaves  without  [the  child]."                                                                          We  have  stressed  that  a  


symmetrical analysis of the fifth best interests factor is especially important and requires  



the court to consider both the emotional and geographic stability of the child. 


                              The superior court found that the children would have greater geographical  


stability in Juneau, where they had spent their whole lives, but this was outweighed by  

               9              See Borchgrevink                         , 941 P.2d at 139.                       Brett argues that the superior court's                               

findings are inadequate because they do not spell out how the court weighed particular                                                                                        

pieces   of   evidence   when   analyzing   each   best   interests   factor.     But   this   argument  

misunderstands appellate review of custody orders.                                                                   Once a court has identified the best                                  

interests factors relevant to its decision, we review the individual findings for clear error                                                                                            

and how the factors were balanced for abuse of discretion.                                                                           See Blanton v. Yourkowski                                     ,  

 180 P.3d 948, 951 (Alaska 2008).                              

               10	            Saffir v. Wheeler, 436 P.3d 1009, 1013 (Alaska 2019).  


               11             Mengisteab v. Oates, 425 P.3d 80, 85 (Alaska 2018) (quoting Moeller- 


Prokosch I, 27 P.3d 314, 316 (Alaska 2001)).  


               12             Saffir, 436 P.3d at1013 (alterations inoriginal) (quoting Moeller-Prokosch  


v. Prokosch, 99 P.3d 531, 535-36 (Alaska 2004)).  


               13             See, e.g., id. at 1013-14; Mengisteab, 425 P.3d at 87; Andrea C. v. Marcus  


K., 355 P.3d 521, 529 (Alaska 2015); see also AS 25.24.150(c)(5).  


                                                                                               -7-	                                                                                      7390

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Amanda's "ability . . . to provide superior emotional stability."                                                                                                                          The court explained its                                        

reasoning further in its denial of Brett's motion for reconsideration, stating that it                                                                                                                                                       

                                        understood, appreciated, and accounted for [Brett's] capacity                                                                                            

                                        to provide his children emotional care and support.                                                                                                         It also   

                                        considered   that   [Jacob,   Randall,   and  Marie]   grew   up   in  

                                        Juneau. . . . The facts, however, indicated that the emotional                                                                                      

                                        stability [Amanda] provided was so profound and nuanced                                                                                                 

                                        that it outbalanced the emotional and geographical stability                                                                                             

                                        [Brett] can provide.                                        

                                        This analysis did not suffer from the same imbalance that has characterized                                                                                                       

orders reversed for failure to conduct symmetrical analysis.                                                                                                                          In  Saffir v. Wheeler                                         , for   

example, the superior court awarded custody to the father after finding that the mother                                                                                                                                                    

                                                                                                                                                                                                                  14   We reversed,  

would interfere with his ability to parent if she relocated with the child.                                                                                                                                                           

holding that the superior court had not engaged in proper symmetrical analysis because  


it "did not address the impact of removing the child from her established routine or from  


 [her mother], the parent who established it."15  The order here was not so one-sided; it  


considered the effect that living with each parent, and without the other, would have on  


the children.  The superior court properly engaged in the symmetrical analysis required  


by our precedent.  


                                        3.	                 The superior court did not impermissibly consider Amanda's  


                                                           primary caregiver status.  


                                        The superior court relied heavily on its finding that Amanda had been the  


children's primary caregiver in its analysis of the fifth best interests factor.  Brett argues  


that Amanda's "alleged past primary caregiver status is, as a matter of law, not adequate  


                    14                  436 P.3d at 1014.                                     

                    15                 Id. ; see also Mengisteab, 425 P.3d at 87 (holding that "the court erred in  


failing to adequately consider the effect living in Alaska without his mother and siblings  


would have on continuity and stability in [the child's] life").  


                                                                                                                            -8-	                                                                                                                  7390

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to support" the superior court's findings.                                               He also suggests that whether a parent is the                                             

primary caregiver is not relevant to the fifth best interests factor.                                                        

                             WhileAlaskalaw"does                                not automaticallygiveacustodialpreferenceto                                                        the  

primary caregiver," we have explained that "the primary caregiver                                                                                     inquiry may be                

relevant to the extent that it affects the determination of the child's 'stable, satisfactory                                                                    

                                                                                                                                             16      In  fact  we  have  

environment   and   the   desirability   of   maintaining   continuity.'   "                                                                                                  

explicitly stated that "[c]ourts should consider 'social and emotional factors such as who  


the primary caregiver was for the child' " when analyzing factor five.17                                                                                  Accordingly it  


was not legal error for the superior court to consider Amanda's primary caregiver status  


as an element in its fifth best interests factor determination.   And Amanda's role as  


primary caregiver was not the sole basis for the court's finding; the superior court also  


considered her intention to limit her future work to part time and weighed the geographic  


and emotional stability of the children staying in Juneau with Brett against the emotional  


stability staying with Amanda would provide.  


              B.             The Superior Court's Factual Findings Are Not Clearly Erroneous.  


                             Brett also argues that several of the superior court's findings were clearly  



erroneous.                   "A factual finding is erroneous if 'based on a review of the entire record,  


the  finding  leaves  us  with  a  definite  and  firm  conviction  that  a  mistake  has  been  


               16           Blanton   v.   Yourkowski,   180   P.3d   948,   953   (Alaska   2008)   (quoting  

AS 25.24.150(c)(5)).   

               17            veselsky v. veselsky, 113 P.3d 629, 635 (Alaska 2005) (quoting Rooney v.  


Rooney, 914 P.2d 212, 217 (Alaska 1996)).  


               18            See Blanton, 180 P.3d at 951 (stating that custody determination "will not  


be set aside unless the record shows that its controlling findings of fact are clearly  


erroneous or that the court abused its discretion").  


                                                                                          -9-                                                                                 7390

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made.' "                       Brett specifically contests the findings that Amanda's move to Roseburg was                                                                                                                                   

legitimate, that factor one favored neither parent, that factor five favored Amanda, that                                                                                                                                                    

factor six favored neither parent, and that additional considerations under factor nine                                                                                                                                                    

 supported the custody                                               decision.     Because each of the superior court's findings has                                                                                                         

 support in the record, we conclude that none are clearly erroneous.                                                                                              

                                       1.	                The finding that Amanda's move to Roseburg was legitimate is                                                                                                                              

                                                          not clearly erroneous.            

                                      A parent's plan to relocate is considered legitimate if it is "not primarily                                                                                                           

motivated by a desire to make visitation . . . more difficult."                                                                                                             20                                             

                                                                                                                                                                                   The superior court here  


found  that  Amanda's  proposed  move  to  Roseburg  was  legitimate  because  it  was  


motivated by a desire to find employment as a pediatrician; the court found that such  


employment was not available to her in Juneau.  It noted that Amanda had a job offer in  


Roseburg and relied on the Juneau doctors' testimonies to conclude it would be difficult  


for Amanda to find employment as a pediatrician after spending eight years out of the  


workforce.  The court further found that Amanda's proposed move was not "made for  


any effort to frustrate access to the children." These findings have support in the record.  


                                      Amanda testified that there were no suitable positions available with local  


providers. And other testimony indicated it would be infeasible for Amanda to open her  


own practice in Juneau because the market was saturated and doing so would require  


long hours.   Therefore the court's finding that there was no suitable pediatric work  


available to Amanda in Juneau is supported by the record.  

                    19                Bruce H. v. Jennifer L.                                          , 407 P.3d 432, 436 (Alaska 2017) (quoting                                                                                 Rego v.   

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

                   20                 Mengisteab,  425  P.3d  at  85  (alteration  in  original)  (quoting Moeller- 


Prokosch I, 27 P.3d 314, 316 (Alaska 2001)).  


                                                                                                                      -10-	                                                                                                               7390

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                                                              There is also support for the court's finding that Amanda had found a job                                                                                                                                                                                                                                                   

in Oregon.                                            Her former colleague testified that she had offered Amanda a job in her                                                                                                                                                                                                                                                                 

Roseburg practice and sent her a preliminary contract.                                                                                                                                                                                                    Although Amanda testified that                                                                                                    

 she and her former colleague were still working out the details of her employment,                                                                                                                                                                                                                                                            

Amanda indicated that it would be part time.                                                                                                                                                                    

                                                              Finally the record supports thecourt's findingthatAmanda's                                                                                                                                                                                                                        movewas not                                     

motivated by a desire to interfere with Brett's parenting. Amanda expressed regret over                                                                                                                                                                                                                                                                                                  

having interfered with Brett's visitation during their separation; she testified that she                                                                                                                                                                                                                                                                                                    

would not do so again, saying "[t]he kids deserve their time with their dad, and he                                                                                                                                                                                                                                                                                                              

 deserves it too."                                                           She clarified on cross-examination that she "realized how damaging                                                                                                                                                                                                                

that could be for the children to feel like they're pulled between their parents."                                                                                                                                                                                                                                                                                                  And  

 discussing   her   move,   Amanda   testified   that   she   had   decided   to   stay   in   the   Pacific  

Northwest so the children could be closer to Brett.                                                                                                                                                                                       

                                                              Brett points to conflicting evidence in the record about the availability of                                                                                                                                                                                                                                                          

 employment inJuneauandAmanda's                                                                                                                                          interferencewithhis                                                                           relationshipwith                                                              thechildren.                                               

                                                                                                                                                                                                                                                                                                                                                                              21            The  

But the existence of conflicting evidence is not enough to establish clear error.                                                                                                                                                                                                                                                                                                       

record does not leave us convinced that the superior court made a clear and definite  


mistake when it found that Amanda's move to Roseburg was legitimate.  


                                                              2.	                           The  finding  that  factor  one  favored  neither  parent  was  not  


                                                                                             clearly erroneous.  


                                                              The first best interests factor requires the court to consider "the physical,  

                               21                             See Silvan v. Alcina                                                                     , 105 P.3d 117, 122 (Alaska 2005) ("When the superior                                                                                                                                                            

 court is faced with conflicting evidence, we do not re-weigh it. 'It is the job of the trial                                                                                                                                                                                                                                                                                              

 court, not the appellate court, to judge the credibility of the witnesses and to weigh                                                                                                                                                                                                                                                                                         

 conflicting evidence.' " (quoting                                                                                                                       Native Alaskan Reclamation & Pest Control, Inc. v.                                                                                                                                                                                         

 United Bank Alaska                                                                          , 685 P.2d 1211, 1215 (Alaska 1984))).                                                                                                        

                                                                                                                                                                                              -11-	                                                                                                                                                                                     7390

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


emotional, mental, religious, and social needs of the child."                                                                                                                                        The superior court found                                      

that this factor favored neither parent.                                                                                   It explained that Amanda had proven her ability                                                                                        

to provide for the children's needs by being a successful stay-at-home mother for eight                                                                                                                                                                               

years, that Brett had committed himself to working less and spending more time with the                                                                                                                                                                                      

children, that the children had no special needs, and that Marie's needs - presumably                                                                                                                                                           

referring to her IEP and eye condition - could be met in Roseburg.                                                                                                                                                           

                                           The court's findings have support in the record. It was undisputed that                                                                                                                                                       

Amanda had been the children's primary caregiver from 2010 to at least 2016, when the                                                                                                                                                                                        

parties   separated,   and   Brett does                                                                          not   argue   that   she   was   unable   to   provide   for   the  

                                                                                                                  23       The superior court's finding that Amanda would  

children's needs during that period.                                                                                                                                                                                                                              

be able to meet the children's needs based on her history as their primary caregiver was  


not clearly erroneous.  And at trial Brett did not dispute testimony that Marie would be  


able to receive appropriate educational and medical services in Roseburg.  Brett points  


to evidence that Amanda had not yet arranged for permanent housing in Roseburg, but  


this is not enough to demonstrate that the superior court made a clear and definite  


mistake.24                           It was not clear error for the court to find that factor one favored neither  



                      22                   AS 25.24.150(c)(1).   

                      23                   Brett does argue that Amanda will be less able to provide for the children                                                                                                                                       

moving   forward   because   of   her  plans   to   enter   the   workforce,   but   this   argument   is  

unpersuasive. Amanda clarified that she would only work part time to make time for the  


children's needs.                                        

                      24                   See  Silvan,  105  P.3d  at  122  (upholding  trial  court's  finding  despite  


conflicting evidence).  


                                                                                                                                     -12-                                                                                                                             7390

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                                                                               3.	                                     The finding that factor five favored Amanda was not clearly                                                                                                                                                                                                                                                                                                


                                                                               Brett argues that the superior court gave too much weight to Amanda's                                                                                                                                                                                                                                                                                                            

primary caregiver status when it found that Amanda would provide the children with                                                                                                                                                                                                                                                                                                                                                                                                                

 greater emotional stability. Brett also contends that the court misunderstood the amount                                                                                                                                                                                                                                                                                                                                                                                         

 of time he spent with the children while he and Amanda lived together, that Amanda was                                                                                                                                                                                                                                                                                                                                                                                                                

no longer the children's primary caregiver at the time of trial, and that he has been very                                                                                                                                                                                                                                                                                                                                                                                                         

involved in the children's lives.                                                                                                                                                            

                                                                               It was undisputed that the couple structured their marriage so that Amanda                                                                                                                                                                                                                                                                                                                   

was the children's primary caregiver. Brett testified that he worked extra hours as a part                                                                                                                                                                                                                                                                                                                                                                                                      

 of this arrangement to make enough to support the family, and that by 2014 he was                                                                                                                                                                                                                                                                                                                                                                                                                   

regularly working 80 to 100 hour weeks. He said that he was not able to see the children                                                                                                                                                                                                                                                                                                                                                                                      

 as much as he would have liked during this period but he made sure he was home for                                                                                                                                                                                                                                                                                                                                                                                                                         

 dinner with the children and to put them to bed.                                                                                                                                                                                                                                            Amanda testified that Brett was often                                                                                                                                                             

 disengaged and focused on work even when he was with the children.                                                                                                                                                                                                                                                                                                                                                              

                                                                               The superior court acknowledged that Brett's parenting time had increased                                                                                                                                                                                                                                                                                                               

 since the separation.                                                                                                         But it reasoned that Amanda had been able to build a deeper                                                                                                                                                                                                                                                                                          

relationship with the children because of her time spent as their primary caregiver during                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                                                                                                                                    25              Moreover  

their formative years.                                                                                                          We have previously approved of similar reasoning.                                                                                                                                                                                                                                                                               

Amanda's detailed testimony describingthechildren's personalities and howthedivorce  


had affected them supported  the court's finding  that she would provide them with  


 significant emotional stability.  And the superior court found that Amanda was "willing  


                                        25                                      Odom v. Odom                                                                                 , 141 P.3d 324, 331 (Alaska 2006) (explaining that the                                                                                                                                                                                                                                                                       

 "superior court may properly conclude that awarding custody to the primary caregiver                                                                                                                                                                                                                                                                                                                                                                                 

will establish greater emotional stability for the purposes of AS 25.24.150(c)(5)" (citing                                                                                                                                                                                                                                                                                                                                                                                             

  veselsky v. veselsky                                                                                                  , 113 P.3d 629, 635 (Alaska 2005))).                                                                                                                                   

                                                                                                                                                                                                                                                    -13-	                                                                                                                                                                                                                                         7390

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

to work part-time" in Roseburg to maintain emotional continuity for the children; this                                                                                                                                                                

also had support in the record.                                                              

                                        The superior court noted that this was "a very difficult . . . decision" and                                                                                                                                  

acknowledged Brett's strength as a father.                                                                                       But it ultimately determined that Amanda                                                              

provided   greater   emotional   stability   to   the   children   and   that   this   outweighed   the  

geographical stability they would enjoy if they stayed with Brett in Juneau.                                                                                                                                                   Even if the              

evidence may have supported a finding that factor five favored Brett, this would not                                                                                                                                                                   

                                                                                                                                                                  26   Its conclusion is supported by  

provide grounds to reverse the superior court's finding.                                                                                                                                                                                                  

the record and our precedent.  This finding is not clearly erroneous.  


                                        4.	                 The  finding  that  factor  six  favored  neither  parent  was  not  


                                                            clearly erroneous.  


                                        The  sixth  best  interests  factor  requires  the  trial  court  to  consider  "the  


willingness and ability of each parent to facilitate and encourage a close and continuing  


relationship between the other parent and the child."27  


                                                                                                                                                               The superior court found that this  


factor favored neither parent, relying mainly on their courtroom demeanor.  The court  


recognized that Amanda had interfered with Brett's custody in the past, but explained  


that her testimony showed regret for those actions and intent not to repeat them.  


                                        Brett argues that this was clear error, but the record supports the court's  


conclusion.   We have explained that "[t]rial judges are in the best position to make  


determinations about the demeanor of the parties and how their relationships with each  

                    26                  See   Blanton   v.   Yourkowski,  180  P.3d   948,   955   n.31   (Alaska   2008)  

("Although awarding custody to [the mother] based on her strong emotional bond with                                                                                                                                                                 

 [her daughter] may have also been a reasonable result, we                                                                                                             cannot substitute our judgment                                

for that of the superior court.");                                                               see also McDanold v. McDanold                                                                        , 718 P.2d 467, 471                            

(Alaska 1986) (explaining that "[i]n a case as close as this one, the trial court must be                                                                                                                                                                 

given some latitude in making a decision").                                                    

                    27                  AS 25.24.150(c)(6).  


                                                                                                                          -14-	                                                                                                                   7390

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 other will impact the child."                                                                                                                                                       In light of this, we cannot conclude that the superior                                                                                                                                                                                                                       

 court's determination was clearly erroneous.                                                                                                                                                       

                                                                              5.	                                   The finding that Brett had enough money to afford frequent                                                                                                                                                                                                                                                                               

                                                                                                                    visitation was not clearly erroneous.                                                                                                                       

                                                                             Alaska Statute 25.24.150(c)(9) allows the trial court to consider "other                                                                                                                                                                                                                                                                                                                         

 factors that [it] considers pertinent."                                                                                                                                                                          The superior court did so here, finding that "these                                                                                                                                                                                                          

 folks are financially able to deal with issues of travel, issues of short and long stays, short                                                                                                                                                                                                                                                                                                                                                                                       

 and long terms of visitation" and indicating that its visitation order would allow for                                                                                                                                                                                                                                                                                                                                                                                                          

Brett's time with the children to be "liberally distributed." The court again described the                                                                                                                                                                                                                                                                                                                                                                                                       

 couple's arrangement, whereby Amanda cared for the children while Brett worked long                                                                                                                                                                                                                                                                                                                                                                                                      

hours to support them, and explained that "because [Brett] has worked so hard, . . .                                                                                                                                                                                                                                                                                                                                                                                                             

whatever   the   location   of   the   children   and   whatever   .   .   .   needs   the   parties   need  to  

 coordinate in terms of visitation, you have the funds to be able to do that."                                                                                                                                                                                                                                                                                                                                                                   

                                                                             Brett argues that the court should not have considered his ability to visit the                                                                                                                                                                                                                                                                                                                                       

 children frequently but does not provide any explanation for why it was improper to do                                                                                                                                                                                                                                                                                                                                                                                                              

 so.    His high income was undisputed at trial, and the court reasonably took it into                                                                                                                                                                                                                                                                                                                                                                                                    


                                       C.	                                    The Failure to Consider Appointment Of A Guardian Ad Litem Was                                                                                                                                                                                                                                                                                                                                            

                                                                             Not Plain Error.                                             

                                                                             AlaskaStatute25.24.310(c) requirestheappointment                                                                                                                                                                                                                                                              ofaguardian ad litem                                                                        

 (GAL) when "in the opinion of the court, representation of the child's best interests, to                                                                                                                                                                                                                                                                                                                                                                                                              

be distinguished from preferences, would serve the welfare of the child."                                                                                                                                                                                                                                                                                                                                                                     The statute                                                              

provides that the court may appoint a GAL "upon the motion of either party or upon its                                                                                                                                                                                                                                                                                                                                                                                                                

                                       28                                    Silvan,   105  P.3d  at   122  (Alaska  2005).  

                                                                                                                                                                                                                                               -15-                                                                                                                                                                                                                                      7390  

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


own motion."                       Neither party requested that a GAL be appointed in this case.                                                                              The  

superior court did not appoint one on its own initiative and made no findings on the                                                                                             

record about whether or not a GAL was necessary.                                                            30  


                            Brett argues that the superior court violated AS 25.24.310(c) by failing to  


consider the necessity of a GAL.  Since Brett did not raise the issue before the superior  


court, we review it under a plain error standard and will reverse only "where an obvious  



mistake has been made which creates a high likelihood that injustice has resulted." 

                            Alaska Civil Rule 90.7(a) explains the circumstances in which a GAL may  


be appointed. It states that separate representation of a child's interests may be necessary  


"when  the  [GAL]  may  be  expected  to  present  evidence  not  otherwise  likely  to  be  


available or presented, or the proceeding is unusually complex."32                                                                           The commentary to  


the rule explains that "[c]ourts should not routinely appoint [GALs] in custody . . .  


proceedings.  In most instances, the child's best interests are adequately protected and  



presented by the parties."                                  


                            Brett fails to establish that the circumstances described in the rule existed  


in this case.   He argues that a GAL could have presented evidence about "whether  


schooling and therapists areavailablefor thechildrenin Oregon"and about"[Amanda]'s  


              29            AS 25.24.310(c).   

              30            See id       . ("Upon notification [that custody is at issue in a divorce], the court                                                            

shall determine if a child's best interests need representation or if a minor or other child                                                                                 

needs other services and shall make a finding on the record before trial.").  


              31            Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016) (quoting D.J. v. P.C.,  


36 P.3d 663, 668 (Alaska 2001)).  


              32            Alaska R. Civ. P. 90.7(a).  


              33            Alaska R. Civ. P. 90.7(a) cmt.  


                                                                                       -16-                                                                                  7390

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

unsettled housing situation."                                                          But Brett does not explain why the appointment of a GAL                                                                                                     

was necessary to develop this evidence.                                                                                  Indeed, Amanda was able to present evidence                                                                      

on these issues, and Brett had the opportunity to challenge her testimony on cross-                                                                                                                                                               

examination but chose not to.                                                              

                                        There is no indication fromthe record that this case was unusually complex                                                                                                                         

or that the parents would be unable to adequately present or protect the children's best                                                                                                                                                                

interests.    We therefore conclude that it was not plain error for the superior court to                                                                                                                                                                     

neither consider the appointment of a GAL nor appoint one on its own motion.                                                                                                                                           

                    D.	                 The Superior Court Did Not Abuse Its Discretion By Denying Brett's                                                                                                                                    

                                        Motion For Reconsideration.            

                                        Alaska Civil Rule 77(k) allows a party to move for reconsideration of an  

issue when  it believes that the  trial  court,  among other  things, "has overlooked or  


misconceived some material fact or proposition of law."34                                                                                                                             Brett appeals the superior  


court's denial of his motion for reconsideration.  We review for abuse of discretion.35  


                                        In his motion for reconsideration, Brett largely challenged the superior  


court's analysis of the best interests factors and made several factual allegations that he  


had not presented at trial.  In denying the motion, the superior court explained that it  


would not consider evidence raised for the first time in a motion for reconsideration and  


that Brett "should have raised the points during his case-in-chief."  


                                        Brett argues that this was an abuse of discretion. But we have made it clear  



that "courts will ordinarily not consider new evidence in a motion for reconsideration."                                                                                                                                                                                


                    34                  Alaska R. Civ. P. 77(k)(1)(ii).                       

                    35                  See Norris v. Norris, 345 P.3d 924, 928 (Alaska 2015); Brown v. State,  


563 P.2d 275, 279 (Alaska 1977).                                                                        

                    36                  Hodari v. State, Dep't of Corr., 407 P.3d 468, 472 (Alaska 2017); see also,  



                                                                                                                            -17-	                                                                                                                     7390

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

While there are circumstances in which a court                              may  consider evidence presented for the                    

                                            37                                                                               38  

first time in such a motion,                                                                                              

                                               it is not an abuse of discretion to refuse to do so. 

                      Brett also argues that the language the court used in its order denying his  


motion  demonstrates  that  the  court  misconstrued  evidence  and  overlooked  several  


material facts.  Having reviewed the record we cannot agree.  As discussed above, the  


court's  custody  decision  is  well  supported  by  the  record.                                    It  was  not  an  abuse  of  


discretion to deny Brett's motion for reconsideration.  


Iv.        CONCLUSION  

                      The superior court's decision is AFFIRMED.  


           36         (...continued)  


e.g., Bachner Co., v. Weed, 315 P.3d 1184, 1195 (Alaska 2013) ("Generally, a motion  


for reconsideration cannot be based on new information or arguments."); Neal & Co. v.  

Ass'n of vill. Council Presidents Reg'l Hous. Auth. , 895 P.2d 497, 506 (Alaska 1995)  


("We refuse to allow a motion for reconsideration to be used as a means to seek an  


extension of time for the presentation of additional evidence on the merits of the claim.").  

           37         See Mattfield v. Mattfield, 133 P.3d 667, 675 (Alaska 2006) (affirming  


consideration ofnewevidenceinmotion for reconsideration when trialcourthadensured  


that opposing party had opportunity to controvert new evidence).  


           38         See Engstrom v. Engstrom, 350 P.3d 766, 769 n.12 (Alaska 2015).  


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