Havel v. Havel

216 P.3d 1148, 2009 WL 2973523
CourtAlaska Supreme Court
DecidedSeptember 18, 2009
DocketS-13075
StatusPublished
Cited by6 cases

This text of 216 P.3d 1148 (Havel v. Havel) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Havel v. Havel, 216 P.3d 1148, 2009 WL 2973523 (Ala. 2009).

Opinion

216 P.3d 1148 (2009)

Joshua HAVEL, Appellant,
v.
Eppie HAVEL n/k/a Hogan, Appellee.

No. S-13075.

Supreme Court of Alaska.

September 18, 2009.

*1149 Carl D. Cook, Law Office of Carl D. Cook, P.C., Anchorage, for Appellant.

Cris W. Rogers, Law Office of Cris W. Rogers, Anchorage, for Appellee.

Before: FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

Divorced parents originally agreed to joint physical custody — split fifty-fifty — of their son and to negotiate each month's schedule based on the parties' work schedules. The mother later moved to set a specific schedule, on the grounds that communication was deteriorating, and that inconsistency in scheduling and occasional long separations from each parent were not in their son's best interest. The superior court set a schedule that resulted in a permanent change in the amount of time each parent would spend with the child. The father appeals, arguing that it was error to set a specific schedule because no change in circumstances occurred, and that the superior court erred in setting a schedule that significantly reduced his time with the child. We conclude that no change in circumstances was required to set a schedule because it is not a modification to set a schedule where the parties did not previously have any schedule. We also conclude that it was not error to find that setting a specific schedule was in the child's best interest. However, because the change in the agreed-to division of time with the child amounted to a modification of custody, we reverse the superior court's order and remand for further proceedings to set a schedule consistent with the parties' agreement to split custody fifty-fifty.

II. FACTS AND PROCEEDINGS

A. Facts

Eppie Havel (n/k/a Hogan) and Joshua Havel are parents to a son, born in 1999. Eppie and Joshua divorced in April 2006 and since then have maintained joint legal and physical custody of their son. Until entry of the court order setting a specific schedule that is the subject of this appeal, the parties attempted to set each month's custody schedule via e-mail based on their work schedules, in accordance with their separation agreement. Eppie is employed as an independent contractor for British Petroleum with a thirty-two hour per week schedule, and with *1150 flexibility in when she works. Joshua is a flight engineer for Lynden Air Cargo whose monthly schedule is determined through a bid packet system. This means that he bids for his desired schedule each month, but because the system is based on seniority and he has low seniority, he does not always get his desired schedule.

In January 2007 and August 2007 the parties experienced substantial difficulty working out a suitable schedule, and returned to court as a result. Over the course of time, Eppie became "very stressed" by communication needed each month to set the schedule for the following month and became convinced that she and her son would be better off with a set schedule to create a sense of "stability and expectability."

B. Proceedings

The superior court incorporated the parties' custody agreement into its divorce order in April 2006. The physical custody and "custody schedule" provision provided that:

The parties shall be awarded equal (50/50), shared physical custody of their son. Each month's custody schedule shall be worked out between the parties by the 15th day of the preceding month, based upon the parties' work schedules. Both parties recognize and acknowledge that both of their respective work schedules require flexibility in exercising custody of their child, and shall work together with this understanding.

In January 2007 Joshua brought a motion to enforce the custody agreement to allow him to have his son February 1-15, 2007. Superior Court Judge Sen K. Tan denied the motion with respect to the request for specific dates, noting that there was no mechanism in the parties' agreement for resolving physical custody issues when the parties were unable to reach agreement. The superior court interpreted the agreement to require equal custody over the course of time, but not in a given month. The court ordered that the parties meet together with attorneys to work out a February schedule, which they did.

In September 2007 Eppie filed a motion for a specific schedule. She stated that she was not asking the court to modify custody, but indicated that the agreement to negotiate a schedule each month had become unworkable because (1) the schedule usually was built only around Joshua's schedule; (2) he was increasingly unwilling to accept any schedule that was not built around his schedule, regardless of the resulting time the child would be separate from one parent, and as a result the parties' ability to work together and their communications were deteriorating; and (3) the child was showing signs of stress, and it would be in his best interest to have some routine and structure in the schedule.

The dispute went to a hearing before Superior Court Master Jonathon Lack, who found that the agreement required "a high ability of the parties to communicate in a meaningful and productive manner without conflict," that the arrangement was causing stress to Eppie and "may be problematic for the child," and that there had been a breakdown in communication constituting a change in circumstances. The master found that, in spite of the order, the child was doing well, but that the stress placed on Eppie and the arrangement, overall, had a substantial probability of negatively affecting the boy as he grew older. Accordingly, the master recommended a new schedule that gives Eppie custody from the beginning of each month through the third Friday of each month, and Joshua custody from the third Friday through the last day of the month. The superior court approved the master's recommendation. Joshua moved for reconsideration, pointing out that the new schedule would lead to a significant reduction in his custodial time. The superior court denied reconsideration. Joshua appeals.

III. STANDARD OF REVIEW

We review a trial court's decision to establish a custody schedule for abuse of discretion.[1] We reverse a trial court's order to modify custody only if "the record shows an abuse of discretion or if controlling factual *1151 findings are clearly erroneous."[2] Abuse of discretion may occur when the trial court "considers improper factors, fails to consider statutorily mandated factors, or gives too much weight to some factors."[3] A factual finding is clearly erroneous if, after reviewing the record as a whole, we are left with a definite and firm conviction that a mistake has been made.[4]

IV. DISCUSSION

Joshua argues that the trial court erred because it modified custody although the evidence did not support a finding of substantial change in circumstances. We analyze two different results of the trial court's order to evaluate whether a modification requiring a showing of a change in circumstances occurred. First, we review the action of setting a schedule. Next, we review the specific schedule the court set to determine whether it results in a modification of the custody arrangement. By "custody arrangement," we mean the overall percentage of time each parent has custody of the child.[5]

A. It Was Not an Abuse of Discretion To Set a Specific Custody Schedule.

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Cite This Page — Counsel Stack

Bluebook (online)
216 P.3d 1148, 2009 WL 2973523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/havel-v-havel-alaska-2009.