J.L.P. v. V.L.A.

30 P.3d 590

• Court: Alaska Supreme Court
• Decided: September 14, 2001
• Docket: Nos. S-9239, S-9240
• Status: Published

Opinions

OPINION

CARPENETI, Justice.

I, INTRODUCTION

After the 1992 divorcee of Veronica¹ and Jerry, the parties' two children, Dora and Rodney, lived with Veronica. In 1997 Veronica sent Rodney to live with Jerry when the situation between Rodney and his stepfather became troubled. Jerry moved to modify the 1992 custody agreement, asking for divided custody and for primary physical custody of Rodney. Veronica later moved for sole legal custody of Dora. Both parties moved to modify child support. Superior Court Judge Rene J. Gonzalez granted legal and physical custody of Rodney to Jerry, left Dora in the shared legal custody of both parents and her primary physical custody with Veronica, required both parents to be equally responsible for the children's medical costs, denied Jerry's motion for attorney's fees, and set the amount of child support and its effective date. Both parties appeal various aspects of these rulings. We affirm the superior court's rulings in all respects except as to uncovered health care costs for the children that are in exeess of $5,000. We remand on that sole issue.

II, FACTS AND PROCEEDINGS

A. Facts

Veronica and Jerry were divorced in 1992. They reached a settlement agreement that was incorporated into their divorce decree. It provided that they would have joint legal custody of their two minor children, Dora and Rodney. The agreement also gave Veronica primary physical custody of the children. Veronica and the children lived together in Anchorage until March 2, 1997 when, due to problems between Rodney and his stepfather, Veronica sent Rodney to live with his father in Copper Center with almost no prior notice. Dora remained with Veronica. By all accounts, Rodney's move to live with his father has been satisfactory. Dora expressed a desire to remain with her mother, even though she had encountered problems with substance abuse and her relationship with her stepfather was, at times, troubled.

B. Proceedings

1. Modification of custody

On May 13, 1997, after Rodney had lived with Jerry for over two months, Jerry moved to modify the 1992 custody agreement, seeking divided custody and primary physical custody of Rodney. On August 17, 1998 Veronica filed a motion to modify custody of Dora, seeking sole legal custody of her daughter² Superior Court Judge Rene J. Gonzalez ordered a child custody investigation. On October 14, 1998 the custody investigator recommended that Jerry be awarded sole legal and primary physical custody of Rodney and that Veronica be awarded sole legal and primary physical custody of Dora.

The case came on for trial in October 1998. Following trial, Judge Gonzalez granted Jerry's motion for primary physical custody of Rodney and, sua sponte, awarded him sole legal custody of Rodney as well. The court denied Veronica's motion for sole legal custody of Dora. The court's order addressed Dora's cireumstances, including her treatment for substance abuse and the confrontations between Dora and her stepfather, and concluded that "modification of her legal custody would not serve her welfare and best interests." The court also ordered the parties to share the children's medical expenses equally. Veronica retained primary physical custody of Dora.

On November 3, 1998 Jerry filed a motion for reconsideration of the court's order that he pay half the cost of Dora's treatment for substance abuse and depression. He argued that Veronica had denied him his "rightful participation in the health care of [our] daughter" and therefore Veronica should be responsible financially for it and that it was simply too expensive for him to shoulder. The superior court denied this motion on November 8. On November 13 Jerry filed a motion for sole legal custody of Dora. The superior court denied this motion.

2. Modification of support payments

While the custody modification motions were pending, the superior court issued an interim child support order on October 2, 1997, based on the parties' 1996 incomes, requiring Jerry to pay $165 per month, effective March 2, 1997. In the October 27, 1998 order granting Jerry sole legal and primary custody of Rodney, the court recalculated the child support obligation using 1997 incomes and ordered that Veronica pay $90.25 per month, without discussing the effective date of her obligation. On March 2, 1999, the court issued an amended order setting the effective date of the modified child support order as June 1, 1997. Veronica moved for reconsideration of the effective date of her child support obligation. Her motion was denied.

3. Request for attorney's fees

On October 28, 1998, while the custody motions were pending, Jerry amended his earlier-filed motion for attorney's fees, seeking reimbursement from Veronica for costs incurred to modify custody of Rodney. Jerry has proceeded pro se in these disputes with the exception of the original divorce action and a brief period in 1997. The superior court denied the motion on November 5. Jerry moved for reconsideration, which the court denied.

Jerry appeals the denial of his motion for legal custody of Dora, the denial of his motion that Veronica be responsible for all of Dora's medical costs, and the denial of his motion for attorney's fees. Veronica cross-appeals the denial of her motion concerning the effective date of child support and the amount of child support.

III, STANDARDS OF REVIEW

Trial courts are vested with broad discretion in child custody matters.³ We will reverse a lower court's decision regarding child custody modification only if the lower court abuses its discretion or if its controlling factual findings are clearly erroncous*⁴ A trial court abuses its discretion if it fails to consider statutorily mandated factors, assigns too much weight to some of the factors, or considers improper factors⁵ A finding of fact is clearly erroneous only when a review of the entire record leaves us with a definite and firm conviction that the trial court has made a mistake.⁶

"With respect to modification of custody and visitation orders, we review the denial of a motion for attorney's fees for abuse of discretion." ⁷ "The trial court's discretion in awarding attorney's fees is broad and ... will not be disturbed on appeal unless it is 'arbitrary, capricious, manifestly unreasonable, or stems from an improper motive. " ⁸

The interpretation of Alaska Civil Rules governing child support orders is reviewed de novo; we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy⁹ A trial court's decision to modify a child support award will not be disturbed unless the trial court abused its discretion.¹⁰ We will set aside a lower court's factual findings only when they are clearly erroneous.¹¹

IV. DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion in Denying Jerry's Motion for Modification of Legal Custody.

The 'superior court denied both Jerry's motion for modification of Dora's legal custody and his motion for reconsideration of that order without offering any reasons. Jerry argues that the trial court abused its disceretion in issuing these orders because: (1) it did not conduct a "complete custody modification proceeding, which afforded him the opportunity to present evidence needed for the court to make an informed decision that was in the best interest of [Dora]"; (2) it made "no mention of any of the [statutory factors] even being considered"; (8) it did not state on the record its reasons for denial as required by AS 25.20.100 and AS 25.20.110; and (4) it failed to apply its earlier conclusion that "the failure of the parties to communicate and cooperate with each other defeats their joint legal custody arrangement."

Two conditions must be satisfied before a motion to modify custody will be granted: first, the non-custodial parent must establish that a change in cireumstances has occurred; and second, the modification must be in the best interests of the child.¹² "The required change in circumstance must be significant or substantial, and must be demonstrated relative to the facts and cireum-stances that existed at the time of the prior custody order that the party seeks to modify."¹³ The superior court may deny custody modification without an evidentiary hearing if the "facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conclusory, and so convincingly refuted by competent evidence, as to create no genuine issue of material fact requiring a hearing." ¹⁴ The moving parent bears the burden of making a prima facie showing of a substantial change of circumstance as a threshold matter."¹⁵ Onee the movant meets that threshold burden, he or she is entitled "to a hearing to consider whether, in light of such changed cireumstances, it is in the child's best interest to alter the existing custodial arrangement." ¹⁶

1. Jerry's motion to modify legal custody of Dora was a de facto motion for reconsideration.

The content and timing of Jerry's motion to modify custody of Dora is dispositive in this case. It is critical to understand the procedural context of the dispute before the superior court. Jerry originally moved for modification of the 1992 agreement, seeking divided custody and primary physical custody of Rodney. Veronica cross-moved for sole legal custody of Dora. Jerry opposed that motion, noting that Veronica bore the burden of showing changed cireumstances and alleging that she would be unable to meet that burden. Although these pleadings concerning Dora referred mostly to legal custody, by the time the case came to trial, the court was clearly considering the issue of Dora's physical custody.¹⁷ First, the child custody investigator had recommended only two weeks before that Dora's physical custody remain with Veronica. Second, substantial portions of the trial were devoted to the question of Dora's custody, including aspects of her physical custody.¹⁸ Finally, on at least two occasions during the trial Jerry affirmed that he wanted the court to do nothing about Dora's custody at that time and that she should remain placed with her mother.

The superior court issued its order granting Jerry's motion for primary physical custody of Rodney, awarding him sole legal custody of Rodney, and denying Veronica's motion for sole legal custody of Dora on October 27, 1998. Seven days later, on November 3, Jerry moved for reconsideration of that part of the order that required that the parties be "equally responsible for the payment of all costs of reasonable health care expenses, including treatment for substance abuse. ..." The superior court denied that motion on November 8. On November 13, Jerry filed a motion ¹⁹ for custody of : Dora. He made no sufficient claim of changed cireumstances since the trial, The court denied the motion on January 7, 1999.

This sequence of events and the considerations noted by the superior court in its order of October 27, 1998 convince us that Jerry's motion to modify custody of Dora was in fact a motion for reconsideration of the court's October 27 decision, a decision made just two weeks prior to Jerry's motion. As such, not only was Jerry's motion untimely,²⁰ but it was also properly denied by the superi- or court. The court considered extensive evidence concerning Dora's custody at trial. And the court asked pointed questions as to the propriety of Dora's situation. After considering the evidence, the court concluded that it was not in Dora's best interests to modify custody. Jerry's motion provided no basis for reconsideration of that fully-litigated and considered conclusion. And he failed to make a prima facie showing of changed cireumstances in the two weeks that had elapsed since trial.²¹ We thus conclude that the superior court did not err when it denied Jerry's November motion to modify Dora's custody.

2. The superior court was not required to perform a best-interests analysis or consider an updated child custo, dy report or the AS 25.20.0900 factors.

Jerry argues that the superior court must consider specific factors under AS 25.20.090 ²² in determining an award of custody and that this was not done in this case. He argues that Cushing v. Painter²³ establishes his right to a hearing in this case. There, the trial court granted a change of permanent custody on the basis of an abbreviated, "interim" hearing.²⁴ In those cireum-stances, we said that it is "essential to contested custody proceedings that the parties be afforded a hearing which grants them the opportunity to present the quantum of evidence needed to make an informed and principled determination." ²⁵ But when a motion to modify custody is denied, the trial court is not required to grant a hearing in order to perform the best-interests analysis if it is plain that the facts alleged in the moving papers would not warrant a modification.²⁶

Jerry argues that he is entitled to a "full custody modification proceeding" on his motion to modify custody of Dora. He ignores that the court had just entertained litigation concerning Dora's custody and declined to change her custody arrangement.²⁷ Moreover, Jerry did not even request such a hearing in his motion.²⁸ And had a timely request for a hearing to consider a custody investigator's report been made, the court would have been justified in denying it, both because it had considered and decided the issue of Dora's custody only two weeks before,²⁹ and because the decision to appoint a custody investigator is itself a discretionary one.³⁰

Jerry's motion for modification of legal custody was in fact a motion for reconsideration of the October 27 court order. He did not allege changed cireumstances that would justify a change in legal custody. Thus, the court was not required to undertake a best-interests analysis. Because Jerry did not ask for a hearing and the court was not required to have an updated custody report before deciding the motion, it was not error to deny the motion without holding a hearing.

3. The superior court did not err when it denied the motion for modification of Dora's legal custody without making findings on the record under AS 25.20.100.

Alaska Statute 25.20.100 provides: "If a parent or the guardian ad litem requests shared custody of a child and the court denies the request, the reasons for the denial shall be stated on the record." Jerry argues that the superior court violated this provision when it denied his motion while making "no mention as to the reasons" for denial. However, the plain terms of the statute apply to requests for shared custody, not requests to modify a shared custody arrangement to sole eustody. The superior court made adequate findings in its October 27, 1998 order and was not required to make further findings on what we conclude was Jerry's motion to reconsider the court's decision regarding Dora's legal custody.

4. The demal of the motion without setting forth conclusions on the record did mot violate AS 25.20.110.

Jerry argues that the superior court's conclusory denial of his motion to modify Dora's legal custody violated AS 25.20.110(a), which provides that "[ilf a parent opposes the modification of the award of custody or visitation with the child and the modification is granted, the court shall enter on the record its reason for the modification." However, the plain terms of the statute apply to grants of modification, not to denials. When a motion to modify custody is denied, the trial court is not required to grant a hearing in order to perform the best-interest analysis if it is plain that the facts alleged in the moving papers would not warrant a modification.³¹ Because we conclude that Jerry's motion was one for reconsideration of the October 27 order denying a change to Dora's legal custody, we hold that the superior court did not err in denying Jerry's motions without stating its reasons.

5. The trial court's "non-cooperation" finding underlying its decision to give sole legal custody of Rodney to Jerry did not compel a grant of Jerry's motion concerning Dora's custody.

Jerry argues that the superior court abused its discretion by failing to conclude that its previous determination, that the "failure of the parties ] to communicate and cooperate with each other defeats their joint legal custody arrangement [of Roduney]," compels the further conclusion that Jerry ought to have been afforded the opportunity to have a hearing regarding legal custody of Dora. Jerry suggests that the court's prior conclusion of non-cooperation regarding Rodney justifies a change in custody of Dora. But the superior court made quite clear that its concern was the parties' inability to cooperate "in addressing the welfare and best interests of the minor child [Roduey]." There was no similar changed cireumstances determination with respect to Dora; indeed, the superior court explicitly stated that Dora's legal custody should not be changed. We therefore conclude that the superior court's "non-cooperation" finding regarding Rodney did not compel further action regarding Dora and that the court did not err in denying Jerry's motion.

B. The Parties' Responsibility for Uncovered Medical Expenses in Excess of $5,000 for Their Children Is Ambiguous.

Jerry appeals the denial of his motion for reconsideration of the court's order requiring that he be responsible for fifty percent of the children's medical expenses, including the costs of Dora's treatment for substance abuse and depression. Jerry argued that since Dora was not in his custody when she developed the need for treatment, and since he was not informed of her substance abuse problems and did not consent to her treatment, he should not have to pay. When denying the motion, the superior court characterized it (and Jerry's motion for attorney's fees discussed below) as an attempt to impose upon Veronica full responsibility for Dora's medical expenses.

Under the modified custody arrangement, the superior court ordered Jerry and Veronica to share equally the children's health care costs:

Both parties have the duty to provide health care insurance for the two minor children and the health insurance costs are allocated equally between them....

Both parties are equally responsible for the payment of all costs of reasonable health care expenses, including treatment for substance abuse for the minor children.

Alaska Civil Rule 90.3(d)(1) requires the superior court to consider the children's health care coverage and to require insurance if it "is available to either parent at a reasonable cost.... The court shall allocate equally the cost of this insurance between the parties unless the court orders otherwise for good cause." As to uncovered health care expenses, the version of Civil Rule 90.8(d)(2) in effect at the time of the hearings in this case provided that uncovered health care expenses will be allocated equally between the parties unless otherwise ordered for good cause "except that a reasonable, uncovered expense in excess of $5,000 must be allocated based on the parties' relative financial circumstances when the expense occurs."

The superior court did not abuse its discretion in denying Jerry's motion insofar as uninsured health care expenses do not exceed $5,000. However, there are two court orders that reference health care expenses that render the responsibility for uncovered medical costs over $5,000 ambiguous. One order is the standard court form for child support orders. It specifically sets out the rule regarding allocation of costs over $5,000 based on the parties relative financial cireum-stances. The other is the court's October 27, 1998 order in which the court ordered that "the parties are equally responsible for the payment of all costs of reasonable health care expenses, including treatment for substance abuse for the minor children." The latter order does not mention what happens if those expenses exceed $5,000. It is also unclear on this record whether the parties actually incurred health care expenses in excess of $5,000.³²

Because the superior court's orders are ambiguous as to the responsibility for uncovered medical costs over $5,000, we remand for consideration of this issue.

C. The Trial Court Did Not Abuse Its Discretion in Denying Jerry's Motion for Award of Attorney's Fees for Litigation Concerning Custody of Dora.

Jerry argues that the superior court erred in -denying his request for $4,000 in attorney's fees in the proceedings to modify custody of Rodney and Dora. In the superior court, he claimed that he was entitled to attorney's fees under AS 25.20.115³³ and Rowen v. Rowen³⁴ because Veronica had acted in bad faith.

However, our law is clear that "May pro se litigants cannot recover attorney's fees."³⁵ With the exception of a brief period of time, Jerry has proceeded pro se in all the matters presently being appealed. Thus, he cannot recover attorney's fees in this case. While Jerry did retain an attorney for some of the proceedings on appeal, he filed more motions in these matters as a pro se litigant-even during the time he obtained the services of counsel-than did his attorney.³⁶ Furthermore, one of those pro se motions specifically withdrew all pending motions regarding Rodney's custody. On these facts it was not an abuse of discretion for the superi- or court to deny Jerry's amended motion for attorney's fees. We therefore affirm the superior court's denial of his motion for attorney's fees.

D. The Trial Court Did Not Err in Modifying Chald Support.

On cross-appeal, Veronica argues that the superior court erred in retroactively changing the date of child support. She argues that the interim child support order, dated October 2, 1997, governed the parties' obligations until November 1, 1998, when custody became final. \

1. The modification was mot retroactive.

While the motions for modification of child custody were pending, the superior court issued an interim child support order. The interim order stated that "[clhild support in this case shall be modified effective March 2, 1997, the date [Rodney] moved to defendant's home." The court concluded that Jerry's child support obligation was $165 per month. The court used the parties' 1996 income to calculate this support obligation.

In its October 27, 1998 custody modification order, the superior court recalculated child support obligations and found that Veronica should pay child support to Jerry in the total amount of $1,083 per year in twelve equal monthly payments of $90.25 without specifying an effective date. This calculation was based on the court's findings that "in 1997, [Jerry's] gross income was substantially reduced from $33,006.68 to $18,775. [Ver-onical's income increased from $21,704.68 to $27,710." This order was vacated on November 5, 1998 when the court determined that it was "inconsistent with the court's order regarding physical and legal custody of the children which was issued on the same date." The court issued an amended order providing that "the effective date of the Amended Child Custody and Support Order entered on November 5, 1998, under which [Veronica] is obligated to pay the sum of $90.25 as child support under the split custody arrangement shall be June 1, 1997." Veronica moved for reconsideration of the effective date of her child support obligation, which the court denied.

Child support may not be modified retroactively.³⁷ The superior court explained that "[al modification which is effective on or after the date a motion for modification is served on the opposing party is not considered a retroactive modification of the child support award." The court concluded that the June 1 effective date was "supported by the law and facts of this case" because "Defendant's motion to modify the child support order of the parties' minor son was filed on May 14, 1997. The minor child was in the physical custody of his father prior to May 14, 1997 and child support was provided by the father without contribution by the plaintiff."

The superior court did not abuse its discretion in setting the June 1, 1997 effective date. Rule 90.3(h)(2) specifically clarifies that a modification of child support that is effective on or after the date that notice of petition or motion for modification was served on the opposing party is not a retroactive modification. Since the parties do not dispute that Veronica was served before June 1, 1997 the superior court's order did not constitute a retroactive modification.³⁸ We therefore affirm the superior court's determination that June 1, 1997 was the effective date for Veronica's child support obligation.

2. The superior court did not err in calculating support based on 1997 income.

In the alternative, Veronica argues that even if the superior court did not err in setting the effective date, it did err in setting the dollar amounts to be paid by the parties because the superior court used the parties' 1997 incomes to determine support obligations in the modified order.

The superior court did not abuse its discretion in making its support calculations. The Commentary to Rule 90.8 provides that "[elhild support is calculated as a certain percentage of the income which will be earned when the support is to be paid."³⁹ And in cases involving modification of child support, we have stated that "child support is both based on and paid out of the obligor's current income." ⁴⁰ Here, the support in question was to be paid in 1997. Therefore, the superior court correctly based its support calculations upon 1997 income. We therefore affirm the superior court's modified child support order.

V. CONCLUSION

Because Jerry's motion to modify legal custody of Dora was in fact a motion for reconsideration of the court's October 27, 1998 order resolving Dora's legal custody, and because Jerry showed no changed circumstances with regard to Dora's legal custody,⁴¹ we AFFIRM the superior court's denial of Jerry's motion.

Jerry has an obligation to pay for half of his children's uncovered medical expenses up to $5,000. We therefore AFFIRM the superior court's denial of his motion for reconsideration of the order that he share equal responsibility for those expenses. However, we REMAND the question of responsibility for uncovered health care costs in excess of $5,000 for consideration of allocation of those costs (if they exist) according to the parties' relative financial condition at the time the costs were incurred.

We AFFIRM the superior court's denial of Jerry's motion for attorney's fees.

Because the effective date of Veronica's child support obligation did not create a retroactive modification, and the amount of support was correctly calculated, we AFFIRM the superior court's order modifying child support.

1 . Pseudonyms have been used throughout this opinion for all family members.

2 . The substantial period of time between these motions is explained by the tortuous procedural history of this case: Jerry filed several other motions beginning in May 1997, but he withdrew all of them in July 1997. Then, at a status hearing in September 1997, he stated that he wished to pursue modification of Rodney's custody, and the trial court appointed a custody investigator. In June 1998 the court issued a calendaring order, setting on a hearing before a special master in July. The hearing was first continued until August and then vacated because the custody investigation was not complete. Shortly after Veronica filed her motion to modify custody of Dora, the court set trial on the competing motions for October.

3 . See Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000) (citing Julsen v. Julsen, 741 P.2d 642, 648-49 (Alaska 1987)).

4 . See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (per curiam) (citing Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977)).

5 . See Pearson, 5 P.3d at 242 (citing Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992)).

6 . See Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993).

7 . B.J. v. J.D., 950 P.2d 113, 119 (Alaska 1997) (citing Kessler, 827 P.2d at 1120 n. 4).

8 . Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).

9 . See State, Dep't of Revenue, Child Support Enforcement Div. v. Schofield, 993 P.2d 405, 407 (Alaska 1999).

10 . See id.

¹¹

12 . See AS 25.20.110(a) ("An award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child."); see also Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990).

13 . Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000) (internal citations omitted).

14 . Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999) (quoting Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999); see also C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)).

15 . See Harrington, 984 P.2d at 3; Long v. Long, 816 P.2d 145, 149 (Alaska 1991) (citing Lee v. Cox, 790 P.2d 1359, 1361 (1990).

16 . Lee, 790 P.2d at 1361.

17 . Jerry's motion for divided custody, on its face, raised the question of the custody arrangement as to both children.

18 . A review of the log notes of the trial suggests that more time was devoted by the parties to the question of Dora's custody than to the question of Rodney's custody. For example, it appears that Jerry spent at least half of his testimony discussing Dora's situation. The same is true of Veronica's testimony. During closing arguments, the court's focus was on Dora, not Rodney.

19 . The motion was entitled "Motion to Modify Legal Custody," but it appears clear in context of the supporting materials that Jerry intended to move to modify Dora's physical custody as well. And, on November 23, 1998 Jerry filed a motion for a "temporary change in physical custody of [Dora]." He declared that this motion incorporated his previous motion, which he then characterized as a motion for "sole legal and physical custody of [Dora]." On November 30 Veronica opposed the motion. But on December 3 Jerry withdrew his motion for temporary physical custody of Dora, concluding that his reply to Veronica's opposition to his motion "serve[d][his] intent" and rendered the motion for temporary change of physical custody "redundant."

20 . Alaska R. Civ. P. 77(k) provides in part that "(al motion to reconsider a ruling must be made within ten days after the date of notice of the ruling."

21 . The concurrence assumes that Jerry's assertion at the hearing-that he wanted Dora's physical custody left as is-kept open the possibility that he could litigate this issue immediately after trial through a motion to modify custody. This assumption is incorrect. A litigant in a child custody proceeding may not hold a custody issue in reserve until after he (or she) learns the ruling of the court, and then, as here, seek to litigate the issue that he previously declined to address at trial without showing changed circumstances. See, eg., Gratrix v. Gratrix, 652 P.2d 76, 82-3 (Alaska 1982) ("'The 'changed circumstances' rule ... is intended to discourage continual relit-igation of custody decisions.... [The general application of the requirement of a change in circumstances reflects the judicial assumption that finality and certainty in custody matters are critical to the child's emotional welfare.").

22 . These factors include the needs of the child, the child's preferences, the stability of the home environment likely to be offered by each parent, and several others.

23 . 666 P.2d 1044 (Alaska 1983).

24 , Id. at 1045.

25 . Id. at 1046.

26 . See Naquin v. Naquin, 974 P.2d 383, 385 (Alaska 1999); see also Deivert v. Oseira, 628 P.2d 575, 577-78 (Alaska 1981). In explaining the balancing of values inherent in the court's discretion to resolve motions for modification of custody, the Deivert court explained:

While judges may not abdicate their judicial responsibilities, they also must be given some power to resolve child custody litigation. No purpose would be served in requiring a "substantial change of circumstance" before custody modification if a full hearing must be held on motions that do not contain a prima facie showing of either a change that warrants reexamination of the question, or that the best interests of the children would be served by a change of custody.

Id. at 578.

27 . The court had before it the original custody investigation report when it decided the question of Dora's legal custody. That report noted that "[nleither parent contests [Doral's primary placement with her mother." While the report reveals that Dora's interests were not given primary attention because custody of Dora was not disputed at that time, the custody investigator made the following prescient remark: "[Doral wants to remain in her mother's home and both parents want her to remain there. If either parent's position changes before the trial, one is forced to wonder at the cause." These comments were filed with the court very shortly before the court's custody order, and about a month before Jerry's motion for sole legal custody of Dora.

28 . It is true that, in his motion for reconsideration, Jerry did request that the court consider the updated recommendation of a child custody investigator that the court had previously requested. But the court was under no obligation to consider an issue raised for the first time in a motion for reconsideration. See DeNardo v. GCI Communication Corp., 983 P.2d 1288, 1290 (Alaska 1999) ("Issues raised for the first time in a motion for reconsideration are untimely. Because these issues are not properly before us on appeal, we decline to consider them.") (citing Stadnicky v. Southpark Terrace Homeowner's Ass'n, Inc., 939 P.2d 403, 405 (Alaska 1997).

29 . See Carter v. Brodrick, 816 P.2d 202, 204-05 (Alaska 1991) (explaining that hearing is not required in custody cases where there is no showing of changed circumstances); see also C.R.B. v. C.C., 959 P.2d 375, 378-79 (Alaska 1998) (explaining that court is not required to hold hearing on motion to modify custody upon all requests to do so).

30 . See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (holding that trial judge has discretion whether or not to appoint custody investigator) (citing Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976)).

31 . See cases cited supra note 29.

32 . Veronica points out that health insurance covered ninety-five percent of Dora's drug treatment program. She claims that Dora's treatment costs totaled $25,180 and that Jerry's obligation for the uncovered portion was $1,195. Jerry never contested this amount. However, at trial, some rather large dollar amounts were mentioned: a one-time fee of $10,000; expenses for Dora and the Volunteers of America Fee schedule at $42,000; and a bill for Dora at Providence for $13,351. But there is no indication as to who may have paid these costs, or even if they were actually incurred.

33 . Alaska Statute 25.20.115 provides:

In an action to modify, vacate, or enforce that part of an order providing for custody of a child or visitation with a child, the court may, upon request of a party, award attorney fees and costs of the action. In awarding attorney fees and costs under this section, the court shall consider the relative financial resources of the parties and whether the parties have acted in good faith.

34 . 963 P.2d 249, 257 n. 7 (Alaska 1998).

35 . Gates v. City of Tenakee Springs, 822 P.2d 455, 463 (Alaska 1991) (citing Alaska Fed. Sav. & Loan v. Bernhardt, 794 P.2d 579, 581-82 (Alaska 1990)).

36 . Jerry filed numerous motions in 1997. After Jerry withdrew these motions, his attorney filed only a few court papers between August and October 1997 and then withdrew by June 1998. During this time, Jerry continued to file numerous briefs pro se.

37 . See Alaska R. Civ, P. 90.3(h)(2); see State, Dep't of Revenue, Child Support Enforcement Div. v. Schofield, 993 P.2d 405, 407 (Alaska 1999) (holding that Alaska law prohibits, with few exceptions, retroactive modification of child support obligations).

38 . See Rowen, 963 P.2d at 256 (holding that setting effective date of modified child support order on date after which it was undisputed that opposing party had been served in modification proceeding was not an abuse of discretion}.

39 . Alaska R, Civ. P, 90.3 Commentary ILE.

40 . Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998) (citing Flannery v. Flannery, 950 P.2d 126, 133 (Alaska 1997) (holding that the superior court erred when it did not consider the obligor's income from the time of a motion to modify onward as the relevant period of changed circumstances)).

41 . Chief Justice Fabe joins the author of this opinion in agreeing with this rationale Two other members join in the conclusion to affirm the denial of Jerry's motion for the reason that Jerry did not properly move to modify physical custody.