Nelson v. Nelson

263 P.3d 49, 2011 Alas. LEXIS 113, 2011 WL 5107108

• Court: Alaska Supreme Court
• Decided: October 28, 2011
• Docket: S-13928
• Status: Published

Opinions

OPINION

CARPENETI, Chief Justice.

I. INTRODUCTION

An Alaskan military couple divorced in 2008. Their agreement for custody of their two children was incorporated into the divorce decree. The following year, the father, who anticipated relocating with the military, sought modification of the custody arrangement. In its order denying modification, the superior court tried to give effect to the parties' custody agreement but did not independently analyze the best interests of the children. Because a substantial change in cireumstances occurred, and because a custody decision must be based on an independent best-interests analysis, we remand this case for the superior court to undertake a full best-interests inquiry. We also remand for the superior court to resolve a dispute concerning payment of a custody investigator.

II. FACTS AND PROCEEDINGS

Justin Nelson and Erica Nelson married in 2000 while both were stationed in England with the U.S. Air Force. Together they had two children, a daughter born in 2001 and a son born in 2005. In 2006, they moved to Eielson Air Force Base near Fairbanks. The couple separated in 2007 and divorced in 2008.

At a settlement conference in January 2008, Justin and Erieca-neither of whom was represented by counsel at the time-established a Parenting Agreement. The superior court adopted the terms of the Parenting Agreement in the findings and conclusions that accompanied their divorcee decree. The superior court noted that the parties had worked "amicably" to resolve some disputes that arose from the divorce.

The Parenting Agreement provided for shared legal custody and equally divided physical custody on alternate weeks "until one or both parents move from the Fairbanks area." The agreement further provided:

If in the future the parents don't reside in the same community, they agree one parent will have the children for the school year and other parent will have the children for summers and some school breaks.... They agree they will leave open the possibility if a child asks to live with the other parent, to consider that request, but no changes of custody between parents' homes will occur during a school year.

And:

If a parent moves in the future, which the parents agree will occur eventually, they will have to create a parenting agreement for different communities. Until they have that agreement the children cannot be moved from their current community. But the children will have visits with the moving parent during breaks from school....

The record suggests that the parents at first adhered substantially to the terms of their agreement and resolved minor disputes without court intervention. But some disagreements required the court's intervention.

In June 2008 Erica lost her job as a surgical technician. About six weeks later, Erica filed a motion for modification of custody. She proposed moving with both children to lowa before the academic year began on August 20, 2008; Erica sought primary custody with summer visitation for Justin. The court denied this motion on February 9, 2009. Erica did not appeal this order and apparently abandoned, at least temporarily, her plan to move to Iowa.

On February 6, 2009, Justin filed a motion for custody modification. (This motion was not ripe for consideration as of February 9, 2009, when Erica's motion for modification was denied.) Justin sought primary custody when the parents no longer resided in the same community. He took Erica's proposed move to Iowa as a change of circumstances. Justin also suggested that, as a result of his military service, he was likely to relocate some time after May 2011. Erica opposed the motion, requesting primary custody regardless of either parent's plans to move; she stated that the "alternate week schedule has left our children's lives in a constant state of upheaval and is all in all not working for them."

On Justin's motion, the superior court ordered appointment of Ted Sponsel as custody investigator. The court reserved for trial the issue of allocating between the parties the costs of Sponsel's services. Following his investigation, Sponsel recommended that when one parent moved from Fairbanks, Justin be given custody with the caveat that if Justin were deployed for more than three months, custody would revert to Erica until Justin returned.

Following a two-day trial, the superior court denied Justin's motion for modification. The order provided:

The court does not find a change of cireumstances, unanticipated by the parties when they signed their Parenting Agreement in 2008. They anticipated movement by one or both parents, and agreed that the non-moving parent would retain custody for the school year.

Nevertheless, the court went on to order that if Justin "moves during the school year, then [the children] will reside primarily with Erica." The court also ordered entry of a communication plan between the parties Neither order mentioned payment for Sponsel's investigation.

Justin appeals the order denying his motion for modification and argues that it was error not to address payment for the investigation.

III. STANDARD OF REVIEW

"We exercise our independent judgment when reviewing the legal interpretation of ... child custody agreements that are incorporated into divorce decrees." ¹ Whether the superior court applied the correct legal standard in its custody determination is a question of law that we review de novo, "adopting the rule of law that is most persuasive in light of precedent, reason and policy.” ²

IV. DISCUSSION

Justin argues that the superior court: (1) incorrectly interpreted the terms of the parties' Parenting Agreement, (2) failed to apply the correct legal standard, and (8) overlooked the issue of allocating costs for the custody investigation. Justin suggests that the superior court did not modify custody because it found no change in cireumstances to justify modification. Erica characterizes the superi- or court's order differently. She argues that the superior court properly awarded her custody after it concluded that a change of cireumstances justified modification and that the children's best interests justified awarding primary custody to her. We agree with Justin that the decision should be remanded to the superior court for a best-interests determination.

A. There Has Been A Substantial Change Of Circumstances.

Alaska Statute 25.20.110 authorizes courts to modify child custody and visitation awards if (1) there has been a substantial change in cireumstances that justifies modification and (2) the modified arrangement is in the best interests of the child.³ We have held that "a custodial parent's decision to move out-of-state ... amounts to a [substan-tiall change in cireumstances as a matter of law." ⁴ The change in cireumstances "must be demonstrated relative to the facts and circumstances that existed at the time of the prior custody order that the party seeks to modify." ⁵ As we have explained, "the change in circumstances requirement is intended to discourage continual relitigation of custody decisions, a policy motivated by the judicial assumption that finality and certainty in custody matters are critical to the child's emotional welfare." ⁶

When Justin filed his motion for modification in February 2009, he suggested that, as a result of his military service, he was likely to relocate some time after May 2011. Although Justin's relocation may have seemed far away when he filed the motion for the modification, his anticipated move grew nearer as the superior court proceedings progressed. By the time the case went to trial, in May 2010, Justin's relocation constituted a change of cireumstances "relative to the facts and circumstances that existed" at the time the prior custody order was entered. Though the change-of-cireumstances rule is "designed to discourage discontented parents from continually renewing custody proceedings," ⁷ parents should not be discouraged from planning ahead and seeking to modify custody arrangements in advance of an anticipated move. In numerous cases, we have concluded that an anticipated move satisfied the change-of-cireumstances requirement.⁸ Indeed, to do otherwise could result in very harsh consequences for children (for example, if the non-moving parent is actually unfit). Justin's anticipated relocation, like Erica's proposed move to Iowa, constituted a substantial change of cireumstances in this case.

B. The Superior Court Must Consider The Best Interests Of The Children Under AS 25.24.150(c).

Justin demonstrated that a substantial change in cireumstances would occur when he moved out of state. Thus, he has met the threshold requirement for modification of custody.⁹ And the superior court must give full consideration to the best interests of the children before entering an order modifying custody. Alaska Statute 25.20.110(g) and AS 25.24.150(c) identify nine factors that the superior court must consider in its best-interests inquiry. The superior court has some leeway in determining what factors it "considers pertinent." ¹⁰ Nevertheless, the statute requires the superior court to consider each of the enumerated factors unless the court concludes, in light of the facts of a particular case, that certain factors have no bearing on the child's well-being.¹¹ When we review a custody modification order, we must determine whether the superior court gave due consideration to each of the pertinent statutory factors. Because the superior court in this case found no change of cireumstances, it did not address certain statutory factors, such as the children's needs, each parent's ability to meet those needs, and the love and affection existing between the children and each parent. Thus, we remand this case for the superior court to address the statutory best-interests factors, as it deems necessary, in light of the facts of this case.

C. The Parenting Agreement Does Not Dictate The Terms Of The Post-Relocation Custody Arrangement.

In determining what custody arrangement is in the children's best interests, the superior court may properly take account of a custody agreement entered into by the parents.¹² However, a custody agreement cannot be enforced in the face of changed circumstances, unless the court independently determines, at the time of enforcement, that its terms are consistent with the best interests of the child.¹³

The superior court must undertake a new best-interests analysis before modifying custody in this case. As we understand the order on appeal, the superior court granted Erica custody "during the school year" in order to give effect to the terms of the Parenting Agreement. Because this custody modification was not based on a full best-interests inquiry, we vacate the order granting Erica custody. At most, the terms of the Parenting Agreement identify the agreed-upon status quo until a final court-approved arrangement takes effect.

In our view,¹⁴ Justin and Erica did not agree upon a final custody arrangement in the event that one parent relocates. Instead, the agreement states that a new agreement will need to be reached "[if a parent moves in the future." The terms of the Parenting Agreement provide an interim custody arrangement-that the children remain with the non-moving parent in Fairbanks-until a final arrangement takes ef-feet. It will be up to the superior court to determine the permanent custody arrangement that will be in the children's best interests. If that interim arrangement is not in the best interests of the children, then the superior court will determine what arrangement is in the best interests of the children for the duration of the school year and until a substantial change in cirenmstances occurs.

D. The Superior Court Must Address Payment Of The Custody Investigator.

Because we see no indication that the superior court resolved the issue of allocating the custody-investigation costs, it must decide this issue on remand.

V. CONCLUSION

We VACATE the custody modification order and REMAND the case for the superior court to consider the best interests of the children and the allocation of custody investigation costs.

STOWERS, Justice, with whom WINFREE, Justice, joins, dissenting in part.

1 . Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999).

2 . See McQuade v. McQuade, 901 P.2d 421, 423 n. 3 (Alaska 1995) (quoting Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).

3 . Melendrez v. Melendrez, 143 P.3d 957, 960-61, 963 (Alaska 2006) (affirming custody modification where both prongs satisfied).

4 . Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (quoting Acevedo v. Liberty, 956 P.2d 455, 457 (Alaska 1998)) (internal quotation marks omitted).

5 . Peterson v. Swarthout, 214 P.3d 332, 341 (Alaska 2009) (quoting Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).

6 . Id. at 340-41 (quoting Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982)).

7 . Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990) (quoting King v. King, 477 P.2d 356, 360 (Alaska 1970)) (internal quotation marks omitted).

8 . See, eg., Eniero v. Brekke, 192 P.3d 147, 149-50 (Alaska 2008) (affirming superior court's decision to modify custody in light of mother's proposed move to Oregon); Moellee-Prokosch v. Prokosch, 53 P.3d 152, 153, 155 (Alaska 2002) (instructing courts in custody modification cases to assume a legitimately motivated move would take place when considering best interests of the child); House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989) (concluding that father's proposed move to California constituted substantial change of circumstances).

9 . The moving party is required to show a substantial change in circumstances, as a threshold matter, before the court moves on to consider the best-interests analysis. Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001) (concluding that superior court was not required to make best-interests determination where moving party failed to show substantial change in circumstances}.

10 . AS 25.24.150(c)(9).

11 . See AS 25.24.150(d) ("In awarding custody the court may consider only those facts that directly affect the well-being of the child."); S.N.E. v. RL.B., 699 P.2d 875, 878 (Alaska 1985) ("When a court determines the best interests of the child under the changed circumstances doctrine, the scope of judicial inquiry is limited to facts directly affecting the child's well-being." (citing AS 25.24.150(d))); Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982) (instructing superior court to consider mother's relationship instability only to extent that it adversely affects child or otherwise affects mother's parenting abilities).

12 . See, eg., McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986) ('The custody agreement is a pertinent factor because it demonstrates that cooperation between the parents is possible.").

13 . See id.; see also Crane v. Crane, 986 P.2d 881, 887 (Alaska 1999) ("In making any custody determination-whether following a contested trial or upon the parties' agreement-the superior court must base its decision on the best interests of the child.").

14 . Interpretation of a custody agreement presents a question of law, which we review de novo. See Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999) (citing Cedergreen v. Cedergreen, 811 P.2d 784, 786 n. 2 (Alaska 1991)).