Waller v. Richardson

757 P.2d 1036, 1988 Alas. LEXIS 88, 1988 WL 62888
CourtAlaska Supreme Court
DecidedJune 17, 1988
DocketS-2281
StatusPublished
Cited by9 cases

This text of 757 P.2d 1036 (Waller v. Richardson) 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
Waller v. Richardson, 757 P.2d 1036, 1988 Alas. LEXIS 88, 1988 WL 62888 (Ala. 1988).

Opinion

OPINION

MOORE, Justice.

This appeal raises the question whether the superior court erred by dismissing a petition to modify a custody decree under the Uniform Child Custody Jurisdiction Act (UCCJA) on the grounds that (1) Alaska is an inconvenient forum, AS 25.30.060, and (2) the father acted reprehensibly, AS 25.-30.070.

I. FACTS AND PROCEEDINGS

This case concerns the custody of Brandi Amelia Waller, the oldest of two children born to Clyde and Vicki (Waller) Richardson. A 1981 Washington decree granted the couple joint custody. Both parents moved to Alaska in 1981, and in 1983 the Juneau superior court modified the decree and gave Vicki custody of both children. Clyde was granted six weeks of visitation rights during the summer and Christmas vacation.

Vicki and the children moved between Arizona and Colorado several times. The length of their stay in any one location, the number of times the children changed schools and the location of their residence after 1983 is disputed.

In October of 1986, by mutual agreement, the children were removed from school in Colorado and sent to live with Clyde in North Pole, Alaska until the end of the school year on May 28, 1987. Two weeks prior to the agreed return date, Vicki, fearing the children would not be returned, came to Fairbanks and attempted to take custody of the children. Clyde obtained a temporary restraining order and temporary custody to allow the children to complete the school year. On the same day, Clyde filed this petition asking the court to modify the 1983 Alaska custody order and give him custody of Brandi so that she could attend high school in North Pole until her graduation. By this time the children had resided with their father for approximately seven and one-half months.

Judge Blair found that the Alaska courts had home state jurisdiction under AS 25.-30.020. However, the court, on its own motion and without an evidentiary hearing, declined to exercise jurisdiction on the ground that Alaska is an inconvenient forum. Judge Blair later amended the original order of dismissal and declined jurisdiction under AS 25.30.070(b), finding Clyde had improperly retained custody of the children. Although requested to do so by counsel for Clyde, the court made no find *1038 ing as to which state would be a convenient forum to determine the custody issue.

Clyde appeals. For the reasons set forth below, we reverse and remand for further proceedings.

II. INCONVENIENT FORUM

Clyde argues that the superior court abused its discretion in declining jurisdiction on the grounds of inconvenient forum because (1) it failed to consider the statutory factors, and (2) it failed to designate an appropriate alternative forum.

A. Statutory factors

When a superior court is asked to modify a custody decree, the jurisdictional prerequisites of AS 25.30.020 apply. 1 Szmyd v. Szmyd, 641 P.2d 14, 17 (Alaska 1982). In the present case, Alaska has home state jurisdiction under AS 25.30.020(a)(1) because Brandi lived with her father in Alaska for seven and one half months immediately prior to the commencement of the proceedings. Moreover, “[cjourts which render a custody decree normally retain continuing jurisdiction to modify the decree.” Leighton v. Leighton, 596 P.2d 8, 9 n. 4 (Alaska 1979).

The superior court has discretion to decline jurisdiction by its own motion if it finds Alaska to be an inconvenient forum. 2 Szmyd, 641 P.2d at 18; AS 25.30.060. 3 To determine whether Alaska is an inconvenient forum, the court must consider whether it is in the best interests of the child for another state to exercise jurisdiction. AS 25.30.060(c). For this purpose, the court may take into account the following factors, among others:

(1) if another state is or recently was the child’s home state;
(2) if another state has a closer connection with the child and the child’s family or with the child and one or more of the contestants;
(3) if better evidence concerning the child’s present or future care, protection, training, and personal relationships is available in another state, or if equally substantial evidence is more readily available in another state;
(4) if the parties have agreed on another forum which is no less appropriate; and
(5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in AS 25.30.010.

AS 25.30.060(c).

It is error for a court to deny an inconvenient forum motion under AS 25.-30.060 without articulating its reasoning. Szmyd, 641 P.2d at 19. Also, we have stated that an “[ajbuse of discretion can be established by showing that the court considered improper factors in making its determination, that it failed to consider statutorily-mandated factors, or that too much weight was assigned to some factors.” Deivert v. Oseira, 628 P.2d 575, 577 (Alaska 1981).

The trial court did not articulate its reasons for concluding that it was in Brandi’s best interest to determine the custody issue elsewhere. This was an abuse of discretion.

*1039 Additionally, it appears the trial court based its decision largely on its conclusion that the evidence concerning the changed circumstances of the custodial parent was not available in Alaska. However, that consideration is not one of the factors identified in AS 25.30.060(c). We find the trial court gave too much weight to the location of evidence of the other parent’s circumstances, in view of the facts that Brandi was thirteen years old, had been living in Alaska with her father, the noncustodial parent, for over seven months just prior to commencement of the proceedings and had expressed a desire to have custody changed. Assigning too much weight to this factor was an abuse of discretion.

B. Appropriate forum

The superior court refused to designate an alternative forum to hear Clyde’s petition to modify the custody decree. Clyde argues that the superior court must designate an alternative forum when the court sua sponte declines jurisdiction on the ground of inconvenient forum. 4

The superior court may decline jurisdiction if it is an inconvenient forum and the court of another state is a more appropriate forum. AS 25.30.060(e). The court may communicate with the court of another state before declining jurisdiction to assure a forum will be available to the parties. AS 25.30.060(d)-(e). 5

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Hydaburg v. Hydaburg Cooperative Ass'n
858 P.2d 1131 (Alaska Supreme Court, 1993)
Marquiss v. Marquiss
837 P.2d 25 (Wyoming Supreme Court, 1992)
Matter of E.A.O.
816 P.2d 1352 (Alaska Supreme Court, 1991)
In Re EAO
816 P.2d 1352 (Alaska Supreme Court, 1991)
McGrath v. University of Alaska
813 P.2d 1370 (Alaska Supreme Court, 1991)
Baumgartner v. Baumgartner
788 P.2d 38 (Alaska Supreme Court, 1990)
G.S. v. Ewing
1990 OK 1 (Supreme Court of Oklahoma, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
757 P.2d 1036, 1988 Alas. LEXIS 88, 1988 WL 62888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waller-v-richardson-alaska-1988.