BRIAN OTT v. HALEY RUNA
Supreme Court No. S-17551
THE SUPREME COURT OF THE STATE OF ALASKA
May 8, 2020
No. 7450
Superior Court No. 3AN-17-06688 CI
Nоtice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.
O P I N I O N
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: Joshua P. Fink, The Law Office of Joshua P. Fink, LLC, Anchorage, and Randi R. Vickers, Rockville, Maryland, for Appellant. Notice of nonparticipation filed by Jacob A. Sonneborn, Law Office of Jacob Sonneborn, Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
I. INTRODUCTION
Parents separated when their child was not yet two years old. Following contentious divorce proceedings, the superior court awarded equally shared physical custody and joint legal custody of the child. After trial, but before the court had issued its child custody decision, the mother filed a motion to relocate with the child. The court declined to address the relocation motion in its custody decision. Following evidentiary hearings on the relocation motion, a different judge awarded the mother primary physical custody. The father appeals, arguing that the
II. FACTS AND PROCEEDINGS
A. Background Facts And Pretrial Proceedings
Brian Ott and Haley Runa were married in September 2014 in North Carolina. They lived in Washington for a time then moved to Anchorage, where their daughter was born in September 2015. Brian and Haley separated in January 2017; Haley moved into a basement apartment in their home, and Brian continued living in the main house. They began an informаl 50/50 custody arrangement, with exchanges happening every three days.
Haley filed a divorce complaint in May, seeking primary physical custody. Brian filed an answer in August, requesting shared physical custody. Around this time Haley refused to return the daughter to Brian‘s custody when it was time for his three-day rotation. Brian moved to reinstate their informal custody arrangement; Haley opposed, citing “multiple acts of domestic violence” and contending that Brian “should be allowed only supervised visitation” until he completed a domestic violence intervention course and аddressed his substance abuse issues. The superior court entered a temporary interim custody order in late August, reinstating the informal 50/50 custody arrangement on the conditions that Brian‘s custody be supervised by his sister at all times, that he refrain from consuming alcohol during his custody time, and that he not have any direct contact with Haley regarding custody exchanges.
Brian and Haley reached an interim custody agreement, and the court incorporated it in a September interim order. Under that agreement, Haley had sole legal and primary physical custody; Brian had visitation one week monthly with one additional three-day period monthly. Brian agreed to have an alcohol assessment, follow any treatment recommendations by the assessor, and undergo random urinalysis testing during his one-week visitations and on the final day of every three-day custodial period. Although not mentioned in the interim order, Brian later completed a 36-week domestic violence intervention program and a 12-hour co-parenting course. The interim order granted Haley possession of the marital home beginning in November.
B. Trial Proceedings And Order
The superior court held evidentiary hearings over four days in July and August 2018. Haley noted in her trial brief that she had begun considering moving out of state, and she requested “a ruling that she be allowed to do so without a return to court.” The court noted on the trial‘s final day that it would not be considering the possibility of Haley relocating.
In December, after the trial concluded but before the superior court issued its custody decision, Haley filed a motion to relocate with the daughter. Haley indicated that she “desire[d] to leave the state to move to Washington where her boyfriend reside[d]” and that she “[did] not feel that she [cоuld] wait longer to begin the process of allowing for a determination of [her daughter‘s] best interests given her intent to relocate.” In an attached affidavit, Haley attested that she had a boyfriend who owned a home in Washington and lived there with his son; that Haley and the daughter would live with him; that he “puts a lot of effort into [the daughter] and has taken care of her when [Haley has] been at work,” and the daughter “thinks he‘s great“; that Haley‘s boyfriend “offered and is comfortably able to financially support [Haley] until [she is] able to find a job“; that she had identified possibilities for work; that she had investigated preschools and identified an option near her boyfriend‘s home; and that she had begun establishing a community in his area, including his friends and family.
In March the superior court issued its final decision without addressing Haley‘s motion to relocate. The court found that Brian “has a history of domestic violence” and that he therefore was subject to the statutory domestic violence presumption.1 But the court also
The superior court‘s other findings relating to custody addressed most of the
The superior court concluded that, based on the statutory best interests factors, a 50/50 physical custody arrangement was in the child‘s best interests. The court ordered shared legal custody but, in the event of a disagreement over important decisions about the child, Haley would have final decision-making authority.
C. Post-Trial Proceedings And Appeal
Following the March decision, Haley and Brian‘s case was reassigned to a different superior court judge. The court scheduled an April evidentiary hearing on the relocation issue. The relocation hearing spanned three days in April and May, and only Haley and Brian testified.
Haley testified that her affidavit statements cоntinued to be true and that she had made additional employment contacts. She testified that if she were to move to Washington, she could encourage a relationship between Brian and the daughter by facilitating electronic communications, accommodating him if he wished to visit in Washington, and facilitating trips for the daughter to visit in Alaska. She testified that Brian had been uncooperative and inflexible in custody scheduling and exchanges since the August 2018 evidentiary hearing and that “he doesn‘t do things prioritizing what is best for [our daughter],” but he instead acts in ways intended “to get back at [Hаley].” Haley also testified that custody exchanges had become very difficult, that the daughter appeared very upset during exchanges, and that Haley believed Brian was trying to manipulate the daughter to feel that returning to her mother
Brian disputed much of Haley‘s testimony regarding their exchanges. Brian also testified at length about his relationship with the daughter, how he supported her emotionally and financially, and about the social support his community and family in Anchorage provided the daughter.
In July 2019 the superior court issued a decision on Haley‘s motion to relocate. The court found Haley‘s motivation for relocating to Washington was legitimate, finding Brian had “offer[ed] nothing concrеte to suggest that Haley is proposing to move in ‘order to prevent Brian‘s relationship with [the daughter].‘” The court found that Haley was “motivated to start a new life for herself plain and simple.”
The superior court conducted a thorough analysis of the
Regarding the length of time the child has spent in a stable environment and the desirability of continuity, fаctor (5), the court found stability for the child in Anchorage and, if restricted to geographic location, that this factor would “slightly favor” Brian. But the court noted that this factor “also considers relational continuity and stability” and that “[Haley‘s] relationship appears . . . to be more stable and continuous than [Brian‘s].” The court found that, although the child would be substantially impacted by either custody choice, this factor favored Haley.
As to each parent‘s willingness and ability to allow a close and continuing relationship between the child and the other parent, factor (6), the court found that this factor “equally disfavored” both parents, citing both Brian‘s “tendency toward manipulative behavior” and Haley‘s “narrow[] focus on Brian‘s shortcomings.” The court did not find, as Brian contended, that Haley had been “making a concerted effort to not allow him to be part of [the daughter‘s] life,” but the court noted concern about how Haley would behave if she had primary custody.
The court concluded that if Haley were to move to Washington and Brian were to stay in Anchorage, the child‘s best interests would be met by Haley having primary physical custody during thе school year. The court
Brian appeals the superior court‘s order. He contends that the court erred by failing to give “substantial deference” to the original custody decision, specifically by impermissibly reweighing evidence regarding his capability and desire to meet the child‘s needs and his willingness to foster a relationship between the child and Haley. Brian also contends that the court erred by failing to consider Haley‘s alleged “lingering illegitimate reasons” for moving to Washington, both in its determination on the threshold legitimacy question and in its best interests analysis. Finally, Brian contends that the court erred by improperly weighing the emotional and geographic stability factor, in particular by failing to consider the child‘s ties to her extended family in Anchorage. Haley did not participate in this appeal.
III. STANDARD OF REVIEW
“Trial courts have broad discretion in determining whether a proposed child-custody modification is in the child‘s best interests. We will set aside the superior court‘s best interests determination only if the trial court abused its discretion or if the fact findings on which the determination is based are clearly erroneous.”5 “The trial court‘s factual findings enjoy particular deference when they are based ‘primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.‘”6
“Abuse of discretion is established if the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others.”7 “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 made.‘”8 We review de novo whether the superior court applied the correct legal standard, “adopting the rule of law that is most persuasive in light of precedent, reason, and policy.”9
IV. DISCUSSION
A parent‘s anticipated relocation constitutes a substantial change in circumstances sufficient to justify considering a physical custody modification.10 Evaluating a motion to relocate with a child requires a two-step analysis.11 The superior court first must assess the legitimacy of the move, and in particular whether the move is “primarily motivated by a desire to make visitation more difficult.”12 Once the court determines the reasons for the move are legitimate, the court next considers the child‘s best interests, with no presumption favoring either
A. The Superior Court Applied The Correct Legal Standard When Determining The Legitimacy Of Haley‘s Relocation.
Brian contends that the superior court “misapplied the legitimacy standard” by “focusing only on Haley‘s primary motivation and failing to address her mixed motives.” On multiple occasions we have held that a move is legitimate “if it is not primarily motivated by a desire to make visitation more difficult.”16 Brian cites Eniero v. Brekke17 for the proposition that a court must “apply a mixеd motives analysis to the legitimacy question,” but in that decision we repeated that a move is considered legitimate if it is not primarily motivated to make visitation more difficult.18
The superior court found that Haley “was candid and forthright in her testimony” and that her motivation to move “seems clearly designed to foster a new life for herself . . . with her new boyfriend.” The court concluded that “Haley‘s motivation for the move is legitimate.” Based on our clearly established legal standard, the court did not err when making this determination.
B. The Superior Court Did Not Fail To Consider Secondary Motivеs In Its Best Interests Analysis.
Brian contends that the superior court also erred by failing to consider Haley‘s alleged motive to limit his visitation with the daughter in its best interests analysis.
Brian is correct that we have held secondary “illegitimate” reasons for a move need not be ignored for purposes of the best interests analysis simply because the primary motivation was found to be legitimate.19 But the superior court considered whether Haley‘s move might be partly motivated by limiting the daughter‘s contact with Brian. The court found Haley‘s testimony “candid and forthright,” and it found Brian‘s “vague assertions” abоut her illegitimate motivations were without merit. The court also expressly found that Haley was not, as Brian claimed, “making a concerted effort to” exclude Brian from the daughter‘s life.
The record supports the superior court‘s findings. In Haley‘s affidavit and testimony, she provided detailed descriptions of her relationship with her boyfriend; her job prospects in Washington; her investigation into school quality and identification of a promising preschool near her boyfriend‘s house; and the community she had begun to establish in the area. Only twice did Haley‘s testimony raise the possibility that she wished to isolate the daughter from Brian. First, during a custody hearing prior to the divorce trial when discussing Brian‘s domestic violence history, Haley testified that she did not want the daughter “to be raised knowing that it‘s okay to treat people in an abusive way” and did not “want her to learn to be abused, basically.” Haley continued: “I don‘t want my daughter to grow up thinking that. I don‘t want her to think that this is okay. I don‘t want her to be exposed to these behaviors.”
We have found an illegitimate motive after a parent “repeatedly changed her plans” and “did not provide contact information or adequate notice of her move to the court“;20 we considered the parent‘s repeated unwillingness to support a relationship between a child and the other parent, such as a history of cancelling scheduled visitations, as evidence of an improper motive.21 We also have inferred an improper motive from a parent‘s inability to articulate strong reasons for moving and an underdeveloped employment plan.22 We have not inferred an improper motive merely from one parent‘s hostility toward the other or from one parent‘s fear of the other parent‘s influence on a child, and we decline to do so here.
The superior court considered all the evidence when it declined to find that Haley deliberately sought to limit Brian‘s ability to see the daughter. And the court expressly considered whether each parent would facilitate a relationship between the child and the other parent, finding that therе were concerns about both parents; this seems to be the more appropriate focus of Brian‘s argument. Because the record supports the court‘s finding that Haley was not motivated by “illegitimate” secondary motives, the court did not err by “failing to use the mixed motives analysis” in its best interests determination.
C. The Superior Court Did Not Fail To Give Substantial Deference To The Original Custody Order.
We have held that a superior court considering a custody modification request “must give deference to the findings made in the original custody determination.”23 This rule is intended to prevent a court changing a custody determination based solely on reweighing the original custody proceeding evidence.24 Brian contends that the court impermissibly reweighed evidence regarding the capability and desire of each parent to meet the daughter‘s needs, given the original findings that “love and affection exists between [the child] and both of her parents” and that both parents “have the capability and desire to meet her needs.” Brian suggests that in light of these findings the court erred by finding the “capability and desire of each parent to meet [the daughtеr‘s] needs” factor favored Haley.
The superior court determined that this factor favored Haley in part because Brian‘s “testimony and demeanor in court” indicated he was “putting on a show” and “trying too hard to make a good impression.” Apparently on this basis, the court questioned “whether Brian would be fully capable and desirous of being a ‘full-time’ [d]ad if Haley were in Washington.” Nothing in these findings indicates that the court was re-evaluating the divorce trial evidence. Unlike our Gratrix v. Gratrix finding that the court had made no mention of the previous custody determination and had reweighed evidence of a parent‘s “lifestyle and general social mores,”25 in this case the court‘s finding appears to be based on its perception of Brian‘s credibility.26
That situation was precisely what the superior court faced in this case. The court found that “both parties have the capability and desire to meet [the daughter‘s] needs,”29 but, expressing some unсertainty about Brian, the court found that this factor favored Haley. Similarly, the court found that the child “would be substantially impacted by either custody choice” but that this factor nonetheless favored Haley. The court concluded that “[s]o long as the parties both live in the same geographical area, then they should continue to share physical custody 50/50 as ordered,” but that “[u]pon [Haley‘s] move to Washington, [Haley] will be awarded primary physical custody.”
D. The Superior Court Did Not Abuse Its Discretion By Failing To Consider The Importance Of The Child‘s Extended Family Ties In Anchoragе.
Finally, Brian contends that the superior court erred by failing to sufficiently consider the emotional stability extended family in Anchorage provided the daughter. Brian notes our recent Saffir v. Wheeler30 decision, “acknowledg[ing] that the child‘s relationship with extended family could be properly considered as part of [the emotional and geographic stability factor].”31 Brian contends that “[i]f a relationship can be considered, then it is relevant, and failure to consider it is error.” This argument fails because the superior court considered all the available evidence, inсluding testimony about the child‘s community of family and friends, when it concluded that “[t]he impact on [the child] of separating her from [Haley] appears to be greater (all other things being equal) than the impact of separating [her] from [Brian].” Having considered the evidence before it, the court did not err by finding this factor favored Haley.
V. CONCLUSION
We AFFIRM the superior court‘s order modifying custody.