Opinion
No. S-10710.
July 30, 2003.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Reese, J.
G.R. Eschbacher, Anchorage, for Appellant.
Vanessa H. White, Anchorage, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. Steven Dick appeals the superior court's July 21, 2002 decision that prospectively grants primary physical custody of his two children to their mother, his ex-wife, Nicole Thompson, in the event that Dick relocates outside the Anchorage area as planned. At trial, the parties presented evidence bearing on their marriage, the deterioration of their relationship, and Thompson's substance abuse problems following the sudden death of her parents and sister. The custody decision awarded the parties joint legal and shared physical custody of the children as long as Dick remains in the Anchorage area, but awarded primary physical custody to Thompson if Dick moves outside the Anchorage area.
Whether the superior court applied the correct legal standard in a custody determination is a question of law that we renew de novo. Moeller-Prokosch v. Prokosch (Moeller-Prokosch I), 27 P.3d 314, 316 (Alaska 2001). We will only set aside a custody award if the superior court's findings are clearly erroneous or if the court abused its discretion. Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
2. Because the reasoning of the custody decision did not apply the correct standard in analyzing the consequences of a relocation by Dick, we remand for application of the analysis required under Moeller-Prokosch v. Prokosch (Moeller-Prokosch 1) and Moeller-Prokosch v. Prokosch (Moeller-Prokosch II) Dick testified that he intended to move out of state to advance his career and education. The custody decision reasoned that "[Dick's] career ambitions are not more important than insuring that the children have sufficient access to both parents." The decision then ruled that Thompson would have primary physical custody of the children if Dick left Anchorage. The decision did not explain why granting primary physical custody to Thompson if Dick left the Anchorage area was in the children's best interests. We explained in Moeller-Prokosch I and II that when one parent seeking custody plans to relocate out of state, the court should treat the move as a given and conduct a best-interests-of-the-children analysis as if the parents were in different states. The court must consider the reasons for the parent's move. If those reasons are legitimate, then the court must not hold the relocation against the parent who is intending to move. We explained that a court cannot "require a custodial parent to forego relocation if custody with that parent remains in the child's best interests and the relocation is not for an illegitimate reason." The custody decision here impliedly found that Dick's motives for relocating were legitimate, or at least were not illegitimate, but did not conduct a best-interests analysis as if Dick had relocated. We therefore remand.
53 P.3d 152, 155-57 (Alaska 2002).
Moeller-Prokosch II, 53 P.3d at 156; Moeller-Prokosch 1, 27 P.3d at 316-17.
Moeller-Prokosch II, 53 P.3d at 155; Moeller-Prokosch 1, 27 P.3d at 316-17.
Moeller-Prokosch 1, 27 P.3d at 317.
The court found that "[Dick's] reasons for relocating are to promote his career and increase his earning capacity."
3. Even if Dick does not relocate out of Alaska, a new best-interests analysis must be conducted because the court placed undue weight on the outdated custody agreement the parties entered into after their first separation but before they reconciled. The custody agreement was not presumptively controlling given the parties' subsequent reconciliation and then the later refiling for divorce; instead it was at most relevant evidence of what the parties believed to be appropriate in 2000 when they entered into it and before subsequent events occurred. Although we assume that the custody agreement reflected what the parties thought when they signed it, the parties do not necessarily share the same thoughts now-especially given post-agreement events. The court must independently determine whether the arrangement specified in the 2000 custody agreement remained in the best interests of the children given events subsequent to its execution.
See McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986) (holding custody agreement "has no binding force on the court. . . . The [superior] court must independently determine what arrangement will best serve the child's interests.").
4. On remand, the court should consider relevant evidence bearing on the custody determination, including evidence of events occurring after the entry of the July 21, 2002 decision. On remand, the court may, in its discretion, conduct a hearing to receive new evidence relevant to the custody determination. If the court elects to hold such a hearing, it will have an opportunity to reassess the substance abuse statutory factor in light of additional relevant evidence about Thompson's substance abuse and her prospects for rehabilitation. Although Dick does not assert on appeal that the custody determination is also deficient because it did not address the domestic violence statutory factor, the court will be able to consider that factor on remand. It may be relevant, given evidence of the events of November 26, 2001.
AS 25.24.150 (c)(8) directs a court making a custody determination to consider "evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child."
AS 25.24.150 (c)(7) directs a court making a custody determination to consider "any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents."
5. Dick also argues that the court erred by awarding him $5,000 in attorney's fees, instead of the $8,500 he sought. We review an award of attorney's fees for an abuse of discretion. The court did not abuse its discretion in awarding Dick less than the total amount he requested.
Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001).
6. For these reasons, we REMAND for application of the analysis required by Moeller-Prokosch I and Moeller-Prokosch II. We AFFIRM the award of attorney's fees.