428 P.3d 477 (Alaska 2018), S-16381, Geldermann v. Geldermann

Docket Nº:S-16381, S-16401
Citation:428 P.3d 477
Opinion Judge:MAASSEN, Justice.
Party Name:Darcey GELDERMANN, Appellant and Cross-Appellee, v. Matthew GELDERMANN, Appellee and Cross-Appellant.
Attorney:Allison Mendel and John J. Sherman, Mendel Colbert & Associates, Inc., Anchorage, for Appellant and Cross-Appellee. Rhonda F. Butterfield, Wyatt & Butterfield, LLC, Anchorage, for Appellee and Cross-Appellant.
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Case Date:August 31, 2018
Court:Supreme Court of Alaska
 
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428 P.3d 477 (Alaska 2018)

Darcey GELDERMANN, Appellant and Cross-Appellee,

v.

Matthew GELDERMANN, Appellee and Cross-Appellant.

Nos. S-16381, S-16401

Supreme Court of Alaska

August 31, 2018

Rehearing Denied October 31, 2018

Page 478

[Copyrighted Material Omitted]

Page 479

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge. No. 3AN-10-12834 CI

Allison Mendel and John J. Sherman, Mendel Colbert & Associates, Inc., Anchorage, for Appellant and Cross-Appellee.

Rhonda F. Butterfield, Wyatt & Butterfield, LLC, Anchorage, for Appellee and Cross-Appellant.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

The parents of a young son divorced in 2011, agreeing that the mother would have primary physical custody during the school year. The father moved to California. When the child began experiencing behavioral problems, the parents agreed to switch custody for a few years, giving the father primary physical custody in California during the school year. The parties signed a custody modification agreement to this effect in December 2014, including both parents’ waivers of child support, but they did not file the agreement in court.

The next year, following a dispute over the mother’s visitation, both parties sought a judicial resolution of custody. The father went to a California court seeking to make the 2014 change in custody permanent. The mother went to Alaska superior court seeking to enforce the original 2011 agreement that gave her primary physical custody. The Alaska court asserted jurisdiction; it ultimately modified physical custody in favor of the father but maintained the parents’ joint legal custody. The court also modified child support, ordering the mother to pay child

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support effective from the date the father first sought to modify custody in California.

The mother appeals the physical custody and child support orders, challenging among other things the child support order’s effective date. The father cross-appeals, challenging the decision on joint legal custody. We affirm the court’s custody and child support orders, concluding that they are well supported by the evidence and that the court did not abuse its discretion in selecting the child support order’s effective date.

II. FACTS AND PROCEEDINGS

A. Facts

Darcey and Matthew Geldermann married in 2005 and had a son in 2008. They divorced in February 2011. The superior court approved a custody agreement that established joint legal custody but gave primary physical custody to Darcey, with Matthew receiving visitation during summers and holidays. Matthew thereafter moved to Washington, spent time as a contractor in Iraq, and eventually settled in California.

1. Custody experiment

The parties agree that their son exhibited behavioral problems when he started kindergarten in 2013; psychologists diagnosed him with autism, atypical attention deficit and hyperactivity disorder, unspecified anxiety disorder, and social communication disorder. To deal with these problems Darcey and Matthew agreed to try a temporary custody switch: their son would live primarily with Matthew in California for two and a half years and visit Darcey over summers and holidays. Around December 2014, when the child was six, the parties negotiated a new custody agreement that acknowledged the switch, but they did not formalize their new agreement in court.

The informal new arrangement worked well for about 10 months. The child started school in California in January 2015. Matthew hired a nanny and established a rigorous routine, including many extracurricular activities. The child had fewer behavioral problems, and his grades improved. Matthew claims that his son "thrived" under the new arrangement.

But the arrangement broke down in the fall of 2015 after a dispute over a planned visit by Darcey. The superior court found that the dispute generated "some angry emails," including threats by Darcey that she would retrieve the child from California and make it difficult for Matthew to see him again. The parties filed custody-related motions in both California and Alaska courts; meanwhile the child remained with Matthew in California.

While both cases were pending, the parties struggled to maintain civil communication with each other. The California court awarded Darcey a visit with her son in November 2015 when she was there for a hearing; the visit was not a success, though the parties disagree on why. In March 2016 Matthew moved the child to a new school following a bullying incident and failed to immediately inform Darcey of the change. In April the Alaska superior court, retaining jurisdiction, awarded Darcey spring-break visitation, requiring only that she provide an itinerary. The parties disagreed about how specific the itinerary needed to be, and Darcey ultimately canceled her visit. The superior court described the "failure" of the spring break visit as "disturbing" and "highly unfortunate."

2. Child support

As part of their 2011 divorce, the parties’ court-approved settlement agreement provided that Matthew would pay Darcey child support. But when their son moved in with Matthew in December 2014, "[t]he parties agree[d] that neither party [would] owe child support to the other party as a result." In January 2015, accordingly, Darcey withdrew from the collection services provided by Alaska’s Child Support Services Division (CSSD). But when their current dispute arose, Darcey again requested CSSD assistance, and Matthew received a letter from CSSD in October 2015 directing that he pay Darcey the child support required by the 2011 agreement.

B. Proceedings

1. Custody

In early October 2015 Matthew filed an ex parte custody action in California, seeking a

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transfer of jurisdiction from Alaska, a temporary emergency custody order, and a modification of custody to reflect the parties’ 2014 agreement giving him primary physical custody. Shortly thereafter Darcey commenced the current Alaska proceedings; she filed a motion to enforce the original 2011 custody arrangement that gave her primary physical custody. The Alaska superior court conferred with the California court, held an evidentiary hearing on jurisdiction in January 2016, concluded that neither forum was convenient for both parties, and ultimately decided to retain jurisdiction in Alaska.

Matthew had not filed a motion in Alaska to modify custody. The superior court concluded, however, that his opposition to Darcey’s motion to enforce the 2011 order amounted to, "at the very least, an implied custody modification request," and it scheduled a trial on both physical and legal custody. The parties presented a number of witnesses, including themselves, their respective new spouses, their son’s California nanny, and Darcey’s mother.

After hearing the evidence, the court denied Darcey’s motion to enforce the 2011 order and awarded Matthew primary physical custody during the school year. Darcey was given summer vacations and alternating holidays as well as "generous and liberal, unrestricted, unsupervised visits with [the child], whenever she is in the same geographic location." Although the court found significant communication problems between Darcey and Matthew, it continued joint legal custody. Darcey sought reconsideration, claiming that custody modification was inappropriate absent a formal motion from Matthew. The court denied the motion, explaining that custody and visitation had been "always clearly at issue."

2. Child support

In October 2015 Darcey filed a motion to reduce to judgment past-due amounts of child support calculated under the 2011 order. In early December Matthew sought to stay enforcement of those child support provisions, and in January 2016 the court issued an order precluding collection of child support arrears from December 2014 until it ordered otherwise.

Matthew did not file any other documents related to child support until May 18, 2016, following the court’s custody decision, when he filed a proposed child support order. He proposed an effective date of "November 1, 2015, which is the first of the month after [Darcey] was formally served with notice of [Matthew’s] custody action in California." Darcey objected, arguing that Alaska Civil Rule 90.3(h)(2) prohibited a retroactive date because Matthew had never filed a motion to modify child support.

The court signed a new child support order on June 1, 2016, requiring Darcey to pay support to Matthew. The order used Matthew’s proposed effective date of November 1, 2015. Darcey sought reconsideration, which was denied.

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