Moore v. Moore

• Decision Date: 29 May 2015
• Docket Number: No. S–15712.,S–15712.
• Parties: Brandy MOORE, Appellant, v. Jeremy MOORE, Appellee.
• Court: Alaska Supreme Court

349 P.3d 1076

Brandy MOORE, Appellant

v.Jeremy MOORE, Appellee.

No. S–15712.

Supreme Court of Alaska.

May 29, 2015.

Laurence Blakely, Mendel & Associates, Inc., Anchorage, for Appellant.

Notice of nonparticipation filed by Cameron Compton, Law Offices of Dan Allan & Associates, Anchorage, for Appellee.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

Brandy and Jeremy Moore have one child, a ten-year-old daughter. When Brandy and Jeremy divorced in 2014, the superior court granted sole legal and primary physical custody of the child to Brandy and awarded Jeremy unrestricted visitation, including visitation to foreign countries. Jeremy proposed taking the child to Micronesia during his visitation period because he is now in a relationship with a Micronesian woman he met while he was stationed there with the Army. Brandy asked the superior court to limit Jeremy's international visitation to countries that have ratified the Hague Convention on the Civil Aspects of International Child Abduction. The superior court denied Brandy's motion, and she now appeals, arguing that the superior court abused its discretion by allowing unrestricted international visitation. She worries that if Jeremy absconds with the child to a non-signatory country, the child will then be beyond the jurisdiction of the Alaska court to enforce the custody order. But because the superior court made an express finding that Jeremy's conduct raised no concerns about the safety and return of the child, we affirm. Although the Hague Convention is one factor that courts can look to in determining whether international visitation is appropriate when there are concerns about the safety and return of a child, it is simply one factor among many and is not dispositive.

II. FACTS AND PROCEEDINGS

A. Facts

Brandy and Jeremy married in 2003 and have one daughter, born in 2004. Jeremy was in the military while the parties were married and was deployed to Iraq in 2004, Afghanistan in 2007–08, and Micronesia in 2012–13. In 2014 Jeremy was told that he was being involuntarily separated from the Army following an investigation in which the Army found Jeremy guilty of having an inappropriate relationship in Micronesia with a woman who was not his wife.

The parties separated in May 2013 and divorced in July 2014. Brandy alleges that since their separation, Jeremy has exercised only limited visitation with the child. She reports that he had seven visits with the child from the time of the parties' separation until their divorce trial over a year later, only three of which were overnight. She alleged at trial that in the past Jeremy has gone up to two months without requesting visitation. Brandy has been the primary caregiver since their daughter was born.

B. Proceedings

A trial was held in part to determine Jeremy's visitation rights. The parties agreed that Brandy would have sole legal custody and primary physical custody, and that Jeremy would have reasonable visitation including part of summer break.¹ Brandy requested a graduated summer visitation schedule, with Jeremy progressing to have visitation for most of the child's summer break by 2016. Jeremy requested that during his custodial time with the child he have “the option to take the child out of the country,” in particular to Micronesia.

Brandy testified that she did not want the child to travel to Micronesia with Jeremy because she thought she would have no legal recourse if Jeremy attempted to keep their child there, citing the fact that Micronesia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The Hague Convention is a multilateral treaty that “provides for a civil remedy to return a child to his or her ‘habitual residence’ after unlawful abduction or wrongful retention in a foreign nation.”² Brandy testified that she was hesitant to let their daughter travel abroad with Jeremy but that she would permit the child to visit foreign countries that had ratified the Hague Convention. Brandy asserted that legal protection under the Hague Convention was necessary because Jeremy had a demonstrated disregard for the law based on his Army infractions.

Jeremy countered that Brandy's claims regarding the Hague Convention were pretext for the fact that she did not want him to take their daughter out of the country because she was resentful of his relationship with a Micronesian woman. He argued that Brandy “impermissibly influenced” the child by convincing her that he left because he “chose [the woman] over the child.” Jeremy also asserted that Brandy was harassing him and refusing to facilitate and encourage his relationship with the child, and that Brandy's “behavior and mental state have deteriorated.” He alleged that Brandy was stalking him by driving by his residence and forcing her way into his house; contacting his Army chain of command and making false claims against him; and yelling, threatening, and throwing items at Jeremy in front of the child. Jeremy argued that he had sparse contact with the child because he was “scared of Brandy” and was worried that Brandy would again levy false claims against him with his Army chain of command.

At the time of trial Jeremy was awaiting his discharge from the Army and looking for civilian work both in the United States and abroad. He argued that he wanted their daughter to be able to visit him wherever he resides and that it is in her best interest “to be able to visit different cultures.”

Superior Court Judge Gregory Miller issued a decision in July 2014 granting Brandy sole legal custody and primary physical custody. The superior court ordered that “[t]here shall be no restriction on where Jeremy may travel with the child during his visitation with the child. Jeremy may travel out of the country including, but not limited to Micronesia. There is no restriction that Jeremy may not travel with the child to only Hague Convention countries.” The superior court granted visitation to Jeremy for parts of the summer of 2014 and every other weekend if he remained in Alaska during the school year. The court granted Jeremy summer visitation for five full weeks beginning in 2015 and continuing every summer thereafter. It also awarded visitation during winter break in odd numbered years and spring break in even numbered years. At the end of the decision, under the heading “Findings of Fact and Conclusions of Law,” the superior court noted that “[t]he child custody and visitation is in the best interest of the child.”

Earlier, at the end of the trial in June, the superior court had provided more detail about its decision. The court discussed each of the statutory best interest factors as they relate to custody and visitation in this case.³ It then rejected Brandy's request to limit foreign travel. The court acknowledged Brandy's desire to avoid “plac[ing the child] in any situation where [Jeremy] might take her and keep her and not return her,” but concluded that it had “seen no evidence” and “heard no testimony that [Jeremy] has that intention or desire.” The superior court said that an example of that intention or desire might be present if Jeremy “had a job offer in Micronesia, if he proposed to the person in Micronesia and they were planning to live over there,” or if similar circumstances existed, but that it saw none of that here. The superior court noted that travel is broadening and enriching for children and stated, “I don't care if it's a Hague Convention country or not. [Travel] is a good thing, in my mind. There are exceptions to that, of course. But in general terms, that's what I'm finding.”

Brandy filed a motion for reconsideration at the end of July 2014. She argued that the superior court “failed to consider [her] arguments regarding the significance of the Hague Convention and the prevention of parental child abductions when it expressly granted Jeremy the power to travel to a non-Hague country with the minor child.” Brandy reiterated her concern that “[i]f Jeremy travels to Micronesia, as he wishes, the child is beyond the jurisdiction of this Court and the United States to enforce a child custody order” and argued that “[s]hould Jeremy decide to not return [the child], this Court has provided him with the means to do so.” Finally, Brandy asserted that the superior court's order “has overlooked the material fact that Jeremy's grant of unfettered travel to non-Hague Convention countries with [the child] does not comport with the letter and the spirit of Alaska's child custody laws.”

Jeremy opposed the motion for reconsideration regarding international travel and again argued that Brandy was using the fact that Micronesia is not a Hague Convention signatory “as pretext to prohibit visitation where the ‘other woman’ lives.”

The superior court issued a short order in September 2014 denying Brandy's motion for reconsideration “as to travel restrictions.” Brandy appeals, arguing that the trial court's award of unrestricted international travel was an abuse of discretion, asserting that “trial courts must consider, inter alia, a foreign country's Hague Convention signatory status in determining whether it is in the best interest of the child to allow [foreign] visitation” and that “unrestricted international travel is not in [the child's] best interest,” in particular. She requests that this court “reverse the trial court's decision on the subject of international travel and remand with directions to issue an order allowing visitation to occur in Hague Convention signatories only and require the posting of security prior to travel.” Jeremy did not submit a brief on appeal.

III. STANDARD OF REVIEW

“The superior court has broad discretion in its determinations of child custody. We will not set aside the superior court's child custody determination unless its factual findings are clearly erroneous or it abused its discretion.”⁴ A factual finding is ...