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affirming superior court's determination that child's "severe drop in grades" and mother's lack of understanding and capacity to address the issue constituted substantial change of circumstances
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Supreme Court No. S-12071.
November 22, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon L. Gleason, Judge. Superior Court No. 3AN-01-12353 Civil.
Peggy A. Roston, Law Office of Peggy A. Roston, Anchorage, for Appellant.
Maurice N. Ellis, Law Office of Maurice N. Ellis, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Bryner, Justices. [Carpeneti, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This is an appeal from an order modifying child custody. The order transferred primary physical custody from Charis Gault to Michael Gault of the parties' child, Michael Jr. The mother asks this court to review the changed circumstances and best interests findings under AS 25.20.110 and AS 25.24.150, which led to the superior court's modification order. She argues that there is no evidence to support the superior court's findings that changed circumstances called for modification and that modification is in the child's best interests. The mother also challenges two of the superior court's evidentiary rulings.
II. FACTS AND PROCEEDINGS
Michael and Charis Gault married in 1988 and divorced in 2002. Their relationship produced one child, Michael Jr., born in 1992. The custody decree gave Charis primary physical custody of Michael Jr. and Michael liberal visitation rights, which included the right to have Michael Jr. live with him during the child's summer vacation. The decree allowed Charis to "choose the state of residence of the child," and she eventually relocated with him to California.
In August 2003, several months after the initial decree, Michael began an effort to gain primary physical custody of his son by moving to modify the custody arrangement. He argued that the circumstances had changed since the first order because Charis (1) habitually interfered with his visitation rights and (2) failed to meet Michael Jr.'s educational and emotional needs. According to Michael's motion, custody modification would be in Michael Jr.'s best interests because he, Michael, could meet the child's needs without interfering with Charis's visitation rights. After a hearing, the court slightly modified the visitation schedule but otherwise left the original custody findings intact.
The court's factual findings relating to this order are not in the record.
Approximately one year later, Michael again moved to modify the custody decree. He argued that the circumstances had changed since the superior court's ruling on his first motion for modification because (1) Michael Jr. expressed a preference to live with his father; (2) Michael Jr.'s performance in school had dropped significantly over the previous year; and (3) the relationship between the child and his mother had deteriorated. Michael's motion further contended, without elaboration, that modification would be in Michael Jr.'s best interests.
During the course of the subsequent hearing, the superior court heard testimony from Michael, Charis, Michael Jr.'s school principal, Michael Jr.'s psychologist, Michael Jr.'s dental hygienist, and the custody investigator appointed by the court. The testimony indicated that the child's performance in school fell dramatically during the preceding academic year. Michael testified that his son performed well in summer school during his most recent visit to Alaska and submitted school documents tending to prove that assertion. He further suggested that he could better care for his son's academic needs. To rebut Michael's claims in this regard, Charis sought to introduce a document from Michael Jr.'s summer school indicating that his performance left room for improvement. The superior court excluded the document because Charis had not exchanged it with Michael as required by the court's scheduling order. Charis lost another evidentiary ruling when she solicited testimony from Michael Jr.'s psychologist about how a change in custody would affect the child. The court disallowed the testimony because the psychologist lacked enough knowledge about the two possible custody arrangements to give an opinion.
At the close of the hearing, the superior court agreed that the circumstances called for a modification of the custody arrangement and awarded Michael primary physical custody of Michael Jr. The court found a substantial change in circumstances evidenced by Charis's inability to meet Michael Jr.'s basic needs. Charis's failure was illustrated, according to the court, by "a severe drop in grades that Michael [Jr.] has experienced" and the mother's demeanor, which the court said indicated a lack of understanding of the severity of the circumstances facing the child. After considering each of the relevant statutory factors set forth in AS 25.24.150(c), the court further concluded that a change in custody would be in Michael Jr.'s best interests because Michael is better suited to meet the child's needs. The court gave Charis "reasonable and liberal" visitation rights.
Charis appeals.
III. DISCUSSION
A. Did the Superior Court Err in Modifying the Custody Arrangement?
A child custody award "may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child." This court will reverse a custody modification order "only if `the record shows an abuse of discretion or if controlling factual findings are clearly erroneous.'" An abuse of discretion occurs in this setting when "the trial court considers improper factors, fails to consider statutorily mandated factors, or gives too much weight to some factors." Factual findings are clearly erroneous if a review of the record leaves this court "with the definite and firm conviction that the superior court has made a mistake."
AS 25.20.110(a).
Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (quoting McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986)).
Id.
D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 207-08 (Alaska 2000).
Charis attacks both the changed circumstances and best interests elements of the superior court's decision to modify custody. She contends first that the court erred by concluding that the circumstances changed enough between Michael's first and second motion to warrant a modification. Second, she argues that assuming changed circumstances, the court erred by finding modification to be in the best interests of the child.
1. Did the court err in concluding that there was a significant change in circumstances?
The change in circumstances required to modify custody under AS 25.20.110 must be "significant or substantial." The change "must be demonstrated relative to the facts and circumstances that existed at the time of the prior custody order that the party seeks to modify." The ultimate issue is whether the circumstances worsened for the child in the time since the most recent custody order.
J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001).
Id.
Long, 816 P.2d at 151.
Here the court found changed circumstances in Michael Jr.'s academic performance and his mother's inability to effectively parent. More specifically, in the initial custody proceeding the court found that Michael Jr. was doing well in school, that Charis was capable of providing for Michael Jr.'s needs, and that Charis had a high desire to parent Michael Jr. In the current case, however, the court found Michael Jr.'s grades to have suffered a "severe drop." It further found that Charis's testimony and demeanor indicated an inability to meet and understand her child's basic needs. The court's more recent findings therefore indicate a significant shift in the circumstances as compared to those surrounding its initial custody order. Charis does not challenge this as stated. Instead, she rephrases the court's ruling into one centering on her mental health and attacks it as unsubstantiated. Charis also contends that the scope of the changed circumstances inquiry should have been limited to Michael Jr.'s preference. Neither argument has merit.
A change in circumstances is ordinarily to be judged by comparing the current circumstances to those at the time of the most recent custody order. See J.L.P., 30 P.3d at 595. Here the record is silent as to the superior court's findings related to Michael's August 2003 motion to modify custody. However, because the court then only slightly modified the visitation arrangement and left primary physical custody with Charis, it is reasonable to assume that it found the circumstances to be substantially similar to those in existence at the time of the original custody order to which the current circumstances are now being compared.
a. Charis's mental health
According to Charis, the superior court should not have based its changed circumstances findings on the conclusion that the mother is "mentally impaired." She claims that nothing in the record supports any such conclusion about her mental health. This argument presumes that the court actually found Charis to be mentally impaired. In this regard, Charis relies on the following passage from the transcript of the modification hearing:
But I have concerns about Ms. Gault's mental health, about her demeanor, about her understanding of her son's needs. Based on her testimony here in court, the length of time for her to respond to questions, the lack of ability for her to understand her son's educational needs. I hesitated to make these types of findings because of — it's very difficult to criticize people, but I do want to say that I am — I was seriously disturbed by Ms. Gault's demeanor in this courtroom insofar as her own presentation, her own understanding of her son's needs and of her ability to parent simply as presented here, as she presented in response to questions, so and I say that not simply based on the black and white transcript, but by my opportunity to spend two days here in the courtroom observing her demeanor. So I do want to go on record with that statement.
Although the court mentioned a "concern" about Charis's mental health, it seems clear that it stopped well-short of deeming her mentally impaired. The court simply noted the concern as part of its larger discussion about Charis's testimony. Further, the crux of the court's findings consisted of Charis's failure to understand and provide for her child's basic needs. The court based that conclusion on Charis's testimony, presentation, and demeanor in the courtroom, not, as Charis suggests, on an abstract conclusion about her mental health. Because the court did not base its changed circumstances decision on Charis's mental health, Charis's argument here is off target.
It is well within the court's discretion to consider these factors when making a custody determination. See Long, 816 P.2d at 152 ("[G]reat weight must be accorded to the trial judge's experience and to his evaluation of demeanor testimony.").
b. Scope of the changed circumstances inquiry
Charis also challenges the scope of the court's inquiry into whether a change in circumstances required modification of the custody arrangement. She contends that she did not receive fair notice that anything other than Michael Jr.'s preference would be considered in the changed circumstances analysis. Therefore, she claims, the court's reliance on circumstances other than the child's preference amounts to a procedural due process violation.
In her briefs, Charis limits this argument to the court's inquiry into her mental health. That is, she claims that she only had notice that Michael Jr.'s preference would be considered, and so the court's consideration of her mental health violated her due process rights. Because the court did not make specific findings about Charis's mental health, see supra Part III.A.1.a., this argument is best taken as one challenging the court's consideration of anything beyond Michael Jr.'s preference.
Charis correctly notes that due process requires "that parties be notified of the subject of proceedings concerning them so that they will have a reasonable opportunity to be heard." Potter v. Potter illustrates this principle well. In that case, this court vacated a lower court's visitation modification order because the father was not given notice that modification of the original visitation decree was at issue. The mother in Potter initially moved to increase child support payments. She then added a motion to modify visitation but explained in her pleadings that she intended to pursue modification only if the court ruled that it would not increase the support payments in the absence of a modified visitation schedule. The superior court preliminarily ruled that "child support could be changed without modifying the visitation order," but later modified visitation anyway. On appeal, this court concluded that the superior court's earlier ruling led the parties to reasonably believe that visitation was not at issue. When it later modified visitation, therefore, it did so without the parties having proper notice.
Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002).
Id.
Id. at 730.
Id. at 727.
Id.
Id. at 728.
Id. at 728-29.
Id.
Here the notice requirement appears to be met because the superior court's changed circumstances findings are closely related to Michael's motion to modify custody. Michael listed three potential changed circumstances: (1) Michael Jr.'s preference; (2) his performance in school; and (3) a deteriorated relationship between the child and his mother. Although the court did not find that the child's preference had changed, it essentially agreed with Michael's remaining allegations when concluding that the circumstances had, in fact, changed. Charis seems to acknowledge that ordinarily the similarities between Michael's motion and the court's reasoning would plainly establish that the parties were given notice of the subject of the proceeding. However, she claims that here, as in Potter, the court led the parties to believe through an intermediate order that the scope of the inquiry would be more limited. She specifically points to an order reappointing Pamela Montgomery as the custody investigator but limiting her investigation to Michael Jr.'s preference. Because the order makes no mention of any other alleged changed circumstances, says Charis, she had no reason to believe that anything but Michael Jr.'s preference would be considered by the court.
The problem with Charis's argument is that there is no indication that a custody investigator was needed to establish Michael Jr.'s academic performance or his mother's understanding of his basic needs. In other words, Charis has not shown that it would have been reasonable to assume that the court's decision to limit the custody investigator's inquiry meant that its own inquiry would be similarly limited. The court more likely intended to rely on the investigator's report when evaluating the child's preference, but look to other evidence when judging Michael Jr.'s academic performance, his relationship with his mother, and so on. Indeed, this court has said several times that a custody investigator's report is merely one of many pieces of evidence available to a superior court when resolving a custody dispute. In this way, the case at hand differs from Potter, where the parties reasonably believed that the court's order removed the visitation issue from the scope of the hearing. There the notion that the hearing would be limited to the issue of support payments logically flowed from the court's ruling that those payments could be adjusted without modifying visitation. No such conclusions can be drawn from the court's instructions to the custody investigator here.
Chase v. Chase, 109 P.3d 942, 946 (Alaska 2005); Ebertz v. Ebertz, 113 P.3d 643, 647 (Alaska 2005).
See Potter, 55 P.3d at 728-29.
2. Did the court err in concluding that placement of Michael Jr. with his father was in the child's best interests?
Under AS 25.24.150(c), the superior court determines the best interests of a child according to nine statutory factors. The factors are:
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
The court is not required to address each factor, but it must either clearly indicate those it "considered important in exercising its discretion or" make sufficient other findings to "allow [this court] to glean from the record what considerations were involved."
Chesser-Witmer v. Chesser, 117 P.3d 711, 718 (Alaska 2005) (quoting Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003)).
In this case, the superior court briefly discussed all but the ninth factor when deciding that modification is in Michael Jr.'s best interests. The court based its decision principally on a finding that Michael Jr.'s physical, emotional, mental, and social needs would be better met by Michael. The child's religious needs were not at issue. The court found that Michael Jr. preferred to live with his mother, but decided to give little weight to the "preference of a 13 1/2 year old who's failing in the environment where he is currently residing and . . . [feels] overly empowered." Both parents have a high degree of love and affection for Michael Jr., and although there had been problems in the past, both parents have consistently complied with court orders regarding the facilitation of the child's relationship with the other parent, according to the court. The court found that the stability and continuity factor did not favor Charis because Michael's time with his mother was not stable and satisfactory. Finally, the court concluded that neither domestic violence nor substance abuse by either parent was an issue.
Charis's attack on the court's best interests findings focuses on the first and fifth statutory factors. According to Charis, the court's findings relating to Michael Jr.'s mental and social needs are not supported by the evidence. She also claims that the court erroneously excluded the document she offered from Michael Jr.'s summer school, and that this prevented her from showing that Michael's ability to care for the child's mental needs is no better than her own. Charis similarly claims that the court's stability and continuity findings are not supported by the evidence and were influenced by its erroneous exclusion of the psychologist's testimony.
a. Michael Jr.'s mental needs
The superior court equated Michael Jr.'s mental needs with his educational needs and found the child to be facing a crisis in that area of his life. The evidence supports that finding. Michael Jr.'s standardized test scores indicate that he has no special academic needs and is of above average intelligence. Yet he earned a 1.2 cumulative grade point average for his seventh grade school year. This left him ranked 434th in a class of 439 students. Additionally, the court found that the child lacks motivation and possesses a "very casual" attitude towards school.
Charis does not dispute that Michael Jr.'s performance in school is at a failing level. She contends, however, that the evidence indicates that the child's performance in summer school while visiting his father was no better than his performance during the school year in California. According to Charis, it follows that the superior court's finding that Michael is better able to meet his son's mental needs is based on pure speculation that Michael Jr.'s grades would improve while living with his father. She relies on a West Virginia case, John D.K. v. Polly A.S., to support her position. In that case, the lower court modified custody based on its conclusion that the mother abused and neglected her child. The lower court based its findings, however, entirely on its own "personal, out-of-court knowledge of the [mother] and her family," rather than any evidence in the record. On appeal, West Virginia's highest court concluded that the lower court's ruling amounted to a change of custody "based only upon speculation that such change will be beneficial to the children."
438 S.E.2d 46 (W.Va. 1993).
Id. at 50.
Id. at 52.
Id.
Preliminarily, Charis's reliance on John D.K. is misplaced because there is no indication that the superior court based its conclusion in this case on any personal, out-of-court knowledge about Charis. More importantly, Charis's argument here ignores the substance of the superior court's findings. It based its decision not on evidence that Michael Jr. performs better in school while under his father's care, but rather on its conclusion that Michael better understands his son's educational needs. The superior court said that "Mr. Gault recognized the severity of the education problem" facing Michael Jr., but that it was "not persuaded by Ms. Gault's testimony that she recognized the severity of the problem." The critical question, therefore, is whether the superior court clearly erred in finding that Michael understands his son's educational needs better than Charis.
There is ample evidence that Michael understands the gravity of Michael Jr.'s situation. For example, he testified to being very involved in Michael Jr.'s schooling in California. This included spending the majority of at least one visit to California catching the child up on his homework assignments. He conferred with Michael Jr.'s teachers in person while in California and had frequent contact via email with them, and with the school principal, from Alaska. During Michael Jr.'s most recent summer visit to Alaska, Michael insisted that he attend summer school and made him stay late if he needed to catch-up. Michael testified that his primary goal in seeking modification of custody was to remedy Michael Jr.'s poor performance in school. According to Michael, permanent physical custody would give him the opportunity to go over his son's school assignments daily and maintain frequent contact with his teachers. Given Michael's testimony, we cannot conclude that the court erred by finding that he fully understands Michael Jr.'s educational needs.
Charis's testimony also seems to indicate an understanding of Michael Jr.'s educational needs. Charis testified that she was very concerned about Michael Jr.'s grades and performance in school. As a result, she reported that she closely monitored his progress, communicated with teachers at the school often, and talked to her son about the importance of doing his homework and getting good grades. Michael Jr.'s principal testified to meeting with Charis several times. Charis testified to seeking outside help both from tutors and from psychologists, at a considerable cost. Charis also testified that she frequently imposed restrictions on Michael Jr.'s social activities as a sanction for his failing to complete homework assignments. Considered in the abstract, this testimony supports the conclusion that Charis understands her son's educational problems and made efforts to correct them.
The superior court, however, found that Charis's courtroom demeanor outweighed the substance of her testimony. The court reasoned that Charis's demeanor indicated a failure "to recognize the severity" of the issues facing her son. The court noted that "[s]he testified with a remarkably `flat affect' in psychological parlance, was somewhat unfocused and confused, and appeared woefully out of touch. . . ." This led the court to conclude that Charis "utterly failed to demonstrate a capability of solving" Michael Jr.'s educational problems.
This type of balancing of a witness's actual testimony against her courtroom demeanor is within the trial court's authority. More specifically, while a trial court's factual findings are ordinarily reviewed under the clearly erroneous standard, this court gives even greater deference when "most of the trial evidence consists of oral testimony." This is true because "[i]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." These principles suggest that the superior court's findings based on Charis's in-court demeanor are not the product of reversible error. The mother's testimony may, on paper, suggest comprehension of Michael Jr.'s educational issues. Yet the court evidently gave this testimony little weight because Charis seemed confused and out of touch while testifying. Therefore, although Charis may have said the right things, having heard the testimony in person, the superior court is in the unique position of judging what Charis's testimony actually proves, if anything.
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting Silvers v. Silvers, 999 P.2d 786, 792-93 (Alaska 2000)).
Id. (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)) (alteration in original).
See id.
Furthermore, leaving aside the superior court's judgment of Charis's demeanor, the record supports its finding that Michael better grasps the severity of the problems facing his son. Michael, for example, testified to frequent contact with Michael Jr.'s teachers in California. The record indicates a lesser degree of communication between Charis and her son's school. Similarly, Michael spoke frequently of the severity of the situation facing Michael Jr. and articulated a specific plan to become personally involved in Michael Jr.'s daily school-related activities. Charis's approach to improving Michael Jr.'s grades, as the superior court noted, focused mostly on outside help from paid third parties. The contrast suggests that Michael favors a more hands-on approach to his son's success in school than does Charis. Therefore, although Charis is not uninvolved in Michael Jr.'s schooling, the record supports the notion that Michael is more concerned with the child's plight in school and is thus better equipped to deal with the problem. For these reasons, the superior court's findings relating to Charis's and Michael's understanding of Michael Jr.'s educational needs is not clearly erroneous.
Charis also claims error in the superior court's refusal to consider a document from Michael Jr.'s summer school program in Alaska that tends to show that he was not performing well under his father's care. During Charis's direct examination, her attorney sought to introduce a portion of Michael Jr.'s progress report from summer school in Alaska. The document purportedly indicates that Michael overestimated the child's academic success under his care. The superior court refused to admit the document because it had not been exchanged prior to the trial as required by the court's scheduling order. The court's order called for all exhibits to be exchanged no later than September 12, 2005, three days before the start of the trial. The court concluded that there was no reason Charis could not have exchanged the document with Michael before the trial as required by the order, and so excluded it as a penalty for noncompliance.
The superior court has broad authority to set scheduling deadlines. Implicit in that authority is the idea that litigants must abide by the deadlines set by the court. The failure to obey a scheduling order may result in sanctions. Charis does not challenge the court's authority to exclude the document as a sanction for her failure to comply with the scheduling order. Therefore, the critical question is whether the superior court abused its discretion.
See In re Schmidt, 114 P.3d 816, 821-22 (Alaska 2005) (discussing the superior court's general authority to set various scheduling and other deadlines).
Id. at 822.
See id. at 821 ("Civil Rule 16(f) allows the superior court to impose sanctions when an attorney fails to obey a scheduling order.").
See Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002) (holding that this court reviews a superior court's exclusion of evidence under the abuse of discretion standard).
Charis argues that the superior court erred because it did not balance the prejudice to Michael if the document was admitted against the prejudice to Charis if it was not. But this argument substitutes the standard for the admissibility of relevant but prejudicial evidence for the question actually before this court. The issue here is not whether the superior court properly balanced the probative value of the document against its prejudicial impact, as required by Evidence Rule 403. Instead, the court's ruling can be reversed only if it is shown to have abused its discretion in excluding the document as a sanction for Charis's noncompliance with the scheduling order. Charis offers no reason to believe that the court abused its discretion, and none appears in the record.
See Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. . . .").
b. Michael Jr.'s social needs
The superior court's finding that the child's social needs would be better met in his father's care also centered around his performance in school. The court found it likely that many of Michael Jr.'s classmates know of his status at the bottom of his class academically. It said that "a child that is getting a 1.2 GPA is not going to be a person that's receiving the awards, is not going to be the person that is receiving positive strokes from the teacher and[,] as demonstrated here, is going to have a history of detentions." Therefore, according to the superior court, "walking in the door to a brand new school in a new town" would benefit Michael Jr. socially. The court admitted that it did not accord much weight to this factor.
Charis argues that the superior court's findings regarding Michael Jr.'s social needs are not supported by the evidence. She claims that "[t]here was no evidence that any other students were aware of [Michael Jr.'s] grades," that "[t]here was no evidence that any social problems existed[,] and [that] all of the evidence was that he had many friends."
Charis's argument again neglects the substance of the superior court's findings. The court did not find that each of Michael Jr.'s classmates knew of his grade point average and frequent run-ins with authority at school so much as it found that those things likely gave him a reputation for being apathetic toward school and frequently in trouble. That seems to be a reasonable assumption given the child's consistently bad performance and his having served forty-one detentions during the seventh grade academic year. Additionally, Michael Jr.'s school principal testified that the child associates with other children who have discipline problems similar to his own. This further supports the court's finding that Michael Jr.'s overall school environment has a negative impact on his social development. The court's findings to that effect are not clearly erroneous.
c. Stability/continuity
In considering the "length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity," the superior court found that Michael Jr.'s time with his mother was neither stable nor satisfactory. The court based its conclusion on the child's "educational lack of success."
AS 25.24.150(c)(5).
Charis attacks the court's analysis under this factor on the ground that there is no evidence in the record equating academic performance with stability. This seems to be an argument premised on the notion that the stability and continuity factor of the court's best interests analysis should focus only on geographic, rather than social or emotional, considerations. But this court has rejected that idea several times. In Evans v. Evans, this court stated that considering the child's needs "not just in relation to each parent, but in relation to the totality of the circumstances [the child is] likely to encounter in [the child's] respective parents' homes" is appropriate under the stability and continuity factor. In Evans this meant that the superior court did not err in considering a child's emotional continuity and stability rather than his physical continuity and stability. This court later confirmed its Evans holding in McQuade v. McQuade, where it said that a trial court's emphasis on "emotional continuity over geographic continuity" did not constitute an abuse of discretion. Evans and McQuade suggest that it was appropriate for the superior court to consider Michael Jr.'s troubles in school when analyzing the stability of his living situation. It is reasonable to conclude, in other words, that a child who is failing in school and consistently in trouble with school authorities is not in an emotionally stable place. It is also reasonable to conclude, given the circumstances described in Part III.A.2.a. and Part III.A.2.b., that Michael Jr. is likely to encounter the same emotional instability if he remains in his mother's home. It follows that there is little merit to Charis's contention that her son's educational difficulties have no bearing on the continuity and stability best interests factor.
869 P.2d 478, 482 (Alaska 1994).
Id. at 483.
901 P.2d 421, 426 (Alaska 1995).
Charis also contends that the superior court erroneously prevented one of her witnesses from presenting evidence on the continuity and stability factor. Specifically, Charis called Michael Jr.'s therapist and asked her, among other things, whether a "change in [Michael Jr.'s] custodial arrangement, from a psychological point of view [would] be helpful[,] harmful[,] or neutral . . . based on [her] treatment [of] [Michael Jr.]." Michael objected to the question, citing a lack of foundation, and the superior court agreed. The court reasoned that the psychologist lacked a full knowledge of the details of the two potential custody arrangements. She therefore lacked an adequate factual foundation to testify as to what the psychological impact of living in one environment would be versus the other.
See Alaska R. Evid. 703 (noting the foundational requirements for expert testimony).
Charis appears to concede that the psychologist lacked the foundational facts necessary to give an opinion about the suitability of one home over the other. She argues, however, that the proffered testimony had a different scope. Rather than testifying to the psychological effect of living with the father instead of the mother, Charis states that the psychologist was prepared to offer an opinion as to the psychological effects of a move itself. That is, leaving aside the specifics of the two homes, the witness would opine about the emotional impact of relocating in the abstract. Charis's point here is a valid one. The psychologist treated Michael Jr. approximately once per week for more than one year. This probably gave her enough insight into Michael Jr.'s emotional state to speak to the impact that the disturbances associated with a cross-country move may have on the child. The court thus may have erred in excluding this testimony.
But assuming that the superior court's ruling on the psychologist's testimony was erroneous, Charis's argument does not succeed because she has not shown that the error was harmful. Under Alaska Civil Rule 61, an erroneous evidentiary ruling is harmless error and thus not grounds for disturbing a judgment or order unless "the exclusion prejudiced the offering party." The burden belongs to the offering party to show prejudice. Actual prejudice exists where an erroneous ruling affected the final result. Importantly, the erroneous exclusion of cumulative evidence, or evidence already available to the court by other means, is generally held not to affect the final result.
Liimatta v. Vest, 45 P.3d 310, 317 (Alaska 2002).
See Jones v. State, Dep't of Corrections, 125 P.3d 343, 347 (Alaska 2005) (noting that under Civil Rule 61 the burden is on the challenger to show prejudice under the harmless error test).
Municipality of Anchorage v. Devon, 124 P.3d 424, 432 (Alaska 2005).
See, e.g., Hiller v. Kawasaki Motors Corp., U.S.A., 671 P.2d 369, 373 (Alaska 1983); Sloan v. Atlantic Richfield Co., 541 P.2d 717, 722 (Alaska 1975).
Here any error by the superior court in limiting the psychologist's testimony was harmless for two reasons. First, it is difficult to say that the superior court would have given much weight to testimony indicating that the move would be emotionally difficult for Michael Jr. The court was chiefly concerned with Michael Jr.'s failing grades and otherwise antisocial behavior. In the context of the stability and continuity factors, this concern translated into a finding that Michael Jr.'s life with his mother did not constitute a stable period in the child's life. Testimony from the psychologist indicating that disrupting Michael Jr.'s life in California by relocating him to Alaska would be difficult is surely relevant to the continuity and stability factor. But given the court's emphasis on the overall lack of stability in the mother's home, it is unlikely that the trauma caused by the move itself would have weighed heavily on the court's decision. After all, the substance of the superior court's ultimate findings was that a major change was needed to turn Michael Jr.'s life around.
Second, testimony from the psychologist indicating that relocating Michael Jr. would be emotionally difficult for him would to some degree be cumulative. Although the superior court did not mention the potential emotional trauma associated with a custody change, the modification laws are themselves structured around that idea. This court has long held that custody modification should be a relatively rare event not easily obtainable by either parent. The reason behind this limitation on modification is the danger that lies in disturbing and upsetting a child by repeated changes. In other words, there seems to be an understanding implicit in the requirements for modification that a custody change often is troubling for a child no matter what and should therefore not be taken lightly. The psychologist's proffered testimony would repeat what the court can be assumed to already know and may therefore be deemed cumulative. This too suggests that any error by the court in excluding the testimony was harmless.
See, e.g., Gratrix v. Gratrix, 652 P.2d 76, 81 (Alaska 1982) (noting "the problems which would arise if changes in custody were easily obtainable"); Nichols v. Nichols, 516 P.2d 732, 735-36 (Alaska 1973) (same).
See Nichols, 516 P.2d at 735 (citing Homer Harrison Clark, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES § 17.7, at 600 (1968)).
See Hiller, 671 P.2d at 373 (finding evidence cumulative where it conveyed information already presented to the jury in another form).
See Sloan, 541 P.2d at 722 (noting that the exclusion of cumulative evidence is not prejudicial).
IV. CONCLUSION
The record supports the superior court's changed circumstances and best interests findings and nothing indicates that its decision to modify custody in this case amounts to an abuse of discretion. Therefore, the order modifying custody is AFFIRMED.