Notice: 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, e-mail 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

GRAHAM R., 

Appellant, 

v. 

JANE S., 

Appellee. 

) 

) Supreme Court No. S-15158 

Superior Court No. 3CO-04-00002 CI 

O P I N I O N 

No. 6955 - September 19, 2014 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Cordova, John R. Lohff, Judge pro tem. 

Appearances: John C. Pharr, Law Offices of John C. Pharr, 

P.C., Anchorage, for Appellant. Kathryn Ruff Soden, 

ANDVSA Legal Advocacy Project, Anchorage, for Appellee. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

Graham R. and Jane S. have one child.1 A 2006 court order granted 

Graham sole legal and primary physical custody. In 2012 Graham traveled to California 

for heart surgery and took the child with him, cutting off contact with Jane and causing 

her to miss a number of scheduled visits. When Graham returned to Alaska Jane moved 

1 We use pseudonyms to protect the parties’ privacy. 
 

 

 

 

 

 

 

 

for sole legal and primary physical custody, and the superior court granted her motion 

after an evidentiary hearing. Graham appeals the superior court’s order, arguing that it 

was barred by principles of res judicata and collateral estoppel; that the court erred in 

finding that his interference with Jane’s visitation rights was an act of domestic violence 

that constituted changed circumstances; and that the court erred in admitting evidence 

of his criminal convictions and of the child’s preferences. We affirm the superior court’s 

order modifying custody, concluding that there was no error in its decision not to apply 

res judicata or collateral estoppel; that there were changed circumstances justifying a 

modification of custody; and that any evidentiary errors were harmless. 

II. FACTS AND PROCEEDINGS 

Graham and Jane were both married to others when their daughter Gabby 

was born in May 2003. According to Graham, Jane had agreed to carry a child to be 

adopted by him and his wife; according to Jane, Graham coerced her into it. In any 

event, Jane signed a document purporting to give Gabby to Graham and his wife a few 

days after the child was born. But Jane revoked that document less than a year later, and 

a dispute over Gabby’s custody began. 

A. The First Custody Order Grants Graham Primary Custody. 

Graham and Jane reached a custody and visitation agreement that was 

approved by court order in March 2006. The order granted sole legal and primary 

physical custody of Gabby to Graham but allowed Jane visitation on alternate weekends, 

with additional visitation in the summer. Graham was allowed to take extended winter 

vacations with Gabby, so long as Jane was given make-up visits; the order also 

specifically authorized travel to the Philippines, where both parents have family. But 

travel required 30 days’ advance notice to the other parent, a copy of the itinerary, 

contact information, and a copy of the return tickets. 

- 2 - 6955
 
 

 

 

 

 

 

 

 

 

 

B. Graham Travels To California With Gabby. 

On March 13, 2012, Graham suffered a heart attack and was transported 

from Cordova to Anchorage for emergency treatment. Graham’s wife went to 

Anchorage as well, taking Gabby along with her. Jane, according to the schedule, was 

supposed to have Gabby on the weekend; but Graham’s wife called the Cordova Family 

Resource Center, the usual location of the parents’ custody exchanges, and, as she later 

testified, told someone there “we can’t have the exchange for [Jane’s] visitation because 

of emergencies [that] happen[ed] in our family.” Nicole Songer, the executive director 

of the Family Resource Center, testified about this message as well; she described its 

substance as only “that there would not be a visitation today due to . . . [Graham] being 

in Anchorage,” with no information about how to call Graham back or how to get in 

touch with Gabby. Jane also testified that she had no contact number for Graham and 

did not know where Gabby had gone. 

On March 28, Graham left Anchorage for Los Angeles, California, 

accompanied by his wife and Gabby. He underwent heart surgery in Los Angeles, was 

discharged from the hospital in stable condition on April 10, but remained in California. 

Gabby continued to miss her scheduled weekend visits with Jane; according 

to Jane, she still did not know her daughter was in California.2

 After a month of this, the 

Cordova Family Resource Center received a faxed letter from a California attorney 

representing Graham. The letter, addressed to Songer, informed her that Graham had 

undergone “a 12-hour heart surgery in Los Angeles,” that “his doctors estimated 3 

2 Graham’s wife testified that at every visitation time, “I call[ed] them [at the 

Family Resource Center] to notify them that we can’t make it because [there was] still 

a problem with [Graham].” It is unclear whether the superior court accepted this 

testimony. In any event, Graham’s wife did not testify that she ever explained where 

they were or provided any contact information; she testified that when she left her 

messages, she was never asked for a phone number. 

- 3 - 6955
 
 

 

 

 

 

 

 

 

 

months of recovery,” that Gabby “wanted to stay with [her] dad,” and that Gabby 

therefore had been enrolled at a local elementary school “in order not to disrupt her 

education.” The letter stated that “[w]ith no complications in his recovery, [Graham’s] 

family plans to go back to Cordova in 3 months.” The letter advised Songer to direct any 

inquiries “to the undersigned,” Graham’s attorney. It provided no contact information 

for Graham or Gabby. 

On May 24, Graham called the Cordova Family Resource Center. 

According to Songer, Graham said “that if [Jane] wanted visitation, then he would send 

[Gabby] back but [Jane] needed to pay for the ticket[,] and he needed to know 

immediately because he was going to send her the very next day.” Songer testified that 

she passed this message on to Jane; when Graham called again the next day, Songer told 

him “that if he would send the receipt along with [Gabby], I would make sure that [Jane] 

got that receipt.” But Graham demanded assurance that Jane would pay for the ticket, 

and when Songer failed to give it he hung up on her. 

Fearing Gabby would never return, Jane sought a protective order to end 

Graham’s interference with her visitation rights. The court issued an ex parte 20-day 

protective order on May 25, granting Jane temporary custody and granting visitation 

rights to Graham “[o]nce a week telephonically arranged and supervised by [the Cordova 

Family Resource Center].” But the order had no immediate effect, as neither Graham 

nor Gabby could be found. 

A few days later, Songer received another faxed letter from Graham’s 

California attorney. The letter stated that Graham had returned to Anchorage “for his 

rehabilitation and visitation by his cardiologist” but that his wife and Gabby “will be 

back in Cordova within this week.” The letter enclosed a proposed summer visitation 

schedule and invited Songer to email the attorney with any questions. 

- 4 - 6955
 
 

 

 

 

On June 1, Graham’s wife brought Gabby to the Cordova Family Resource 

Center for the start of summer visitation with Jane. During a July 16 hearing, the parents 

stipulated to a long-term protective order that prohibited either of them from taking 

Gabby away from Alaska. The magistrate judge heard no evidence about Graham’s 

interference with Jane’s visitation and, with the parties’ concurrence, expressly declined 

to make any findings of domestic violence, child support, custody, or visitation. 

Through her attorney, Jane noted that she would be seeking custody modification in 

superior court. 

C. The Modification Order Grants Jane Primary Custody. 

Jane filed a motion to modify the existing custody order in October 2012, 

seeking sole legal and primary physical custody. The superior court held a hearing on 

the motion in April 2013. The court rejected Graham’s arguments that the earlier 

domestic violence proceeding barred Jane’s modification motion under principles of res 

judicata or collateral estoppel, then granted sole legal and primary physical custody to 

Jane. Graham received alternating weekend visits as well as six consecutive weeks of 

summer visitation; essentially, the previous custody arrangement was reversed. 

The modification order was based in part on the court’s finding that 

Graham committed the crime of custodial interference when he traveled to California 

with Gabby in the spring of 2012. The court found that this constituted a crime of 

domestic violence and therefore a change in circumstances under AS 25.20.110(c). The 

court then assessed the statutory best interest factors and concluded it was in Gabby’s 

best interests that Jane have primary physical and sole legal custody.3 

Graham appeals the modification order, challenging (1) the superior court’s 

refusal to apply res judicata or collateral estoppel to the domestic violence petition in 

See AS 25.24.150(c). 

- 5 - 6955 

3 
 

 

 

order to bar Jane’s later motion to modify custody, (2) the finding that modification was 

proper under the circumstances, and (3) two evidentiary decisions: the admission of 

Gabby’s hearsay statements about her preferences and the admission of Graham’s 

misdemeanor convictions from 1996 and 1997. 

III. STANDARDS OF REVIEW 

“A determination that a claim or issue is precluded is a question of law 

which we review de novo.”4 

In appeals of custody determinations and modifications, we allow broad 

discretion to the superior court, reversing only if the superior court’s findings of fact are 

clearly erroneous or if it abused its discretion. 5 “A factual finding is clearly erroneous 

when a review of the record leaves the court with a definite and firm conviction that the 

superior court has made a mistake.” 6 “An abuse of discretion exists where the superior 

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 

4 Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Maness v. Daily, 

184 P.3d 1, 5 (Alaska 2008)); Alaska Wildlife Alliance v. State, 74 P.3d 201, 205 (Alaska 

2003). 

5 Ronny M. v. Nanette H., 303 P.3d 392, 399 (Alaska 2013) (citing Hamilton 

v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)). 

6 Id. (quoting Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002)) (internal 

quotation marks omitted). 

7 Id. (quoting Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)) 

(internal quotation marks omitted). 

- 6 - 6955
 
 

 

 

 

The superior court’s admission of evidence is reviewed for abuse of 

discretion.8 But even if admission was erroneous, “[w]e will reverse an evidentiary 

ruling only if [the] error prejudicially affected a party’s substantial rights.”9 

IV.	 DISCUSSION 

A.	 The Superior Court Correctly Ruled That Jane’s Motion To Modify 

Custody Was Not Barred By Res Judicata Or Collateral Estoppel. 

Graham contends that because Jane based her petition for a domestic 

violence restraining order on her allegations of custodial interference, and because the 

parties resolved the petition by stipulating to the entry of a long-term order, Jane should 

have been barred from later relying on the same allegations of custodial interference 

when she moved to modify custody. But the parties clearly and explicitly declined to 

litigate the issues of domestic violence and custody in the earlier proceeding, and neither 

res judicata nor collateral estoppel applies. 

Res judicata bars relitigation of a claim when there was “(1) a final 

judgment of the merits, (2) from a court of competent jurisdiction,[] (3) in a dispute 

between the same parties . . . about the same cause of action.” 10 But as we noted in 

McAlpine v. Pacarro, res judicata does not apply to custody modifications; the governing 

statute, AS 25.20.110, “provides an exception to the general principle that final 

judgments should not be disturbed — it allows parents to seek modification of child 

8	 Samaniego v. City of Kodiak, 80 P.3d 216, 218 (Alaska 2003) (citing Buster 

v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994)). 

9 Lum v. Koles, 314 P.3d 546, 552 (Alaska 2013). 

10 Kent V. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

233 P.3d 597, 600 (Alaska 2010) (alteration in the original) (quoting Plumber v. Univ. 

of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1977)) (internal quotation marks 

omitted). 

- 7 -	 6955
 
 

 

 

 

 

 

custody based on a change of circumstances if modification is in the best interests of the 

child.”11 On modification motions, thus, relitigation of the same issues is prevented in 

large part by the requirement that the movant prove a “substantial change in 

circumstances” before being entitled to any relief;12 a parent who attempts to relitigate 

the same set of circumstances will be unable to cross this threshold. 

We further held in McAlpine that although res judicata does not apply to 

modification motions, “the principle of finality does — parties should not be allowed to 

relitigate ‘in the hope of gaining a more favorable position.’ ”13 But when a parent seeks 

to modify custody, both the statutory goals and the relevant considerations are much 

different from those in a domestic violence proceeding. We explained some of the 

differences in Lashbrook v. Lashbrook. 

14 The issue was whether a father’s due process 

right to a hearing on a motion to modify custody was satisfied by the fact that he had 

earlier attended a hearing on a domestic violence petition, addressing some of the same 

15 16 factual issues. We held that the proceedings were too different. We also noted that 

“the ultimate focus of the custody modification statute is the best interests of the 

children,” which requires consideration of nine statutory factors, only one of which is 

11 262 P.3d 622, 625 (Alaska 2011). 

12 Id. at 626; see Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) 

(citations omitted) (holding that a parent moving for modification of a custody order 

bears the burden of proving a substantial change in circumstances). 

13 McAlpine, 262 P.3d at 626 (quoting Bunn v. House, 934 P.2d 753, 758 n.12 

(Alaska 1997)). 

14 957 P.2d 326 (Alaska 1998). 

15 Id. at 327-28. 

16 Id. at 329. 

- 8 - 6955
 
 

 

 

 

 

 

 

 

domestic violence.17 We noted that a finding of domestic violence in a modification 

proceeding satisfies only the movant’s “threshold burden of establishing changed 

circumstances”; the movant still has the burden of proving that those changed 

circumstances warrant modification of the existing custody order.18 “In sharp contrast,” 

we noted, “the exclusive focus of [a domestic violence proceeding under] AS 18.66.100 

is domestic violence.”19 In the domestic violence proceeding, a finding of domestic 

violence may result in a temporary change of custody, but the proceeding “is designed 

to provide emergency relief from domestic violence on a short-term basis, presumably 

until more permanent relief can be sought and fashioned,”20 for example through a 

motion to modify custody. In McAlpine, these fundamental differences persuaded us that 

a hearing on a domestic violence petition was not a good substitute for the hearing that 

due process requires on a motion to modify custody.21 

The differences were made explicit in this case. At the hearing on the longterm protective order, Jane’s counsel repeatedly asserted that the hearing was not about 

custody but only about protecting Jane’s visitation rights; Graham’s counsel countered 

that the relief Jane requested was a de facto custody modification, which would keep 

Gabby with Jane in Cordova. But the parties agreed on the record to the essential relief 

Jane was seeking: that “[n]either party shall remove the child[] from Alaska” during the 

pendency of the order. The parties also expressly agreed that this relief could be, and 

17 Id. at 328-29 (citing AS 25.24.150(c)). 

18 Id. at 329. 

19 Id. 

20 Id. 

21 Id. at 329-30. 

- 9 - 6955
 
 

 

 

 

 

 

 

should be, ordered without a finding that domestic violence had occurred, and the 

magistrate judge therefore intentionally left blank the spaces on the form order that called 

for findings about past domestic violence and threats. And again with the parties’ 

express concurrence, the magistrate judge stated repeatedly that she was “not going to 

address anything with child support, custody, or visitation”: “I am not changing the 

custody order that is in effect by the superior court in this particular case. That’s not 

what this hearing was about.” In short, the parties repeatedly and expressly declined to 

litigate issues of domestic violence or custody at the long-term domestic violence 

hearing, and there is no good argument that Jane, in her motion to modify custody, was 

attempting to relitigate issues that had already been decided. 

We acknowledged in McAlpine that collateral estoppel could apply in the 

custody modification context, to prevent the relitigation of domestic violence allegations 

that had already been “actually raised and adjudicated.”22 Collateral estoppel bars 

relitigation when issues of fact or law “were actually litigated and necessarily decided 

in [a] prior proceeding.”23 But as the record shows, neither domestic violence nor 

custody was “actually litigated and necessarily decided” in the protective order 

proceeding, and collateral estoppel does not apply.24 

22 McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) 

23 Campion v. State, Dep’t of Cmty. & Reg’l Affairs, Hous. Assistance Div., 

876 P.2d 1096, 1098 (Alaska 1994) (alteration in the original) (quoting Americana 

Fabrics v. L & L Textiles, 754 F.2d 1524, 1529 (9th Cir. 1985)) (internal quotation marks 

omitted). 

24 See Morris v. Horn, 219 P.3d 198, 201, 203, 209-10 (Alaska 2009) (holding 

that a stipulated protective order does not preclude later litigation of a parent’s history 

of domestic violence). 

- 10 - 6955
 
 

 

 

 

 

 

 

B.	 The Trial Court Did Not Err By Granting Jane’s Motion To Modify 

Custody. 

The core of Graham’s argument is that the superior court should not have 

modified the 2006 order granting him Gabby’s primary physical custody and sole legal 

custody. A court may modify a custody award if it determines that (1) “a change in 

circumstances requires the modification of the award” and (2) “the modification is in the 

best interests of the child.” 25 The superior court here found both requirements satisfied 

and modified Gabby’s custody arrangement as requested by Jane; we see no error or 

abuse of discretion in its decision. 

1.	 Graham’s interference with Jane’s visitation rights constituted 

a change in circumstances. 

The superior court found a change in circumstances justifying a 

modification of custody because Graham committed custodial interference, a crime of 

domestic violence.26 Under AS 11.41.330(a), a person commits second degree custodial 

interference 

if, being a relative of a child under 18 years of age . . . and 

knowing that the person has no legal right to do so, the 

person takes, entices, or keeps that child . . . from a lawful 

custodian with intent to hold the child . . . for a protracted 

period. [Emphasis added.] 

The 2006 custody order granted sole legal custody and primary physical custody to 

Graham. Jane was not the custodial parent (although she had visitation rights), and the 

“custodial interference” statute, by its terms, does not apply. 

25 AS 25.20.110(a). 

26 Under AS 25.20.110(c), “a finding that a crime involving domestic violence 

has occurred since the last custody or visitation determination is a finding of change of 

circumstances . . . .” Jaymont v. Skillings-Donat, 216 P.3d 534, 543 (Alaska 2009) 

(citing AS 18.66.990(3)(A); AS 11.41.320-.330). 

- 11 -	 6955
 
 

 

 

 

 

 

 

However, “[w]e may affirm a judgment on any grounds that the record 

supports, even grounds not relied on by the superior court.”27 We have repeatedly held 

that “actions by a custodial parent which substantially interfere with the noncustodial 

parent’s visitation rights are sufficient to constitute a change in circumstances.”28 Such 

interference can include “a detrimental and well-established pattern of behavior on the 

part of [the custodial parent] to ‘erode the bonds of love and affection between the [other 

parent] and the children.’ ”29 It can also include a custodial parent’s attempt to 

unilaterally impose conditions on a court order, or a parent’s failure to comply with an 

existing custody and visitation order.30 

27 Terry S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

168 P.3d 489, 493 (Alaska 2007) (quoting Van Sickle v. McGraw, 134 P.3d 338, 341 

n.10 (Alaska 2006)) (internal quotation marks omitted). 

28 Kelly v. Joseph, 46 P.3d 1014, 1017 (Alaska 2002) (alterations omitted) 

(quoting Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990)) (internal 

quotation marks omitted); see also VinZant v. Elam, 977 P.2d 84, 87 (Alaska 1999) 

(concluding that a custodial parent’s interference with a non-custodial parent’s 

“visitation rights is sufficient to establish the threshold burden of changed 

circumstances”). 

29 Kelly, 46 P.3d at 1017 (quoting Pinneo v. Pinneo, 835 P.2d 1233, 1238 

(Alaska 1992)). 

30 Hermosillo, 797 P.2d at 1209. In Hermosillo, the custodial parent 

unilaterally imposed conditions on the custody order “which substantially interfere[d] 

with the noncustodial parent’s visitation rights.” Id. Without court approval, the 

custodian had required the visiting parent to provide three weeks’ notice and created 

further logistical difficulties involving the location of exchange and the choice of 

visitation supervisor. Id. at 1208. We concluded that this obstruction could constitute 

a change in circumstances and remanded for potential modification of the visitation 

order. Id. at 1209. 

- 12 - 6955
 
 

 

 

 

 

 

 

The custody agreement at issue in Kelly v. Joseph granted the father 

primary physical custody and granted the mother visitation rights.31 The father inhibited 

phone contact between the children and their mother, denied one Christmas visit, and cut 

short another one without good reason. 32 We agreed that the father’s breach of the 

visitation provisions satisfied the “changed circumstances” requirement for modifying 

custody.33 

In this case, Graham’s interference with Jane’s visitation rights was obvious 

and significant. He took Gabby from Cordova to Anchorage, then from Anchorage to 

California, without informing Jane beforehand. By so doing he caused Jane to miss six 

every-other-weekend visitations in a row.34 His disregard for Jane’s rights was 

compounded by his failure for over two months to inform her they had left Cordova, 

where they had gone, and when they could be expected to return, and by his failure to 

provide any contact information so that Jane could at least communicate with Gabby 

during their separation. And even when Graham finally divulged the basic information 

— via his attorney’s letter, faxed to the Cordova Family Resource Center — he still 

failed to provide any means of contact between Jane and her daughter. Instead he 

31 46 P.3d at 1016. 

32 Id. at 1017-18. 

33 Id. at 1018-19. 

34 Graham appears to contend that he had a right to retain Gabby in his 

custody so long as he compensated Jane with more visitation days later. But Graham had 

no right to unilaterally adjust the provisions of the order. See Hermosillo, 797 P.2d at 

1209. Any deviations from the order — whether or not they were made up for later — 

interfered with Jane’s visitation rights and support the finding of a change in 

circumstances. 

- 13 - 6955
 
 

 

 

 

 

 

 

informed Jane that he had enrolled Gabby in school in California and intended to remain 

there another three months. 

Graham relies heavily on his critical medical condition as excusing his 

failure to inform Jane of Gabby’s whereabouts. But he did manage to communicate with 

the Cordova Family Resource Center shortly before the next scheduled visitation, albeit 

through his wife and cryptically. Even after his release from the hospital in early April 

he continued to ignore Jane’s visitation rights for two more weeks, and when he did 

communicate with her, through his attorney, he still failed to provide any means of 

contact between Gabby and Jane. Another month went by before he called the Family 

Resource Center himself, only to demand that Jane pay Gabby’s way back to Cordova 

if she wanted her visitation to resume. 

The superior court considered this evidence and found that Graham kept 

Gabby away from Jane with an intent to continue doing so “for a protracted period.” The 

court’s factual finding amply supports the conclusion that Graham substantially 

interfered with Jane’s visitation rights. This was a substantial change in circumstances 

justifying a modification of the existing custody arrangement. 

2. 	 The superior court did not err in determining that it was in 

Gabby’s best interests to modify the custody order. 

Once a court determines there has been a change in circumstances, it must 

assess the factors of AS 25.24.150(c) to determine whether a custody modification is in 

the best interests of the child.35 The superior court made findings on each relevant 

statutory factor and on balance found that they favored an award of sole legal and 

primary physical custody to Jane. 

 AS 25.20.110(g); Kelly, 46 P.3d at 1018. 

- 14 -	 6955 

35 
 

 

 

 

 

 

 

Graham challenges this award, reasoning that he had legal custody under 

the prior order; that it was therefore up to him to decide whether moving to California 

was in Gabby’s best interests; and that his stay in California was temporary, and a 

temporary departure from the visitation schedule cannot amount to a change in 

circumstances justifying a modification of custody. But as explained above, the superior 

court’s modification order was clearly supported by its findings about Graham’s 

interference with Jane’s visitation rights. 

Having found a change in circumstances, the superior court made a number 

of other findings in support of its decision that modifying custody was in Gabby’s best 

interests. It found that there was love and affection between Gabby and both parents, “so 

this factor does not change the balance of the other factors.” It found that while the 

parents had been equally capable of caring for Gabby when the 2006 order was entered, 

Graham’s serious heart issues now jeopardized his capability; this factor favored Jane. 

It found that Jane was better positioned to provide Gabby a stable home in Cordova 

given Graham’s frequent travel for medical appointments. It found that Jane now had 

the “better ability and willingness to care for the emotional, religious and social needs 

of [Gabby]” given Graham’s medical limitations and the “little evidence” presented by 

Graham that he “has any willingness or ability to meet these needs.” 

The court also found that Jane “appears willing to facilitate [Gabby’s] 

relationship with [Graham] to some extent but by contrast [Graham] seems less willing 

to facilitate [Gabby’s] relationship to [Jane].” The court took into account Graham’s 

travel to California with Gabby, which, as discussed above, amounted to substantial 

interference with Jane’s visitation rights and was appropriately considered, even though 

not amounting to domestic violence. Finally, it found no relevant evidence of substance 

abuse in either household. 

- 15 - 6955
 
 

 

 

 

 

 

 

 

The superior court’s factual findings are not clearly erroneous, and we see 

no abuse of discretion in its weighing of the best interest factors. “We will not reweigh 

the evidence when the record provides clear support for the trial court’s ruling.”36 We 

affirm the superior court’s conclusion that it was in Gabby’s best interests to award sole 

legal and primary physical custody to Jane. 

C.	 Any Error In The Admission Of The Child’s Hearsay Statements Was 

Harmless. 

Graham challenges the court’s consideration of testimony given by Jane 

and the executive director of the Cordova Family Resource Center, relaying statements 

Gabby allegedly made to them about her preference to be with Jane. Graham argues that 

Gabby’s statements are hearsay and do not fall within any exception to the hearsay rule.37 

But we need not decide whether the evidence was properly admitted, because the 

superior court expressly declined to rely on it in deciding Jane’s motion. 

At the close of the evidentiary hearing, Graham’s counsel reiterated an 

objection to any consideration of Gabby’s preference “on the basis of the child’s age”; 

the judge responded that he had looked at relevant case law, concluded that he had “some 

leeway” given that Gabby was about ten years old, but that “frankly, that’s certainly not 

going to be the factor the court’s going to make a decision on.” In its written findings 

and conclusions, the court declined to consider the evidence at all: “[Gabby] has 

apparently a preference for [Jane], but this court does not consider the evidence it has on 

36 Kelly, 46 P.3d at 1019. 

37 See Alaska R. Evid. 801. 

- 16 -	 6955 
 

 

 

 

 

 

 

 

 

 

 

 

 

[Gabby’s] preferences nor her capacity to make any decision on this factor adequate to 

give weight to this factor.”38 

Graham contends on appeal that the superior court “had to have been 

influenced by the heart-warming testimony of how the child wants to live with her 

mommy,” but we credit the superior court’s express statement about its consideration of 

this issue. Because the child’s preference was given no weight in the superior court’s 

analysis, we need not decide whether it was error to admit the evidence.39 

D.	 Any Error In The Admission of Evidence Of Graham’s Old Criminal 

Convictions Was Harmless. 

Graham argues that the superior court erred by admitting evidence that he 

was criminally convicted in 1996 and 1997 for concealment of merchandise. Graham 

objected at the hearing on the basis of Alaska Evidence Rule 609(a), contending that the 

convictions were more than five years old and also irrelevant. The court admitted the 

evidence preliminarily, citing the Rule 609(b) exception which grants a judge discretion 

to “allow evidence of the conviction . . . after more than five years have elapsed if the 

court is satisfied that admission in evidence is necessary for a fair determination of the 

case.” 

As Graham acknowledges, the superior court had already been informed 

of the convictions in the custody investigator’s report. And the evidence was 

cumulative, given the evidence of similar and more recent charges that Graham does not 

challenge on appeal. The superior court did not mention the convictions or the more 

38 Under AS 25.24.150(c)(3), the court was required to consider “the child’s 

preference if the child is of sufficient age and capacity to form a preference.” 

39 See Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007) (“[E]ven where 

the trial court errs in admitting evidence, we will reverse only if that error was not 

harmless.” (citing Alderman v. Iditarod Props., Inc., 104 P.3d 136, 142 (Alaska 2004))). 

- 17 -	 6955
 
recent criminal charges in its written findings and conclusions, and there is no indication 

that they influenced the court’s decision. With no reason to believe that Graham was 

unfairly prejudiced by admission of the evidence of his criminal convictions, we 

conclude that any error in its admission was harmless. 

V. CONCLUSION 

We AFFIRM the order of the superior court modifying custody. 

- 18 - 6955