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, email 

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

THE SUPREME COURT OF THE STATE OF ALASKA 

STEPHANIE W., 

Appellant, 

v. 

MAXWELL V., 

Appellee. 

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) Supreme Court No. S-15065 

Superior Court No. 3PA-09-02329 CI 

O P I N I O N 

No. 6869 – February 28, 2014 

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) 

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

Judicial District, Palmer, Eric Smith, Judge. 

Appearances: Richard W. Postma, Jr., Law Offices of Dan 

Allan & Associates, Anchorage, for Appellant. No 

appearance by Appellee. 

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

Bolger, Justices. 

FABE, Chief Justice. 

I. INTRODUCTION 

Stephanie W. and Maxwell V. have a son, Terrance.1 Maxwell sued for 

custody of Terrance, and the superior court granted him primary physical custody and 

1 We use pseudonyms throughout this opinion to protect the privacy of the 

persons involved. 
 

 

 

 

 

2 joint legal custody. In Stephanie W. v. Maxwell V., we reviewed that first custody order

and affirmed it in most respects but remanded for reconsideration of two custody 

factors.3 On remand, the superior court again granted Maxwell primary physical 

custody. 

Stephanie appeals this second custody order. Two of her arguments, 

relating to discovery, were not preserved for appeal, are therefore forfeited, and do not 

constitute plain error. A third fails on the merits. She also challenges the superior 

court’s determination of two custody factors in light of this court’s remand instructions 

in Stephanie W., arguing that the superior court abused its discretion by failing to 

consider Maxwell’s child support arrears in its stability determination, and that the 

superior court abused its discretion by holding against her, in the continuing-relationship 

determination, her allegations that Maxwell was manufacturing methamphetamine with 

Terrance present. 

We affirm the superior court’s order in all respects. 

II. FACTS AND PROCEEDINGS 

Terrance was born to Stephanie and Maxwell in December 2002 in New 

Mexico. His parents never married. Maxwell moved to Alaska and left Stephanie while 

she was pregnant. Maxwell had no relationship with Terrance for three and a half years 

until Maxwell’s mother, who had maintained a relationship with Stephanie and Terrance, 

brought Terrance to Alaska for the summer of 2005. Terrance came to Alaska to live 

with Maxwell and Maxwell’s mother from May 2006 to January 2007. He then lived 

with Maxwell for a full year starting in June 2008. Maxwell returned Terrance to 

Stephanie in New Mexico in June 2009 for what Maxwell thought was to be a summer 

2 274 P.3d 1185 (Alaska 2012). 

3 Id. at 1193. 

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visit. When Stephanie refused to send Terrance back to Alaska at the end of the summer, 

Maxwell filed a motion for custody in Alaska, seeking sole legal and primary physical 

custody. 

1. First custody order and first appeal 

In the superior court’s first order granting Maxwell primary physical 

custody during the school year and Stephanie custody during the summers, with shared 

legal custody, the court relied on a number of statutory custody factors. Relevant to the 

first appeal was the superior court’s determination under AS 25.24.150(c)(5), the 

4 stability factor, that Maxwell had a “more stable situation and more stable personality”

and could therefore “provide [Terrance] with a consistent living situation,” while 

Stephanie was “in a considerably more fluid situation” because she worked four 12-hour 

shifts as a nurse at a hospital 70 miles from her home and could therefore not provide a 

stable environment for Terrance. In making this finding, the superior court did not 

consider the fact that Maxwell owed Stephanie $23,855.14 in outstanding child support 

arrears. The superior court also determined under AS 25.24.150(c)(6), the continuing5 relationship factor, that Maxwell was willing to foster a relationship between Terrance

and Stephanie but that Stephanie was not willing to reciprocate. The court relied, in part, 

on the fact that Stephanie had alleged that Maxwell had sexually abused Terrance in 

4 AS 25.24.150(c)(5) provides that a court determining custody in light of the 

best interests of the child shall consider “the length of time the child has lived in a stable, 

satisfactory environment and the desirability of maintaining continuity.” 

5 AS 25.24.150(c)(6) provides that a court determining custody in light of the 

best interests of the child shall consider “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.” 

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Alaska and that, even though the superior court found that Stephanie had not proved that 

allegation by a preponderance of the evidence, Stephanie was unlikely to let the 

allegation go and would likely “convey[] her fears to [Terrance].” 

In Stephanie’s first appeal of the superior court’s custody order in 

Stephanie W. v. Maxwell V., 

6 we upheld the order in most respects but reversed and 

remanded for reconsideration of the stability and continuing-relationship factors.7 On 

the stability issue, we surmised that “Maxwell’s failure to pay child support was likely 

a contributing factor to Stephanie’s grueling work schedule” and concluded that the 

superior court must “reconsider the continuity and stability factor taking account of 

Maxwell’s failure to provide any meaningful monetary support for Terrance and 

Stephanie’s efforts to provide economically for her children.”8 On the continuingrelationship factor, we noted that AS 25.24.150(c)(6) creates a statutory exception that 

precludes a court from holding against a parent her unwillingness to foster a relationship 

with another parent who has engaged in domestic violence or sexual abuse against the 

parent or a child.9 On policy grounds, we adopted a rule protecting allegations of 

conduct that could constitute sexual abuse but are ultimately not proved at trial.10 We 

noted that the superior court in this case found Stephanie’s allegations of sexual abuse 

“troubling” and that Stephanie had introduced expert opinion testimony supporting her 

6 274 P.3d 1185 (Alaska 2012). 

7 Id. at 1193. 

8 Id. 

9 Id. at 1190-91. 

10 Id. at 1191. 

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allegation.11 We remanded with instructions “not [to] consider this factor against 

Stephanie unless she has continued her unwillingness to facilitate such a relationship in 

the period after the superior court made its evidence-based finding that Maxwell had not 

abused Terrance.”12 

2. Second custody order and arguments on appeal 

On remand, the superior court held an initial hearing on August 3, 2012. 

Stephanie and her attorney participated by telephone, as did the judge, but Maxwell did 

not appear or participate by telephone. Stephanie’s attorney told the superior court that 

“[Maxwell] ha[d] pretty much dropped off our radar,” that calls and letters had bounced 

back undelivered, that Stephanie did not know when or where to return Terrance to 

Alaska, and that Maxwell had a history of disappearing. Based on these representations, 

the superior court invited Stephanie to file an expedited request for custody modification 

to permit Terrance to stay with Stephanie in New Mexico rather than return to Alaska. 

Maxwell filed a motion with the superior court on August 20, 2012, stating 

that he had miscalendared the hearing and arguing that Stephanie had “misl[ed] this court 

by saying that [Maxwell] has ‘fallen off the planet.’ ” Maxwell stated that he was 

attaching his telephone records “showing that there has in fact been communication” 

between himself, his son, and Stephanie, but he did not attach those records. At the 

subsequent trial-setting conference on August 30, 2012, the superior court told Maxwell, 

“You do need to supplement what you filed, because . . . the phone records were not 

attached to your paperwork. . . . Since you said it was there you need to supply it.” 

Maxwell never supplied his phone records. 

11 Id. 

12 Id. 

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In preparation for the rescheduled hearing on remand, Stephanie sent 

Maxwell ten requests for production of evidence, eight interrogatories, and three requests 

for admission in two sets of discovery requests dated September 6 and 7, 2012. The 

three requests for admission requested Maxwell to admit the truth of the following 

statements: (1) “that [Terrance] has lived with [Maxwell’s] mother . . . for the majority 

of the time between August 15, 2011 and May 30, 2012”; (2) “that [Maxwell] refused 

to communicate with [Stephanie] about [Terrance’s] return to Alaska prior to August 6, 

2012”; and (3) that “[Maxwell] stopped [Terrance’s] counseling without first consulting 

with [Stephanie] as his joint legal custodian.” Maxwell did not timely respond to these 

requests for admissions; indeed, he never responded at all. 

Stephanie filed a motion for Alaska Civil Rule 37(d)13 relief on October 31, 

2012, noting that Maxwell had not responded to her interrogatories and requests for 

production14 and seeking discovery sanctions that would take the stability factor “as 

established in [Stephanie’s] favor” and preclude Maxwell “from introducing evidence 

to support or oppose these factors.” Stephanie also requested the superior court to take 

as established “[Maxwell’s] unwillingness to foster or allow a close and continuing 

relationship” between Terrance and Stephanie and to preclude Maxwell “from 

introducing evidence to support or oppose this finding.” 

At the final hearing on remand on November 13, 2012, the superior court 

denied Stephanie’s motion for Rule 37(d) relief. The superior court correctly reasoned 

13 Alaska Rule of Civil Procedure 37(d) provides, “If a party . . . fails . . . to 

serve answers or objections to interrogatories submitted under Rule 33 . . . or . . . to serve 

a written response to a request for inspection submitted under Rule 34, . . . the court in 

which the action is pending on motion may make such orders in regard to the failure as 

are just . . . .” 

14 Her motion omitted any reference to unanswered requests for admission. 

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that it could not impose “litigation-ending sanctions” without first exploring alternatives 

such as a continuance, a show-cause hearing, or a motion to compel. At the hearing, 

Stephanie and Maxwell testified and presented evidence regarding the three facts that 

Stephanie had requested that Maxwell admit. Stephanie never asked that the unanswered 

requests for admission be deemed admitted and conclusive of the alleged facts, and she 

never argued that the superior court erred by not reiterating its requirement that Maxwell 

produce his telephone records. 

The superior court granted Maxwell primary physical custody and shared 

legal custody. On the stability issue, the superior court noted that “it has had some 

difficulty implementing the [supreme court’s] orders on remand” because it could “find 

no support in the record of the first hearing for the statement that [Stephanie] chose her 

nursing job in part because she had not been receiving child support.” The superior court 

noted that “when directly asked at the recent hearing why she took the job, she stated that 

it paid well and was close to family.” The superior court concluded that the supreme 

court’s remand instructions on this issue were moot because Stephanie’s circumstances 

had changed: She lived near her work and had a normal working schedule, such that the 

stability factor now “favors [Stephanie] to some extent, since she is financially more 

stable than [Maxwell].” 

On the continuing-relationship issue, the superior court determined that 

because Terrance “has admitted he lied about the sexual abuse,” Stephanie “has no 

reason to be concerned about this issue any more, thereby rendering the allegations 

irrelevant to the close relationship factor.” The superior court went on to conclude that 

“[t]he close relationship factor . . . strongly favors [Maxwell].” The superior court 

provided a number of reasons leading to its conclusion, including its finding that 

Maxwell “has not allowed his feelings to preclude [Terrance] from having a relationship 

with his mother,” while “[t]he same cannot be said for” Stephanie because “she monitors 

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[Terrance’s] calls with his father.” The superior court “found credible . . . [Maxwell’s] 

allegation that [Stephanie] would tell [Terrance] what to say [on the phone].” The 

superior court also noted that the “most important” factor in its continuing-relationship 

determination was its finding that Stephanie “simply was not completely straightforward 

with the court at the [first] hearing [on remand]” when she “led the court to believe that 

[Maxwell] no longer was involved with his son and that she had no way to reach 

[Maxwell].” “[Stephanie] basically took advantage of [Maxwell’s] absence from the 

[August 3] hearing to keep [Terrance] to herself, even though she knew that [Maxwell] 

had not abandoned [Terrance] and that it was perfectly possible for her to communicate 

with [Maxwell].” 

In addition to these factors underlying the continuing-relationship 

determination, the superior court also relied on the fact that “[Stephanie] made . . . [a] 

very negative allegation[] for which she had almost no support” when she “contended 

that [Maxwell] was cooking and using methamphetamine.” Stephanie had alleged at trial 

that she had noticed a powerful chemical and diesel-like smell coming from Terrance’s 

clothing when she picked him up at the airport and that she thought that Maxwell had 

been manufacturing methamphetamine with Terrance in the garage. The superior court 

determined that Stephanie had almost no basis for this claim. 

Stephanie filed a number of motions for post-order relief. She filed a 

motion to reconsider the custody order that also included a motion for Judge Eric Smith 

to recuse himself. The motion to recuse was denied, and the court granted limited 

reconsideration on certain issues, including the accusation of methamphetamine 

manufacturing and Maxwell’s child support arrears. The superior court concluded that 

it had not violated this court’s remand instructions on both issues, maintaining that (1) 

the Stephanie W. protections for allegations do not extend to accusations of 

manufacturing methamphetamine because that does not constitute domestic violence; 

-8- 6869
 
 

 

 

 

 

 

 

 

 

(2) because Stephanie was now found to provide more stability than Maxwell the 

supreme court’s instructions were moot; and (3) Maxwell could adequately provide for 

the needs of the child. Stephanie then filed an Alaska Civil Rule 59 motion to reopen 

evidence, arguing in relevant part that she should be allowed to present evidence of her 

experience detecting smells resulting from methamphetamine manufacturing because she 

was reluctant to present such evidence in the hearing for fear of being punished by the 

superior court. The superior court denied her motion to reopen evidence stating that the 

evidence was not new and that Stephanie could have presented it at trial. Finally, 

Stephanie filed a motion to reconsider the court’s order denying her Rule 59 motion to 

reopen evidence, arguing for the first time that the superior court erred by refusing to 

deem admitted Stephanie’s unanswered requests for admission. The superior court 

denied Stephanie’s motion because she did not seek to provide new evidence and she 

relied on an argument not raised in her initial Civil Rule 59 motion. 

Stephanie appeals. She raises five primary points on appeal. Three of her 

points on appeal deal with issues of civil procedure, discovery, and evidence relating to 

the procedure on remand: She alleges that the superior court abused its discretion by 

refusing to accept unanswered requests for admission as conclusively established in her 

favor under Alaska Civil Rule 36; she alleges that the superior court abused its discretion 

by denying her motion to establish certain custody factors and key facts in her favor as 

discovery sanctions under Civil Rule 37(d); and she alleges that the superior court 

abused its discretion by refusing to enforce its own order for Maxwell to produce 

telephone records. The final two points on appeal address the superior court’s 

determination of two custody factors in light of this court’s remand instructions: 

Stephanie argues that the superior court abused its discretion by failing to consider 

Maxwell’s child support arrears in its stability determination, and Stephanie also argues 

that the superior court abused its discretion by holding against her in the continuing­

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relationship factor her allegations that Maxwell was manufacturing methamphetamine 

with Terrance present. 

III. STANDARD OF REVIEW 

A. Standards Relevant To The Discovery Issues 

“The trial court’s decision to allow or disallow the withdrawal of an 

admission [under Civil Rule 36] is subject to reversal for abuse of discretion.”15 

“The superior court generally has broad discretion in sanctioning discovery 

violations [under Civil Rule 37], ‘subject only to review for abuse of discretion.’ But 

‘the trial court’s discretion is limited when the effect of the sanction it selects is to 

impose liability on the offending party, establish the outcome of or preclude evidence on 

a central issue, or end the litigation entirely.’ ”16 

“When interpreting the Civil Rules we exercise our independent judgment, 

adopting the rule of law that is most persuasive in light of reason, precedent, and 

policy.”17 

B. Standards Relevant To Custody Factor Issues 

“A trial court’s determination of custody will be set aside only if the entire 

record demonstrates that the controlling findings of fact are clearly erroneous or that the 

15 Hughes v. Bobich, 875 P.2d 749, 755 (Alaska 1994) (citing City of Kenai 

v. Ferguson, 732 P.2d 184, 190 (Alaska 1987)). 

16 Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1175 (Alaska 2000) 

(quoting Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998)) 

(footnotes omitted). 

17 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 922 (Alaska 2002) 

(quoting Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999)) (internal 

quotation marks omitted). 

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trial court has abused its discretion.”18 “A finding of fact is clearly erroneous only when 

a review of the entire record leaves us with a definite and firm conviction that the trial 

court has made a mistake.”19 “An abuse of discretion has occurred if the trial 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.”20 

“Whether a lower court on remand has correctly applied our mandate is a 

question of law which we review de novo.”21 

IV.	 DISCUSSION 

A. Stephanie’s Three Arguments Relating To Discovery On Remand 

1.	 Stephanie failed to preserve for appeal her argument that the 

superior court’s failure to deem unanswered requests for 

admission conclusively admitted under Civil Rule 36 was an 

abuse of discretion. 

Stephanie argues that her three requests for admission to which Maxwell 

never responded should have received conclusive effect under Civil Rule 3622 and that 

18 Melendrez v. Melendrez, 143 P.3d 957, 959 (Alaska 2006) (internal 

quotation marks omitted). 

19	 Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994). 

20	 Id. at 479-80. 

21 Moeller-Prokosch v. Prokosch, 53 P.3d 152, 154 (Alaska 2002) (internal 

quotation marks omitted). 

22 Alaska Rule of Civil Procedure 36 establishes a procedure for parties to 

request admission of the truth of any matter within the general scope of discovery under 

Civil Rule 26(b)(1). Rule 36 also provides that “[t]he matter is admitted unless . . . the 

party to whom the request is directed serves upon the party requesting the admission a 

written answer or objection addressed to the matter. . . . The party who has requested the 

(continued...) 

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the superior court erred by denying that conclusive effect. She specifically argues that 

Rule 36 is “self-executing,” and that unanswered requests for admission should be 

automatically deemed admitted upon non-receipt of a timely response. She maintains 

that the superior court “had no discretion to ignore [Stephanie’s] unanswered Rule 36 

requests,”23 and that Rule 36 permits withdrawal of deemed admissions only on motion. 

But Stephanie failed to preserve this argument for appeal because she did 

not timely present it to the superior court. In order to preserve an issue for appeal, 

appellants “must show they raised the issue below.”24 But “[a]n issue raised for the first 

time in a motion for reconsideration is not timely” and is therefore not preserved for 

appeal. 25 Because Stephanie did not raise her deemed-admission argument before the 

superior court until her motion to reconsider the superior court’s order denying her Civil 

22(...continued) 

admissions may move to determine the sufficiency of the answers or objections. Unless 

the court determines that an objection is justified, it shall order that an answer be served.” 

Alaska R. Civ. P. 36(a). Finally, Rule 36 provides that “[a]ny matter admitted under this 

rule is conclusively established unless the court on motion permits withdrawal or 

amendment of the admission.” Alaska R. Civ. P. 36(b). 

23 Emphasis in original. 

24 Stadnicky v. Southpark Terrace Homeowner’s Ass’n, 939 P.2d 403, 405 

(Alaska 1997). 

25 Id. (citing Miller v. Miller, 890 P.2d 574, 576 n.2 (Alaska 1995) (“[T]he 

issue was improperly raised in the motion for reconsideration, since it had never 

previously been raised.”)); see also McCarter v. McCarter, 303 P.3d 509, 513 (Alaska 

2013) (“[Appellant] made this statutory argument for the first time in his motion for 

reconsideration, and it is therefore waived.”); Howe v. Howe, Mem. Op. & J. No. 1306, 

2008 WL 1914361, at *1 n.4 (Alaska, Apr. 30, 2008) (characterizing Stadnicky as 

“noting that issue raised for first time in motion for reconsideration is untimely and 

insufficient to preserve claim for appeal”). 

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Rule 59 motion to reopen evidence, 26 she cannot raise it on appeal. We decline to reach 

the merits of Stephanie’s unpreserved argument and note that the superior court did not 

commit plain error in this case.27 

26 Despite Stephanie’s statement to the contrary in her brief in this court, 

Stephanie’s motion for Rule 37(d) relief did not request that the court deem admitted 

Stephanie’s unanswered requests for admission. Nor did Stephanie ever raise this issue 

during the hearings, in her motion for reconsideration of the custody order, or in her Rule 

59 motion to reopen evidence. 

27 “[W]aiver will not be found where an issue raises plain error.” Fernandes 

v. Portwine, 56 P.3d 1, 9 n.27 (Alaska 2002) (citing Hoffman Constr. Co. of Alaska v. 

U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 n.29 (Alaska 2001)). But here, no 

“obvious mistake has been made which creates a high likelihood that injustice has 

resulted.” Paula E. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

276 P.3d 422, 436 (Alaska 2012) (quoting D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001)). 

Without engaging in a full merits analysis, we note that implicit in 

Rule 36’s structure is a requirement that the party seeking deemed admissions must make 

a timely request that the unanswered requests be deemed admitted. For instance, 

Rule 36’s procedure for determining the sufficiency of an answer or objection to a 

request for admission puts the onus on the party seeking the admission to make an 

appropriate request before the court’s duty under the Rule is triggered. See Alaska R. 

Civ. P. 36(a). This is confirmed by the more general proposition that “in the vast 

majority of instances, the discovery system will be self-executing.” Hikita v. Nichiro 

Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1175 (Alaska 2000) (quoting 7 JAMES WM. MOORE 

ET AL., MOORE’S FEDERAL PRACTICE ¶ 37.90, at 37-141 (3d ed. 1997)). We also note 

that in all of our prior cases discussing Rule 36, the party seeking unanswered requests 

for admission to be deemed admitted has always made such a request in the superior 

court. See, e.g., Gladden v. City of Dillingham, Mem. Op. & J. No. 1253, 2006 WL 

1668029, at *1 (Alaska, June 14, 2006) (“The city further moved to have its unanswered 

requests for admission deemed admitted.”); Kaiser v. Sakata, 40 P.3d 800, 802 (Alaska 

2002) (“[T]he defendants moved for summary judgment. They argued that because 

Kaiser had failed to timely respond to discovery requests, the defense’s requests for 

admission must be deemed admitted . . . .”); Hughes v. Bobich, 875 P.2d 749, 751 

(Alaska 1994) (“In his summary judgment motion, Bobich argued that, under Alaska 

Civil Rule 36(a), the Hughes’ failure to file a timely response to his request should be 

(continued...) 

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2.	 The superior court did not abuse its discretion by denying 

Stephanie’s Rule 37(d) motion for discovery sanctions. 

Stephanie argues that the superior court abused its discretion by denying 

her motion under Civil Rule 37(d) 28 to sanction Maxwell’s failure to respond to 

Stephanie’s discovery requests. Her Rule 37(d) motion requested that the superior court 

establish the stability factor in Stephanie’s favor, find that Maxwell was unwilling to 

foster a close and continuing relationship between Terrance and Stephanie, and preclude 

Maxwell from introducing contrary evidence on those two issues. 

Under Rule 37, “the trial court’s discretion [to sanction discovery 

violations] is limited when the effect of the sanction it selects is to . . . establish the 

outcome of or preclude evidence on a central issue, or end the litigation entirely.”29 In 

particular, “the trial court’s discretion to impose [litigation-ending] sanctions is narrowly 

27(...continued) 

construed as an admission that they had already been paid.”); Pletnikoff v. Johnson, 765 

P.2d 973, 974-75 (Alaska 1988) (“Johnson moved for partial summary judgment . . . 

argu[ing] that, since Pletnikoff did not respond to the requests, the requests were deemed 

admitted and therefore no genuine issue of material fact remained on the issue of 

damages.”); City of Kenai v. Ferguson, 732 P.2d 184, 189 (Alaska 1987) (“[T]he City 

moved for summary judgment, relying on the requests for admissions being deemed 

admitted because of Ferguson’s failure to respond.”). 

28 Alaska Rule of Civil Procedure 37(d) provides, “If a party . . . fails . . . to 

serve answers or objections to interrogatories submitted under Rule 33 . . . or . . . to serve 

a written response to a request for inspection submitted under Rule 34, . . . the court in 

which the action is pending on motion may make such orders in regard to the failure as 

are just . . . .” 

29 Hikita, 12 P.3d at 1175 (quoting Sykes v. Melba Creek Mining, Inc., 952 

P.2d 1164, 1169 (Alaska 1998) (internal quotation marks omitted)). 

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limited to extreme situations,” and such sanctions cannot be imposed “where an 

alternative remedy would suffice to make the adverse party whole.”30 

Here, the superior court did not abuse its discretion by denying Stephanie’s 

Rule 37(d) motion for discovery sanctions. Stephanie did not seek an order compelling 

production in response to her unanswered interrogatories and requests for production 

or other, less-draconian options before filing her Rule 37(d) motion seeking to establish 

key custody factors in her favor. Indeed, it is likely under these facts that the superior 

court would have abused its discretion had it granted such litigation-ending sanctions 

without first exploring alternative remedies. 

3.	 Stephanie failed to preserve her argument that the superior 

court abused its discretion by not enforcing an order compelling 

Maxwell to produce his telephone records. 

Stephanie argues that the superior court abused its discretion by first 

ordering Maxwell to produce certain telephone records31 and then not enforcing its own 

order when Maxwell did not produce the records. 

As with her Rule 36 argument above, Stephanie failed to timely present this 

argument to the superior court. In order to preserve an issue for appeal, appellants “must 

show they raised the issue below.” 32 “An issue raised for the first time in a motion for 

30	 Hughes, 875 P.2d at 752-53. 

31 Maxwell had indicated that he was attaching telephone records to his 

motion to the superior court following the first hearing. He did not attach the records 

with the other exhibits. The superior court stated at the subsequent trial-setting 

conference, “You need to supplement what you filed, because . . . the phone records were 

not attached to your paperwork. . . . Since you said it was there you need to supply it.” 

Maxwell never supplied his phone records. 

32 Stadnicky, 939 P.2d at 405. 

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reconsideration is not timely” and is therefore not preserved for appeal.33 Here, 

Stephanie did not raise this argument with the superior court until her motion to 

reconsider the superior court’s order denying her Rule 59 motion to reopen evidence. 

The superior court correctly concluded that the argument was not timely raised. We 

decline to reach the merits of Stephanie’s unpreserved argument and note that the 

superior court did not commit plain error in this case.34 

B.	 The Superior Court Did Not Abuse Its Discretion Or Clearly Err In 

Awarding Primary Physical Custody To Maxwell. 

1.	 The superior court did not abuse its discretion in its 

reconsideration of the stability factor, AS 25.24.150(c)(5), on 

remand. 

Alaska Statute 25.24.150(c)(5) requires a court determining custody to 

consider “the length of time the child has lived in a stable, satisfactory environment and 

the desirability of maintaining continuity.” The superior court’s initial order granting 

Maxwell primary physical custody concluded that this factor favored Maxwell because 

he had a stable job and living situation while Stephanie worked four 12-hour shifts 70 

miles from home, which “provide[d] some roadblocks in terms of her working with the 

kids.” On review in this court, we were “troubled by the reliance on Maxwell’s more 

stable economic status compared to Stephanie’s long commute and hard working hours 

33	 Id. (citing Miller v. Miller, 890 P.2d 574, 576 n.2 (Alaska 1995)). 

34 “[W]aiver will not be found where an issue raises plain error.” Fernandes 

v. Portwine, 56 P.3d 1, 9 n.27 (Alaska 2002) (citing Hoffman Constr. Co. of Alaska v. 

U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 n.29 (Alaska 2001)). But here, no 

“obvious mistake has been made which creates a high likelihood that injustice has 

resulted.” Paula E. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

276 P.3d 422, 436 (Alaska 2012) (quoting D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001)). 

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while ignoring Maxwell’s failure to pay . . . child support over the course of his child’s 

35 36 life.” We remanded for reconsideration of the stability factor. 

Stephanie argues that the superior court improperly questioned this court’s 

remand instructions. In its order, the superior court stated: “With all due respect to the 

Alaska Supreme Court, the court . . . notes that it has had some difficulty implementing 

the Court’s orders on remand” because “the court simply can find no support in the 

record of the first hearing for the statement that [Stephanie] chose her nursing job in part 

because she had not been receiving child support.” The superior court proceeded to 

characterize Stephanie’s testimony at the hearing on remand as indicating that she took 

the nursing job because “it paid well and was close to family.” 

We can understand why the superior court’s remarks questioning the basis 

of this court’s ruling could have caused some confusion and might have been troubling 

to Stephanie as a successful appellate litigant. But the superior court’s remarks are 

irrelevant to the question raised in this appeal because the superior court determined that 

the stability factor now favors Stephanie rather than Maxwell. As the superior court 

concluded on remand, “the factual predicate for the Court’s decision [in Stephanie W.] 

. . . is moot” because Stephanie “no longer is working the grueling hours that had 

concerned this court, and she is living near where she works.”37 

35 Stephanie W. v. Maxwell V., 274 P.3d 1185, 1193 (Alaska 2012). 

36 Id. 

37 Cf. State v. Oriental Fire & Marine Ins. Co., 776 P.2d 776, 778 n.4 (Alaska 

1989) (noting that a change in a factual predicate to a motion for remand — in that case, 

a stipulation by the parties to dismiss the relevant complaint — “render[s] moot the 

question raised on remand”). 

Because we hold that the superior court did not abuse its discretion in its 

(continued...) 

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2.	 The superior court did not abuse its discretion in determining 

that the continuing-relationship factor, AS 25.24.150(c)(6), 

favors Maxwell. 

Alaska Statute 25.24.150(c)(6) requires a court determining custody to 

consider “the willingness and ability of each parent to facilitate and encourage a close 

and continuing relationship between the other parent and the child.” The statute goes on 

to carve out an exception, directing the court not to “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.”38 

In the first custody hearing in the superior court, Stephanie expressed her 

concern about Terrance’s sexually aggressive and age-inappropriate behaviors after he 

returned to New Mexico from a year in Alaska with Maxwell.39 Stephanie further 

claimed that Terrance told her that he had suffered sexual abuse from Maxwell in 

Alaska.40 Stephanie notified the police and pressed the issue in her custody dispute with 

Maxwell as a reason to grant her sole custody.41 The superior court determined that 

37(...continued) 

handling of the stability factor and do not remand, Stephanie’s argument that Judge 

Smith “departed from the role of an impartial fact-finder and instead assumed the role 

of [Maxwell’s] advocate” and should therefore be disqualified from hearing the case on 

remand is also moot. 

38 AS 25.24.150(c)(6). 

39 Stephanie W., 274 P.3d at 1188. 

40	 Id. 

41	 Id. 

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Stephanie had not proved abuse by a preponderance of the evidence.42 The superior 

court’s initial order granting Maxwell primary physical custody concluded that Maxwell 

was more likely than Stephanie to foster a relationship between Terrance and the other 

parent in part because of Stephanie’s continued anxiety relating to the alleged but 

unproved sexual abuse.43 

In Stephanie W., 

44 we noted that AS 25.24.150(c)(6)’s explicit exception 

was “silent on the procedure to be followed if the court finds that abuse has not been 

shown,” and we quoted Stephanie’s argument “that it would be bad policy to hold her 

good faith belief that Maxwell sexually abused Terrance against her” because “no parent 

in their right mind would ever make a good faith report of domestic violence or sexual 

abuse” in the future.45 We concluded that “[i]n light of the apparent good-faith basis of 

Stephanie’s allegations, . . . the superior court should re-weigh the ‘willingness to allow 

a close and continuing relationship’ factor. On remand, the court should not consider 

this factor against Stephanie unless she has continued her unwillingness to facilitate such 

a relationship in the period after the superior court made its evidence-based finding that 

Maxwell had not abused Terrance.”46 

On remand, the superior court determined that because Terrance “has 

admitted he lied about the sexual abuse,” Stephanie “has no reason to be concerned about 

this issue any more, thereby rendering the allegations irrelevant to the close relationship 

42 Id. 

43 Id. at 1188-89. 

44 Id. 

45 Id. at 1191. 

46 Id. 

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factor.” But in the hearing on remand, Stephanie made another allegation that Maxwell 

was endangering Terrance. Stephanie alleged that she had noticed a powerful chemical 

and diesel-like smell coming from Terrance’s clothing when she picked him up at the 

airport and that she thought that Maxwell had been manufacturing methamphetamine 

with Terrance in the garage. 

The superior court concluded that “[t]he close relationship factor . . . 

strongly favors [Maxwell]” for a number of reasons, including the fact that Stephanie 

“made . . . [a] very negative allegation[] for which she had almost no support.” “Her 

only basis for this claim was that [Terrance] smelled of chemicals when he arrived at the 

airport this summer. But [Terrance] himself explained what was going on — [Maxwell] 

was making fuel for his car. And [Maxwell] did not present at all at trial as a person on 

methamphetamine.” The superior court later concluded that “her belief about the meth 

lab was emblematic of her general proclivity to assume the worst about [Maxwell].” The 

superior court denied the applicability of the Stephanie W. rule in this case because 

Stephanie’s allegation “has no connection to any domestic violence, much less sexual 

abuse, and hence is not precluded by AS 25.24.150(c)(6).” 

Stephanie argues in this court that the superior court has repeated its 

original error of holding against her a good-faith allegation of the other parent acting in 

a way that could bring harm to the child. Stephanie argues that her methamphetaminemanufacturing allegation should receive the benefit of protection under Stephanie W. 

She offers a complex argument interpreting “domestic violence” as used in 

AS 25.24.150(c)(6) to include allegations of actions constituting the crime of “reckless 

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endangerment” under AS 11.41.25047 and further argues that her allegations, if proved 

correct, would constitute reckless endangerment and thus domestic violence. 

We do not reach the question of statutory interpretation raised by Stephanie 

because it is unnecessary for us to do so. Even without the specific statutory protections 

provided by AS 25.24.150(c)(6), it is common sense that in a custody proceeding, goodfaith allegations by one parent against the other parent regarding behavior relevant to the 

custody decision and the child’s best interests should not be held against the reporting 

parent in the superior court’s continuing-relationship determination where the allegations 

are based on supporting evidence. That supporting evidence might be found in the 

court’s objective credibility determination or in extrinsic evidence.48 In making the 

decision whether a reporting parent’s good-faith but unproved allegations can be 

considered in the continuing-relationship determination, the superior court must balance 

two competing goals: the desire of the court to encourage good-faith, objectively credible 

reports of parental behavior relevant to the custody dispute, and the need to guard against 

47 AS 25.24.150(c)(6)’s exception is triggered for “domestic violence” by “the 

other parent . . . against the parent or a child.” AS 25.90.010 defines “domestic 

violence” as used in that title by cross-referencing “the meanings given in 

AS 18.66.990.” In turn, AS 18.66.990(3)(A) provides that “domestic violence” includes 

“a crime against the person under AS 11.41” that is committed “by a household member 

against another household member.” Finally, AS 11.41.250(a) makes “reckless 

endangerment” a crime against the person and specifies that “[a] person commits the 

crime of reckless endangerment if the person recklessly engages in conduct which 

creates a substantial risk of serious physical injury to another person.” 

48 Both types of evidence were at play in Stephanie W., where we noted that 

“the superior court acknowledged that the allegations of sexual abuse were ‘troubling’ 

and that neither party had been able to demonstrate what had caused Terrance to act out 

sexually” and that “Stephanie had adduced expert opinion testimony from ‘a highly 

experienced forensic interviewer of children’ and from a children’s counselor who were 

generally supportive of Stephanie’s suspicions.” 274 P.3d at 1191. 

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false reports and to consider a parent’s actual unwillingness to foster a relationship with 

the other parent. As with other determinations under the custody statute, we will review 

the superior court’s balancing determination for abuse of discretion. 

In this case, if Stephanie’s allegation were true and Maxwell had been 

manufacturing methamphetamine in Terrance’s presence, that would certainly have been 

relevant information for the ultimate custody determination. Even without the statutory 

protection that we interpreted in Stephanie W., it would be inappropriate to fault a parent 

for reporting such a dangerous situation if the allegations were made in good faith and 

were sufficiently supported to merit protection in the balancing test. Here, we cannot 

conclude that the superior court abused its discretion in determining that Stephanie had 

not presented sufficient evidence in support of her allegation to warrant removing the 

unfounded allegation from consideration in the continuing-relationship factor. As the 

superior court reasoned, Stephanie had “almost no support” for her allegation, testifying 

only that she observed a chemical smell on Terrance’s clothing. The superior court did 

not abuse its discretion in concluding that “she did not have an adequate basis for 

[concluding that Maxwell was manufacturing methamphetamine with Terrance] and that 

her belief about the meth lab was emblematic of her general proclivity to assume the 

worst about [Maxwell].” 

V. CONCLUSION 

For these reasons, the superior court’s orders are AFFIRMED in all 

respects. 

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