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@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JONATHAN FOX, 

Appellant, 

v. 

GARY GRACE and 

SHANNON GRACE, 

Appellees. 

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) Supreme Court No. S-16996 

Superior Court No. 3AN-17-09987 CI 

O P I N I O N 

No. 7325 – December 28, 2018 

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

Judicial District, Anchorage, Eric A. Aarseth, Judge. 

Appearances: Jonathan Fox, pro se, Yakutat. Herbert M. 

Pearce, Law Offices of Herbert M. Pearce, Anchorage, for 

Appellees. 

Before: Winfree, Stowers, Maassen, and Carney, Justices. 

[Bolger, Chief Justice, not participating.] 

CARNEY, Justice. 

I. INTRODUCTION 

The superior court denied a father’s motion to modify custody because it 

did not believe it had subject matter jurisdiction under the Uniform Child Custody 

Jurisdiction and Enforcement Act (UCCJEA) to modify an Oregon custody order.1 The 

1 Alaska has adopted and codified the UCCJEA in AS 25.30.300-.910. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

father appeals, arguing that the superior court erred in failing to consider the controlling 

statute that governs the court’s jurisdiction to modify an out-of-state order. 

We agree. The controlling statute, AS 25.30.320, allows the superior court 

to modify an out-of-state custody order if it “determines that neither the child, nor a 

parent, nor a person acting as a parent presently resides in the other state.” It does not 

appear from the record that the superior court considered this subsection of the statute. 

We therefore vacate the superior court’s order denying the motion to modify for lack of 

jurisdiction. 

The father also appeals an order imposing sanctions, including costs and 

attorney’s fees. Because that order is premised on the court’s jurisdictional ruling, we 

also vacate the sanctions order. 

II. FACTS AND PROCEEDINGS 

In October 2017 Jonathan Fox registered in the superior court an original 

custody order and two supplemental judgments that modified the original custody order, 

all entered by an Oregon state court. These judgments established visitation for Fox’s 

parents, Gary and Shannon Grace, with Fox’s two children. 

In early January 2018 the Oregon court held a hearing to address motions 

filed by the Graces to modify custody and to hold Fox in contempt for missed visitation 

days over winter break. The Oregon court denied the motion to modify but added spring 

break visitation to make up for missed days. Fox then filed an expedited motion in the 

Alaska superior court to modify the visitation established in the Oregon custody orders. 

He argued that the Graces were no longer able to provide adequate care for the children 

and requested that the court “discontinue compulsory grandparent visitation.” 

On January 30 the superior court entered an order stating it “[did] not have 

jurisdiction to modify the current custody order issued by the Oregon Court.” Shortly 

thereafter the court entered an expanded order explaining that it read the Oregon orders 

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to “establish that the Oregon Court exercised initial jurisdiction over [the children],” and 

that “[t]he most recent order . . . demonstrates that the Oregon Court retained continuing 

and exclusive jurisdiction . . . .” The court explained it could enforce an out-of-state 

order registered with the court, but AS 25.30.320 did not permit it to supersede or 

modify an out-of-state order unless the issuing state had released jurisdiction.2 

A few days later the Graces filed a motion requesting sanctions pursuant 

to Alaska Civil Rule 11(b).3 The Graces argued to the superior court that because a 

2 Alaska Statute 25.30.320 permits Alaska courts to modify out-of-state 

custody orders only if two requirements are met: first, an Alaska court must have 

jurisdiction to enter an initial custody determination; and second, either the other state’s 

court must determine it no longer has continuing and exclusive jurisdiction or that 

Alaska would be a more convenient forum, or an Alaska court must “determine that 

neither the child, nor a parent, nor a person acting as a parent” resides in the other state. 

3 Alaska Civil Rule 11(b) states: 

By presenting to the court a pleading, written motion, or 

other paper — whether by signing, filing, submitting, or later 

advocating it — an attorney or unrepresented party certifies 

that to the best of the person’s knowledge, information, and 

belief, formed after an inquiry reasonable under the 

circumstances: (1) it is not being presented for any improper 

purpose, such as to harass, cause unnecessary delay, or 

needlessly increase the cost of litigation; (2) the claims, 

defenses, and other legal contentions are warranted by 

existing law or by a nonfrivolous argument for extending, 

modifying, or reversing existing law or for establishing new 

law; (3) the factual contentions have evidentiary support or, 

if specifically so identified, will likely have evidentiary 

support after a reasonable opportunity for further 

investigation or discovery; and (4) the denials of factual 

contentions are warranted on the evidence or, if specifically 

so identified, are reasonably based on belief or a lack of 

information. 

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recent custody and visitation order from the Oregon court “specifically addressed the 

issue of jurisdiction and required the parties to submit to mediation prior to the filing of 

any new motion,” Fox and his counsel should be sanctioned for failing to advise the 

superior court of that order in their pleadings. The Graces attached a copy of a January 

2018 order entered by the Oregon court, which stated that “jurisdictional arguments 

made by Respondent [Fox] are denied.” The Graces argued that Rule 11 sanctions were 

appropriate because Fox and his counsel were aware of this order but did not notify the 

superior court of the order. 

On February 5 Fox filed a motion for reconsideration of the court’s order 

denying his motion to modify for lack of jurisdiction. Fox argued that the requirements 

of AS 25.30.320 were satisfied, authorizing the court to modify the Oregon order. Fox 

stated that the superior court had jurisdiction to make an initial custody determination as 

required by the first part of AS 25.30.320.4 He then argued that neither of the children, 

neither parent, nor any person acting as a parent as defined by statute resided in Oregon, 

and, as a result, the court could exercise jurisdiction pursuant to AS 25.30.320(2). Fox 

attested in an affidavit that he and his two children had resided in Alaska since December 

2016. The superior court denied Fox’s motion for reconsideration the day after he filed 

it. 

Fox also opposed the Graces’ motion for Rule 11 sanctions. He argued that 

he had advised the superior court of the January 2 hearing and associated rulings in his 

memorandum in support of the motion. The Graces’ reply emphasized that Fox had not 

disputed “the fact that the Oregon Order demonstrated that the Oregon Court had already 

addressed . . . [Fox]’s arguments regarding jurisdiction and denied them.” (Emphasis 

4 See AS 25.30.320 (requiring an Alaska court to have jurisdiction to make 

an initial custody determination under AS 25.30.300(a)(1), (2), or (3) before it can 

modify another state’s custody order). 

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omitted.) The Graces asserted “there was no good faith argument to be made by . . . 

[Fox] that Alaska had jurisdiction to modify the Oregon Order.” They also stated that 

they “[had been] determined to have established a ‘child-parent’ relationship under 

Oregon Law.” 

In mid-February the superior court entered an order sanctioning Fox’s 

attorney $500; the order stated that Fox’s motion “failed entirely to address jurisdiction. 

The motion was not filed in good faith as the purpose of the motion was to entirely 

circumvent the Oregon Court’s order.” 

Fox appeals the superior court’s order denying his motion to modify for 

lack of jurisdiction and the order imposing Rule 11 sanctions. He also asserts that the 

court’s orders infringe on his and his children’s constitutional rights.5 Fox represents 

himself on appeal. 

III.	 STANDARD OF REVIEW 

“Whether a court can exercise jurisdiction under the UCCJEA is a question 

of law, which we review de novo.”6 “We review the award of sanctions under Rule 11 

for abuse of discretion . . . .”7 

IV.	 DISCUSSION 

A.	 It Was Error For The Superior Court Not To Consider Whether It 

Had Subject Matter Jurisdiction Under AS 25.30.320(2). 

Alaska Statute 25.30.320 provides: 

5 Because the superior court’s orders did not implicate constitutional 

questions, and because we remand the case for consideration of potential jurisdiction 

under AS 25.30.320(2), we do not consider Fox’s constitutional claims. 

6 Steven v. Nicole, 308 P.3d 875, 879 (Alaska 2013). 

7 Kollander v. Kollander, 400 P.3d 91, 95 (Alaska 2017) (quoting Alaska 

State Emps. Ass’n v. Alaska Pub. Emps. Ass’n, 813 P.2d 669, 671 (Alaska 1991)). 

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Except as otherwise provided in AS 25.30.330, a court of this 

state may not modify a child custody determination made by 

a court of another state unless a court of this state has 

jurisdiction to make an initial determination under 

AS 25.30.300(a)(1), (2), or (3) and 

(1) the court of the other state determines it no longer 

has exclusive, continuing jurisdiction under provisions 

substantially similar to AS 25.30.310 or that a court of this 

state would be a more convenient forum under provisions 

substantially similar to AS 25.30.360; or 

(2) a court of this state or a court of the other state 

determines that neither the child, nor a parent, nor a person 

acting as a parent presently resides in the other state. 

(Emphasis added.) The subsections of the statute provide alternative bases for 

jurisdiction, allowing the superior court to exercise jurisdiction if either basis is 

satisfied.8 If the court determines that one basis does not exist, it must still determine 

whether the other one does. 

The Alaska court must first determine whether it would have jurisdiction 

to make an initial custody determination.9 The parties agree that this requirement is met. 

There is no evidence that the Oregon court determined it no longer has exclusive, 

continuing jurisdiction pursuant to subsection (1); in fact the January 2018 order 

indicates that the Oregon court believed it retained exclusive, continuing jurisdiction. 

But Fox’s motion was based upon subsection (2): he argued that the court was presented 

with evidence that neither the children, the children’s parents, nor persons acting as 

8 See Robertson v. Riplett, 194 P.3d 382, 385-86 (Alaska 2008) (explaining 

that jurisdiction exists if either of the two sets of conditions established by AS 25.30.320 

are met). 

9 AS 25.30.320. See also AS 25.30.300(a)(1)-(3) (providing bases for an 

Alaska court to exercise jurisdiction to make an initial custody determination). 

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parents10 presently reside in Oregon.11 The Graces argue that the Oregon court “elected 

to maintain continuing and exclusive jurisdiction regarding issues pertaining to custody 

and visitation” because it found that a “child-parent relationship”12 existed between the 

Graces and the children. But Fox correctly points out that this does not establish that the 

Graces were persons acting as parents under Alaska law.13 

The superior court does not appear to have considered either Fox’s 

assertion that “no child, parent, or person acting as a parent lives in Oregon” or his 

argument that a “child-parent relationship” under Oregon law is distinct from “person 

acting as a parent” status under Alaska law. We therefore vacate the court’s order 

10 AS 25.30.909(13) defines the term “person acting as a parent” as: 

a person, other than a parent, who 

(A) has physical custody of a child or has had physical 

custody for a period of six consecutive months, including 

temporary absence, within one year immediately before the 

commencement of a child custody proceeding; and 

(B) has been awarded legal custody by a court or 

claims a right to legal custody under the law of this state . . . . 

11 See AS 25.30.320(2). 

12 See Or. Rev. Stat. Ann. § 109.119(1) (West 2018) (“Except as otherwise 

provided . . . , any person . . . who has established emotional ties creating a child-parent 

relationship . . . with a child may petition or file a motion for intervention with the court 

having jurisdiction over the custody, placement or guardianship of that child . . . .”). 

13 Compare Or. Rev. Stat. Ann. § 109.119(10)(a) (defining “child-parent 

relationship”), with AS 25.30.909(13) (defining “person acting as a parent”). The 

Oregon court’s finding is not jurisdictional; it is rather a basis for a third-party’s right to 

intervene in a child custody matter. Or. Rev. Stat. Ann. § 109.119(1) (West 2018). As 

the superior court’s order did not address whether the Graces are persons acting as 

parents under AS 25.30.320(2), we do not reach the merits of that question here. 

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denying Fox’s motion and remand the matter for further consideration.14 

B.	 We Vacate The Rule 11 Sanctions Order Because It Was Premised On 

The Superior Court’s Incomplete Jurisdictional Analysis. 

The superior court sanctioned Fox and his attorney after concluding the 

motion to modify had been filed in bad faith in order to circumvent the Oregon court’s 

order. The superior court’s conclusion was premised upon its incomplete consideration 

of Fox’s jurisdictional arguments under AS 25.30.320(2). Because of this mistaken 

premise the sanctions order constitutes an abuse of discretion and must be vacated.15 

V.	 CONCLUSION 

We VACATE the superior court’s orders declining to exercise jurisdiction 

over the motion for modification and imposing Rule 11 sanctions and REMAND for 

further proceedings consistent with this opinion. 

14 Because the court denied Fox’s motion without providing the parties the 

opportunity to brief this jurisdictional issue and before an adequate factual record was 

developed, we express no opinion on the merits of whether the court has subject matter 

jurisdiction pursuant to AS 25.30.320(2). 

15 See Kollander v. Kollander, 400 P.3d 91, 95 (Alaska 2017). We also take 

this opportunity to remind courts that they must follow the mandates of Alaska Civil 

Rule 95 before issuing a sanctions order pursuant to Rule 11, including issuing an order 

to show cause and providing for the opportunity to be heard at a hearing. See Luedtke 

v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1227-28 (Alaska 1992) (holding the 

superior court erred in imposing Rule 11 sanctions of costs and attorney’s fees both 

because the superior court had not clearly stated its reasons for imposing the sanction and 

because “Luedtke should have been given the opportunity to contest the sanction award 

at a hearing”); Esch v. Superior Court of Third Judicial Dist., 577 P.2d 1039, 1042-43 

(Alaska 1978) (holding the superior court had erred in imposing a fine under an earlier 

version of Rule 95 because it had “failed to give specific notice of its intention to impose 

a sanction” as required by the rule). 

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