author: HILL, Chief Justice.

text:
    2002 WY 157
    W. Tom DAVIS, Trustee of the Doyle F. Child Family Living Revocable Trust dated June 1, 1992, Appellant (Plaintiff), v. Russell CHADWICK, a single man, Alan Chadwick and Denise Chadwick, husband and wife, Appellees (Defendants).
    No. 02-2.
    Supreme Court of Wyoming.
    Oct. 18, 2002.

      Ted C. Frome of Afton, Wyoming, Representing Appellant. Argument by Mr. Frome.
    John D. Bowers of Bowers Law Office, P.C., Afton, Wyoming, Representing Appel-lees. Argument by Mr. Bowers.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   HILL, Chief Justice.

[11] W. Tom Davis (Appellant), as trustee of the Doyle F. Child Family Living Revocable Trust, appeals an order of the district court quieting title in approximately .36 acres in Russell, Alan, and Denise Chadwick (Appellees). The land in dispute has been enclosed with Appellees land since the initial construction of a fence on the property over 50 years ago. The district court rejected Appellant's claim that the fence was one of convenience and quieted title in Appellees on the basis of adverse possession. After carefully reviewing the record, we affirm.

ISSUES

[12] Appellant sets forth two issues in his brief:

Issue No. 1:
Did the Defendants prove all of the elements of adverse possession where they rely on grazing to establish their claim?
Issue No. 2:
Did the trial court err when it determined the fence was not a fence of convenience?

Appellees rephrase the issues slightly:

ISSUE NO. 1:
Was there sufficient evidence presented at trial for the court to find that the Defendants have proven all of the elements of adverse possession regarding the disputed property?
ISSUE NO. 2:
Was there sufficient evidence for the trial court to find that the fence separating the disputed property was not a fence of convenience?

FACTS

[13] This is a dispute over the ownership of land located in the Town of Afton. The parties are adjoining landowners. The area in controversy has been enclosed with lands owned by the Appellees and their predecessors in interest since the fence was initially constructed over 50 years ago. Appellant has paid taxes on all the property contained within his deed, which includes the contested parcel. Historically, the parties have allowed the Town of Afton to temporarily remove the fence along the disputed area during the winter months. The Town uses the property as a recreational area for winter sports including skiing, snowmobiling, and sledding.

[T4] The discrepancy between the fence line and the property line came to light in August of 1997 when Appellant commissioned a survey. The fence is about 429 feet in length and runs in a straight line. It is 23 feet west of the survey line on the north and 49% feet west of that line on the south end. The fence is located on relatively flat ground that gradually increases in elevation from north to south. Constructing a fence on the survey line would be slightly more difficult and expensive due to a hill that rises steeply east of the fence line. The fence, as it existed, resulted in about .86 acres of Appellant's property being enclosed within Appellees' land. Until the survey, the parties had assumed the fence was on the true property line.

[15] The existing fence line continues south beyond the property boundary between the parties and separates Appellees' land from those of other owners. The fence runs in a straight line from the disputed property over a hill with an incline even steeper than the hill to the east of the disputed property. This fence also does not follow the true property line.

[T6] Appellant filed an action to quiet title in the disputed property. The Appellees countered with a claim for adverse possession. The matter proceeded to a bench trial before the district court. Appellant contended that the fence was one of convenience, and that Appellees' adverse possession claim should fail because their possession of the disputed land was not exclusive in light of the Town's use during the winter months. Ap-pellees denied the fence was one of convenience and asserted that the elements of - adverse possession had been met. They provided evidence that the disputed property had been used for the grazing of cattle and/or horses since at least 1957 whenever vegetation and moisture conditions allowed.

[17] The district court concluded that Appellees had met their burden and demonstrated adverse possession of the disputed area. The court found that allowing the Town of Afton to use the property during the winter months did not negate the exclusivity element because the Town was acting as the Appellees' agent. The court also concluded that Appellant had failed to negate the showing of adverse possession by a showing that the fence was one of convenience. Specifically, the court noted that the fence ran in a straight line past the disputed area up a steep grade on a hill and was not on the true property line separating Appellees' land from the other adjoining owners. The court also noted that all of the parties believed that the fence was the true boundary until the survey. Based on these facts, the district court concluded that the fence was not one of convenience and quieted title to the disputed parcel in Appellees. Appellant now challenges that ruling before us.

STANDARD OF REVIEW

{18] When a trial court has made express findings of fact and conclusions of law in a bench trial, we review the factual determinations under the clearly erroneous standard and the legal conclusions de movo. State v. Campbell County School District, 2001 WY 19, 141, 19 P.3d 518, ¶41 (Wyo.2001) (quoting Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999)). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Campbell County School District, T 41 (citing Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993)). In the alternative: "[A] determination that a finding is against the great weight of the evidence means a finding will be set aside even if - supported by substantial evidence." Id.

DISCUSSION

[19] In Hillard v. Marshall, 888 P.2d 1255 (Wyo.1995), we set out in detail the legal framework of adverse possession and fences of convenience:

In order to establish adverse possession, the claiming party must show actual, open, notorious, exclusive and continuous possession of another's property which is hostile and under claim of right or color of title. Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129, 1132 (Wyo.1982); City of Rock Springs v. Sturm, 39 Wyo. 494, 502, 273 P. 908, 910 (1929). Possession must be for the statutory period, ten years. W.S. 1-3-103(1988); Connaghan v. Eighty, Eight Oil Co., 450 P.2d 1821, 1828 (Wyo.1988); Doenz v. Garber, 665 P.2d 982, 985 (Wyo.1983). Where there is no clear showing to the contrary, a person who has occupied the land for the statutory period, in a manner plainly indicating that he has acted as the owner thereof, is entitled to a presumption of adverse possession; and the burden shifts to the opposing party to explain such possession. Meyer v. Ellis, 411 P.2d 338, 342 (Wyo.1966) (quoting City of Rock Springs v. Sturm, 39 Wyo. at 517, 278 P. at 915-16). However, if a claimant's use of the property is shown to be permissive, then he cannot acquire title by adverse possession. Ellis, 411 P.2d at 344 (quoting Johnson v. Szumowicz, 63 Wyo. 211, 228-29, 179 P.2d 1012, 1017 (Wyo.1947).
In some circumstances, enclosing land in a fence is sufficient to "raise the 'flag' of an adverse claimant." Ellis, 411 P.2d at 348; Doenz, 665 P.2d at 936 (presence of fence and continuing farm operations put record landowners on notice of adverse claim). The pasturing of animals within a substantial enclosure is sufficient to establish the elements of adverse possession. Farella v. Rumney, 649 P.2d 185, 186-87 (Wyo.1982) (quoting Shores v. Lindsey, 591 P.2d 895, 902 (Wyo.1979)). However, a fence kept only for the convenience of the parties or to separate pastures or irrigated meadows from grazing lands has no effect on the true boundary between tracts. Sowerwine v. Nielson, 671 P.2d 295, 297 (Wyo.1983); State v. Vanderkoppel, 45 Wyo. 432, 439, 19 P.2d 955, 957 (Wyo.1933).
... [In] the context of adverse possession, a presumption arises in favor of the claimant when a prima facie case has been made, requiring a conclusion in favor of adverse possession absent explanation. Similarly, it could be said that a presumption in favor of the record title holder exists, unless and until the adverse claimant makes out his prima facie case, because the initial burden of proof is on the party claiming adverse possession. Sowerwine, 671 P.2d at 302; Miller v. Bell, 764 P.2d 389, 390 (Colo.App.1988) ("An initial presumption favors the record title holder as against the adverse possession claimant."); Accord Gonthier v. Horne, 576 A.2d 745 (Me.1990); Miceli v. Foley, 83 Md. App. 541, 575 A.2d 1249 (1990). Once the adverse possession claimant has made out his prima facie case, and absent any explanatory circumstances to the contrary, the burden shifts to the opposing party to produce evidence contrary to the presumption. Sturm, 39 Wyo. at 517, 273 P. at 915-16; Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364, 368 (Wyo.1989); accord Szombathy v. Shell Oil Co., 676 S.W.2d 15, 18 (Mo.App.1984).

888 P.2d at 1258-60; see also Hovendick v. Ruby, 10 P.3d 1119, 1122-23 (Wyo.2000) and Kimball v. Turner, 993 P.2d 303, 305-06 (Wyo.1999).

[110] Appellant begins by challenging the district court's conclusion that Appel-lees had established adverse possession. First, Appellant claims that the trial court adopted an improper legal standard in its findings and conclusions by not including the requirements that the grazing on the disputed tract was for the entire growing season and within a substantial enclosure. Further, Appellant contends that there is no substantial evidence in the record to support a finding that Appellees did graze during the growing season or that the grazing was within a substantial enclosure. Specifically, Appellant asserts that there was no testimony as to the numbers grazed and the period of time during the year when they were grazed. Regarding the substantial enclosure requirement, he argues that there was no evidence establishing the extent of the area enclosed by the fence, the nature of the fence, or whether or not it was even capable of containing livestock.

[T11l]l We have recognized that adverse possession can be established by the pasturing of livestock during the growing season within a substantial enclosure. Farella v. Rumney, 649 P.2d 185, 186-87 (Wyo. 1982). A person who claims adverse possession based on the grazing of livestock does not have to demonstrate continuous pasturing throughout the year; rather, dominion and control is established when land suitable for grazing and pasturage is occupied and used as such during the full period of the growing season. Shores v. Lindsey, 591 P.2d 895, 900 (Wyo.1979). Appellees provided testimony that each summer since 1957 they had grazed up to half a dozen horses or cattle on the disputed property so long as vegetative and weather conditions permitted. The testimony indicated that the number of livestock grazed on the disputed property was the maximum that could be supported without damaging the pasturage. The district court specifically cited this testimony in its decision letter. Appellant's contention that the court did not properly recognize the extent of Appellees' grazing or that there was no evidence to support a finding that the grazing did not fully utilize the disputed property is without merit.

[112] We disagree with Appellant's characterization of the meaning of the term "substantial enclosure." While we have cited that term as a requirement for the adverse possession of land by pasturing, we have not defined it. See Hillard, 888 P.2d at 1259; Farella, 649 P.2d at 186-87; and Shores, 591 P.2d at 902. The term "substantial enclosure" does not refer to the area enclosed by a fence. Instead, we use the term to refer to the extent and nature of the enclosure of the disputed property. In other words, the term "substantial enclosure" means whether or not the land adversely claimed is enclosed in a manner that puts the title owner on notice of the adjoining landowners' adverse claim of ownership and the extent of that claim (.e, over what specific lands the adverse claimant is asserting ownership). One authority has explained the term "substantial enclosure" in this fashion:

To constitute the basis for an adverse possession claim, a claimant's enclosure should be appropriate for the purposes to which the premises are adapted, or for which the occupant may desire to use them.
Observation: The adequacy of an enclosure may be affected by statutory requisites in some states. For example, under a statutory requirement that a fence must be substantial to support a claim of adverse possession, the court must look to the whole fencing pattern and the use made of the fence, as well as all other facts and circumstances.
If an enclosure is essential or is relied on as the evidence of possession, it must, to be effective, be complete and so open and notorious as to charge the owner with knowledge of it. The basic question is whether the enclosure, like other acts of possession, is sufficient to "fly the flag" over the land and put the true owner on notice that the property is held under an adverse claim of ownership. This rule is applicable if a fence or a hedgerow or the like is relied on to delineate the boundaries of the adverse claim; even if it is insuffi-clent to turn livestock, a fence may be sufficient to "fly the flag" and put the owner on notice of adverse possession. In fact, an enclosure having no purpose of physical exclusion may be sufficient to indicate the boundaries of an adverse claim even though it is only a mere furrow turned with a plow around the land, or a line marked by cutting away the brush.
Constructing a fence and using the enclosed land for grazing constitutes adverse possession, even if the fence is not maintained in a perfect state of repair.

3 Am.Jur.2d Adverse Possession § 38 (2002). While we do not delineate the seope of what would constitute a "substantial enclosure" sufficient to indicate the boundaries of an adverse claim today, there is no question that the fence in this case was sufficient to "fly the flag" and put Appellant on notice of Appellees' claim. By his own admission, Appellant believed the fence demarcated the property line between the parties. Likewise, there is no question in this case over what land is claimed by Appellees based on the location of the fence. The evidence showed that although the fence deteriorated over the years, it was still sufficient to allow Appellees to engage in grazing operations on the disputed parcel. Therefore, the "substantial enclosure" requirement was met in this case, and Appellant's claim must fail.

[113] Appellant raises two more claims challenging the district court's adverse possession decision. First, he contends that grazing was not the best use of the disputed property. Appellant insists the best use was housing or recreation. We have stated that the general principle underlying adverse possession cases is that "the acts of dominion must be adapted to the particular land, its condition, locality and appropriate use." Shores, 591 P.2d at 900 (quoting Brumagim v. Bradshaw, 89 Cal. 24, 46 (1870)). Appellant's claim is undercut by his admission at trial that the use of the land for grazing was the common use for that type of property in that part of Wyoming. In conjunction with Appellant's admission and the testimony from Appellees that the land was suitable for grazing, we can only conclude that grazing activities on the disputed parcel were an appropriate use sufficient to assert dominion over the land for the purposes of adverse possession.

[T14] Next, Appellant argues that Appellees' possession of the disputed land did not satisfy the exclusivity element of adverse possession. Appellant relies on the Town of Afton's use of the disputed property during the winter months for public reere-ation. For the past 80 years the Town of Afton has, with the permission of both parties, temporarily removed about half of the disputed fence from early November to early May to allow the public access to skiing, snowmobiling, and sledding on the hill. The district court concluded that the permissive use by the Town of Afton did not negate the exclusive and continuous possession of the disputed land by Appellees. In essence, the court concluded that the Town was simply acting as Appellees' agent. Appellant counters that since he was the record title owner of the disputed land, only he had the authority to lease or grant use of the property to a third party, and that the Town, as a tenant of Appellant, took occupancy of the area in controversy interrupting Appellees' exclusive and continuous possession of the land.

[115] In support of its conclusion, the district court cited Nelson v. Vandemarr, 281 Or. 65, 573 P.2d 1232 (1978). In that case, the plaintiffs used a portion of the defendants' land as a driveway. The parties believed the driveway was on plaintiffs' land ° and, on occasion, the defendants would use the driveway with the plaintiffs' permission to prune some trees that grew on the defendants' property. The defendants claimed their use of the driveway negated the exelu-siveness of the plaintiffs' possession. The Oregon Supreme Court replied:

We have held that "exclusive" does not mean absolutely exclusive, but only such use as would be "expected of an owner under the circumstances." [Grimstad v. Dordan, 256 Or. 135, 141, 471 P.2d 778, 781 (1970).] Allowing a neighbor on one's driveway for the purpose of pruning trees is just the sort of use one would expect. Therefore, this evidence does not negate the element of exclusiveness. In Norgard et al. v. Busher et ux., 220 Or. 297, 308, 349 P.2d 490, 496 (1960), a case similar in aspects, we stated, "The claimants' possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use." We therefore find, as did the trial court, that plaintiff's continuous and open use of the area described as the driveway was suffi-client to make out a title by adverse possession in plaintiffs.

Nelson, 573 P.2d at 1237. We agree with the Oregon Supreme Court and the district court. The Town of Afton used the land in question with the permission of both parties. If Appellees had denied permission prior to the survey in 1997; there appears to be little question that the Town could not have set up the recreation area. Appellees acted exactly as one would expect the owner of the land in question to act. Therefore, like the plaintiffs in Nelson, Appellees' continuous and open use of the disputed parcel was sufficient to make out a title by adverse possession.

[116] In his final argument, Appellant contends that the district court erred when it found the fence was not one of convenience. To set the context for our review of Appellant's claim, we set out the district court's findings:

The plat of the Kennington Trust ... shows the true boundary line continuing in a southerly direction past the area in controversy between the Plaintiff [Appellant] and the Defendants [Appellees]. Said plat also shows the existing fence line continuing in a southerly direction, and west of the true boundary line, beyond the area in controversy between the Plaintiff and the Defendants. As stated above, the southerly continuation of this existing fence separates additional land of the Defendants from property of another adjoining land owner. According to the plat, this portion of the fence also does not follow the true property line. Said fence does continue up the steep grade of a hill in a direction that would not be convenient. Clearly, building that fence further to the west would have been more convenient.
There is no evidence as to exactly who built either section of fence. As stipulated fact # 4 above indicates as far as is known, the parties' predecessors in interest, either together or separately, built the fence in the area in controversy. Given the evidence presented to this Court it appears just as likely that the Defendants, or their predecessors in interest, may have constructed the additional portion of fence that continues in a southerly direction past the area in controversy between this Plaintiff and the Defendants. If all of the fence had been constructed for the convenience of the parties given the terrain, then it appears clear that the fence would not have continued in a straight line in a southerly direction. The fence is indeed in 2 straight line from the northern end of the area in controversy to the southern end of the fence where it takes a 90 [degree] turn to the east beyond the area in controversy between these parties. The fence does not deviate from that straight line because of topography.
All parties testified that up until the survey of August of 1997 everyone believed the fence constituted the true boundary line between the parties, This is further support for a finding that the fence was constructed by either the parties, or their predecessors in interest, on what they believed to be the true boundary line and not as a fence of convenience.
In the [Kimball v. Turner, 993 P.2d 303 (Wyo.1999)] case, the District Court also found the fence involved to be one of convenience. The Court found that the physical appearance of the fence clearly demonstrated that it could not have been constructed as a boundary fence. The fence meandered between trees, bushes, and fence posts in an irregular fashion. The Court indicated that the irregular course of the fence clearly indicates that it was not constructed on a section line, a quarter section line or any other line of a U.S. Governmental subdivision parcel. Again, the evidence in this case is to the contrary. The fence is constructed in a straight line. It does not meander between trees, bushes, and fence posts in an irregular fashion. The straight line of the fence indicates that the fence was constructed as a boundary. The straight fence would be consistent with its construction on line with a U.S. governmental subdivision parcel. The Plaintiff has failed in his burden of producing evidence of any explanatory cireumstances contrary to the presumption of adverse possession in favor of the Defendants created upon their establishment of a prima facie case. The Court finds the existing fence to be [a] boundary fence and not one merely of convenience.

Appellant takes issue with the district court's conclusions. Appellant argues that a fence situated on the true property line would have been more difficult to build and maintain because of the existence of the hill to the west of the existing fence line. He also notes that the fence runs south in order to intersect the Appellees' south boundary fence and that building the fence on the true property line would have accomplished that. Appellant insists that it makes more sense to believe that the fence was constructed where it was because the builders realized that it would be easier to build and maintain the fence there and because livestock would not have to walk over the hill to reach water. In other words, the fence was built as it was because of convenience. Appellees counter that Appellant has made assumptions not supported by the record. According to Ap-pellees, the key consideration is the fact that the parties, including Appellant, have historically treated the fence as the true boundary line.

[117] The question of whether or not a fence is one of convenience or delineates a boundary is one of fact. Kimball, 993 P.2d at 305. After a careful review of the record, we conclude that the district court's findings and conclusions are not clearly erroneous. The only evidence in support of Appellant's position is the testimony that building the fence on the boundary line would entail more labor and financial expense because of a steep hill. However, neither the additional labor nor the cost of materials would have been prohibitive. Furthermore, a witness for Appellant testified that he had never seen anyone put a fence of convenience in a similar location when the true boundary was known. Another witness testified that it would have been easier to build the fence elsewhere and that the existing fence appeared to constitute a boundary. This evidence, taken in consideration with the nature of the existing fence as noted by the district court and the fact that all parties believed the fence was the true boundary for at least 40 years, does not leave us with a "definite and firm conviction that a mistake has been committed" by the district court. According ly, we must affirm the district court's decision.

CONCLUSION

[118] The evidence in the record supports the district court's order quieting title in the disputed property in the Appellees, based on adverse possession. The determination that Appellant had failed to meet his burden to demonstrate that the fence was one of convenience was not clearly erroncous. The district court's decision is affirmed.

      . The Appellees also filed a claim for acquiescence. The district court denied that claim, and Appellees have not cross-appealed.

      . The district court's decision letter cites 1947 as the date. This is clearly a typographical error since the testimony referred exclusively to 1957. Since the Appellees possessed the land in question at least from 1957 until the 1997 survey, the discrepancy is not material to Appeliees' claim in light of the ten-year possession requirement for adverse possession.


source: Caselaw Access Project

author: MATTHEWS, Justice.

license: Public Domain

text:
    Joaquim S. FERNANDES, d/b/a Fernandes Company, Inc., Appellant/Cross-Appellee, v. Daniel and Joanne PORTWINE, Appellees/Cross-Appellants.
    Nos. S-9990, S-10009.
    Supreme Court of Alaska.
    Sept. 20, 2002.
    Rehearing Denied Oct. 28, 2002.

      John J. Connors, Law Office of John J. Connors, P.C., and Robert John, Law Office of Robert John, Fairbanks, for Appellant/Cross-Appellee.
    Craig B. Partyka, Cook, Schuhmann & Groseclose, Inc., Fairbanks, for Appel-lees/Cross-Appellants.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Joaquim "Jack" Fernandes appeals the following aspects of the superior court's decision in a nuisance case brought against him by Daniel and Joanne Portwine: (1) the court's use of the preponderance of the evidence standard; (2) the use of a six-year statute of limitations; (8) the denial of his request for a jury view of the premises; (4) the court's finding that the Portwines' use of their premises was grandfathered; (5) the court's finding that he was not the prevailing party; and (6) the finding that he did not better his offer of judgment. The Portwines cross-appeal, challenging the superior court's determination that: (1) they are not the prevailing parties; and (2) they did not better their offer of judgment. Because the superi- or court did not err, we affirm the decision in its entirety.

II. FACTS AND PROCEEDINGS

Fernandes and the Portwines own adjoining multi-lot properties on Alaska Way in Fairbanks. Both families own rental units on their properties. The Portwines claim that Fernandes and his tenants, over the course of ten years, kept incessantly barking dogs penned or staked outdoors. They claim that from 1989 to 2000 Fernandes used an open-bed truck, parked in front of one of his rental units, to collect and store his tenants' garbage, that the truck was infrequently emptied, that the stench of rotten garbage would enter the Portwine property, and that animals would strew the garbage onto the ground and into the street. They complained that Fernandes's tenants were exceedingly noisy, played car and home stereos at excessive volumes, that there was often suspicious activity around the apartments, and that Fernandes's tenants and the tenants' pets routinely trespassed on their property.

The Portwines brought suit, claiming that Fernandes had created a public and private nuisance and seeking to permanently enjoin Fernandes and his tenants from keeping barking dogs, trespassing on the Portwines' property, storing garbage in an open truck, or loudly playing home or car stereos. They further sought to enjoin Fernandes from adding to his rental units, and requested damages and reasonable costs and attorney's fees. Fernandes counterelaimed, asserting that the Portwines engaged in per se defamation against him. He further asserted that the Portwines used their residentially zoned property for non-permitted commer-clal/industrial uses by storing heavy equipment and debris associated with their plumb ing business, which he sought to enjoin. He also sought damages, as well as reasonable costs and attorney's fees. Fernandes submitted offers of judgment pursuant to Civil Rule 68 and AS 09.30.065. The Portwines also made offers of judgement. None of the offers was accepted.

Prior to trial, the superior court ruled that the injuries claimed were in the nature of interference with the Portwines' real property rights and that AS 09.10.050 therefore applied. Alaska Statute 09.10.050 imposes a six-year limitations period for actions of trespass on real property. The court also denied Fernandes's request for a jury view of the premises under Civil Rule 48(c).

Following trial, the jury found that Fer-nandes did create a nuisance on his property. The jury found that no money damages should be awarded, but that an injunction should issue that "no staked out or penned dogs allowed west of Alaska Way on [Fer-nandes's] property and current waste management practices (commercial waste removal) shall remain in place on [Fernandes's] property." The jury further found that the Portwines did not defame Fernandes, and that therefore no money damages were appropriate. The superior court did not ask the jury to rule on damages relating to loss of market or rental value or to determine whether a permanent nuisance existed that could not be remedied, because the court found that there was insufficient evidence to support such findings.

Following return of the verdict, the superi- or court issued an order for injunctive relief "prohibit[ing] [Fernandes] from permitting his tenants to have dogs that are penned or staked outside of the residence other than for short periods during the day time, i.e. more than two hours," and requiring Fernandes to "maintain a commercial waste removal service such as currently in place." Although the judge opined that the signs on the side of Fernandes's four-plex should be removed, he explicitly did not enter an order to that effect. He also found that Fernandes was not disturbed by the plumbing business carried on from the Portwines' property, and accordingly did not issue an injunction against the Portwines.

Both sides moved to be declared the prevailing parties and for costs and attorney's fees. The superior court found that "[bloth parties ... prevailed on some issues and lost on others. Viewing the matter as a whole, the Court concludes that neither party can be considered the 'prevailing party' for purposes of Rule 82." The judge further found that neither party had bettered its offers of judgment, and therefore held that each party should bear its own costs and fees. Both parties appeal.

III. STANDARD OF REVIEW

Whether the trial court used the appropriate burden of persuasion "presents a question of law to which this court applies its independent judgment, adopting the rule of law that is most persuasive in view of precedent, reason and policy. Similarly, we will apply our independent judgment when interpreting and applying statutes of limitation. We review a trial court's decision to deny a request for a jury view for abuse of discretion. We review a trial court's factual findings under a clearly erroneous standard. A factual finding is clearly erroncous when we are "left with a definite and firm conviction on the entire record that a mistake has been made. "The question of whether an offer of judgment is more favorable to the offeree than the judgment is a question of law which we review de novo." "We review awards of costs and attorney's fees for abuse of discretion, which exists if an award is arbitrary, capricious, manifestly unreasonable, or improperly motivated. We interpret our civil rules de novo...." A trial court's prevailing-party decision is reviewed for abuse of discretion.

IV. DISCUSSION

A. The Superior Court Did Not Err in Not Requiring the Portwines To Prove Nuisance by Clear and Convincing Evidence.

Fernandes argues that the superior court erred in not requiring the Port-wines to prove the existence of a nuisance by clear and convincing evidence, and instead allowing them to use the preponderance of the evidence standard. Fernandes cites to Spenard Action Committee v. Lot 3, Block 1 Evergreen Subdivision for the proposition that clear and convincing evidence is the correct standard for statutory nuisance cases. However, the statutes at issue in Spenard Action are quasi-criminal nuisance statutes. Spernard Action itself points to the quasi-criminal nature of the statutes at issue in the case, and the heavy sanctions imposed under those statutes, in deciding that "the standard of proof should be one which lies between the civil standard of a preponderance of the evidence and the erimi-nal standard of beyond a reasonable doubt, that is, clear and convincing evidence. The Portwines were not suing under the nuisance abatement statutes at issue in Spe-nard Action, and therefore the case is not applicable.

Preponderance of the evidence is the general burden of persuasion in civil cases. Other states use the preponderance of the evidence standard in nuisance cases. We conclude that it is the correct burden of proof in this case. We therefore uphold the superior court's use of the preponderance of the evidence standard.

B. The Superior Court Did Not Err in Applying a Six Year Rather than a Two Year Statute of Limitations.

Alaska Statute 09.10.050 provides for a six-year period of limitations for "an action for waste or trespass upon real property." Fernandes argues that "trespass" as used in this section should be limited to claims resulting from a physical invasion of real property. The Portwines counter that trespass has a broader meaning that encompasses "(aln unlawful interference with one's person, property, or rights. They argue that all of the nuisances proved by them constituted an invasion of their right to use and peacefully enjoy their land.

The superior court agreed with the Port wines, noting that it "must look to the type of injuries claimed, as opposed to the causes of action pled, to determine which statute of limitations is appropriate...." Observing that in McDowell v. State this court stated that trespass "includes actions that allege an interference with the possessor's property rights" and that the Portwines' nuisance action alleged an interference with their property right in the private use and enjoyment of their land, the court stated:

Therefore, under the Alaska Supreme Court's jurisprudence in McDowell, there is little question that the six-year term under AS 09.10.050 applies. There might be situations where a plaintiff's injuries in a private nuisance action would not "allege an interference with 'the possessor's property rights" as McDowell, 957 P.2d at 970, requires for AS 09.10.050 to apply. But here, where Plaintiff alleges (remember, the Court looks to the injury), the inability to quietly enjoy their property because of loud barking dogs, improperly contained garbage, and what this Court will characterize as "obnoxious traffic," such injuries clearly fall within McDowell's definition of trespass.

We agree with the superior court that the six-year statute of limitations governs this case. "Trespass" has both a narrow and a broad meaning. The narrow meaning refers to an unlawful entry upon the land of another. The broad meaning encompasses, as we recognized in MeDowell in a statute of limitations context, any "unlawful interference with one's person, property, or rights.} The broader definition here, as in McDowell, determines the meaning of AS 09.10.050. Using this definition, the Port-wines' nuisance claims were encompassed by AS 09.10.050.

The superior court's application of AS 09.10.050 is bolstered by the rule of construction providing that where two statutes might reasonably apply to a claim, the statute that provides for the longer period is to be preferred. We applied this rule in McDowell: "[The defense of the statute of limitations is a legitimate, but disfavored, defense. We therefore have expressed a policy of applying the longer of two limitations periods if two limitations statutes apply to a claim. We have applied the rule in a number of other cases.

We therefore affirm the superior court's use of the six-year statute of limitations in this case.

C. The Superior Court Did Not Err in Denying Fernandes's Request for a Jury View under Civil Rule 48(c).

Fernandes contends that the superi- or court abused its discretion in refusing to grant his motion for a jury view of the premises. He argues that because the trial judge chose to view the premises himself, he should have allowed the jury to do so.

Civil Rule 48(c) provides in pertinent part:

When the court deems proper, it may order a proper officer to conduct the jury in a body to view the property which is the subject of the litigation or the place where a material fact occurred and to show such property or place to it.

The language of the rule is permissive and implies broad discretion, stating that the court "may" order a jury view and leaving the decision up to what "the court deems proper." In his order denying Fernandes's request for a jury view of the premises, the judge wrote that his decision

was based on the Court's belief that a view of the seene would not assist the jury in resolving the disputes before it. There are adequate pictures available and the testimony has been extensive to illustrate the neighborhood. Further, the Court notes that there have been numerous changes over the years and the present appearance of the neighborhood is different than it was during much of the period complained of.

Given the broad discretion entrusted to the trial court under Civil Rule 48(c) and the reasoned decision of the superior court in denying the motion, we find that the superior court did not abuse its discretion in refusing to grant a jury view of the premises.

D. The Superior Court Did Not Err in Refusing To Enjoin the Portwines' Plumbing Business.

Fernandes argues that the Port-wines' commercial use of their property does not comply with Fairbanks North Star Borough Code of Ordinances 18.56.0830, which governs grandfather rights for non-conforming uses, and that the superior, court therefore erred in holding that the Portwines were entitled to grandfather rights to conduct their plumbing business from their residen-tially zoned property. In his counterclaims, Fernandes argued that the Portwines' use of their property violated zoning ordinances and created a private nuisance. After trial, the superior court found that the Portwines' use of the property was grandfathered, that Fer-nandes was not actually disturbed by the Portwines' use of their property, that the Portwines had improved the property over the years, and that no witnesses had found fault with the way they kept their property.

At trial, a former employee of the Department of Community Planning at the Fairbanks North Star Borough provided general testimony regarding grandfather rights and confirmed that he had never received a complaint about the plumbing business conducted from the Portwines' property. He expressed no opinions, however, about whether or not the Portwines' use of their property enjoyed grandfather rights. It does not appear that any other expert testified as to whether the Portwines were in compliance with local zoning ordinances, and if not, whether they were entitled to grandfather rights. Daniel Port-wine testified as to the various uses of his property over time, but did not go into much detail. In his own testimony, the only references Fernandes made to the Portwines' use of their land were to say that they "have a lot of junk over there, parts and a lot of junk there," and "I don't care about Portwines doing this [their plumbing business] on property. I never-I never pay any attention what they do on his property."

We will only overturn the superior court's factual findings if they are clearly erroneous. Given the secant testimony regarding the Portwines' use of their land, the superior court did not err in finding that Fernandes's claim against the Portwines "was not established at trial."

E. The Superior Court Did Not Err in Denying Both Parties Attorney's Fees under Civil Rule 82.

Following trial both parties moved to be declared the prevailing party and for costs and attorney's fees under Civil Rule 82. The superior court found that "[bloth parties . prevailed on some issues and lost on others. Viewing the matter as a whole, the Court concludes that neither party can be considered the 'prevailing party' for purposes of Rule 82." The court concluded that "[the jury seems to have viewed this matter as ending in a draw and the Court certainly concurs. Under the circumstances, therefore, justice requires that each party bear its own costs and fees." Both parties appeal, claiming to be the prevailing party.

We have held that "the trial court's disceretion under Rule 82 is broad enough to warrant denial of attorney's fees altogether," so long as "[when the trial court departs from the Rule's schedule of fees, the reasons for the nonadherence appear in the record. > Similarly, we have held that "where neither party can be characterized as the prevailing party, we have concluded that the superior court did not abuse its discretion in refusing to award either party attorney's fees. The superior court's order regarding costs and fees states that both the jury and the court found for the Portwines on some claims for injunctive relief and for Fer-nandes on others, they found for the Port-wines on the issue of defamation, and they did not award damages to either party. It therefore concludes that there is no prevailing party, and each party should bear its own costs and attorney's fees. The superior court's position that neither party prevailed is reasonable. We conclude therefore that it did not abuse its discretion in not awarding fees to any party.

F. The Superior Court Did Not Err in Denying Both Parties Attorney's Fees under Civil Rule 68.

Prior to trial, Fernandes submitted offers of judgment pursuant to Civil Rule 68 and AS 09.30.065, offering to accept judgment in favor of the Portwines for $500 each, "inclusive of prejudgment interest, costs and attorney's fees," in settlement of "all legal claims and remedies" pled by the Portwines, and including dismissal with prejudice of Fernandes's defamation claim. The Port-wines made offers of judgment suggesting that judgment be entered in their favor in the amount of $2,500 each, "inclusive of prejudgment interest, costs and attorney's fees," in settlement of "any and all legal claims and remedies pled by either" the Portwines or Fernandes, and including the dismissal with prejudice of both of Fernandes's counterclaims. Neither party accepted the other's offer.

Following trial, both parties moved to be declared the prevailing party and for costs and attorney's fees. The superior court found:

Given the lack of a money judgment, [the Portwines] did not beat their offers of judgment and did not prevail at trial on this issue. While [Fernandes] did better than the $500 offered in 'his offer of judgment, [his] offer of judgment did not address the equitable claims against him or Count 2 of his counterclaim and was therefore not a comprehensive offer. Injunctive relief was entered against [Fernandes] that he did not formally acquiesce to prior to trial and [Fernandes] did not prevail with regard to Count 2 of his counterclaim. Therefore, the Court cannot conclude that [Fernandes] beat his offer of judgment at trial.

Fernandes's offer of judgment was not comprehensive, definite and unconditional; it did not encompass any of the equitable claims in this case and it failed to include one of his own two counterclaims. The goal of Civil Rule 68 is to encourage settlement and avoid litigation. It would have served little purpose for the Portwines to accept Fer-nandes's offers of $1,000 damages without also settling the injunction claims. Both legal and equitable claims were based on the same set of facts, and settling only the legal claims would not have avoided litigation.

The Portwines contend that they did better than their offer of judgment, and are entitled to seventy-five percent of their reasonable and actual attorney's fees from the date the offer of judgment was made. The Portwines' offer of judgment included total damages of $5,000. They received no damages. Therefore they did not obtain a result more favorable than their offer of judgment. We accordingly affirm the superior court's denial of Rule 68 attorney's fees to both parties.

v. CONCLUSION

Because the superior court did not err in deciding any of the challenged aspects of this case, we AFFIRM the decision in its entirety.

BRYNER, Justice, not participating.

      . Eventually the Portwines also complained about signs on Fernandes's four-ples advising tenants where to put their garbage.

      . Spenard Action Comm. v. Lot 3, Block 1 Evergreen Subdivision, 902 P.2d 766, 774 (Alaska 1995).

      . Pedersen v. Flannery, 863 P.2d 856, 857 n. 1 (Alaska 1993).

      . Alaska R. Civ. P. 48(c); Hampton v. State, 623 P.2d 318, 319 (Alaska 1981).

      . Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).

      . Andrus v. Lena, 975 P.2d 54, 57 n. 1 (Alaska 1999).

      . Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001).

      . Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996).

      . Fernandes mentions in an argument caption that the court made no specific findings that would support a finding of nuisance. This point is not further developed in his brief and is therefore waived. See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (an issue given only cursory treatment in a brief will be treated as abandoned). In his reply brief, Fernandes objects to the jury verdict because the jury was asked whether he had created or permitted a private or public nuisance on his property. Fernandes claims that the public nuisance issue was disposed of on directed verdict, and that therefore the finding of nuisance is erroneous, because the jury verdict does not explain which type of nuisance is found. Fernandes did not raise this issue in his opening brief and therefore the argument is waived. See Kellis, 20 P.3d at 1114-15 (an argument not raised before trial court or in opening brief is waived).

      . 902 P.2d 766 (Alaska 1995).

      . Spenard Action involved a nuisance claim under AS 09.50.170-.240. Id. at 774.

      . Id. at 775.

      . Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (the burden in typical civil cases is preponderance of the evidence); Spenard Action Comm., 902 P.2d at 775 (the general civil standard is preponderance of the evidence); Cavanah v. Martin, 590 P.2d 41, 42 (Alaska 1979) (''The standard of proof in civil cases is proof by a preponderance of the evidence.").

      . E.g., Mangini v. Aerojet General Corp., 12 Cal. 4th 1087, 51 Cal.Rptr.2d 272, 912 P.2d 1220, 1225 (1996); Bilodeau v. City of Bristol, 38 Conn.App. 447; 661 A.2d 1049, 1051 (1995); Hartzler v. Town of Kalona, 218 N.W.2d 608, 610 (Iowa 1974); Tenn v. 889 Assocs., Ltd., 127 N.H. 321, 500 A.2d 366, 371 (1985); State v. Fermenta ASC Corp., 166 Misc.2d 524, 630 N.Y.S.2d 884, 892 (N.Y.Sup.1995); Arnoldt v. Ashland Oil, Inc., 186 W.Va. 394, 412 S.E.2d 795, 804 (1991).

      . Brack's Law Dictionary 1502 (6th ed.1990) quoted in McDowell v. State, 957 P.2d 965, 970 (Alaska 1998).

      . 957 P.2d at 970.

      . See Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657, 664 (Alaska 2000), where we stated, but not in connection with a statute of limitations: ''Trespass is an unauthorized intrusion or invasion of another's land, including subsurface areas."

      . McDowell, 957 P.2d at 970 (quoting Buack's Law Dicrronary 1502 (6th ed.1990)). -

      . Id. at 971.

      . Eg., Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d 848, 855 (Alaska 1991) ("[Dloubts as to which of two statutes is applicable in a given case should be resolved in favor of applying the statute containing the longer limitations period."); Bibo v. Jeffrey's Rest., 770 P.2d 290, 296 (Alaska 1989) ("[PJreference given to the longer period of limitations when two periods reasonably may apply."); Jenkins v. Daniels, 751 P.2d 19, 22 n. 6 (Alaska 1988); Safeco Ins. Co. v. Honeywell, Inc., 639 P.2d 996, 1001 (Alaska 1981) ("Where two constructions as to the limitations period are possible, the courts prefer the one which gives the longer period in which to prosecute the action.").

      . Civil Rule 82 reads in pertinent part:
      (a) Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.

      . Haskins v. Shelden, 558 P.2d 487, 495-96 (Alaska 1976).

      . City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184 (Alaska 1974). See also Shepherd v. State, Dep't of Fish & Game, 897 P.2d 33, 44 (Alaska 1995) (citing Tobeluk v. Lind, 589 P.2d 873, 877 (Alaska 1979) ("Where each party prevails on a 'main issue,' the court retains the discretion to not award any attorney's fees.")).

      . Civil Rule 68 reads in part:
      (a) At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued. The offer may not be revoked in the 10 day period following service of the offer....
      (b) If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer ... the offeree, whether the party making the claim or defending against the claim, shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney fees incurred by the offeror from the date the offer was made. ...

      . Portwines' counsel submitted a letter that same day "supplementing" the Portwines' offers of judgment, and purporting to "end the entire current litigation, including both equitable and legal issues." The letter suggested that it was "for purposes of seitlement," and suggested "terms to be included in an overall settlement." These suggestions included eliminating the dogs housed outdoors, use of regular covered dumpsters, removal of signs outside rental units, an agreement that one of Fernandes's lots would revert to a two-unit occupancy "upon transfer of the property from Mr. Fernandes to a successor in interest," an agreement by the Portwines not to object to completion of an addition on the Fernandes home, and the Portwines accepting $2,000 (instead of $5,000) from Fernandes if he removed a mobile home from his property.

      . Hayes v. Xerox Corp., 718 P.2d 929, 937 (Alaska 1986).

      . Fernandes further argues that the injunctions the court entered against his property constitute an unconstitutional taking and deny him equal protection of the laws. Fernandes did not raise these constitutional issues in his trial brief, and therefore waived the issues. See Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001) ("As a general rule, we will not consider arguments for the first time on appeal."). Although our precedent allows for consideration of arguments not raised explicitly below if the issue is "1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings," Fernandes's constitutional arguments do not fit within this exception. Hoffman, 32 P.3d at 355 (quoting McConnell v. State, 991 P.2d 178, 183 (Alaska 1999) (internal quotations and citations omiited)). We have also held that waiver will not be found where an issue raises plain error. Hoffman, 32 P.3d at 355 n. 29. But the court's decision was not plain error.


author: FABE, Chief Justice. BRYNER, Justice,

text:
    Kristine M. FARDIG, n/k/a Kristine M. Owen, Appellant, v. Earle FARDIG, Appellee.
    No. S-10028.
    Supreme Court of Alaska.
    Oct. 4, 2002.
    Rehearing Denied Nov. 4, 2002.

      Kristine M. Owen, pro se, Bakersfield, California, Appellant.
    Darryl L. Jones, Law Office of Darryl Jones, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Kristine Owen (formerly Fardig) appeals a modification of custody rights denying her custody of her minor children. She claims that the doctrines of res judicata and collateral estoppel precluded the trial court from considering her drug abuse. Moreover, she argues that the superior court improperly weighed the evidence in making its decision. The superior court's decision satisfies the appropriate standard of review and is therefore affirmed.

II FACTS AND PROCEEDINGS

Kristine Owen and Earle Fardig separated in September 1994. They divorced August 16, 1995. Owen and Fardig had been married for twenty-seven years during which time they had eight children together. Of those children, only three-Anna Fardig, born April 9, 1985; Bethany Fardig, born April 4, 1988; and Edith Fardig, born January 12, 1990-are presently under the age of eighteen. Due in part to evidence of domestic violence by Fardig, Owen was granted custody of the five minor children at the time-the above three plus Sarah Fardig, born March 3, 1980, and Andrew Fardig, born November 24, 1982-and awarded appropriate child support.

In July 1996, approximately ten months after the divorcee decree was issued, Fardig moved for a modification of custody, claiming that Owen's substance abuse impaired her ability to care for the children. Based on a report by a custody investigator indicating that Owen "may be abusing alcohol, pain killers and other controlled substances," Superior Court Judge Peter A. Michalski issued an order on December 18, 1996 granting interim custody to Fardig. Owen was ordered to undergo an assessment for drug, alcohol, and narcotics addiction.

Superior Court Judge Sen K. Tan denied Owen's subsequent motion for interim eusto-dy on May 7, 1999, although Owen was granted weekend visitation with daughter Edith. At the June 2000 hearing on Fardig's motion to modify custody, the court learned that Owen had moved to California. Judge Tan subsequently entered a final custody decree, giving sole legal and primary physical custody of Andrew, Anna, Bethany, and Edith to Fardig. Only the custody of Bethany and Edith was in dispute, as Owen had agreed that it was best for Andrew and Anna to remain with their father. Judge Tan found that Owen's move to California constituted a substantial change in cireumstances. Owen was granted only supervised visitation with the children in Alaska, with the possibility of summer visitation dependent upon a drug and alcohol assessment.

Owen appeals Judge Tan's custody decree, although she now only contests custody of Edith.

III. STANDARD OF REVIEW

We will not reverse the superior court's decision to modify custody unless there has been an abuse of discretion or the controlling factual findings are clearly erroneous. An abuse of discretion is established 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." 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. Issues of res judicata and collateral estoppel are questions of law which we review de novo.

IV. DISCUSSION AND ANALYSIS

A. The Issue of Owen's Alleged Drug Abuse Is Not Barred by Res Judica-ta or Collateral Estoppel.

Fardig based his motion for modification of child support in part on claims that Owen was abusing drugs. Owen argues that this issue was dismissed with prejudice by Superior Court Judge Rene J. Gonzales at a July 21, 1995 domestic violence hearing. However, there is nothing in Judge Gonzales's interim order to support this claim. Moreover, Owen's res judicata and collateral estoppel claims lack merit because consideration of Owen's drug use in the context of a motion to modify custody does not relitigate a past decision. Indeed, Fardig points to Owen's drug abuse as a substantial change in cireumstances. In other words, Owen's alleged drug abuse was not being "relit-igated."

B. Judge Tan Had Sufficient Evidence To Find that Owen's Move to California Constituted a Change in Circumstances.

Owen contends that Judge Tan should not have placed weight on her move to California in determining custody because neither party raised this issue and because the move was temporary, made for the purpose of helping an ill mother-in-law. A finding of a substantial "change in cireum-stances" is necessary before a custody modification hearing can be held. Judge Tan listed Owen's move to California as the "substantial change in circumstances that justified the custody modification hearing. We have previously held that a move to another state constitutes a substantial change in Judge Tan commented that although the move was a temporary relocation, it could last for another year to eighteen months.

The evidence before the court was sufficient to support the conclusion that the move was potentially long-term. Due to the fact that Owen was requesting summer visitation, the move could reasonably have been interpreted as less temporary than Owen herself contends. Furthermore, when asked how long she intended to stay in California, Owen, who was participating telephonically at the June 2000 hearing, testified first that it might be one to two years and later stated that she was not sure if she will ever come back to live in Alaska. Consequently, it was not clearly erroneous for Judge Tan to find a substantial change in cireumstances meriting a reconsideration of custody.

C. Judge Tan Had Sufficient Evidence To Support a Change of Custody as Being in the Best Interests of the Children.

Owen challenges the allegation of drug and alcohol abuse on the ground that there was insufficient evidence introduced at the June 12, 2000 custody trial to support the allegation and the subsequent change in custody. Owen points to two doctors' letters saying she was not abusing drugs or alcohol and claims that Fardig presented no evidence to the contrary. While Judge Tan did find evidence of drug and alcohol abuse, it is clear from his oral findings that this was not the only factor relevant to his decision.

Though the written findings are rather cursory, Judge Tan made extensive oral findings of fact to support his order changing custody from Owen to Fardig. Judge Tan determined the best interests of the children by discussing each of the statutory factors listed in AS 25.24.150(c). The first factor discussed by Judge Tan was the physical, emotional, mental, religious, and social needs of the child. He found that Bethany and Edith, the only children whose custody was in dispute, needed emotional support, a stable home, and unconditional love. For the next factor, the ability of the parents to meet the needs of their children, Judge Tan found that Fardig provided a better environment for the children, noting that Fardig's living situation seemed more stable, that he provided them with sufficient food and clothing, and that he was sending the children to see a therapist. Judge Tan worried that until Owen settled into a more permanent living arrangement, she would not be able to provide the support that the children needed.

Judge Tan next noted that because Bethany and Edith were only twelve and ten years old he did not feel it would be appropriate to take their preferences into consideration. Judge Tan found that the factor of love and affection toward the parent was also inconclusive, since each child expressed love and affection for both parents. For the factor of length and stability of living arrangements, Judge Tan found that both of the children were happy living in Anchorage and had a good group of friends here. Judge Tan next found that each parent had a difficult time allowing the children to have an open relationship with the other parent. Judge Tan found that there was insufficient evidence to conclude that either parent had committed domestic violence.

'Judge Tan next addressed the drug use by each parent. Judge Tan focused on the fact that Fardig had been in an eight-month substance abuse program and had attended meetings of Alcoholics Anonymous and Nar-coties Anonymous as evidence that he was getting his drug problem under control. Judge Tan chastised Owen for not making similar efforts. Judge Tan considered the two doctors' letters that Owen submitted to be unsworn statements because neither doctor testified at trial. Judge Tan further noted that the letters were unclear about what medications Owen was taking and what testing and drug assessment she was undergoing. Consequently, the trial court found little value in the letters.

Further support for Judge Tan's conclusion can be found in the trial testimony of Janice Bernzott, a therapist who had previously counseled Andrew Fardig and was continuing to counsel Bethany and Edith Fardig at the time of the trial. Bernzott, who has a masters degree in clinical psychology and a nursing degree, testified, based on comments that the children made to her, that she believed that Owen was currently using drugs.

Earle Fardig testified that Owen refused to enter the same treatment program that Fardig had earlier undergone for addiction to prescription drugs; furthermore, Fardig testified that Owen even denied that she had a problem. Andrew Fardig, their son, testified that his mother was very manipulative and frequently seemed to "be on something." Jennifer Fardig, their daughter, testified that her father did not smoke marijuana or abuse alcohol and that he would not let the children smoke cigarettes. In addition, Jennifer related a conversation in which her mother discussed being beaten by her husband, Bob Owen, and 'using drugs with him. This testimony further supports Judge Tan's finding of possible drug use by Kristine Owen.

Finally, Judge Tan concluded it was in the best interests of Bethany and Edith to be kept together and with their other siblings because of the emotional support that the siblings provided for each other.

In sum, the evidence does not support Owen's claim that Judge Tan's findings on the statutory factors involved in determining the best interests of the children were clearly erroneous.

D. There Is Evidence in the Record To Support the Trial Court's Finding that Owen's Visits with Her Children Be Supervised.

Under JFE. v. J.A.S., unsupervised visitation by parents is "the norm. " A requirement of supervised visitation must be supported by findings that "specify how unsupervised visitation will adversely affect the child's physical, emotional, mental, religious, and social well-being." "" Bernzott testified that Owen should have unsupervised visits with her children only after a psychological evaluation and drug assessment of Owen and even then only after a transitional therapy period involving both Owen and the girls. When Owen confronted Bernzott with the letter from Dr. Beirne stating that she was not using drugs, Bernzott testified that this was not consistent with statements the children had made to her. Bernzott concluded by stating: "My clinical opinion is that the children would best be served by supervised contact with [Owen]. Although Owen has not previously been required to have supervised visitation with her children, the testimony at trial provides support for Judge Tan's decision to require supervised visitation.

Moreover, we have previously stated that "we prefer that a court ordering supervised visitation also specify a plan by which unsupervised visitation can be achieved." Judge Tan outlined such a plan when he directed that Owen undergo a rigorous clinical assessment showing she was clean and sober before he would consider, upon motion by Owen, unsupervised visitation. Consequently, Owen has been provided with a means for regaining unsupervised and summer visitation of Edith should she wish to do so.

v. CONCLUSION

Owen's res judicata and collateral estoppel claims lack merit because consideration of Owen's drug use in the context of a motion to modify custody does not relitigate a past decision. Owen has failed to demonstrate that the superior court abused its discretion or was clearly erroneous on a factual determination with regard to the modification of custody. Consequently, this aspect of the superior court's decision is AFFIRMED. The requirement of supervised visitation for Owen is supported by evidence at trial and is also AFFIRMED.

BRYNER, Justice,

with whom MATTHEWS, Justice, joins, dissenting in part.

I join today's opinion in concluding that the superior court did not abuse its discretion by awarding physical custody of Bethany and Edith to Fardig. But because our case law unequivocally requires express findings explaining the need for supervised visitation, because the superior court failed to comply with this requirement, and because the record establishes a need for specific findings here, I would remand the visitation order and would direct the superior court to specify how Bethany and Edith would be harmed by having unsupervised visitation with their mother, Owen.

In J.F.E. v. J.A.S.-decided just five years ago-this court articulated the legal standards that must be met in a private custody proceeding before a court may restrict parental visitation by requiring third-party supervision; we concluded that Alaska law makes unsupervised visitation the norm in such cases and that supervised visitation may be ordered only when the trial court makes express findings specifying why supervision is actually necessary to protect the children's best interests:

[Alaska Statutes] 47.10.084 recognizes in the context of child-in-need-of-aid proceedings that noneustodial parents have certain residual rights and responsibilities including "the right and responsibility of reasonable visitation." AS 47.10.084(c). It follows that a similar residual right of reasonable visitation should exist in private custody proceedings since parents in such proceedings are no less deserving of contact with their children than parents of children whose custody has been committed to the state.
Based on these provisions and on the statutes dealing with child custody, we infer that the best interests of the child standard normally requires unrestricted visitation with the noncustodial parent. Therefore, an order requiring that visitation be supervised must be supported by findings that specify how unsupervised visitation will adversely affect the child's physical, emotional, mental, religious, and social well-being and the other interests set out at AS 25.24.150.!

Today's opinion silently overrules this precedent by disregarding its unequivocal command that, before imposing a supervision requirement on parental visitation, the trial court must make express findings explaining how unsupervised visits would violate the children's best interests. For the superior court utterly neglected to specify how unsupervised visitation by Owen would adversely affect Bethany's and Edith's physical, emotional, mental, religious, or social well-being; indeed, though the superior court comprehensively addressed the children's best interests in deciding to award primary physical custody to Fardig, it failed even to mention their best interests in summarily imposing Owen's supervised visitation requirement. Nor does the trial court's discussion of the children's best interests in its custody findings explain its separate and conceptually different decision to require supervised visitation. Although the custody findings do explain why the court believed Fardig to be a better custodial parent than Owen, they contain nothing akin to a finding that unsupervised visitation would actually harm either child or adversely affect the children's best interests.

Yet this court's opinion glosses over this glaring deficiency, as if J.F.E.'s holding meant nothing at all: without any attempt to justify the absence of express findings (indeed, without even acknowledging the superi- or court's failure to make J.F.E. findings), the opinion proceeds to tackle the fact-finding problem on its own, combing the record for traces of evidence that might have supported a supervised visitation requirement; and after considerable stretching and straining, the most the court can say is that Bern-zott's expert testimony "provides support for" the superior court's decision. But this minimal appellate finding of fact hardly fills the void left by the trial court's failure to make appropriate findings, for it lands well short of the mark established in J.F.E., which demands "findings that specify how unsupervised visitation will adversely affect the child's physical, emotional, mental, religious, and social well-being and the other interests. Thus, today's opinion simply adds this court's own name to the list of other participants in the case-Fardig, Bern-zott, and the superior court judge-who have been unable to comply with J.F.E.'s standard. And this court's failure is especially glaring, since the standard it violates is its own creation.

To be sure, the trial court's failure to make express findings in compliance with J.F.L. might be excused were it clear that Bern-zott's testimony had a solid factual basis, that her testimony showed how unsupervised visitation would harm Betbany and Edith, and that the trial court actually found this testimony convincing. But the record supports none of these inferences. Bernzott's testimony that the children's best interests would be served by unsupervised visitation was itself wholly conclusory. It addressed none of the statutory best interests factors and offered no meaningful explanation to support Bern-zott's "expert opinion"; moreover, when asked to describe her factual basis for concluding that Owen suffered from substance abuse problems, Bernzott could point to only two equivocal statements by Edith, which Bernzott "interpreted" as references to drug use or impairment.

Notably, the superior court neither expressly nor implicitly accepted Bernzott's testimony as credible proof that Owen suffered from a substance abuse problem or posed a danger to her children. To the contrary, the court's oral comments demonstrate that it found insufficient evidence to allow any meaningful conclusions on these issues. In evaluating the statutory best interests factor of parental drug abuse for purposes of awarding custody, for example, the court noted:

Ms. Owen presents me with a tough problem. So far, I have two letters-two letters from two doctors. [The] first is by Dr. Mike Beirne.... I don't know what underlies it. I tell you what my problem is: both doctors did not testify here in person. I have essentially an unsworn statement by 2 doctors that ... don't tell me very much. I don't know exactly what [each doctor] has done. What I find critically lacking here is anybody who can get on the stand and testify and tell me one way or the other, you know, what medications Ms. Owen is on, what sort of testing procedures she has undergone, what sort of assessment, and what is essentially the situation with the drugs.!

Far from concluding that eredible evidence of drug use by Owen existed, then, the trial court expressly acknowledged that the evidence on this issue was speculative. But the court nonetheless faulted Owen for failing to disprove these speculative allegations:

Ms. Owen says, "Oh well, that's all speculation." Well, sometimes the best way to refute speculation is to have somebody come into court to state under oath what's going on. That's credible, reliable evidence. So although I see those letters, I'm not going to put much credibility into [them] because I don't know exactly the contours of those things.

The court returned to this theme later: in imposing Owen's supervised visitation requirement, despite its express recognition that the evidence of Owen's substance abuse was speculative, the superior court took the view that Owen should be restricted to supervised visitation unless and until she affirmatively proved that she would not pose any danger:

I have considered the issue of visitation. I'm going to essentially allow visitation after these conditions have been met: Ms Owen, I know you don't want to hear this. You think Judge Michalski dealt with this question. But I tell you what. It hasn't been dealt with ... to my satisfaction. I want a drug and alcohol assessment. Okay. I want somebody telling me that they have assessed you. And you have been assessed clean and sober. That you don't need any drug treatment. It's been years. I haven't really seen any proof that that has occurred. You send me two letters. I'm telling you now they are insufficient. You've gotta do better. If you think you're really clean, it should be very easy. It shouldn't take you very long to submit that evidence to the court. Okay. Then we'll do a follow up and I'll decide what sort of visitation you shall have. Because until that time, I'm going to essentially restrict you to supervised visitation.

Hence, the superior court decreed a strict regime of supervised visitation not because it was persuaded by credible evidence that supervised visitation was needed to prevent harm to the children's best interests, but rather because Owen had failed to prove her own innocence; she had failed to convince the court that unsupervised visitation would not harm her children. As Judge Tan himself tellingly put it, "What I find critically lacking here is anybody who can ... tell me one way or the other ... what is essentially the situation."

In my view, this finding strongly suggests that the superior court restricted Owen to supervised visitation because it believed that she bore the burden of overcoming speculative assertions of possible drug use by affirmatively proving her fitness to engage in risk-free unsupervised visitation. Even though Owen had parented eight children over a marriage spanning some twenty-seven years and had not been credibly shown to have caused them any actual harm, the trial court required her to prove to its satisfaction that unsupervised visitation would be in her children's best interests. Yet this requirement cuts directly against our decision in J.F.E., which adopts unsupervised visitation as the norm in the absence of affirmative proof to the contrary and categorically precludes restrictions imposing supervised visitation unless the trial court expressly specifies how unsupervised visitation would adversely affect the children's best interests.

In summary, then, nothing in the record excuses the trial court's failure to comply with J.F.E.'s requirement of express findings focusing on the need for supervised visitation. Because the trial court failed to specify any adverse effect that unsupervised visitation might actually have on the children's best interests, and because it appears instead to have mistakenly shifted to Owen the burden "to refute speculation," I would vacate the supervised visitation requirement and remand for reconsideration, allowing the restriction on Owen's visitation rights to be reimposed only upon the entry of findings in compliance with J.F.E.'s standards.

I thus dissent from this court's decision affirming the supervised visitation order.

      . Sarah Fardig, being no longer a minor, was not subject to this order.

      . Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000).

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

      . Id.

      . Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).

      . Owen also asserts that al the July 29, 1996 hearing, Judge Michalski improperly placed the burden of proof on her to show that she did not abuse drugs. Owen is correct that the burden of proving a substantial change in circumstances necessary for custody modification is on the moving parent. S./N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985). However, the custody investigator's report that preceded the interim custody order essentially provided evidence of Owen's drug abuse. Fardig does not claim to be exempt from the burden of persuasion but insists instead that he satisfied it. The evidence, namely the custody investigator's report, is sufficient to show that Judge Michalski was not clearly erroneous in concluding that there was a strong possibility that Owen abused drugs.

      . AS 25.20.110(a) ("An award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child."); see also Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).

      . House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989). Owen correctly points to House to support the proposition that it can be in the best interests of the child to be in the custody of the parent who is moving out of the state. This, though, does not lend any support to her assertion of custody other than to say that it is a possibility.

      . Owen further contends thai Judge Tan abused his discretion by failing to give proper weight to a taped conversation in which her son Jon discusses selling marijuana to his father, Earle Far-dig. Judge Tan did accept the tapes as evidence, but apparently did not consider this evidence to be sufficient under AS 25.24.140(c)(8) to award custody to Owen over Fardig as being in the best interests of the children. The statute provides as a factor in determining the best interests of the child "evidence that substance abuse by either parent or other member of the household directly affects the emotional or physical well-being of the child." By invoking an abuse of discretion standard in this particular situation, Owen must show that Judge Tan gave "disproportionate weight to particular factors while ignoring others." Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998). While perhaps Judge Tan might have ordered some sort of drug assessment for Fardig, Judge Tan did not clearly give "disproportionate weight" to the relative drug use of Owen as compared to that of Fardig for reasons that will be discussed below.

      . Judge Tan commented that because the custody investigator did not testify at trial, the custody report relied upon below was used only as background support. Judge Tan stated that he made bis decision "based on the evidence that has been presented in court and testified to."

      . The statute provides:
      (c) The court shall determine custody in accordance with the best interests of the child under AS 25.20.060-25.20.130. In determining the best interests of the child the court shall consider ~
      (1) the physical, emotional, mental, religious, and social needs of the child;
      (2) the capability and desire of each parent to meet these needs;
      (3) the child's preference if the child is of sufficient age and capacity to form a preference;
      (4) the love and affection existing between the child and each parent;
      (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
      (6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
      (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
      (8). evidence that substance abuse by either parent or other members of the household diréctly affects the emotional or physical well-being of the child;
      (9) other factors that the court considers pertinent.

      . A trial judge is not permitted to condition custody on a parent's ability to relocate. Moeller-Prokosch v. Prokosch, 27 P.3d 314, 317 (Alaska 2001). However, the impact of any potential move may be taken into consideration by the court in assessing the best interests of the child. Id.

      . Owen contends that Edith is of an age where her opinion could be asked as to with whom she wants to live. AS 25.24.150(c)(3) requires that when determining custody the court take into account the child's preference "if the child is of sufficient age and capacity to form a preference." Whether a child is of sufficient age to have a meaningful preference for one parent or the other is a question committed to the discretion of the trial court. See Jenkins v. Handel, 10 P.3d 586, 590 (Alaska 2000). Here, a therapist testified that Edith was not mature enough to make a decision about where to live.

      . This is not an entirely accurate statement: The letter from Dr. Beirne states that Owen has undergone "periodic urine drug and alcohol testing" and never tested positive. This does not, though, negate the fact that Dr. Beirne did not testify before the court.

      . In addition, Bernzott testified that Fardig participated cooperatively in Andrew's counseling, but that Owen only came.to counseling once and chose not to come back again, despite an invitation to do so. This lends support to the conclusion that Fardig was working toward rehabilitation but Owen was not.

      . 930 P.2d 409, 409 (Alaska 1996).

      . Id. at 413-14.

      . Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998).

      . Both Earle Fardig and Andrew Fardig testified that if allowed to take the children to California, Owen would keep the children there. Flight risk could potentially be a justification for supervised visits. See Monette, 958 P.2d at 436. However, this claim was unsupported by anything other than these vague allegations.

      . J.F.E. v. J.A.S., 936 P.2d 409, 413-14 (Alaska 1996) (internal footnotes omitted) (emphasis added).

      . Opinion at 14-15.

      . 930 P.2d at 413-14.

      . Over Owen's understandable but unsuccessful hearsay objection, Bernzolt described two statements by Bethany as her basis for believing that Owen had a substance abuse problem:
      Bethany reported to me that "mom had a lot of medicine" and that "mom hurt a lot" as far as drug use. There was an occasion that Bethany also reported to me she asked her mom to stop the car because she believed her mom was-'drunk'-was the word Bethany used. I interpreted that to be impaired in some way. And Bethany asked her mom to take her back home. She would not continue in the car.
      Evidently, these statements were made to Bern-zott sometime shortly after she began seeing Bethany and Edith in February 1999-more than a year before the custody hearing. Bernzoit gave no further details and failed to describe the context in which these statements were made or to specify when the reported incidents were alleged to have occurred. When Owen challenged the accuracy of Bernzott's claim that Bethany made these statements, Bernzott quickly altered her testimony and attributed the statements to Edith instead.

      . Emphasis added.