author: GRAY, Justice.

text:
    Duane Lester JACKSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-17-0316, S-18-0250
    Supreme Court of Wyoming.
    July 30, 2019
    Representing Appellant: Office of the State Public Defender: Diane M. Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Benjamin Fischer, Assistant Attorney General. Argument by Mr. Fischer.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   GRAY, Justice.

[¶1] Appellant Duane Lester Jackson was charged with three counts of first-degree sexual abuse of a minor. The jury convicted Mr. Jackson on Counts I and III. It acquitted him on Count II. The district court granted a judgment of acquittal on Count III. Mr. Jackson appeals his conviction on Count I claiming reversible error because the jury instructions contained identical elements for Counts I and II with nothing to differentiate one count from the other. The verdict form also failed to distinguish between Counts I and II. We term these contentions the "Description Issue." Mr. Jackson also argues the evidence was insufficient to convict him of first-degree sexual abuse. Finally, he alleges his trial counsel was ineffective. We conclude Mr. Jackson waived review of the Description Issue claims under the invited error doctrine, the evidence adduced at trial was sufficient to convict Mr. Jackson on Count I, and Mr. Jackson's counsel was not ineffective. We affirm.

ISSUES

[¶2] We rephrase the issues:

I. Did Mr. Jackson waive his right to appeal the jury instructions and verdict form under the invited error doctrine?
II. Was the evidence sufficient to convict Mr. Jackson of first-degree sexual abuse beyond a reasonable doubt on Count I?
III. Was Mr. Jackson denied a fair trial because of ineffective assistance of counsel?

FACTS

[¶3] A.D., a seven-year-old girl, resided in a two-bed motel room in Cheyenne, Wyoming, with her mother, sister and Mr. Jackson. A.D. confided in her grandmother that Mr. Jackson had sexually abused her more than once. Her grandparents reported these allegations to law enforcement, and an investigation was opened. The State charged Mr. Jackson with three felony counts of First-Degree Sexual Abuse of a Minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) and (c). The Information described the three counts identically, without distinguishing facts. At trial, however, A.D. testified to three separate incidents of sexual intrusion: the first occurred on the bed; the second took place in the bathroom; and the third was digital penetration as opposed to sexual intercourse.

[¶4] At the close of the State's evidence, the district court commented on distinguishing the occurrences:

THE COURT: ... [E]ven if you take the victim's evidence sort of situationally, there is an incident on the bed, incident in the bathroom, that's two, but in what period of time and when? Those are very troubling, but, of course, the Wyoming Supreme Court has not put that burden on the State, and if it occurred one, two or more times in an identifiable time period, and here, you know, it seems identifiable, you know, I can't cut it out for that reason, I guess.

The parties initially agreed to the jury instructions at the jury instruction conference. However, Mr. Jackson's counsel objected to the verdict form, arguing that under Heywood v. State , 2007 WY 149, 170 P.3d 1227 (Wyo. 2007) (abrogated on alternate grounds by Granzer v. State , 2008 WY 118, 193 P.3d 266 (Wyo. 2008) ), the verdict form was unacceptably vague:

[DEFENSE COUNSEL]: ... [W]e're running into the similar issue that they had in Heywood v. State , where how is the jury going to tell what the conduct was that he's actually being convicted of? There is no indication of what his conduct was in the verdict form that they would find him guilty of, which leads to confusion as to what he was actually convicted of. So I think that needs to be spelled out, what the allegation is, or what conduct actually constitutes the crime so that we know what they think happened.

Counsel explained, "I don't know what ... the allegations actually are," and then suggested that the vague descriptions of the underlying counts "need[ed] to be addressed in this verdict form."

[¶5] The district court expressed concern that adding additional language to the verdict form might "supply[ ] an allegation" that the State did not raise, but directed the parties to revise the verdict form and present amendments to the district court for consideration the next day. Before the jury instruction conference ended, the State proposed a different remedy-amending the jury instructions to include more detail as to the time and place of each count rather than changing the verdict form. Defense counsel renewed its objection, again citing Heywood , arguing additional specificity was needed in the verdict form:

[DEFENSE COUNSEL]: ... My recollection of Heywood was they wanted that in the verdict form, and the reasoning there was they didn't want to be amending the Information, but I'm not sure putting it in the instructions would really be amending the Information, so I guess if I could hold off on my argument there and I'll do some more research.

The district court again directed the parties to come to agreed upon language, "either in the verdict form or in the elements instruction," by the start of trial the next day. If the parties could not agree whether the defining language should be inserted in the jury instructions or in the verdict form, the district court instructed them to send separate versions "of the elements or verdict or whatever," and stated it would rule on competing versions at the start of the third day of trial.

[¶6] The parties were not able to agree on revised instructions, and each submitted separate jury instructions to the district court. Neither submitted an alternate verdict form. The State then informed the court it agreed with the Defendant's jury instructions. The district court noted the defense counsel's proffered instructions "say the same thing [as the State's proposed instructions] but don't identify a location ...." The verdict form was not discussed further.

[¶7] The district court sentenced Mr. Jackson to a term of not less than twenty-five years in prison on Count I. Mr. Jackson timely appeals.

DISCUSSION

I. Did Mr. Jackson waive his right to appeal the jury instructions and verdict form under the invited error doctrine?

[¶8] Mr. Jackson argues the Description Issue-in Instructions 8 and 9 and in the verdict form-constitutes reversible error because it is not possible to determine the specific conduct that formed the basis for conviction under Count I. The State counters Mr. Jackson waived the Description Issue under the invited error doctrine because he proffered the instructions, and the doctrine applies equally to the verdict form.

A. Standard of Review

[¶9] "The doctrine of invited error prohibits a party from raising on appeal alleged trial court errors that were induced by that party's actions." Toth v. State , 2015 WY 86A, ¶ 45, 353 P.3d 696, 710 (Wyo. 2015)

(quoting McIntosh v. State ex rel. Wyo. Workers' Safety & Comp. Div. , 2013 WY 135, ¶ 54, 311 P.3d 608, 621 (Wyo. 2013) ). We apply the invited error doctrine instead of plain error when a party has affirmatively waived a right or objection. Id. As explained by the Supreme Court in United States v. Olano :

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Olano , 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993) (citations omitted). A party waives a right when he "knowingly and intelligently relinquishe[s]" it, rather than "merely fail[s] to preserve" it. Toth , ¶ 45, 353 P.3d at 710 (quoting United States v. Cornelius , 696 F.3d 1307, 1319 (10th Cir. 2012) ).

[¶10] A defendant who waives his right to specific jury instructions or a verdict form will be denied review under the invited error doctrine. See Nunamaker v. State , 2017 WY 100, ¶¶ 8, 10, 401 P.3d 863, 866 (Wyo. 2017) (no review where waiver of jury instruction, but review under plain error for forfeiture of jury instruction); Vaught v. State , 2016 WY 7, ¶ 34, 366 P.3d 512, 520 (Wyo. 2016) (no review where waiver of jury instruction, but review under plain error for forfeiture of jury instruction); Bromley v. State , 2007 WY 20, ¶ 35, 150 P.3d 1202, 1213 (Wyo. 2007) (no review where waiver of jury instruction); United States v. Jereb , 882 F.3d 1325, 1341 (10th Cir. 2018) (no review where waiver of jury instruction); Cornelius , 696 F.3d at 1319 (no review where waiver of jury instruction). We have in the past reviewed invited errors under limited circumstances where the issue is "necessarily prejudicial." Toth , ¶ 45, 353 P.3d at 710 (quoting Snow v. State , 2009 WY 117, ¶ 26, 216 P.3d 505, 513 (Wyo. 2009) ); see also Mickelson v. State , 2008 WY 29, ¶¶ 10, 13, 178 P.3d 1080, 1083-84 (Wyo. 2008). In Toth , however, we held a waiver that rises to the level of invited error will not be reviewed on appeal, regardless of whether the jury instructions were necessarily prejudicial. "[Mr. Toth] waived his right to appellate review. Under such circumstances, the alleged error is not reviewable and we do not reach the question of whether Mr. Toth was necessarily prejudiced." Toth , ¶ 47, 353 P.3d at 711. In Nunamaker , we explicitly clarified that we will not review a waived error:

In Vaught , we suggested that "[t]here is an exception [to the doctrine of invited error] for an error which is 'necessarily prejudicial.' " [ Vaught , 366 P.3d at 520 n.11 ] (quoting Toth , ¶ 47, 353 P.3d at 711 (quoting Snow v. State , 2009 WY 117, ¶ 26, 216 P.3d 505, 513-14 (Wyo. 2009) )). That statement is at odds with our decision in Toth, where we held that invited error that rises to the level of waiver is not reviewable on appeal. If the error has been waived, we do not address prejudice. Toth , ¶ 47, 353 P.3d at 711 (Mr. Toth "waived his right to appellate review. Under such circumstances, the alleged error is not reviewable and we do not reach the question of whether Mr. Toth was necessarily prejudiced."). Prejudice remains a part of the plain error analysis where the invited error was "forfeited" rather than "waived."

Nunamaker , ¶ 11, 401 P.3d at 867 n.3 (emphasis added).

[¶11] Here, defense counsel's objections raised the same complaint Mr. Jackson now urges on appeal. At the jury instruction conference, the parties and the district court discussed the jury instructions and the verdict form together. The Description Issue was a single problem appearing in both documents and could have been resolved with changes to the jury instructions, the verdict form, or both. The State offered to add language to the jury instructions to clarify the location of each offense. Defense counsel balked, claiming it was the verdict form that should contain more specificity. The district court directed the parties to offer a solution that would resolve the Description Issue. Defense counsel returned with jury instructions that did not solve the Description Issue and did not offer any amendments to the verdict form. The record demonstrates Mr. Jackson knew the basis for his current claims and offered revisions that were accepted and knowingly allowed matters to proceed. In other words, Mr. Jackson affirmatively waived the Description Issue. Under the invited error doctrine, "[w]e reject attempts by a defendant to turn a trial strategy into an appellate error." Toth , ¶ 45, 353 P.3d at 710 (quoting Ortiz v. State , 2014 WY 60, ¶ 81, 326 P.3d 883, 899 (Wyo. 2014) ). Mr. Jackson created the very situation he now asks us to review-he invited the error. We decline to address the Description Issue waived below.

II. Was the evidence sufficient to convict Mr. Jackson of first-degree sexual abuse beyond a reasonable doubt on Count I?

[¶12] In Mr. Jackson's second argument, he argues that the district court erred when it denied his motion for judgment of acquittal on Count I due to insufficient evidence. When reviewing a motion for judgment of acquittal, "we examine and accept as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom." Foltz v. State , 2017 WY 155, ¶ 10, 407 P.3d 398, 401 (Wyo. 2017) (quoting Bruce v. State , 2015 WY 46, ¶ 52, 346 P.3d 909, 926 (Wyo. 2015) ). "As a practical matter, the standard of review for denial of a motion for judgment of acquittal is the same as that used when an appeal claims insufficient evidence to convict." Foltz , ¶ 10, 407 P.3d at 401.

[¶13] Although Mr. Jackson challenges the denial of his motion for judgment of acquittal, he is arguing the evidence was insufficient to sustain his conviction. See Foltz , ¶ 10, 407 P.3d at 401. Our task is to determine "whether or not the evidence could reasonably support such a finding by the factfinder." Id . (quoting Hill v. State , 2016 WY 27, ¶ 13, 371 P.3d 553, 558 (Wyo. 2016) ). In doing so, we defer to the jury "and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt." Foltz , ¶ 10, 407 P.3d at 401-02 (quoting Oldman v. State, 2015 WY 121, ¶ 5, 359 P.3d 964, 966 (Wyo. 2015) ).

[¶14] To convict Mr. Jackson beyond a reasonable doubt, the jury needed to find that Mr. Jackson inflicted "sexual intrusion" on A.D. by sexual intercourse, pursuant to Wyo. Stat. Ann. § 6-2-314. The jury also needed to find that A.D. was "under the age of thirteen" and that Mr. Jackson was sixteen years or older at the time of the sexual intrusion.

[¶15] Mr. Jackson submits that the State presented insufficient evidence to establish that Mr. Jackson penetrated A.D., insufficient evidence to show that Mr. Jackson did so "for the purposes of sexual arousal, gratification or abuse," and insufficient evidence that Mr. Jackson was at least sixteen years old at the time of the incident. We reject each of these arguments in turn.

[¶16] First, A.D. testified repeatedly that "[Mr. Jackson] put his privates to mine" on the bed in the motel room. She also drew a picture of Mr. Jackson's privates for the jury at trial. The SANE nurse testified that A.D. told her that Mr. Jackson laid her down, spread her legs apart, and that "his private parts touched my private parts here, in, out, this." In Pryor , we have repeatedly stated:

that sexual intercourse is accomplished in a legal sense if there is the slightest penetration of the genital organs of the female by the sexual organ of the male. To sustain a conviction for unlawful sexual intrusion, it is not necessary that the vaginal cavity be fully entered. Rather, it is sufficient if there is entry of the male organ into the labia or vulva.

Pryor v. State , 2009 WY 95, ¶ 9, 212 P.3d 635, 637 (Wyo. 2009) (internal citations omitted). The State needed to prove only that there was the slightest penetration of A.D.'s genital organs to establish sexual intrusion by sexual intercourse. Id . Taking the evidence in the light most favorable to the State, we find that a reasonable jury could have been convinced beyond a reasonable doubt that sexual intrusion by sexual intercourse occurred during the charged dates.

[¶17] Next, Mr. Jackson argues that there was no evidence that he performed the alleged sexual intrusion by sexual intercourse for purposes of "sexual gratification." The meaning of sexual intrusion is:

(A) Any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse; or
(B) Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.

Wyo. Stat. Ann. § 6-2-301(vii) (LexisNexis 2017) (emphasis added). Proof of intrusion "for the purposes of sexual arousal or gratification" is not required under subsection B. Mr. Jackson's contention that the evidence was insufficient to prove purpose is without merit.

[¶18] Finally, Mr. Jackson briefly contends that the State failed to prove that he was sixteen years or older at the time of the alleged sexual abuse. However, A.D.'s mother testified that at the time of trial, Mr. Jackson was twenty-nine years old. The jury could and clearly did rely on this testimony. We conclude that the State presented sufficient evidence for the jury to conclude that sexual intrusion by sexual intercourse occurred as charged in Count I.

III. Was Mr. Jackson denied a fair trial because of ineffective assistance of counsel?

[¶19] Mr. Jackson contends trial counsel was ineffective and acted "outside the wide range of professionally competent assistance." Strickland v. Washington , 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed 2d 674 (1984). He argues the failure to cross-examine A.D. and to call Mr. Jackson to testify in his own defense constitute ineffective assistance. We reject both arguments.

A. Standard of Review

[¶20] Mr. Jackson's claim of ineffective assistance of counsel "involve[s] mixed questions of law and fact" and is "review[ed] de novo." Bruckner v. State , 2018 WY 51, ¶ 12, 417 P.3d 178, 181 (Wyo. 2018). "When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance." Barkell v. State , 2002 WY 153, ¶ 9, 55 P.3d 1239, 1242 (Wyo. 2002) (citations omitted). In evaluating the effectiveness of counsel, we begin with "a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id . ; see also Herdt v. State , 891 P.2d 793, 796 (Wyo. 1995).

[¶21] This Court has adopted the familiar standard set forth in Strickland v. Washington for determining whether a criminal defendant has received effective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Bruckner , ¶ 14, 417 P.3d at 181 (quoting Strickland , 466 U.S. at 687, 104 S. Ct. at 2064 ).

B. Cross-Examination

[¶22] Mr. Jackson filed a motion for a new trial under W.R.A.P. Rule 21. At the W.R.A.P. Rule 21 hearing, Mr. Jackson's counsel testified her failure to review all the supporting evidence regarding A.D. adversely affected her decision to forego cross-examination.

[¶23] This Court does not evaluate counsel's efforts with the benefit of hindsight, but "attempt[s] to reconstruct the circumstances which existed during the trial counsel's challenged conduct and evaluate the performance from his perspective." Barkell , ¶ 20, 55 P.3d at 1244. Ultimately, co-counsel made the strategic decision not to cross-examine A.D. based on her belief it would serve no fundamental advantage. ("I thought that was a good strategy, and I also agreed to release the child from the subpoena.") In fact, she believed cross-examination was potentially detrimental to the defense. This rationale demonstrates that trial counsel thoroughly considered a cross-examination of the victim and ultimately decided not to conduct it. We find that trial counsel's decision not to cross-examine A.D. was part of the defense's "sound trial strategy," which we will not second-guess. See Dickeson v. State , 843 P.2d 606, 609 (Wyo. 1992).

[¶24] Further, Mr. Jackson presents no evidence that failure to cross-examine A.D. prejudiced him or would have changed the outcome of the case. See Proffit v. State , 2008 WY 114, ¶ 33, 193 P.3d 228, 241 (Wyo. 2008). "Speculation as to how the cross-examination could have been conducted differently does not meet the Strickland test for ineffective assistance." Barkell , ¶ 23, 55 P.3d at 1244.

C. Failure to Testify

[¶25] Mr. Jackson also argues that counsel's failure to call him to testify amounts to ineffective assistance. A defendant's decision whether or not to testify is a constitutionally-protected right. Herdt , 891 P.2d at 797. Both the trial court and the defendant's attorney should ensure that the defendant has been apprised of his right to take the stand and the effects that may stem from his knowing and voluntary decision to remain silent. Mebane v. State, 2012 WY 43, ¶ 16, 272 P.3d 327, 329 (Wyo. 2012).

[¶26] The district court advised Mr. Jackson of his right to testify throughout the course of these proceedings-including at his initial appearance, at his arraignment, and during trial. Mr. Jackson's responses reflect that he understood and knowingly waived his right to testify in his own defense. Trial counsel repeatedly discussed with Mr. Jackson his right to testify. Further, the district court questioned Mr. Jackson a final time at the close of the jury instruction conference:

THE COURT: Mr. Jackson?
THE DEFENDANT: Yes, sir.
THE COURT: You've heard what's been said. They -- and you had right to testify, put on a defense, and they stood up on your behalf and said you didn't want to; is that correct?
THE DEFENDANT: That is correct, sir.
THE COURT: And you knew you could have?
THE DEFENDANT: Yes, sir.
THE COURT: If you had testified, you would be treated as any other witness.
THE DEFENDANT: Of course.
THE COURT: And his confidence in that regard, even though those answers were brief, convince the Court that there is enough of a record as to a knowing and voluntary waiver.

Later, at the W.R.A.P. Rule 21 hearing, Mr. Jackson reiterated that it was his choice not to testify at trial.

[¶27] The record indicates that Mr. Jackson understood the consequences of waiving the right to testify. He "voluntarily, knowingly and intelligently waived that right after consideration of a number of factors and discussion with counsel and the district court." Barker v. State , 2006 WY 104, ¶ 28, 141 P.3d 106, 116 (Wyo. 2006) (citing Burgos-Seberos v. State , 969 P.2d 1131, 1135 (Wyo. 1998) ). We defer to Mr. Jackson's decision not to testify. See Herdt , 891 P.2d at 796.

[¶28] Even if trial counsel was deficient in advising Mr. Jackson not to testify, the second prong of the Strickland test requires a showing of prejudice. Dickeson , 843 P.2d at 609 (quoting Strickland , 466 U.S. at 687, 104 S. Ct. at 2064 ). Mr. Jackson's sole argument is that "[t]he right to testify is such a basic tenet of due process that ignoring that right can only result in an unfair trial" and that "[t]o ignore or exclude that testimony is prejudice." "[A] claim of prejudice must be supported by more than bald assertions or speculation." Castellanos v. State , 2016 WY 11, ¶ 99, 366 P.3d 1279, 1305 (Wyo. 2016). Mr. Jackson has failed to prove, with reference to the record, how he suffered prejudice from not testifying. Trial counsel was not ineffective when it did not call Mr. Jackson as a witness.

CONCLUSION

[¶29] Mr. Jackson waived his right to review of the jury instructions and verdict form under the invited error doctrine. The evidence was sufficient to convict Mr. Jackson of Count I. Finally, Mr. Jackson's trial counsel was not ineffective for the decision not to cross-examine A.D. and in not calling Mr. Jackson as a witness. Affirmed.

      The written proposals are not in the record, but the record is clear on the events that followed.

      Mr. Jackson's defense team consisted of two attorneys-lead counsel and co-counsel. Co-counsel became involved later in the case, when she was approached to perform the cross-examination of A.D. Co-counsel's role expanded beyond the cross-examination of A.D., and she went on to prepare an opening statement and perform other cross-examinations at trial. She then represented Mr. Jackson at sentencing.

      Both lead counsel and co-counsel discussed this issue with Mr. Jackson.


source: Caselaw Access Project

author: KAUTZ, Justice.

license: Public Domain

text:
    Mark A. SAUNDERS, Appellant (Plaintiff), v. Sibyl H. SAUNDERS, Appellee (Defendant).
    S-18-0208
    Supreme Court of Wyoming.
    August 1, 2019
    Representing Appellant: Melinda S. McCorkle of Kline, McCorkle & Pilger, LLP, Cheyenne, Wyoming.
    Representing Appellee: Devon P. O'Connell, Dustin J. Richards and Albert K. Walsh of Pence and MacMillan LLC, Laramie, Wyoming.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   KAUTZ, Justice.

[¶1] Appellant Mark A. Saunders appeals from the district court's order dismissing his divorce action against Appellee Sybil H. Saunders on the grounds of improper venue and/or forum non conveniens . The district court erred by dismissing Mr. Saunders' action for improper venue, and it did not apply the proper test when it dismissed for forum non conveniens . Consequently, we reverse and remand for further proceedings.

ISSUES

[¶2] The issues on appeal are:

1. Whether the district court erred by dismissing Mr. Saunders' divorce complaint for improper venue under W.R.C.P. 12(b)(3).
2. Whether the district court erred by dismissing Mr. Saunders' divorce complaint under the doctrine of forum non conveniens.

FACTS

[¶3] The Saunders married in North Carolina in 1989. On February 9, 2018, Mr. Saunders filed a complaint for divorce in the district court in Fremont County, Wyoming.

Mr. Saunders stated he lived in Fremont County and had resided in the State of Wyoming for more than sixty days immediately preceding his filing of the complaint. He also stated two children were born as issue of the marriage, but they were adults. Mr. Saunders requested the district court grant him a divorce from Mrs. Saunders and equitably divide their marital property. Mrs. Saunders was served with the complaint and summons in North Carolina on February 20, 2018.

[¶4] On February 21, 2018, Mrs. Saunders filed a divorce complaint in North Carolina. That document is not part of the record on appeal, but her amended complaint, which she filed on April 9, 2018, is included in the record. Mrs. Saunders then filed a motion to dismiss the Wyoming action pursuant to W.R.C.P. 12(b)(3), claiming Wyoming was an improper venue for the parties' divorce and/or forum non conveniens.

[¶5] Mrs. Saunders filed a personal affidavit in support of her motion to dismiss. She declared the parties had lived together in North Carolina and had never resided in Wyoming as a married couple. Mrs. Saunders also stated Mr. Saunders has interests in approximately forty-four North Carolina businesses. According to her, he had engaged in extensive business dealings and real estate ventures in southeastern North Carolina for over thirty years, including a business named "Mark Saunders Luxury Homes," which has "a significant number of employees[.]" Mrs. Saunders stated Mr. Saunders and/or his companies were involved in thousands of real estate transactions over an unidentified period of time.

[¶6] As for liabilities, Mrs. Saunders stated Mr. Saunders' businesses were involved in "a great number of lawsuits" and there was an outstanding lien of $74,000,000, although it is unclear who the lien had been filed against. She also stated the parties had a federal tax lien of $3,000,000 filed against them in North Carolina and Wyoming. Mrs. Saunders claimed the "identification, classification, and evaluation of all marital assets, together with the number of competent witnesses who may testify in the ... action[ ] are primarily from the State of North Carolina." She asserted, given the complex nature of the marital properties and debts, North Carolina would be the "most convenient forum to litigate" the issues associated with their divorce.

[¶7] In his verified response, Mr. Saunders claimed the district court in Fremont County had jurisdiction over the subject matter and parties. He recognized Mrs. Saunders had filed a complaint in North Carolina but stated he had not been served with process in that suit. Mr. Saunders also admitted he continued to have significant business and personal connections in North Carolina. He conceded there were pending lawsuits against him and his business entities and a federal tax lien had been filed in North Carolina and Wyoming against the parties. He did not specifically deny the $74,000,000 lien but stated the documents from the Register of Deeds, which were apparently on the thumb drive, see supra n.2, speak for themselves.

[¶8] Mr. Saunders claimed to have moved permanently to Wyoming and to have substantial real property and business interests in this State. He averred he had possessed and operated a ranch in Wyoming for over thirteen years and had interests "in at least 10 Wyoming-based business entities." Mr. Saunders asserted his choice of Wyoming as the forum to litigate the divorce was entitled to deference.

[¶9] The North Carolina court stayed Mrs. Saunders' divorce action "until the determination of venue and any other possible jurisdictional matters are resolved by the Wyoming Courts." After a hearing, the district court in this case issued an order granting Mrs. Saunders' "Motion[ ] to Dismiss for Improper Venue." Mr. Saunders appealed.

STANDARD OF REVIEW

[¶10] We generally review a district court's rulings regarding venue and forum non conveniens for abuse of discretion. Bourke v. Grey Wolf Drilling Co., LP, 2013 WY 93, ¶ 14, 305 P.3d 1164, 1167 (Wyo. 2013) (venue); Burnham v. Coffinberry, 2003 WY 109, ¶¶ 5, 8, 76 P.3d 296, 298-99 (Wyo. 2003) (venue and forum non conveniens ); West Texas Utils. Co. v. Exxon Coal USA, Inc., 807 P.2d 932, 935 (Wyo. 1991) (citing Booth v. Magee Carpet Co., 548 P.2d 1252 (Wyo. 1976) ) (forum non conveniens ).

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.

Burnham, ¶ 5, 76 P.3d at 298. However, to the extent resolution of this case requires us to address legal issues, our review is de novo. BTU W. Res., Inc. v. Berenergy Corp., 2019 WY 57, ¶ 14, 442 P.3d 50, 54-55 (Wyo. 2019) ; Bourke , ¶ 15, 305 P.3d at 1167 (interpretation of venue statutes is reviewed de novo ).

[¶11] Given Mrs. Saunders filed a Rule 12(b)(3) motion to dismiss, the court generally accepts the well-pleaded facts in Mr. Saunders' complaint as being true. See Espinoza v. Evergreen Helicopters, Inc., 359 Or. 63, 376 P.3d 960, 982 (2016) ; 5B Fed. Prac. & Proc. Civ. § 1352 (3d. ed. 2019) (discussing the identical F.R.C.P 12(b)(3) ). Additionally, "the court must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff." 5B Fed. Prac. & Proc. Civ. § 1352. A district court may, however, "examine facts outside the complaint" to determine whether a case should be dismissed under Rule 12(b)(3). Id . Thus, as in this case, the parties may submit affidavits setting forth facts relevant to the district court's determination of venue and/or forum non conveniens . Id.

DISCUSSION

[¶12] Mr. Saunders' complaint stated he had been a Wyoming resident for more than sixty days immediately preceding his filing and he resided in Fremont County. Wyo. Stat. Ann. § 20-2-107 (LexisNexis 2017) sets forth the requirements for a Wyoming district court to acquire jurisdiction over a divorce action:

(a) No divorce shall be granted unless one of the parties has resided in this state for sixty (60) days immediately preceding the time of filing the complaint, or the marriage was solemnized in this state and one of the parties has resided in this state from the time of the marriage until the filing of the complaint.
(b) A married person who at the time of filing a complaint for divorce resides in this state is a resident although his spouse may reside elsewhere.

[¶13] Mrs. Saunders did not dispute the district court had jurisdiction over the action pursuant to § 20-2-107. She also acceded to the court's personal jurisdiction over her. Mrs. Saunders asserted, however, North Carolina was the more appropriate forum for the parties' divorce and the distribution of their marital property. Her motion to dismiss the action and the district court's order referenced two distinct concepts-statutory venue and forum non conveniens. We will address each, in turn.

Statutory Venue

[¶14] Venue is a modern legal concept referring to the county, district, or other geographical location where, " 'for the sake of fairness, convenience, or other commanding policy considerations, a cause is to be tried.' "

Sundance Mountain Resort, Inc. v. Union Tel. Co., 2007 WY 11, ¶ 9, 150 P.3d 191, 195 (Wyo. 2007) (quoting 77 Am. Jur. 2d Venue § 1 (2006) ). See also , Bourke, ¶ 16, 305 P.3d at 1168. Wyo. Stat. Ann. § 20-2-104 (LexisNexis 2017) addresses venue for divorces: "A divorce may be decreed by the district court of the county in which either party resides[.]" See Linch v. Linch, 2015 WY 141, ¶ 25, 361 P.3d 308, 315 (Wyo. 2015).

[¶15] Although the district court dismissed Mr. Saunders' complaint for improper venue, it did not mention § 20-2-104 in its order. Mr. Saunders claims the district court erred as a matter of law by dismissing his divorce action on the grounds of improper venue when he filed his complaint in a county allowed by § 20-2-104. Mrs. Saunders responds § 20-2-104 is permissive because it uses the word "may," and, therefore, does not mandate a divorce be filed in the district court of a county "in which either party resides." She suggests the statute allows a divorce to be filed elsewhere, including in another state.

[¶16] We addressed a similar argument in Bourke, ¶¶ 16-22, 305 P.3d at 1168-69. The venue statute at issue in Bourke was Wyo. Stat. Ann. § 1-5-107 (LexisNexis 2017), which states certain actions against non-residents or foreign corporations "may be brought in any county where the cause of action arose or where the plaintiff resides." Bourke, ¶ 11, 305 P.3d at 1167. We recognized the term "may" is generally permissive; however, in the context of the venue statute, "[i]t is permissive only to the extent of allowing a plaintiff to choose between filing an action where the cause of action arose or where he resides." Id., ¶¶ 18-20, 305 P.3d at 1168-69.

[¶17] The same is true of § 20-2-104. Although the statute uses the word "may," it is permissive only to the extent it allows a plaintiff to choose between the counties where the parties reside. See generally , Linch, ¶¶ 25-26, 361 P.3d at 315 (discussing proper venue for divorce cases). Mr. Saunders lives in Fremont County and Mrs. Saunders does not live in Wyoming; consequently, the Fremont County district court is the appropriate venue within the State of Wyoming.

[¶18] Mrs. Saunders does not direct us to any Wyoming statute allowing dismissal or transfer of a divorce action simply because venue would be more appropriate in another state. See generally , Restatement (Second) Conflict of Laws, § 84 (1971, updated 2019) ("A court lacks power to transfer a case to the courts of another state."); Hronek v. St. Joseph's Children's Home, 866 P.2d 1305, 1310 (Wyo. 1994) (stating a Wyoming district court does not have authority to "change the venue to another state"). Instead, she refers to the general definition of venue, i.e., the place where a case, for the sake of convenience, should be tried, in arguing the district court had discretion to dismiss the action for improper venue even though it was filed in accordance with § 20-2-104. See, e.g. , Sundance Mountain Resort , ¶ 9, 150 P.3d at 195 (definition of venue).

[¶19] The cases cited by Mrs. Saunders recite the general definition of venue but resolve the issues presented by reference to the relevant venue statutes. See Sundance Mountain Resort, ¶ 10, 150 P.3d at 195 ( Wyo. Stat. Ann. § 1-5-101 ); State Farm Mut. Auto. Ins. Co. v. Kunz, 2008 WY 71, ¶ 14, 186 P.3d 378, 382 (Wyo. 2008) ( Wyo. Stat. Ann. § 1-6-301 ); Bourke, ¶ 20, 305 P.3d at 1169 (Section 1-5-107). As we noted in Bourke, the legislature, when it adopted Wyoming's various venue statutes, made its choice of the " 'geographical location[s] in which, for the sake of fairness, convenience, or other commanding policy considerations, a cause is to be tried.' " Bourke, ¶ 21, 305 P.3d at 1169 (quoting Kunz, ¶ 14, 186 P.3d at 382 ). The general definition of venue is not authority for dismissal or transfer of a case to a more appropriate venue.

[¶20] Fremont County was the proper venue within Wyoming; therefore, to the extent the district court dismissed Mr. Saunders' divorce action for improper venue, it erred. See Burnham, ¶ 5, 76 P.3d at 298 (quoting 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1352 (1990) (if a defect in venue is not demonstrated, the court will deny a Rule 12(b)(3) motion to dismiss)). Compare Bourke, ¶ 31, 305 P.3d at 1171 (the district court properly dismissed the case because it was filed in a venue not authorized by statute). The only legal authority for the district court to dismiss Mr. Saunders' divorce complaint because North Carolina is a more convenient forum is the common law doctrine of forum non conveniens , which we address below.

Forum Non Conveniens

[¶21] Under the doctrine of forum non conveniens, "a court, even though it has jurisdiction, [may decline to] entertain the suit if it believes itself to be a seriously inconvenient forum[,] provided that a more appropriate forum is available to the plaintiff." Restatement (Second) Conflict of Laws § 84 (1971, updated 2019). The doctrine "allows a court to decline to exercise jurisdiction when the plaintiff's chosen forum is significantly inconvenient and the ends of justice would be better served if the action were brought and tried in another forum." Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 1178 (R.I. 2008) (citing Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991) ); Volt Delta Res., Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089, 1094 (1987) ; Qualley v. Chrysler Credit Corp., 191 Neb. 787, 217 N.W.2d 914, 915 (1974) ). Each state decides the extent to which the doctrine of forum non conveniens applies. 20 Am. Jur. 2d Courts § 109.

1. Wyoming Precedent Regarding Forum Non-Conveniens

[¶22] This Court mentioned common law forum non conveniens in a few cases in the 1970s. In Booth, 548 P.2d at 1255 n.2, we declined to decide "whether a trial court in this state can dismiss a suit in reliance upon the doctrine of forum non conveniens " because the issue had not been presented to the district court and it was unnecessary to the decision. In Lohman v. Jefferson Standard Life Ins. Co., 525 P.2d 1, 3 (Wyo. 1974), we recognized " 'the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of v[e]nue.' " Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 841, 91 L.Ed. 1055 (1947), application to federal cases limited by 28 U.S.C. § 1404 )). Following that principle, we refused to address the appellant's forum non conveniens argument because Wyoming did not have jurisdiction over the dispute.

[¶23] This Court finally considered forum non conveniens on the merits in 1991 when we decided West Texas Utilities Co. v. Exxon Coal USA, Inc., 807 P.2d 932 (Wyo. 1991). West Texas, a public utility, produced electricity at coal-fired power plants in Texas. It contracted to purchase coal mined by Exxon in Wyoming. Id. at 933. When the market price of coal dropped below the contract price, West Texas attempted to negotiate a new price with Exxon but was unsuccessful. Id. at 933-34. Exxon filed suit in Wyoming "seeking a declaration of its remedies in the event that West Texas repudiated the contract." Id. at 934.

[¶24] West Texas claimed the district court should have dismissed the case for forum non conveniens because it involved "a dispute between two Texas companies over a contract executed in Texas" and, therefore, should be litigated in Texas. Id. at 935. With limited analysis, this Court concluded the district court did not abuse its discretion by denying West Texas's motion. We ruled the district court properly reviewed the arguments for and against dismissing the action and concluded Exxon's choice to litigate the case in Wyoming was "rational," given the mines were located within the state, and "the suit was not brought for purposes of harassment." Id. See also , Burnham, ¶ 8, 76 P.3d at 299 (stating the forum non conveniens issue was "addressed to the sound discretion of the trial court" but refusing to consider it on the merits because the appellant failed to provide cogent argument or cite to pertinent authority). West Texas, therefore, recognized the doctrine of forum non conveniens applies in Wyoming but provided little direction for how to apply it.

[¶25] Mr. Saunders argues that, while our precedent confirms Wyoming courts have authority to deny a motion to dismiss for forum non conveniens, we have never recognized the right of a court to grant a motion to dismiss on that basis. It is true we have never affirmed a forum non conveniens dismissal. However, that does not mean Wyoming courts do not have the authority to do so. If we did not intend to allow relief for forum non conveniens, we would have ruled the doctrine does not apply in Wyoming. See 20 Am. Jur. 2d Courts § 109 (each state decides the extent to which forum non conveniens applies). Furthermore, in Durdahl v. National Safety Associates, Inc., 988 P.2d 525, 528 n.1 (Wyo. 1999), we stated: "The concept that a court can decline to exercise jurisdiction which it otherwise could legitimately exercise has been recognized previously by this Court in the doctrine of forum non conveniens. " We, therefore, reject Mr. Saunders' argument that the district court did not have general authority to grant a motion to dismiss for forum non conveniens.

2. Standard for Application of Forum Non Conveniens

[¶26] A review of authorities from other jurisdictions demonstrates West Texas does not fully address the forum non conveniens doctrine. The majority of jurisdictions follow a more structured two-stage forum non conveniens test originally articulated by the United States Supreme Court in Gulf Oil Corp., 330 U.S. at 506-09, 67 S.Ct. at 842-44. See Restatement (Second) Conflict of Laws § 84 ; Espinoza, 376 P.3d at 974 ; Kedy, 946 A.2d at 1182 n.11 (collecting authorities).

[¶27] In the first stage, the court determines whether an alternate forum is available and capable of providing relief. Espinoza, 376 P.3d at 974 ; Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. at 843-44. This is a threshold issue because, if no adequate alternate forum exists, the court must not dismiss the case. Id. ; Restatement (Second) Conflict of Laws § 84. To be considered adequate, the parties must be amenable to service of process in the alternate forum and the court in the alternate forum must have jurisdiction over the matter. Espinoza, 376 P.3d at 984 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) ). See also, Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. at 842-43 (the doctrine of forum non conveniens "presupposes at least two forums in which the defendant is amenable to process"). In addition, the alternate forum's law must be capable of providing a meaningful remedy. Id . The alternate forum is not adequate if some procedural bar, such as a statute of limitations, would prevent litigation. Espinoza, 376 P.3d at 984. See also, Piper Aircraft, 454 U.S. at 254, 102 S.Ct. at 265.

[¶28] In the second stage, the court balances the private and public interests to determine whether it should grant the motion to dismiss for forum non conveniens . Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843-44. In doing so, the court must keep in mind the plaintiff's "choice of a forum should not be disturbed except for weighty reasons." Restatement (Second) Conflict of Laws § 84. See also , Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Stated another way, a court should dismiss a case for forum non conveniens only when the private and public interests "strongly favor" litigating the matter in an alternate forum. Espinoza, 376 P.3d at 975 (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843 ). See also, Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007) ("A defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff's chosen forum.").

[¶29] In analyzing the parties' private interests, the court will weigh the relative advantages of trying the case in the plaintiff's chosen forum against the obstacles to the defendant obtaining a fair trial. Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. The private interests may include:

"[T]he relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; ... all other practical problems that make trial of a case easy, expeditious and inexpensive[;] * * * [and] the enforceability of a judgment if one is obtained."

Id. Additionally, "the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy." Id. Cf. West Texas, 807 P.2d at 935 (mentioning there was no evidence the plaintiff chose Wyoming as its forum to harass the defendant).

[¶30] As part of the second stage of the forum non conveniens analysis, the court also considers the interests of the public, including:

the administrative difficulties and burden on the court in the plaintiff's chosen forum; the unfairness of imposing the expense of trial and the burden of jury duty on residents of a community with little or no connection to the controversy; the interest in "having localized controversies decided at home"; and choice of law issues, including whether the court will be required to apply its own law, or that of another jurisdiction.

Espinoza, 376 P.3d at 975 (quoting Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843-44 ).

[¶31] Gulf Oil embraces the West Texas concept of giving the district court discretion to balance the arguments for and against dismissing the case, but also recognizes the important policies of making sure there is an adequate forum available for the suit and respecting the plaintiff's choice of forum when it is appropriate to do so. The second stage of the test incorporates the concepts of rationality and preventing harassment articulated in West Texas but provides a more structured and comprehensive means of analyzing the forum non conveniens issue. We, therefore, join the majority of jurisdictions and adopt the Gulf Oil two-stage test.

3. Application of the Gulf Oil Forum Non Conveniens Test to the Saunders Action

[¶32] The district court's order dismissing Mr. Saunders' complaint stated, in pertinent part:

1. The parties married November 4, 1989, in North Carolina, where they resided together until recently.
2. Mr. Saunders has extensive business and real estate ventures in North Carolina. The parties also own real property in Wyoming.
3. Mr. Saunders filed a Complaint for divorce in Wyoming on February 9, 2018.
4. Mrs. Saunders filed a Complaint for [d]ivorce in North Carolina on February 21, 2018.
5. The North Carolina Court has stayed all proceedings pending this Court's determination of Mrs. Saunders' Motion to Dismiss for Improper Venue.
6. Mrs. Saunders contends[,] although Mr. Saunders filed first and Wyoming has subject matter jurisdiction [and] personal jurisdiction, North Carolina is the more appropriate forum in which to distribute the parties' apparently complex assets because the majority of the property, the witnesses, and relevant evidence is located in North Carolina.
7. Mr. Saunders requests this court retain jurisdiction. ...
8. ...
9. The Wyoming Supreme Court has ... held: "Whether a case should be dismissed under the doctrine of forum non conveniens lies within the discretion of the district court." Booth v. Magee Carpet Company, 548 P.2d 1252 (Wyo. 1976).
W[est] Texas Utilities Co. v. Exxon Coal USA, Inc. , 807 P.2d 932, 935 (Wyo. 1991).
10. The Court finds Mrs. Saunders' motion should be granted. The parties have never resided in Wyoming as a couple. The majority of Mr. Saunders' business dealings, the witnesses, financial records, property records, [and] the discovery as to the extent of marital property is located in North Carolina. North Carolina is the more convenient forum.

[¶33] The district court followed West Texas ; however, that analysis was not adequate under Gulf Oil. The court did not consider whether North Carolina was an adequate alternate forum or balance the private and public interest factors identified in Gulf Oil. Importantly, the district court did not give any consideration to Mr. Saunders' right, as plaintiff, to choose the forum to litigate his action. Consequently, we reverse and remand for application of the correct test. On remand, the district court must keep in mind that Mrs. Saunders, as the party seeking dismissal, bears a "heavy burden" to establish Mr. Saunders' action should be dismissed on forum non conveniens grounds. Sinochem, 549 U.S. at 430, 127 S.Ct. at 1190.

[¶34] As a threshold matter, the district court will need to determine whether North Carolina is an adequate alternate forum. If North Carolina is not an appropriate forum, Wyoming must entertain the suit no matter how inconvenient it is. Restatement (Second) Conflict of Laws § 84, comment c. This inquiry will require a determination of whether Mr. Saunders is amenable to service of process in North Carolina, whether the North Carolina court has jurisdiction over the case, and whether North Carolina law provides a meaningful remedy. Espinoza, 376 P.3d at 984 ; Piper Aircraft, 454 U.S. at 254 n.22, 102 S.Ct. at 265 n.22.

[¶35] Mr. Saunders contends the remedy in North Carolina is inadequate because a divorce is not immediately available, like it is in Wyoming. The parties cite different North Carolina divorce statutes as applying to their situation. Mr. Saunders asserts N.C. Gen. Stat. Ann. § 50-6 applies, and it requires spouses to be separated for a minimum of one year prior to divorce. However, Mrs. Saunders filed for a divorce from bed and board under N.C. Gen. Stat. Ann. § 50-7, which apparently has different requirements. The district court will need to clarify which statute applies and whether it provides an adequate remedy.

[¶36] Mr. Saunders also claims North Carolina is an unsuitable forum because it requires all his business entities to be joined as parties in the divorce action. This requirement is confirmed by Mrs. Saunders' North Carolina divorce complaint which names numerous business entities as co-defendants. The parties also raise issues related to each state's jurisdiction over their business and property interests and the enforceability of the final property distribution order.

[¶37] The district court will need to evaluate these circumstances in the context of relevant authorities and the facts. In doing so, it should keep in mind "the remedy provided by the alternate forum 'need not be the same as that provided by the [plaintiff's chosen forum].' " Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1174 (10th Cir. 2009) (quoting Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 607 (10th Cir. 1998), which quoted Piper Aircraft, 454 U.S. at 254-55, 102 S.Ct. 252 (some internal quotation marks omitted)). To fail the first stage of the Gulf Oil test, the remedy in the alternate forum must be " 'so clearly inadequate that it is no remedy at all.' " Id. In the event North Carolina is not a suitable alternate forum, the district court cannot dismiss the action. Restatement (Second) Conflict of Laws § 84, comment c.

[¶38] If the district court determines North Carolina is an adequate alternate forum, it will move to the second step of the Gulf Oil analysis and balance the private interests and the public interests. Although the doctrine of forum non conveniens " 'leaves much to the discretion of the court,' the exercise of that discretion is not unlimited." Espinoza, 376 P.3d at 985 (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843 ). The district court must recognize the plaintiff has the right to choose his forum; it cannot dismiss a case simply because another forum may be generally more convenient than the one chosen by the plaintiff.

Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 576 A.2d 518, 524 (1990) ; Restatement (Second) Conflict of Laws § 84. "[U]nless the balance [of interests] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. In other words, to support a dismissal for forum non conveniens, the combination of factors must significantly outweigh the policy of respecting the plaintiff's choice of forum. See id.

[¶39] As we stated earlier, the private interests considered in the balancing include the relative ease or difficulty in obtaining sources of proof, both documentary and testimonial. Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Gulf Oil mentioned considerations such as the availability of process for compelling the attendance of witnesses, the cost of obtaining the attendance of witnesses, and the possibility a premises must be viewed by the court. Id. Mrs. Saunders, as the party seeking dismissal, must identify specific evidence material to the case and "demonstrate that accessing it for purposes of litigating in the plaintiff's chosen forum will be extraordinarily difficult." Espinoza, 376 P.3d at 988 (citing Aveta, Inc. v. Colon, 942 A.2d 603, 609 (Del. Ch. 2008), and Pierce v. Albertson's Inc., 121 N.M. 369, 372, 911 P.2d 877, 880 (1996) ).

[¶40] Under the category of private interest factors, the district court should also consider "all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. This factor is fairly broad, including: the practical burden of a new action in the alternate forum; rules particular to the alternate forum that make it more difficult to initiate and sustain an action; the need to join third parties and the relative ease or difficulty of doing so in each forum; and any potential difficulty in enforcing a judgment obtained in the alternate forum. Espinoza , 376 P.3d at 990 ; Picketts, 576 A.2d at 526-27 (more restrictive procedural rules in alternate forum); Piper Aircraft, 454 U.S. at 259, 102 S.Ct. at 258 (joinder of third-party defendants); Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843 (enforceability of judgment).

[¶41] The procedural and judgment enforcement issues relate to the first-step of the forum non conveniens analysis. If the problems are serious enough, the plaintiff may be without a remedy in the alternate forum, which would mandate denial of the motion to dismiss. However, if such problems exist but do not reach the level of depriving the plaintiff of a remedy, they may still be considered in balancing the private interest factors in the second step of the Gulf Oil test. Espinoza, 376 P.3d at 990 ; Restatement (Second) Conflict of Laws § 84, comment c. Here, the parties agree North Carolina law imposes different requirements to obtain a divorce and for distribution of marital property than Wyoming law. If the district court does not conclude that North Carolina's requirements effectively provide Mr. Saunders with "no remedy," it still will need to consider the additional procedural hurdles required by North Carolina law in balancing the private interest factors. The district court will also need to consider issues raised by the parties regarding each court's authority to render a judgment distributing assets located in the other forum and the enforceability of any such judgment.

[¶42] Gulf Oil also mentions "the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy." Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. See also , West Texas, 807 P.2d at 935. The district court should, on remand, consider whether Mrs. Saunders has established Mr. Saunders brought the action in Wyoming to vex, harass, or oppress her.

[¶43] As part of the second step of the Gulf Oil balancing test, the district court will also need to consider relevant public interest factors. To reiterate, the public interest factors include:

the administrative difficulties and burden on the court in the plaintiff's chosen forum; the unfairness of imposing the expense of trial and the burden of jury duty on residents of a community with little or no connection to the controversy; the interest in "having localized controversies decided at home"; and choice of law issues, including whether the court will be required to apply its own law, or that of another jurisdiction.

Espinoza, 376 P.3d at 975 (quoting Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843-44 ). There is considerable overlap in these factors. Consequently, "the central question which a court must answer when weighing the public interests ... is whether the case has general nexus to the forum sufficient to justify the forum's commitment of judicial time and resources to it." Pain v. United Techs. Corp., 637 F.2d 775, 791 (D.C. Cir. 1980), overruled in part on other grounds in Piper Aircraft, 454 U.S. at 241, 102 S.Ct. at 252. Stated another way, the court must consider "the extent to which either forum has an interest in, and connection to, the underlying controversy." Espinoza, 376 P.3d at 991 (citing Gulf Oil, 330 U.S. at 509, 67 S.Ct. at 843 ).

[¶44] The district court's balancing of the public interests should also include analysis of any administrative difficulties in litigating the case. These could include the time and expense to determine matters that are not of particular interest to Wyoming and/or the congestion (or lack thereof) in the court's calendar. Espinoza, 376 P.3d at 990 ; Restatement (Second) Conflict of Laws § 84. However, the doctrine of forum non conveniens may not be used as a mechanism to control the court docket. Id. The court must also consider whether there are choice-of-law issues that pose difficulties in resolution of the case. Gulf Oil, 330 U.S. at 509, 67 S.Ct. at 843.

CONCLUSION

[¶45] Mr. Saunders filed his divorce complaint in the Fremont County district court in accordance with the applicable venue statute, § 20-2-104. To the extent the district court dismissed on the basis of improper statutory venue, it erred. The district court's dismissal order also referenced principles associated with the doctrine of forum non conveniens. Although the district court followed this Court's West Texas decision, the analysis was inadequate. We, therefore, adopt the two-stage test for forum non conveniens from Gulf Oil and direct the district court to apply that test on remand. In applying the test, the district court must recognize, "it is for the plaintiff to choose the place of suit" and "his choice of a forum should not be disturbed except for weighty reasons." Restatement (Second) Conflict of Laws, comment c.

[¶46] Reversed and remanded for proceedings consistent with this opinion.

      Rule 12(b)(3) states:
      (b) How to Present Defenses . - Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
      ....
      (3) improper venue[.]

      Mrs. Saunders indicated in her motion and affidavit that she provided the documentation supporting her statements to the district court on a thumb drive. Her court filings contain a footnote stating:
      [Mrs.] Saunders makes reference to a thumb drive which contains all attachments. The same will be disclosed to the court as necessary and reasonable efforts will be undertaken to maintain the confidentiality of said records and to limit the filing of the same into the public records. It is anticipated that a Confidentiality Order governing the presentation, preservation, and submission of evidence into the appropriate court proceeding will be entered by the court or pursuant to the terms of a Confidentiality Agreement executed between the parties.
      The thumb drive is not included in the record on appeal, the district court did not mention it in the dismissal order, and the parties do not reference it in their appellate briefs.

      If child custody had been an issue in this case, the Uniform Child Custody Jurisdiction and Enforcement Act, Wyo. Stat. Ann. §§ 20-5-201 through 20-5-502 (LexisNexis 2017), would have governed the choice of forum for the child custody determination. The Act includes statutory authority for a court to decline to exercise jurisdiction over a child custody matter when another state is a more appropriate forum. Section 20-5-307. The court may, however, retain jurisdiction over "the divorce or other proceedings." Id.

      For ease of reading, we have changed the district court's references to the parties as "plaintiff" and "defendant" to their names without bracketing.

      This list of considerations is not exhaustive. For example, some courts have said an alternate forum is inadequate if its courts are so "fraught with corruption, delay and bias" they provide "no remedy at all." Espinoza, 376 P.3d at 984. This factor seems more applicable when the alternate forum is a foreign country. See id. (Peru offered as an alternate forum); Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163 (9th Cir. 2006) (Philippines offered as an alternate forum).

      The public interest factors also include the unfairness of asking a jury to determine matters not particularly relevant to the local community. Espinoza, 376 P.3d at 990-91. Wyoming will not bear the burden of a jury trial because the district court, not a jury, will grant the divorce and make an equitable distribution of the parties' property. Wyo. Stat. Ann. § 20-2-114.


author: BOLGER, Chief Justice.

text:
    BRETT M., Appellant, v. AMANDA M., Appellee.
    Supreme Court No. S-17162
    Supreme Court of Alaska.
    August 2, 2019
    Gabriel E. Sassoon, Baxter Bruce & Sullivan P.C., Juneau, for Appellant.
    Kevin Higgins, Law Office of Kevin Higgins, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

A Juneau couple with three children separated, and the mother filed for divorce. Wishing to relocate with the children to Oregon for work, she requested primary physical custody. The superior court concluded that it was in the children's best interests to relocate with the mother. The father appeals. We conclude that the superior court's custody decision is supported by the record and follows the appropriate legal framework, so we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Brett and Amanda M. married in 2006. They have three children: Jacob, Randall, and Marie. Marie sees an ophthalmologist in Seattle to treat an eye condition. She has also experienced developmental delays, and an individual education program (IEP) has been created for her that includes speech and physical therapy.

Brett and Amanda were living in Oregon when Jacob was born but moved to Juneau in 2008. They are both trained as physicians-Brett is a general surgeon and Amanda is a pediatrician-and they moved to Juneau for work. After Randall's birth they agreed that Amanda would stop practicing medicine to raise the children and that Brett would work extra hours to support the family.

The couple separated in August 2016 when Brett moved out of the family home. The children thereafter stayed with Brett several nights a week.

About a year after the separation, Amanda sought employment with a former colleague in Roseburg, Oregon. The former colleague offered Amanda a position in her practice in May 2018, and Amanda decided to relocate to Oregon.

B. Proceedings

Amanda filed for divorce in September 2017, requesting physical custody of the children.

The Juneau superior court held a three-day trial in June 2018. Much of the trial concerned the legitimacy of Amanda's proposed move. Amanda testified that, to allow for more time with the children, she did not want to work full time, and that there were no suitable part-time pediatric positions available in Juneau. She explained that she was familiar with Roseburg and believed she could ease back into her medical practice there in a way that ensured she had time to spend with the children. She presented the testimony of two Juneau pediatricians to support her position about job opportunities there. Amanda's would-be Oregon colleague also testified about her practice in Roseburg.

Brett called the director of physician services at Bartlett Regional Hospital in Juneau to rebut this testimony. Brett testified that he had alerted Amanda to three job openings while they were separated but that Amanda did not pursue them. He said that it would be difficult for him to travel to Roseburg to visit the children and that Amanda could have sought employment somewhere closer to Juneau.

Brett also testified that during the couple's separation, there were two incidents when Amanda refused to leave the children with him after an argument, taking them out of his car and interrupting a planned custody exchange. Amanda admitted that these incidents occurred. Brett also testified that Amanda had sent him a text threatening to interrupt a trip he had planned with the children to Florida.

At the close of testimony, the superior court issued an oral decision on the record awarding physical custody of the children to Amanda. The court first found that Amanda's proposed move to Roseburg was legitimate and not motivated by a desire to frustrate Brett's access to the children. The court next addressed each statutory best interests factor in AS 25.24.150(c), finding that the fifth factor-geographic and emotional stability-favored Amanda, while the remaining factors favored neither parent. Exercising its discretion under AS 25.24.150(c)(9), the court considered additional factors it deemed pertinent, finding that Brett had the resources to exercise liberal visitation, despite the distance between Roseburg and Juneau, and expressing confidence that he would continue to be involved in the children's lives.

After trial Brett filed a motion for reconsideration, which the court denied. Brett appeals both the custody order and the denial of his motion for reconsideration.

III. DISCUSSION

Brett argues that the superior court violated the law governing custody determinations and made clearly erroneous factual findings when it awarded custody to Amanda and denied Brett's motion for reconsideration. We conclude that the superior court did neither.

A. The Superior Court Did Not Commit Legal Error.

Brett contends that the superior court's order and its denial of his motion for reconsideration, taken together, fail to comply with the legal standards governing custody decisions. He specifically argues that (1) the superior court's findings were inadequate as a matter of law, (2) the superior court impermissibly based its decision on Amanda's primary caregiver status, and (3) the superior court did not engage in the symmetrical analysis required when one parent plans to relocate. We review de novo whether the superior court applied the correct legal standard.

1. The superior court's factual findings were adequate.

We have explained that "[i]n reaching a final child custody determination, 'a trial court is required to make findings on the various statutory factors which are sufficient to make the basis of its decision susceptible to review.' " This requirement stems from AS 25.24.150(c). The court's findings "need not be extensive" but must be sufficient to demonstrate which of the nine best interests factors influenced the custody decision as well as how they were weighed against each other.

The superior court here explicitly addressed each best interests factor and made clear that factors five and nine-the length of time the child has lived in a stable home and desirability of continuity, and other factors the court deems pertinent-formed the basis of its decision. These findings are sufficient for meaningful appellate review and not inadequate as a matter of law.

2. The superior court engaged in proper symmetrical analysis of best interests factor five.

In a custody decision when one parent intends to move from Alaska, the trial court must use a two-step process to determine the children's best interests. The court must first "determine whether the planned move is 'legitimate.' " If the move is legitimate, the court must assume that the move will occur and engage in "symmetric consideration of the consequences to [the child] both if [the parent] leaves with [the child] and if [the parent] leaves without [the child]." We have stressed that a symmetrical analysis of the fifth best interests factor is especially important and requires the court to consider both the emotional and geographic stability of the child.

The superior court found that the children would have greater geographical stability in Juneau, where they had spent their whole lives, but this was outweighed by Amanda's "ability ... to provide superior emotional stability." The court explained its reasoning further in its denial of Brett's motion for reconsideration, stating that it

understood, appreciated, and accounted for [Brett's] capacity to provide his children emotional care and support. It also considered that [Jacob, Randall, and Marie] grew up in Juneau. ... The facts, however, indicated that the emotional stability [Amanda] provided was so profound and nuanced that it outbalanced the emotional and geographical stability [Brett] can provide.

This analysis did not suffer from the same imbalance that has characterized orders reversed for failure to conduct symmetrical analysis. In Saffir v. Wheeler , for example, the superior court awarded custody to the father after finding that the mother would interfere with his ability to parent if she relocated with the child. We reversed, holding that the superior court had not engaged in proper symmetrical analysis because it "did not address the impact of removing the child from her established routine or from [her mother], the parent who established it." The order here was not so one-sided; it considered the effect that living with each parent, and without the other, would have on the children. The superior court properly engaged in the symmetrical analysis required by our precedent.

3. The superior court did not impermissibly consider Amanda's primary caregiver status.

The superior court relied heavily on its finding that Amanda had been the children's primary caregiver in its analysis of the fifth best interests factor. Brett argues that Amanda's "alleged past primary caregiver status is, as a matter of law, not adequate to support" the superior court's findings. He also suggests that whether a parent is the primary caregiver is not relevant to the fifth best interests factor.

While Alaska law "does not automatically give a custodial preference to the primary caregiver," we have explained that "the primary caregiver inquiry may be relevant to the extent that it affects the determination of the child's 'stable, satisfactory environment and the desirability of maintaining continuity.' " In fact we have explicitly stated that "[c]ourts should consider 'social and emotional factors such as who the primary caregiver was for the child' " when analyzing factor five. Accordingly it was not legal error for the superior court to consider Amanda's primary caregiver status as an element in its fifth best interests factor determination. And Amanda's role as primary caregiver was not the sole basis for the court's finding; the superior court also considered her intention to limit her future work to part time and weighed the geographic and emotional stability of the children staying in Juneau with Brett against the emotional stability staying with Amanda would provide.

B. The Superior Court's Factual Findings Are Not Clearly Erroneous.

Brett also argues that several of the superior court's findings were clearly erroneous. "A factual finding is erroneous if 'based on a review of the entire record, the finding leaves us with a definite and firm conviction that a mistake has been made.' " Brett specifically contests the findings that Amanda's move to Roseburg was legitimate, that factor one favored neither parent, that factor five favored Amanda, that factor six favored neither parent, and that additional considerations under factor nine supported the custody decision. Because each of the superior court's findings has support in the record, we conclude that none are clearly erroneous.

1. The finding that Amanda's move to Roseburg was legitimate is not clearly erroneous.

A parent's plan to relocate is considered legitimate if it is "not primarily motivated by a desire to make visitation ... more difficult." The superior court here found that Amanda's proposed move to Roseburg was legitimate because it was motivated by a desire to find employment as a pediatrician; the court found that such employment was not available to her in Juneau. It noted that Amanda had a job offer in Roseburg and relied on the Juneau doctors' testimonies to conclude it would be difficult for Amanda to find employment as a pediatrician after spending eight years out of the workforce. The court further found that Amanda's proposed move was not "made for any effort to frustrate access to the children." These findings have support in the record.

Amanda testified that there were no suitable positions available with local providers. And other testimony indicated it would be infeasible for Amanda to open her own practice in Juneau because the market was saturated and doing so would require long hours. Therefore the court's finding that there was no suitable pediatric work available to Amanda in Juneau is supported by the record.

There is also support for the court's finding that Amanda had found a job in Oregon. Her former colleague testified that she had offered Amanda a job in her Roseburg practice and sent her a preliminary contract. Although Amanda testified that she and her former colleague were still working out the details of her employment, Amanda indicated that it would be part time.

Finally the record supports the court's finding that Amanda's move was not motivated by a desire to interfere with Brett's parenting. Amanda expressed regret over having interfered with Brett's visitation during their separation; she testified that she would not do so again, saying "[t]he kids deserve their time with their dad, and he deserves it too." She clarified on cross-examination that she "realized how damaging that could be for the children to feel like they're pulled between their parents." And discussing her move, Amanda testified that she had decided to stay in the Pacific Northwest so the children could be closer to Brett.

Brett points to conflicting evidence in the record about the availability of employment in Juneau and Amanda's interference with his relationship with the children. But the existence of conflicting evidence is not enough to establish clear error. The record does not leave us convinced that the superior court made a clear and definite mistake when it found that Amanda's move to Roseburg was legitimate.

2. The finding that factor one favored neither parent was not clearly erroneous.

The first best interests factor requires the court to consider "the physical, emotional, mental, religious, and social needs of the child." The superior court found that this factor favored neither parent. It explained that Amanda had proven her ability to provide for the children's needs by being a successful stay-at-home mother for eight years, that Brett had committed himself to working less and spending more time with the children, that the children had no special needs, and that Marie's needs-presumably referring to her IEP and eye condition-could be met in Roseburg.

The court's findings have support in the record. It was undisputed that Amanda had been the children's primary caregiver from 2010 to at least 2016, when the parties separated, and Brett does not argue that she was unable to provide for the children's needs during that period. The superior court's finding that Amanda would be able to meet the children's needs based on her history as their primary caregiver was not clearly erroneous. And at trial Brett did not dispute testimony that Marie would be able to receive appropriate educational and medical services in Roseburg. Brett points to evidence that Amanda had not yet arranged for permanent housing in Roseburg, but this is not enough to demonstrate that the superior court made a clear and definite mistake. It was not clear error for the court to find that factor one favored neither parent.

3. The finding that factor five favored Amanda was not clearly erroneous.

Brett argues that the superior court gave too much weight to Amanda's primary caregiver status when it found that Amanda would provide the children with greater emotional stability. Brett also contends that the court misunderstood the amount of time he spent with the children while he and Amanda lived together, that Amanda was no longer the children's primary caregiver at the time of trial, and that he has been very involved in the children's lives.

It was undisputed that the couple structured their marriage so that Amanda was the children's primary caregiver. Brett testified that he worked extra hours as a part of this arrangement to make enough to support the family, and that by 2014 he was regularly working 80 to 100 hour weeks. He said that he was not able to see the children as much as he would have liked during this period but he made sure he was home for dinner with the children and to put them to bed. Amanda testified that Brett was often disengaged and focused on work even when he was with the children.

The superior court acknowledged that Brett's parenting time had increased since the separation. But it reasoned that Amanda had been able to build a deeper relationship with the children because of her time spent as their primary caregiver during their formative years. We have previously approved of similar reasoning. Moreover Amanda's detailed testimony describing the children's personalities and how the divorce had affected them supported the court's finding that she would provide them with significant emotional stability. And the superior court found that Amanda was "willing to work part-time" in Roseburg to maintain emotional continuity for the children; this also had support in the record.

The superior court noted that this was "a very difficult ... decision" and acknowledged Brett's strength as a father. But it ultimately determined that Amanda provided greater emotional stability to the children and that this outweighed the geographical stability they would enjoy if they stayed with Brett in Juneau. Even if the evidence may have supported a finding that factor five favored Brett, this would not provide grounds to reverse the superior court's finding. Its conclusion is supported by the record and our precedent. This finding is not clearly erroneous.

4. The finding that factor six favored neither parent was not clearly erroneous.

The sixth best interests factor requires the trial court to consider "the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child." The superior court found that this factor favored neither parent, relying mainly on their courtroom demeanor. The court recognized that Amanda had interfered with Brett's custody in the past, but explained that her testimony showed regret for those actions and intent not to repeat them.

Brett argues that this was clear error, but the record supports the court's conclusion. We have explained that "[t]rial judges are in the best position to make determinations about the demeanor of the parties and how their relationships with each other will impact the child." In light of this, we cannot conclude that the superior court's determination was clearly erroneous.

5. The finding that Brett had enough money to afford frequent visitation was not clearly erroneous.

Alaska Statute 25.24.150(c)(9) allows the trial court to consider "other factors that [it] considers pertinent." The superior court did so here, finding that "these folks are financially able to deal with issues of travel, issues of short and long stays, short and long terms of visitation" and indicating that its visitation order would allow for Brett's time with the children to be "liberally distributed." The court again described the couple's arrangement, whereby Amanda cared for the children while Brett worked long hours to support them, and explained that "because [Brett] has worked so hard, ... whatever the location of the children and whatever ... needs the parties need to coordinate in terms of visitation, you have the funds to be able to do that."

Brett argues that the court should not have considered his ability to visit the children frequently but does not provide any explanation for why it was improper to do so. His high income was undisputed at trial, and the court reasonably took it into account.

C. The Failure to Consider Appointment Of A Guardian Ad Litem Was Not Plain Error.

Alaska Statute 25.24.310(c) requires the appointment of a guardian ad litem (GAL) when "in the opinion of the court, representation of the child's best interests, to be distinguished from preferences, would serve the welfare of the child." The statute provides that the court may appoint a GAL "upon the motion of either party or upon its own motion." Neither party requested that a GAL be appointed in this case. The superior court did not appoint one on its own initiative and made no findings on the record about whether or not a GAL was necessary.

Brett argues that the superior court violated AS 25.24.310(c) by failing to consider the necessity of a GAL. Since Brett did not raise the issue before the superior court, we review it under a plain error standard and will reverse only "where an obvious mistake has been made which creates a high likelihood that injustice has resulted."

Alaska Civil Rule 90.7(a) explains the circumstances in which a GAL may be appointed. It states that separate representation of a child's interests may be necessary "when the [GAL] may be expected to present evidence not otherwise likely to be available or presented, or the proceeding is unusually complex." The commentary to the rule explains that "[c]ourts should not routinely appoint [GALs] in custody ... proceedings. In most instances, the child's best interests are adequately protected and presented by the parties."

Brett fails to establish that the circumstances described in the rule existed in this case. He argues that a GAL could have presented evidence about "whether schooling and therapists are available for the children in Oregon" and about "[Amanda]'s unsettled housing situation." But Brett does not explain why the appointment of a GAL was necessary to develop this evidence. Indeed, Amanda was able to present evidence on these issues, and Brett had the opportunity to challenge her testimony on cross-examination but chose not to.

There is no indication from the record that this case was unusually complex or that the parents would be unable to adequately present or protect the children's best interests. We therefore conclude that it was not plain error for the superior court to neither consider the appointment of a GAL nor appoint one on its own motion.

D. The Superior Court Did Not Abuse Its Discretion By Denying Brett's Motion For Reconsideration.

Alaska Civil Rule 77(k) allows a party to move for reconsideration of an issue when it believes that the trial court, among other things, "has overlooked or misconceived some material fact or proposition of law." Brett appeals the superior court's denial of his motion for reconsideration. We review for abuse of discretion.

In his motion for reconsideration, Brett largely challenged the superior court's analysis of the best interests factors and made several factual allegations that he had not presented at trial. In denying the motion, the superior court explained that it would not consider evidence raised for the first time in a motion for reconsideration and that Brett "should have raised the points during his case-in-chief."

Brett argues that this was an abuse of discretion. But we have made it clear that "courts will ordinarily not consider new evidence in a motion for reconsideration." While there are circumstances in which a court may consider evidence presented for the first time in such a motion, it is not an abuse of discretion to refuse to do so.

Brett also argues that the language the court used in its order denying his motion demonstrates that the court misconstrued evidence and overlooked several material facts. Having reviewed the record we cannot agree. As discussed above, the court's custody decision is well supported by the record. It was not an abuse of discretion to deny Brett's motion for reconsideration.

IV. CONCLUSION

The superior court's decision is AFFIRMED.

      Pseudonyms have been used for all family members to protect their privacy.

      "[D]etermining what custody arrangement is in the best interests of the child" when a parent chooses to move out of Alaska includes "determining whether there are legitimate reasons for the move." Moeller-Prokosch v. Prokosch (Moeller-Prokosch I ), 27 P.3d 314, 316 (Alaska 2001). A proposed move is legitimate if it is not "primarily motivated by a desire to make visitation more difficult." Rego v. Rego , 259 P.3d 447, 453 (Alaska 2011).

      Alaska Statute 25.24.150(c) provides:
      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 willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
      (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
      (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
      (9) other factors that the court considers pertinent.

      Bruce H. v. Jennifer L. , 407 P.3d 432, 436 (Alaska 2017).

      Smith v. Weekley , 73 P.3d 1219, 1222 (Alaska 2003) (quoting Duffus v. Duffus , 932 P.2d 777, 779 (Alaska 1997) ).

      See AS 25.24.150(c) ("In determining the best interests of the child the court shall consider ...." (emphasis added)).

      Borchgrevink v. Borchgrevink , 941 P.2d 132, 139 (Alaska 1997).

      See Smith , 73 P.3d at 1227 ("Because it is not clear to us which factors the superior court considered important or what other considerations were involved in reaching its decision, we remand for the superior court to make specific findings on all relevant factors as required by AS 25.24.150(c)."); Borchgrevink , 941 P.2d at 139 (stating that findings supporting custody decision "must either give us a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved").

      See Borchgrevink , 941 P.2d at 139. Brett argues that the superior court's findings are inadequate because they do not spell out how the court weighed particular pieces of evidence when analyzing each best interests factor. But this argument misunderstands appellate review of custody orders. Once a court has identified the best interests factors relevant to its decision, we review the individual findings for clear error and how the factors were balanced for abuse of discretion. See Blanton v. Yourkowski , 180 P.3d 948, 951 (Alaska 2008).

      Saffir v. Wheeler , 436 P.3d 1009, 1013 (Alaska 2019).

      Mengisteab v. Oates , 425 P.3d 80, 85 (Alaska 2018) (quoting Moeller-Prokosch I , 27 P.3d 314, 316 (Alaska 2001) ).

      Saffir , 436 P.3d at 1013 (alterations in original) (quoting Moeller-Prokosch v. Prokosch , 99 P.3d 531, 535-36 (Alaska 2004) ).

      See, e.g. , id. at 1013-14 ; Mengisteab , 425 P.3d at 87 ; Andrea C. v. Marcus K. , 355 P.3d 521, 529 (Alaska 2015) ; see also AS 25.24.150(c)(5).

      436 P.3d at 1014.

      Id. ; see also Mengisteab , 425 P.3d at 87 (holding that "the court erred in failing to adequately consider the effect living in Alaska without his mother and siblings would have on continuity and stability in [the child's] life").

      Blanton v. Yourkowski , 180 P.3d 948, 953 (Alaska 2008) (quoting AS 25.24.150(c)(5) ).

      Veselsky v. Veselsky , 113 P.3d 629, 635 (Alaska 2005) (quoting Rooney v. Rooney , 914 P.2d 212, 217 (Alaska 1996) ).

      See Blanton , 180 P.3d at 951 (stating that custody determination "will not be set aside unless the record shows that its controlling findings of fact are clearly erroneous or that the court abused its discretion").

      Bruce H. v. Jennifer L. , 407 P.3d 432, 436 (Alaska 2017) (quoting Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011) ).

      Mengisteab , 425 P.3d at 85 (alteration in original) (quoting Moeller-Prokosch I , 27 P.3d 314, 316 (Alaska 2001) ).

      See Silvan v. Alcina , 105 P.3d 117, 122 (Alaska 2005) ("When the superior court is faced with conflicting evidence, we do not re-weigh it. 'It is the job of the trial court, not the appellate court, to judge the credibility of the witnesses and to weigh conflicting evidence.' " (quoting Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska , 685 P.2d 1211, 1215 (Alaska 1984) )).

      AS 25.24.150(c)(1).

      Brett does argue that Amanda will be less able to provide for the children moving forward because of her plans to enter the workforce, but this argument is unpersuasive. Amanda clarified that she would only work part time to make time for the children's needs.

      See Silvan , 105 P.3d at 122 (upholding trial court's finding despite conflicting evidence).

      Odom v. Odom , 141 P.3d 324, 331 (Alaska 2006) (explaining that the "superior court may properly conclude that awarding custody to the primary caregiver will establish greater emotional stability for the purposes of AS 25.24.150(c)(5)" (citing Veselsky v. Veselsky , 113 P.3d 629, 635 (Alaska 2005) )).

      See Blanton v. Yourkowski , 180 P.3d 948, 955 n.31 (Alaska 2008) ("Although awarding custody to [the mother] based on her strong emotional bond with [her daughter] may have also been a reasonable result, we cannot substitute our judgment for that of the superior court."); see also McDanold v. McDanold , 718 P.2d 467, 471 (Alaska 1986) (explaining that "[i]n a case as close as this one, the trial court must be given some latitude in making a decision").

      AS 25.24.150(c)(6).

      Silvan , 105 P.3d at 122 (Alaska 2005).

      AS 25.24.310(c).

      See id . ("Upon notification [that custody is at issue in a divorce], the court shall determine if a child's best interests need representation or if a minor or other child needs other services and shall make a finding on the record before trial.").

      Small v. Sayre , 384 P.3d 785, 788 (Alaska 2016) (quoting D.J. v. P.C. , 36 P.3d 663, 668 (Alaska 2001) ).

      Alaska R. Civ. P. 90.7(a).

      Alaska R. Civ. P. 90.7(a) cmt.

      Alaska R. Civ. P. 77(k)(1)(ii).

      See Norris v. Norris , 345 P.3d 924, 928 (Alaska 2015) ; Brown v. State , 563 P.2d 275, 279 (Alaska 1977).

      Hodari v. State, Dep't of Corr. , 407 P.3d 468, 472 (Alaska 2017) ; see also , e.g. , Bachner Co., v. Weed , 315 P.3d 1184, 1195 (Alaska 2013) ("Generally, a motion for reconsideration cannot be based on new information or arguments."); Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth. , 895 P.2d 497, 506 (Alaska 1995) ("We refuse to allow a motion for reconsideration to be used as a means to seek an extension of time for the presentation of additional evidence on the merits of the claim.").

      See Mattfield v. Mattfield , 133 P.3d 667, 675 (Alaska 2006) (affirming consideration of new evidence in motion for reconsideration when trial court had ensured that opposing party had opportunity to controvert new evidence).

      See Engstrom v. Engstrom , 350 P.3d 766, 769 n.12 (Alaska 2015).