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Carter v. Brodrick (9/6/91), 818 P 2d 661
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
LARRY JAMES CARTER, )
) Supreme Court File No. S-4014
Appellant, ) Superior Court Case No.
) 3AN-79-4273 Civil
v. )
)
CHRISTINE KAREN BRODRICK, ) O P I N I O N
)
Appellee. )
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Victor D. Carlson, Judge.
Appearances: William T. Ford,
Anchorage, for Appellant. Douglas J.
Marston, Richard D. Pennington & Associates,
P.C., Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
This is an appeal of a superior court order denying
Larry James Carter's motions to modify visitation and
to appoint a guardian ad litem for his minor daughter,
Carrie Lee Carter. Larry also appeals the superior
court's award of full attorney's fees to Christine
Karen Brodrick.
I. FACTUAL AND PROCEDURAL BACKGROUND
Larry and Christine were married on August 5, 1976.
Christine has a son from a prior marriage, David Wesley
Brodrick, born August 14, 1972. The parties have a
daughter, Carrie Lee Carter, born March 21, 1977. They
were divorced on March 17, 1980. Pursuant to the
parties' agreement, the superior court ordered them to
share equally in raising both children. The children
were to reside with Christine during the school year
and with Larry during the summer. Each parent was to
have two days custody every two weeks during the
other's period of custody.
The parties were unable to comply with their agreement,
and Larry was able to exercise visitation with David
only a few times. The superior court terminated
Larry's visitation rights with David after Christine
continually refused to follow the visitation schedule.
Larry appealed the order terminating his visitation
with David. This court reversed and remanded the case
to the superior court for a determination of whether
Larry stood in loco parentis to David. Carter v.
Brodrick, 644 P.2d 850, 855 (Alaska 1982). The
superior court eventually determined that he did not,
and Larry never resumed visitation with David.
In the meantime, problems had developed between the
parties over Carrie's visitation schedule. According
to Christine, Larry refused to return Carrie after his
1980 summer visitation, until Christine threatened
legal action. Larry again refused to return Carrie to
Christine at the end of his 1981 summer visitation,
until he was jailed for refusing to do so. In May 1982
the superior court granted Christine's motion to modify
the divorce decree. Christine was awarded "full and
complete legal and physical custody"of Carrie, and
Larry's visitation schedule was restricted.
In August 1982 Larry failed to return Carrie from a
scheduled visitation. Christine's attorney discovered
that Larry had quit his job, taken all of his and
Carrie's personal belongings out of his apartment, and
disappeared. Christine and her attorney made every
effort to locate Carrie, but to no avail. In September
1982 Christine obtained a civil bench warrant, a felony
warrant, and an order from the superior court for
Carrie's immediate return and termination of Larry's
visitation rights.
Larry and Carrie were located in Oak Harbor,
Washington, in March 1985. Carrie was returned to
Christine's custody the next day and Larry was
arrested. Larry was convicted on a felony charge of
custodial interference in the first degree and
sentenced to five years with three years suspended. In
June 1985 the superior court entered judgment against
Larry for $9,300 in back child support plus attorney's
fees and interest, and issued an order restraining
Larry in perpetuity from ever contacting Christine,
David Brodrick, or Carrie Carter.
Larry, incarcerated for fourteen and a half months, was
released in July 1986. He returned to Oak Harbor after
his release. While Larry was incarcerated he failed to
answer a civil suit which Christine had brought against
him. The superior court entered a default judgment in
the amount of $1,175,704.26 in September 1986. Larry
discharged that judgment and the June 1985 attorney's
fee award in bankruptcy. He is now paying current
child support plus $150 per month on the arrearages.
Larry moved back to Anchorage in June 1988. In 1990 he
filed a Motion for Visitation and a Motion for
Appointment of a Guardian Ad Litem with supporting
affidavits. Christine opposed the motions. The
superior court denied without a hearing the Motion for
Visitation, stating that Larry had failed to make a
prima facie showing of substantial change in
circumstances. The court also denied the Motion for
Appointment of a Guardian Ad Litem and awarded
Christine full attorney's fees for opposing the
motions.
Larry appeals the denial of his motions for visitation
and for appointment of a guardian ad litem, and the
attorney's fee award.
II. DID THE SUPERIOR COURT ERR IN DENYING
LARRY'S MOTION FOR VISITATION?
A modification of visitation requires
both a change in circumstances and that it be
in the best interests of the child: An award
of custody of a child or visitation with the
child may be modified if the court determines
that a change in circumstances requires the
modification of the award and the award is in
the best interests of the child. If a parent
opposes the modification of the award of
custody or visitation with the child and the
modification is granted, the court shall
enter on the record its reasons for the
modification.
AS 25.20.110(a).1 The burden of showing changed circumstances is
on the moving parent. S.N.E. v. R.L.B., 699 P.2d 875,
878 (Alaska 1985). The change of circumstances
required to modify visitation is not as great as that
required for a change in custody. Hermosillo v.
Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990).
An evidentiary hearing is not required whenever a
parent moves for a change in custody or visitation.
"[W]hile a trial court must consider all motions for a
change in custody, it is not required to grant a
hearing on the motion if it is plain that the facts
alleged in the moving papers, even if established,
would not warrant a change." Deivert v. Oseira, 628
P.2d 575, 578 (Alaska 1981) (court failed to consider
motion where it did not address arguments made in
motion). "[T]he court has discretion to deny a hearing
where no showing has been made of changed circumstances
or of an alteration in the best interests of the
child." Id. at 579.
In order to determine whether Larry has made a showing
of changed circumstances, the court must bear in mind
what the circumstances were when the visitation order
was entered. The order terminating Larry's visitation
rights was entered in September 1982, shortly after
Larry disappeared with Carrie. The stated reasons for
terminating Larry's visitation were the outstanding
warrants against him and that it was in the child's
best interests. The June 1985 restraining order which
prohibited Larry in perpetuity from contacting Carrie
was entered while Larry was incarcerated for custodial
interference.
In his motion for visitation and supporting affidavits,
Larry makes the following assertions:
1) that following his arrest, he was convicted
and sentenced to five years;
2) that he served fourteen and a half months and
was released in July 1986;
3) that he returned to Oak Harbor following his
release, then moved back to Anchorage in June
1988;
4) that he is paying current child support plus
arrearages;
5) that he is employed as a property manager;
6) that since his return to Anchorage, he has
made no attempt to contact Carrie in contravention
of the superior court's order;
7) that he has been seeing Dr. Al Collins (a
psychologist) for six months and that he intends
to continue seeing him;
8) that he knows it was wrong for him to take
Carrie away from her mother; and
9) that he previously had a good relationship
with Carrie and believes it is in her best
interests to resume a visitation schedule.
We conclude that Larry made a prima facie showing that
circumstances had changed since the orders of 1982 and
1985. Therefore the superior court abused its
discretion by denying him an evidentiary hearing.
Larry was a fugitive and a prisoner at the time the
respective orders were entered. He had a history of
disobeying court orders concerning visitation. The
facts alleged in Larry's moving papers, if true,
establish that he has served his sentence, he is now
living in Anchorage and gainfully employed, he has been
complying with the court's orders since being released
from prison in 1986, he admits to the wrongfulness of
his past conduct, and he is taking affirmative steps to
rehabilitate himself by seeing a psychologist.
Larry has expressed willingness to abide by any
conditions the court may place on him in exercising
visitation in the future.2 This in itself is a
significant circumstance because it was his refusal to
comply with the court-ordered visitation which
Christine asserts caused the superior court to
terminate his visitation rights in the first place.
Admittedly Larry's past conduct was reprehensible.
However he maintains that he and Carrie had a close
relationship in the past. Without affording Larry an
evidentiary hearing, he has no opportunity to show that
resumption of visitation is in Carrie's best interests.
III. DID THE TRIAL COURT ERR IN DENYING
LARRY'S MOTION FOR APPOINTMENT OF
A GUARDIAN AD LITEM?
Alaska Statute 25.24.310(c) directs the superior court
to appoint a guardian ad litem when representation of a
minor's best interests would serve the welfare of the
minor. AS 25.24.310(c) provides in relevant part:
[T]he court may, upon the motion of
either party or upon its own motion, appoint
an attorney or other person or the office of
public advocacy to provide guardian ad litem
services to a minor in any legal proceedings
involving the minor's welfare. The court
shall require a guardian ad litem when, in
the opinion of the court, representation of
the minor's best interests, to be
distinguished from preferences, would serve
the welfare of the minor.
(Emphasis added).
In many custody cases appointment of a guardian ad
litem is not needed, and in those cases it is not
compelled by statute, the court rules, or this court's
decisions. Veazey v. Veazey, 560 P.2d 382, 385 (Alaska
1977). "No two custody cases are alike. Of necessity,
the trial court has a considerable amount of discretion
in making this decision." Id.
"The decision whether to appoint a guardian ad
litem . . . depend[s] in large measure on the age of
the children and the nature of the claim being advanced
by the parent or parents." Lacy v. Lacy, 553 P.2d 928,
930 (Alaska 1976). Lacy held that the superior court
did not abuse its discretion in failing to appoint a
guardian ad litem where both parties expressed the view
that the father and his counsel were capable of
representing the children's interests and neither party
could suggest a specific benefit which the guardian
would bring to the custody modification proceedings.
The role of a guardian ad litem is to be "in every
sense the child's attorney." Veazey, 560 P.2d at 387.
The guardian ad litem has the responsibility to
zealously represent the child, and should normally
conduct home visits and a private interview with the
child.
When he feels it necessary, he should
consult with non-legal experts--
psychologists, social workers, physicians,
school officials, and others. He should
exercise his best professional judgment on
what disposition would further the best
interests of the child, his client, and at
the hearing vigorously advocate that position
before the court. With this responsibility
necessarily goes the power to conduct
discovery, to subpoena witnesses and present
their testimony, to cross-examine witnesses
called by other parties, and to argue his
position to the court.
Id. In a number of cases, the attorneys for the parents cannot
assert the interests of the child without creating a
conflict of interest. Id. at 388. "The court's
initial decision that a guardian ad litem is necessary
in a particular case contains an implicit finding that
the counsel for the parents cannot alone serve the
child's interests before the court." Id. at 389.
Larry argued in his motion for appointment of a
guardian ad litem that there may be substantial
pressure on Carrie because he expects Christine to
adamantly oppose resumption of visitation due to the
kidnapping. If the court had been correct in
concluding that Larry had not made out a prima facie
case for resumption of visitation, then there was no
need to appoint an advocate for the child's interests.
Christine's only argument against appointment of a
guardian ad litem is that it is unnecessary because
Larry has failed to state what purpose a guardian would
serve.
In view of this court's decision on Larry's claim of
changed circumstances, the superior court should
revisit the guardian ad litem issue.3 The superior
court based its decision to deny the motion on its
erroneous denial of the visitation motion.
IV. CONCLUSION
The superior court's order denying Larry's motions
without a hearing is REVERSED and the case is REMANDED
to the superior court for further proceedings
consistent with this opinion.
_______________________________
1. In 1990, following the superior court's denial of
Larry's motion for visitation, the legislature added
subsection (b) to AS 25.20.110, specifying when a
court may properly consider compliance with agreements
concerning the child or child support orders. Ch. 130,
2, SLA 1990.
2. This disposes of Christine's claim that the issue of
supervised visitation is not properly before this
court. Larry sought to reinstate visitation under
whatever conditions the superior court deemed proper.
Supervision is simply a condition of visitation.
Christine makes a number of other assertions which have
no basis in the record or in law. For example, she
accuses Larry of "consistently shirk[ing] his financial
obligations" because he discharged the judgments
against him in bankruptcy and his child support is in
arrears. Given the fact that he had judgments against
him for well over one million dollars, and there is no
evidence that he had any assets with which to pay these
judgments, he had little choice but to declare
bankruptcy. Furthermore, Christine does not deny that
Larry has been paying incremental child support
arrearages. Christine is simply wrong where she states
that Larry failed to acknowledge any wrongdoing in
kidnapping Carrie. Larry specifically acknowledged his
wrongdoing in his affidavit filed with his motion for
visitation. Christine also claims that Larry still
leads a "transient"lifestyle, citing his move to
Anchorage and the fact that he has had two jobs since
arriving. However, Larry explained that he worked for
Safeway after arriving in Anchorage, then got a job as
a property manager after obtaining a real estate
license. These moves indicate increasing job
stability, not a "transient" lifestyle. Christine
argues that Larry presented no evidence he was in fact
employed. This is a specious argument given the fact
that Larry was denied a hearing at which to present his
evidence.
3. For the same reasons, the superior court's award of
attorney's fees must be vacated.
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