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Viveca L. Howlett V. Steven E. Howlett (3/10/95), 890 P 2d 1125
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
VIVECA L. HOWLETT, )
) Supreme Court No. S-6523
Appellant, )
) Superior Court No.
v. ) 3KN-91-907 DR
)
STEVEN E. HOWLETT, ) O P I N I O N
)
Appellee. ) [No. 4179 - March 10, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Kenai,
Charles K. Cranston,
Judge.
Appearances: Phil N. Nash, Kenai, for
Appellant. Allan Beiswenger, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
PER CURIAM
I. INTRODUCTION
This case involves an order modifying child custody.
It was entered without a hearing and was not accompanied by
findings of fact or conclusions of law. We reverse.
II. FACTS AND PROCEEDINGS
Steven Howlett and Viveca Stone (formerly Howlett) were
divorced on May 5, 1992. The superior court awarded Viveca
custody of the parties' three minor children, Jacob and Zachary,
born December 14, 1975, and Hilary, born July 26, 1979.
On June 16, 1994, Steven filed a motion for
modification of child custody and support, supported by a
memorandum of law and an affidavit. Steven requested a custody
modification regarding Hilary, age 14. In his affidavit, Steven
stated that Hilary had moved into his home on June 1, and that
Hilary intended to stay there until she reached the age of
majority.
On July 1, Viveca sent a letter to the trial judge.
She requested a thirty-day extension on the deadline for her
response to Steven's motion. On July 12, Steven filed an
opposition to the request. He claimed that Viveca only requested
an extension so that she could postpone paying him child support.
On July 13, Viveca filed three documents with the
court. First, Viveca filed a request for a hearing to decide
"what is in the best interest of the child." Second, she filed a
notice of representation, stating that she would be representing
herself in all future proceedings regarding Hilary's custody.
Third, Viveca filed a motion opposing Steven's motion for
modification of child custody and support.
In her opposition, Viveca claimed that there had been
no change of circumstances because Hilary had "established a
pattern of periodically moving to her father's home for short
periods of time only to return to live with her mother." She
also claimed that it would be in Hilary's best interest to have a
ninety-day cooling-off period to assess the situation. Viveca
added that Hilary's medical deductible had been paid and that
Hilary was "in no way a burden financially to either party at
this time." Finally, Viveca proposed that the court assign
someone to represent Hilary. Viveca suggested a counselor from
Hilary's school, and attached the counselor's resume. Viveca
signed the motion at the bottom. She attached neither a
memorandum of law nor an affidavit.
On July 18, the court entered an order modifying the
decree of divorce. The order, in its entirety, stated:
Upon motion by the Plaintiff,
IT IS HEREBY ORDERED that the
Decree of Divorce entered in this case on May
5, 1992, is hereby modified and that the
Plaintiff is awarded primary physical custody
of the parties' remaining minor child, HILARY
A. HOWLETT, date of birth July 26, 1979. The
Defendant shall have custody at such
reasonable times as agreed to by the parties,
taking into consideration the desires and
schedule of Hilary.
IT IS FURTHER ORDERED that
Defendant shall pay child support in
accordance with Alaska Civil Rule 90.3, in
the amount of $305.28 per month commencing
June 1, 1994.
III. DISCUSSION
A. Standard of Review
In custody cases, we will overturn the lower court's
custody determination only when there is an abuse of discretion
or there are clearly erroneous findings of fact. Holl v. Holl,
815 P.2d 379, 380 (Alaska 1991). "An abuse of discretion may be
found where the trial court considered improper factors, failed
to consider statutorily-mandated factors, or improperly weighed
certain factors in making its determination." Julsen v. Julsen,
741 P.2d 642, 649 (Alaska 1987); see also Epperson v. Epperson,
835 P.2d 451 (Alaska 1992).
B. Alaska Civil Rule 77 Requirements
Viveca's motion filed in opposition to Steven's motion
for modification of child custody and support did not comply with
the requirements of Civil Rule 77(c)(1) and (2). These
provisions of Rule 77 require that a party opposing a motion file
all affidavits and other documentary evidence upon which the
party intends to rely, together with a complete written statement
of the reasons in opposition to the motion, within ten days after
being served with the motion.
Viveca's failure to comply with Rule 77 did not justify
the modification order. Failure to follow Rule 77's specific
requirements does not relieve the superior court of its duty to
exercise its independent judgment to determine if Steven's motion
to modify child custody support should be granted. Schandelmeier
v. Winchester Western, 520 P.2d 70, 75 (Alaska 1974) ("Civil Rule
77 does not mean that the court need not examine a motion and any
supporting memorandum submitted by the moving party when there is
defective opposition to the motion. A court should scrutinize
both the motion and supporting memorandum in order to determine
whether granting of the motion is warranted."); see also State v.
Johnson, 525 P.2d 532, 534-35 (Alaska 1974). Accordingly, the
superior court must still follow legal requirements for modifying
custody.
C. Custody Modification Requirements
Viveca contends that the court committed four errors:
(1) it did not grant a hearing, although Viveca requested one;
(2) it did not make any findings of fact and conclusions of law
regarding a change in circumstances; (3) it did not make any
findings of fact and conclusions of law regarding whether the
change in custody was in Hilary's best interest; and (4) it did
not rule on Viveca's request for a guardian ad litem to represent
Hilary.
Steven contends that (1) a hearing was not required
because Viveca did not contest that Hilary had moved to Steven's
home; (2) findings of fact or conclusions of law regarding a
change in circumstances were not needed because Hilary's move was
a substantial change in circumstances; (3) Viveca did not contest
that it was in Hilary's best interests to live with Steve; and
(4) Viveca failed to establish any issues that would require a
guardian ad litem for Hilary.
The court erred in ruling on Steven's motion without a
hearing. "[U]nder Alaska law parties in a custody proceeding
have a right to an adequate hearing, 'which grants them the
opportunity to present the quantum of evidence needed to make an
informed and principled determination.'" T.M.C. v. S.A.C., 858
P.2d 315 (Alaska 1993) (quoting Cushing v. Painter, 666 P.2d
1044, 1046 (Alaska 1983)). In this case, Viveca received no
hearing.
The court also erred in not making any findings of fact
and conclusions of law regarding whether there was a change in
circumstances and whether a custody change was in Hilary's best
interest. Alaska Statute 25.20.110(a) states:
An award of custody of a child . .
. may be modified if the court determines
that a change in circumstances requires the
modification of the award and the
modification is in the best interests of the
child. If a parent opposes the modification
of the award of custody . . . and the
modification is granted, the court shall
enter on the record its reason for the
modification.
It is reversible error for a judge to modify custody without
making findings regarding the change in circumstances and the
best interests of the child. See Lee v. Cox, 790 P.2d 1359, 1362
(Alaska 1990) ("In light of the trial court's failure to render
findings concerning the impact of this important change on the
child's best interests, we are unable to adequately evaluate the
correctness of the court's decision to modify the custody
decree."). In this case, the court expressed no reasons for the
modification.
Finally, the court erred in not making a finding
concerning whether appointing a guardian ad litem was in Hilary's
best interests. Alaska Statute 25.24.310(c) requires that a
court appoint a guardian ad litem "when, in the opinion of the
court, representation of the child's best interests . . . would
serve the welfare of the child." In cases involving custody,
support or visitation, AS 25.24.310(c) calls for the court to
make "a finding on the record before trial"as to whether a minor
needs representation. It is error for a trial judge to fail to
make findings on the record explaining its decision concerning
appointment of a guardian ad litem. See Rich v. Berry, 857 P.2d
341, 343-44 (Alaska 1993). No such finding appears in this
case's record.
IV. CONCLUSION
The superior court's order modifying custody and
awarding child support is VACATED. This case is REMANDED for a
hearing on the merits. Before holding the hearing, the trial
court should determine whether or not it would be in Hilary's
best interest to have a guardian ad litem represent her and make
appropriate record findings. At the conclusion of the hearing
the trial court should enter findings of fact and conclusions of
law which support its determination.
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