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Acevedo v. Liberty (4/10/98), 956 P 2d 455
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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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
GUSTAVO ACEVEDO, )
) Supreme Court No. S-8179
Appellant, )
) Superior Court No.
v. ) 4BE-90-139 CI
)
DENISE LIBERTY, ) O P I N I O N
)
Appellee. ) [No. 4964 - April 10, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Gustavo Acevedo, pro se, Bethel,
Appellant. Christopher R. Cooke, Hedland, Brennan, Heideman &
Cooke, Bethel, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
Gustavo Acevedo appeals the superior court's denial of
his motion to modify visitation. The court denied Acevedo's motion
without a hearing, despite his presentation of documentary evidence
that his ex-wife and daughter had moved from Bethel to Fairbanks,
thereby affecting his ability to exercise visitation under the
supervised visitation schedule mandated by the court's order. We
conclude that Acevedo made a sufficient showing of change in
circumstances to warrant an evidentiary hearing. We therefore
remand to the superior court.
II. FACTS AND PROCEEDINGS
Gustavo Acevedo and Denise Liberty have one child, Amanda
Denise Ardean Acevedo, who was born in 1989. In 1990 Liberty filed
for divorce and sole custody of Amanda. The parties entered into
a settlement agreement that provided Liberty with "primary custody"
of Amanda. Under the agreement, Acevedo was to have "reasonable
access to and visitation with the child according to a visitation
schedule to be established by the parties." The superior court
approved the agreement.
Following the divorce, Acevedo and Liberty agreed to a
specific visitation schedule that allowed Acevedo to visit with
Amanda three afternoons per week under the supervision of the
Tundra Women's Coalition. Liberty suspended these afternoon visits
in June 1992, however, "because of [Acevedo's] continued threats
and violence"towards her and Amanda. Liberty then attempted to
reinitiate supervised visitation between Amanda and Acevedo but
received no response to her proposal. Acevedo did not contact
Amanda until March 1994 after he filed a motion in the superior
court to establish specific visitation. In May 1994 the superior
court entered a detailed custody order providing Acevedo with
supervised visitation three afternoons or evenings a week and
disallowing overnight visitation. [Fn. 1]
After Liberty and Amanda moved from Bethel to Fairbanks
in January 1996, Acevedo requested that the court lift the
supervision requirement. The court denied this motion without
explanation. In April 1997 Acevedo again moved to modify
visitation. In his motion, he sought unsupervised and overnight
visitation, as well as a reduction in child support in order to pay
for travel expenses to Fairbanks. He alleged a change in
circumstances based primarily upon Liberty's move to Fairbanks, his
difficulties coordinating supervision in accordance with the
court's visitation order, and changes in his lifestyle.
The superior court denied Acevedo's motion for
modification of visitation without a hearing, finding that:
Acevedo, however, has not provided any
evidence of his present living circumstances; he has not addressed
his prior threats to abscond with Amanda. Finally, Acevedo has not
met the burden of showing the court a substantial change in
circumstance and that the proposed change in custody or visitation
is in Amanda's best interest.
Acevedo appeals.
III. DISCUSSION
A. Standard of Review
Reversal of a trial court's order concerning
modification of visitation or custody is appropriate
only if the record shows an abuse of
discretion or if controlling factual findings are clearly
erroneous. Abuse of discretion in child custody cases may occur
when, in reaching its decision, the trial court considers improper
factors, fails to consider statutorily mandated factors, or gives
too much weight to some factors.
A.H. v. W.P., 896 P.2d 240, 244 (Alaska 1995) (citations and
quotations omitted).
B. Did the Superior Court Abuse Its Discretion by Denying
Acevedo's Motion to Modify Visitation without First Conducting an
Evidentiary Hearing?
Modification of a visitation order requires a showing
that there has been a change in circumstances and that the
modification will be in the best interests of the child. See AS
25.20.110(a); see also Carter v. Brodrick, 816 P.2d 202, 204
(Alaska 1991). The moving party bears the burden of demonstrating
changed circumstances. See Carter, 816 P.2d at 204 (citing S.N.E.
v. R.L.B., 699 P.2d 875, 878 (Alaska 1985)). "The change in
circumstances required for modification of visitation rights . . .
need not rise to the level sufficient to warrant a change of
custody." Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska
1990). If the moving party satisfies the threshold requirement of
establishing a change in circumstances, that party is entitled to
an evidentiary hearing after which the court will determine whether
the proposed changes in the visitation are in the best interests of
the child. See A.H., 896 P.2d at 244 (citation omitted).
Acevedo argues that the court erred in finding that he
had failed to show a substantial change in circumstances that would
have entitled him to an evidentiary hearing to determine whether
modification of the visitation order was in Amanda's best
interests. He contends that Liberty's move from Bethel to
Fairbanks, coupled with the restrictive nature of the supervised
visitation schedule, constituted a change in circumstances because
the court-ordered schedule of three supervised afternoon or evening
visits a week was no longer practical. He also claims that his
living situation has changed [Fn. 2] and that he has successfully
completed an anger management program. [Fn. 3]
Generally, "[e]xisting visitation arrangements assume
that the parents will continue to live in the same geographic area,
and thus will require modification and change when distances
increase between the child and the noncustodial parent." House v.
House, 779 P.2d 1204, 1207 (Alaska 1989). We have held that a
custodial parent's decision to move out-of-state amounts to a
change in circumstances as a matter of law. See id. at 1207-08.
A custodial parent's in-state move of a considerable distance
"certainly . . . presents a factor that the court should include in
its changed circumstances analysis." Long v. Long, 816 P.2d 145,
152 (Alaska 1991). In Long, we considered whether "in the
aggregate"a variety of factors including the custodial parent's
impending move from Anchorage to Juneau could reasonably constitute
a change in circumstances. [Fn. 4] Id. at 153; cf. Nichols v.
Mandelin, 790 P.2d 1367, 1372 n.15 (Alaska 1990) (addressing a
variety of factors in determining whether longstanding changes in
noncustodial parent's lifestyle had satisfied the change in
circumstances test).
In the present case, Liberty's move from Bethel to
Fairbanks makes it virtually impossible for Acevedo to visit Amanda
during the times specified in the visitation order. Visitation is
further complicated by the need to arrange supervision in
accordance with the order. Viewing all of the factors raised by
Acevedo in the aggregate, we conclude that he has made a sufficient
showing of changed circumstances and that the superior court abused
its discretion in denying him an evidentiary hearing. We therefore
reverse and remand to the superior court to determine whether
modifying the visitation order would be in Amanda's best interests.
[Fn. 5]
IV. CONCLUSION
We REVERSE and REMAND to the superior court for
proceedings consistent with this opinion.
FOOTNOTES
Footnote 1:
The order granted Acevedo visitation on Tuesday and Thursday
evenings from 5:00 p.m. to 8:00 p.m. and on Saturday afternoons.
The order also permitted Acevedo to visit with Amanda on
alternating birthdays and major holidays and named the individuals
who were to supervise the visits. This schedule has remained in
effect through the present appeal.
The superior court based this visitation order upon the
following findings: (1) a June 1992 altercation between the parties
was indicative of the continuing distrust between them; (2) Acevedo
ceased contact with his daughter for nearly two years without
explanation; (3) Acevedo had an anger control problem that affected
Liberty and Amanda; and (4) Acevedo shared an apartment with three
male roommates -- a situation not conducive to overnights with his
daughter.
Footnote 2:
Acevedo apparently lives with his girlfriend instead of with
three male roommates, the situation that the superior court
originally found incompatible with overnight visitation.
Footnote 3:
Rehabilitation is one factor that the courts have considered
when examining a change in circumstances. See, e.g., Carter v.
Brodrick, 816 P.2d 202, 205 (Alaska 1991) (psychological
treatment); Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990)
(sustained alcoholism treatment).
Footnote 4:
In Long, we examined not only the six-hundred-mile move to
Juneau, but also the impact of the parents' worsening relationship
on the children, the parents' recent remarriages, and a change in
custody of one of the children. See Long v. Long, 816 P.2d 145,
150-53 (Alaska 1991).
Footnote 5:
If the superior court finds on remand that it is in Amanda's
best interests to continue the requirement of supervised
visitation, "the court should consider whether to order periodic
reviews of the continuing need for the restriction and whether to
establish criteria which might signal the end to the need for the
restriction." J.F.E. v. J.A.S., 930 P.2d 409, 414 (Alaska 1996).
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