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Lashbrook v. Lashbrook (4/24/98), 957 P 2d 326
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
GARY L. LASHBROOK, )
) Supreme Court No. S-8195
) Superior Court No.
v. ) 3AN-94-6735 CI
MICHAELA M. LASHBROOK, ) O P I N I O N
Appellee. ) [No. 4974 - April 24, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Kenneth Kirk, Anchorage, for
Appellant. Cris W. Rogers, David S. Houston, Houston & Houston,
Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
This is an appeal from a child custody modification
order. The superior court granted the opposed motion to modify
custody without a hearing on the best interests of the children.
We vacate the order and remand for a hearing on the motion.
II. FACTS AND PROCEEDINGS
Michaela Lashbrook filed for divorce from Gary Lashbrook
on July 29, 1994. Michaela alleged, among other things, that Gary
was not fit to have custody of their two daughters, Jessica and
Kaela, ages five and three, because he is an alcoholic prone to
violent outbursts. Gary was nevertheless awarded interim custody
of Jessica and Kaela on September 19, 1994. One month later, Gary
was convicted of assaulting Michaela during a domestic dispute in
Gary and Michaela reached an agreement on custody which
the superior court incorporated into the partial decree of divorce,
entered on September 27, 1995. Under the terms of the settlement
agreement, Gary and Michaela had joint legal and physical custody
of the children. The children resided with each parent for
alternating one-week periods.
On February 15, 1997, a week during which Gary had cus-
tody of the children, an altercation occurred at Gary's house
between Gary and his girlfriend at the time, Cerina Jensen. On
behalf of Jessica and Kaela, Michaela filed a domestic violence
petition seeking to remove the children from Gary's custody. A
hearing to determine the need for a domestic violence order was
held on March 19, 1997, before Master William Hitchcock. Both
Michaela and Gary appeared at the hearing.
Michaela testified that the children were traumatized
after returning from Gary's house, and recounted the children's
statements as to the events of February 15, 1997. Michaela
introduced the information which charged Gary with third degree
assault, and which alleged that Gary had placed a gun to Cerina's
head. Michaela also testified that Gary had previously been
convicted of assaulting her in 1994.
Due to the pending criminal charges, Gary offered limited
testimony at the domestic violence hearing. Gary did offer
alternative explanations for any trauma exhibited by the children:
the police officers traumatized the children by going into their
bedroom to wake them; Michaela continues to traumatize them by the
lack of stability in her life; and the separation from their
father, their home, their pets, and their neighborhood friends
traumatizes the children. However, Gary asserted his Fifth
Amendment privilege against self-incrimination and did not explain
the events of the night in question.
Master Hitchcock found credible evidence that domestic
violence occurred between Gary and Cerina on February 15, 1997.
Master Hitchcock also found that Jessica and Kaela were in the
house, witnessed at least part of the altercation, and were thus
indirect victims of domestic violence committed between two
intoxicated adults. Pursuant to AS 18.66.100(c)(9), a domestic
violence protective order was issued on March 19, 1997, awarding
temporary custody to Michaela and supervised visitation to Gary.
After Gary pled no contest to an assault charge and
weapons violation for the February 15, 1997 incident, Michaela
moved to permanently modify custody on April 24, 1997. Michaela
sought sole legal and physical custody with restricted visitation
to Gary. Appearing pro se, Gary opposed the motion to modify
custody. Gary's motion to modify was supported by his own
affidavit, the affidavit of Cerina Jensen explaining the events of
February 15, 1997, a psychologist's observations regarding Gary's
relationship with the children, and the affidavits of five people
who witnessed the dispute between Gary and Michaela in July 1994.
Gary expressly requested a hearing on the motion to modify.
On June 5, 1997, the superior court denied Gary's request
for a hearing, consolidated the domestic violence proceeding with
the divorce proceeding, and granted sole legal and physical custody
to Michaela with restricted visitation to Gary. Gary filed a
motion to reconsider and argued, among other things, that a hearing
should have been ordered because there were contested factual
allegations. The superior court did not grant a hearing on the
A. Standard of Review
The adequacy of the notice and hearing afforded a
litigant in child custody proceedings involves due process
considerations. A constitutional issue presents a question of law
which we review de novo, and to which we apply our independent
judgment. See Wright v. Black, 856 P.2d 477, 479 (Alaska 1993).
B. Due Process Requires Appropriate Notice and Opportunity
for Hearing on Opposed Motions to Modify Child Custody
A party opposing a motion to modify child custody has the
right to a hearing before the superior court grants the motion.
See Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska 1997). While
there is no doubt that Gary was denied a hearing per se on the
motion to modify custody, the parties disagree as to whether Gary's
right to a hearing was satisfied by the earlier hearing in the
domestic violence proceeding which the superior court subsequently
consolidated with the divorce proceeding.
Gary argues that the superior court deprived him of his
right to due process under article I, section 7 of the Alaska
Constitution. [Fn. 1] Gary contends that the domestic violence
hearing was procedurally infirm because he was only given notice
that the proceeding could alter his custody rights for a maximum of
six months, and because the domestic violence hearing was an
expedited, summary proceeding. Michaela argues that Gary's right
to a hearing was satisfied because the "basis for modification of
custody was rooted in Gary's violent acts and the need to protect
the children, the gravamen of the domestic violence action." We
believe that Gary has the better argument.
"Procedural due process under the Alaska Constitution
requires 'notice and opportunity for hearing appropriate to the
nature of the case.'" Wright v. Black, 856 P.2d 477, 480 (Alaska
1993) (quoting Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356
(Alaska 1974)). "It is essential to contested custody proceedings
that the parties be afforded a hearing which grants them the
opportunity to present the quantum of evidence needed to make an
informed and principled determination." Cushing v. Painter, 666
P.2d 1044, 1046 (Alaska 1983); see also Hernandez, 938 P.2d at
1018; Howlett v. Howlett, 890 P.2d 1125, 1127 (Alaska 1995); T.M.C.
v. S.A.C., 858 P.2d 315, 318 (Alaska 1993). An evaluation of the
custody modification statute, AS 25.20.110, in relation to the
domestic violence statute, AS 18.66.100, indicates that Gary was
provided neither notice nor an opportunity for hearing appropriate
to a permanent modification of custody.
The ultimate focus of the custody modification statute is
the best interests of the children. See Lee v. Cox, 790 P.2d 1359,
1363-64 (Alaska 1990). The best interests determination involves
consideration of the nine factors listed in AS 25.24.150(c). Those
factors include, but are not limited to, evidence of domestic
violence in the custodial household or a history of violence
between the parents. See AS 25.24.150(c)(7). This court has
previously addressed the procedural mechanism and substantive
standards of AS 25.20.110.
A child custody or visitation award "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 children involved. AS 25.20.110. The
parent making the motion for custody modification bears the burden
of proving a substantial change of circumstances as a threshold
matter. Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990); Garding v.
Garding, 767 P.2d 183, 184-85 (Alaska 1989). Once the movant meets
that burden, he or she is entitled "to a hearing to consider
whether, in light of such changed circumstances, it is in the
child's best interest to alter the existing custodial arrangement."
Lee, 790 P.2d at 1361. The burden of proof remains on the parent
making the motion to "demonstrate that the changed circumstances,
considered in conjunction with other relevant facts bearing upon
the child's best interests, warrant modification of the existing
custody decree." Id.
A.H. v. W.P., 896 P.2d 240, 244 (Alaska 1995) (quoting Long v.
Long, 816 P.2d 145, 150 (Alaska 1991)).
In a custody modification proceeding, an intervening
finding of a crime involving domestic violence is a changed
circumstance as a matter of law. See AS 25.20.110(c). In the
instant case, the domestic violence finding and Gary's subsequent
criminal conviction constitute a changed circumstance under AS
25.20.110(c). However, the domestic violence finding only
satisfied Michaela's threshold burden of establishing changed
circumstances. For a permanent custody modification to be granted,
Michaela still had the burden to prove that "the changed
circumstances, considered in conjunction with other relevant facts
bearing upon the child's best interests, warrant modification of
the existing custody decree." Long, 816 P.2d at 150 (quoting Lee
v. Cox, 790 P.2d 1359, 1361 (Alaska 1990)).
In sharp contrast, the exclusive focus of AS 18.66.100 is
domestic violence. If the court finds by a preponderance of the
evidence that the "respondent has committed a crime involving
domestic violence against the petitioner,"the statute permits the
court to alter an existing custody order to "award temporary
custody of a minor child to the petitioner,"for a period of "six
months unless earlier dissolved by court order." AS 18.66.100(b),
(c)(9), (b)(2) (emphases added). Thus, the statute is designed to
provide emergency relief from domestic violence on a short-term
basis, presumably until more permanent relief can be sought and
Cushing v. Painter, 666 P.2d 1044 (Alaska 1983),
addressed the issue of whether an expedited hearing on temporary
custody was sufficient to satisfy the hearing requirements for
permanent custody modification. The answer was no. In Cushing,
the superior court transformed an expedited hearing on interim
custody for one school year into a permanent custody proceeding.
See id. at 1046. We concluded that the parties were given neither
adequate notice of the nature of the proceeding nor adequate time
to prepare because the hearing was expedited. See id.
Accordingly, we vacated the order modifying custody and remanded
for a full hearing on the issue of permanent custody. See id.
The superior court's reliance upon the hearing in the
domestic violence proceeding does not pass muster for purposes of
permanently modifying custody. Domestic violence proceedings and
custody modification proceedings are distinct proceedings. The
domestic violence hearing was directed at an award of temporary
custody for six months or less based upon the sole finding that
domestic violence had occurred. Neither party was given notice
that permanent custody was also at issue. Although the finding of
domestic violence constituted a changed circumstance, the eight
other factors specified in AS 25.24.150(c) that are relevant to the
children's best interests were not addressed at the domestic
violence hearing. Further, the superior court did not conduct a
hearing at which evidence was presented on the remaining factors.
Accordingly, Gary was denied an appropriate hearing with respect to
the permanent modification of his custodial rights.
The order of June 5, 1997, is VACATED, and the case is
REMANDED for a hearing on Michaela's motion to modify custody. [Fn.
"No person shall be deprived of life, liberty, or property,
without due process of law." Alaska Const. art. I, sec. 7.
On remand, Gary will be precluded from challenging the facts
which constitute the elements of the offenses to which he pled no
contest stemming from the February 15 incident. See Burcina v.
City of Ketchikan, 902 P.2d 817, 822 (Alaska 1995) ("[A] civil
plaintiff is collaterally estopped from relitigating any element of
a criminal charge to which he has pled nolo contendere.").