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Naquin v. Naquin (3/5/99), 974 P 2d 383
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
MICHAEL ADAM NAQUIN, )
) Supreme Court No. S-8728
) Superior Court No.
v. ) 3PA-97-305 CI
APRIL LAINE NAQUIN, ) O P I N I O N
Appellee. ) [No. 5090 - March 5, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. Cris W. Rogers and David S.
Houston, Houston & Houston, Anchorage, for
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
When Michael Adam Naquin (Adam) and April Naquin (April)
divorced, the superior court awarded primary physical custody of
their two children to Adam and granted reasonable visitation to
April. After four months under a voluntary, informal agreement in
which April had primary physical custody, April moved to modify the
original custody order. Although Adam opposed this motion and
disputed various factual assertions in April's affidavit, the
superior court granted the motion without holding a hearing.
Because we conclude that the decision to forego a hearing was in
error, we reverse and remand for a hearing on the motion to modify
II. FACTS AND PROCEEDINGS
Adam and April Naquin separated in May 1994. They have
two children, Shadow and Tavin. April moved out of the marital
home, but the children remained with Adam. In April 1997 Adam and
April entered into an arrangement under which Adam paid April $500
a month to provide day care for the children from approximately
8:00 a.m. to 7:00 p.m. while Adam worked. At the same time, Adam
wrote a letter, transferring primary physical custody to April from
April 1997 until September 1997, allegedly to help April to qualify
for day care assistance.
In August 1997 both Adam and April appeared before the
superior court in an uncontested hearing to finalize their divorce.
April outlined for the court the terms of the parties' proposed
agreement. These included an award of primary physical custody to
Adam with reasonable visitation for April, despite the fact that
she had temporary custody of the children at the time of the
hearing. Adam appeared at this hearing to voice his agreement to
April's terms. Superior Court Judge Eric Smith then issued a
divorce and custody decree on September 17, 1997, based on the
Eleven days after the date of the decree, Adam wrote a
letter allowing April to have physical custody of both children
"until further notice." The children began to stay with April
during the week while attending school. April moved to modify
custody and to formalize this transfer of physical custody in late
January 1998. Adam opposed the motion, arguing that there was no
significant change in circumstances and maintaining that the
parties agreed to this temporary transfer in order for Adam to work
more hours to pay off outstanding marital debts. Adam also
requested an evidentiary hearing on April's motion.
The trial court granted April's motion without first
holding a hearing, finding that Adam had "voluntarily transferred
custody of the children"to April. Adam moved for reconsideration,
again asserting his right to a hearing. The court denied this
[T]here are no material facts at issue. As
defendant cannot deny, there was a significant
change in circumstances in this case when
defendant assigned the children to plaintiff
"until further notice.". . . In short,
defendant has provided no facts to challenge
plaintiff's assertion that, as of the time of
her motion (which was several months after
plaintiff had received the children from
defendant), it was in the best interests of
the children for them to remain with her as
principal custodian. Having provided no
facts, defendant is not entitled to an
A. Standard of Review
"The adequacy of the notice and hearing afforded a
litigant in child custody proceedings involves due process
considerations."2 Because a constitutional issue presents a
question of law, we review such an issue de novo, applying our
independent judgment. 3
B. The Superior Court Erred in Granting the Motion to Modify
Custody Without an Evidentiary Hearing.
Adam argues that because he opposed the motion to modify
the original custody order, the court should have held an
evidentiary hearing. "Procedural due process under the Alaska
Constitution requires 'notice and opportunity for hearing
appropriate to the nature of the case.'"4 In a custody proceeding,
the parties 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."5 "We have repeatedly
held that '[a] party opposing a motion to modify child custody has
the right to a hearing before the superior court grants the
Because Adam opposed the motion, the trial court should
not have required him to meet an evidentiary threshold for a
hearing. Although the trial court is not required to grant a
hearing on a motion to modify if it is plain that the facts alleged
in the moving papers would not warrant a modification, 7 this rule
is "inapplicable to a case . . . in which the trial court grant[s]
rather than denie[s] an opposed motion to modify a child custody
Our decision in Walker v. Walker 9 directly controls this
case. In Walker, the superior court granted a motion to modify
custody without holding a hearing. It based its decision on the
parties' written agreement to transfer physical custody during the
school year, submitted by the father in support of his motion. 10
But the children's mother had opposed the motion and submitted an
affidavit contesting the father's allegation of unfit conduct, as
well as the scope and purpose of the agreement. We held that the
superior court erred in failing to hold an evidentiary hearing
before ruling on the opposed motion to modify custody, and we
remanded for an evidentiary hearing to determine whether the
proposed modification was in the best interests of the children. 11
Here, the superior court did not hold an evidentiary
hearing because it found that there were "no material facts at
issue." But like the mother opposing the motion to modify in
Walker, Adam submitted an affidavit contesting April's assessment
of his current fitness for custody and the duration and purpose of
the agreement. Thus, the superior court's failure to hold an
evidentiary hearing on the best interests of the children and an
appropriate visitation schedule constitutes reversible error.
Our holding today does not mean that the trial court
erred in finding a significant change of circumstances. When
addressing an informal modification of a visitation arrangement in
Morino v. Swayman, 12 we noted that although "[c]ustodial parents
should have the flexibility to experiment with new visitation
schedules without fearing that every temporary change could be the
basis for modifying visitation[,] . . . at some point, informal
or de facto modifications of custodial or visitation arrangements
should be formalized."14 Even the dissent in Morino agreed that
"changing a child's residence during the school week may be
sufficient even if lasting for a few months, assuming the change
was in the child's best interests."15 Under Adam and April's
arrangement, the children's residence shifted during the school
week for a period of months. Thus, April met her burden to merit
a hearing on a possible change in custody. 16 But April's success
in meeting that requirement does not affect Adam's right to be
heard on the issue of the children's best interests or to present
his recommendations for a visitation schedule.
In this case, the superior court had already awarded Adam
primary physical custody in accordance with the parties' agreement.
Nevertheless, by granting April's motion to modify custody without
holding a hearing, the court, in effect, forced Adam to bear the
burden of demonstrating that maintaining his physical custody award
was in the best interests of the children.
Because the superior court erred by not holding a hearing
before granting the opposed motion to modify custody, we REVERSE
and REMAND for a hearing.
1 We note that the superior court has the discretion to
maintain the custody arrangement currently in place pending a
2 Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998);
see also Walker v. Walker, 960 P.2d 620, 621-22 (Alaska 1998).
3 See Walker, 960 P.2d at 622; Lashbrook, 957 P.2d at 328.
4 Wright v. Black, 856 P.2d 477, 480 (Alaska 1993) (quoting
Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)).
5 Howlett v. Howlett, 890 P.2d 1125, 1127 (Alaska 1995)
6 Walker, 960 P.2d at 622 (alteration in original) (quoting
Lashbrook, 957 P.2d at 328); see also Hernandez v. Freeman, 938
P.2d 1017, 1018 (Alaska 1997) (relying on Howlett); Howlett, 890
P.2d at 1127.
7 See Walker, 960 P.2d at 622; see also C.R.B. v. C.C., 959
P.2d 375, 378 (Alaska 1998).
8 Hernandez, 938 P.2d at 1018.
9 960 P.2d 620 (Alaska 1998).
10 See id. at 622.
11 See id. at 622-23.
12 970 P.2d 426 (Alaska 1999).
13 970 P.2d at 429; see Gaston v. Gaston, 954 P.2d 572, 574
n.4 (Alaska 1998) ("Alaska's family law encourages custodial
parents to be flexible in experimenting with visitation schedules,
and in most cases parents should feel free to end such experiments
if they conclude that they are not working.").
14 Morino, 970 P.2d at 429.
15 Id. at 432 (Fabe, J., dissenting).
16 Cf. Boone v. Boone, 960 P.2d 579, 582 (Alaska 1998)
(holding that in the context of a modification of a child support
order, children's temporary and voluntary change in residence for
a period of ten months was a material change in circumstances).