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Harrington v. Jordan (7/30/99) sp-5145
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
JOHN P. HARRINGTON, )
) Supreme Court No. S-8899
) Superior Court No.
v. ) 3PA-95-85 CI
CHERYL A. JORDAN, ) O P I N I O N
Appellee. ) [No. 5145 - July 30, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: John P. Harrington, pro se,
Anchorage. No appearance by Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
When John Harrington and Cheryl Jordan divorced in 1996,
Cheryl retained sole physical and legal custody of their two
daughters. Nine months later, John moved for custody modification;
the superior court denied his request without a hearing. John
moved again in August 1998 for modification of both custody and
child support; the superior court denied the second motion without
a hearing. John appeals, arguing that he has demonstrated a
sufficient change of circumstances for modification of both custody
and child support. We affirm.
II. FACTS AND PROCEEDINGS
John Harrington and Cheryl Jordan were married on October
17, 1981. They have two daughters: Jessica, born in 1982, and
Tara, born in 1986. John and Cheryl separated in May 1995 and,
after a "lengthy and bitterly disputed divorce trial,"[Fn. 1]
finalized their divorce on November 12, 1996.
Superior Court Judge Beverly W. Cutler determined that
awarding Cheryl "sole legal and physical care, custody, and control
of the minor children of the marriage"would best serve the
children's interests. Judge Cutler granted John "liberal and
frequent visitation"with both daughters. Specifically, John
received "two weekends out of every three, for a 48 hour period,"
as well as the month of July each summer and alternating major
holiday vacations. Judge Cutler also ordered John to pay $802.14
per month in child support for the two children.
Judge Cutler based her decision in part on the
recommendations of the Custody Investigator's Office; the
children's therapist, Cheryl Mitchell; and the parent's
psychological evaluator, Dr. Bruce Smith. The trial court also
considered the "huge schism"in communication that existed between
John and Jessica; the fact that Cheryl was "somewhat more likely
than [John] to eventually bring herself to being able to 'give the
children permission' to have a stable, healthy relationship with
[the other parent]"; and John's unwillingness to disclose the
identity of his female partner. John appealed the divorce decree;
we affirmed the superior court's decision in all respects on March
18, 1998. [Fn. 2]
In June 1997 John requested a hearing on custody
modification, alleging that Cheryl made visitation difficult; that
his relationship with Jessica had improved; that Cheryl had moved
frequently and planned to move again; that he could better meet the
children's spiritual and educational needs; and that his job
situation had changed to allow him to stay in town for a longer
Judge Cutler denied John's request, commenting that "the
parties and children barely have had time to digest the final
custody order, . . . much less time to manifest the kind of changed
circumstances that justify a custody modification." Judge Cutler
found that the visitation problems did not constitute a substantial
change in circumstances and that, contrary to John's claims, many
of the visitation problems stemmed from genuine planning
difficulties. Judge Cutler also found that Cheryl's multiple moves
had been a justified and necessary part of readjustment after the
divorce and that Tara and Jessica should live together if possible.
Judge Cutler relied on the original Custody Investigator's
recommendation that was "overwhelmingly in favor of awarding
custody to [Cheryl]"as well as on a social worker's letter
describing "the level of anxiety experienced by Jessica when faced
with merely visiting [her father]."
Since August 1997 John has filed numerous motions
requesting relief from rulings, clarification of rulings, expedited
consideration of motions, recusal of Judge Cutler, and changes in
visitation schedule. On August 17, 1998, John again requested a
hearing on modification of the custody/support order. John claimed
that changed circumstances since the court's original decree two
years earlier warranted a shared custody arrangement and a
corresponding change in his child support obligation.
Specifically, he cited an increase in his overnight visits with
Tara, his willingness to name his partner, the girls' declining
need for sibling support, and Tara's good relations with John's
partner as changes in circumstances warranting modification.
Judge Cutler denied John's request for a hearing on
September 29, 1998. In justifying her decision, Judge Cutler
Particularly, not more than 110 overnights per
calendar year have been demonstrated. The 1998 "extra"summer
visitation is not likely to repeat in 1999. With regard to not
holding a hearing on custody modification, the court further finds
that a hearing likely would be detrimental to either or both
children based on the present continuing dynamic between the
parties and children.
III. STANDARD OF REVIEW
Whether a moving party has made a prima facie showing
sufficient to justify a custody or child support modification
hearing is a matter of law that we review de novo. [Fn. 3] We will
affirm a denial of a modification motion without a hearing "if, in
our independent judgment, the facts alleged, even if proved, cannot
warrant modification, or if the allegations are so general or
conclusory, and so convincingly refuted by competent evidence, as
to create no genuine issue of material fact requiring a hearing."
A. The Superior Court Did Not Err in Denying Harrington's
Request for a Modification Hearing.
To be entitled to a custody modification hearing, a
moving party must make a prima facie showing of a substantial
change in circumstances affecting the children's welfare: [Fn. 5]
When a parent moves to modify custody, the
court must "consider"the motion, but need not hold a hearing "if
it is plain that the facts alleged in the moving papers, even if
established, would not warrant a change." The moving parent must
show changes that affect the child's welfare; reflect more than
mere passage of time; and overcome our deep reluctance to shuttle
children back and forth between parents.[ [Fn. 6]]
Here, John did not make an adequate showing. With
respect to the alleged increase in John's overnight visits with
Tara, John claims that Tara had 131 overnight visits between August
1997 and August 1998 and that her overnight visits for the 1998
calendar year already totaled 94 as of the end of August and would
likely exceed 110 by the year's end. But John only accrued the
unusual number of overnights because of a special summer 1998
visitation schedule that the court and the parties created to
accommodate a family trip. And the court noted in its order
denying a hearing that "[t]he 1998 'extra' summer visitation is not
likely to repeat in 1999." Because the superior court found that
the extra visitation would not likely be repeated, it was justified
in finding that the 1998 visitation schedule did not qualify as a
substantial change of circumstances entitling John to a hearing.
John's allegation that Cheryl has made visitation
difficult is also insufficient to warrant modification. In June
1998, at John's request, the court ordered both Cheryl and John to
allow and encourage telephone visitation with the other parent,
primarily directing its admonition toward Cheryl. John only points
to one incident occurring after this order in which Cheryl
allegedly made visitation difficult. Enforcement of the current
visitation order is the most effective and appropriate solution to
John and Cheryl's visitation difficulties, especially in light of
our "deep reluctance to shuttle children back and forth between
The other changes in circumstances that John alleges --
the fact that "Jessica and Tara's sibling need to be together is
not as strong as it was,"the fact that Tara "loves [John's]
fiancee,"and the fact that John is "now willing to reveal [his]
partner"-- are also insufficient to justify a modification
hearing. Although such changes may demonstrate that certain
problems with joint custody are no longer present, they do not
address the issues upon which the court based its original custody
decree, such as John's poor relationship with Jessica, the custody
investigator's recommendation that Cheryl have custody based on an
interview with the children's therapist, and a finding that John
exhibited "pressuring"behavior. [Fn. 8]
John also argues that the trial court should not have
considered the potential detrimental effect of a modification
hearing on the children. But commentators have noted the
counterproductive effect of unnecessary litigation on all parties,
including children. [Fn. 9] Although such a consideration should
not be a reason for denying a hearing if the moving parent has
otherwise met the prima facie burden, that is not the case here.
2. Child Support
John also claims that the superior court should have
granted him a hearing on modification of the child support order.
Specifically, he argues that because the number of Tara's overnight
visits with him exceeded 110 during the period from August 1997 to
August 1998, the court must modify the support award pursuant to
Alaska Civil Rule 90.3(f)(1). [Fn. 10]
Rule 90.3(h)(1) provides that a support award "may be
modified upon a showing of a material change of circumstances."
Even if the moving parent alleges facts that "might demonstrate a
material change of circumstances if they were established, the
superior court need not conduct a hearing where the moving party
advances only 'generalized allegations of factual issues' that
other record evidence convincingly refutes."[Fn. 11]
Here, the extra overnight visits in 1998 do not
constitute a material change of circumstances. As explained above,
the additional four-week visit with John during August 1998 was an
"aberration." John presents no evidence that the special summer
visitation would be repeated in subsequent years; the court did not
provide for such future increases in its order allowing the extra
visitation during the summer of 1998.
Because John's allegations, even if true, embody neither
a substantial change of circumstances sufficient to warrant custody
modification nor a material change of circumstances sufficient to
warrant modification of John's child support obligation, we AFFIRM
the superior court's denial of John's request for a modification
Harrington v. Jordan, Mem. Op. & J. No. 0877 at 1
(Alaska, March 18, 1998).
See id. at 21.
See Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (citing
C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)).
Id. (quoting C.R.B., 959 P.2d at 378); see also C.R.B., 959
P.2d at 378, 378 n.5 (drawing upon principles of summary judgment
to describe the standard of review for both child support and
custody modification determinations without a hearing).
See C.R.B., 959 P.2d at 381.
Id. (footnote and citations omitted).
See Harrington v. Jordan, Mem. Op. & J. No. 0877 at 8, 9, 11
(Alaska, March 18, 1998).
See, e.g., Janet Weinstein, And Never the Twain Shall Meet:
The Best Interests of the Children and the Adversarial System, 52
U. Miami L. Rev. 79, 133 (1997) ("Rather than teaching parents to
communicate and collaborate effectively after divorce for the
benefit of their children, [the adversarial system] builds higher
Alaska Civil Rule 90.3(f)(1) considers a parent to have
"shared physical custody"if "the children reside with that parent
for a period specified in writing of at least 30 percent of the
year, regardless of the status of legal custody."
Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997).