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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. A.H. v. P.B. (5/26/00) sp-5278

A.H. v. P.B. (5/26/00) sp-5278

     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.


A.H.,                         )
                              )    Supreme Court No. S-9095
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3KN-96-107 CI
P.B.,                         )    O P I N I O N
             Appellee.        )    [No. 5278 - May 26, 2000]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.

          Appearances:  A.H., pro se, Florence, Arizona. 

          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          PER CURIAM

          CARPENETI, Justice, dissenting.  

          1.   A.H. and P.B. had a son, born in 1993.  In 1997 the
superior court awarded sole legal custody and primary physical
custody of the child to P.B. and visitation to A.H.  Several months
later A.H.'s probation for a prior felony conviction was revoked
and he was incarcerated.  By order of May 12, 1998, A.H. was given
telephonic visitation with his son twice a month.  In late 1998,
asserting that he had experienced problems in exercising his
telephonic visitation, A.H. moved to enforce his visitation rights.
By letter of February 15, 1999, P.B. asked the court to reduce
A.H.'s visitation to once a month; she based her request on her
allegations that A.H. had missed several telephonic visits and was
not writing to his child.  A.H. opposed P.B.'s informal request to
reduce his visitation.  A.H.'s opposition explained that he had
logistical problems in making telephone calls from his place of
incarceration and that P.B. had thwarted his ability to telephone
his son.  On March 4, 1999, the superior court, without conducting
a hearing, entered an order granting P.B.'s request and reducing
A.H.'s telephonic visits to once a month.  The order does not state
any reason for granting P.B.'s request.  A.H. sought
reconsideration of the March 4, 1999 order and asserted that
evidence supported his allegations that it was not his fault his
attempts to telephone his son had been unsuccessful.  The court
denied A.H.'s reconsideration motion, stating that the court was
not convinced that one telephonic visit per month was
"insufficient," given that A.H. could supplement his communication
with his son by writing letters.
          2.   We vacate the order of March 4, 1999, for two
reasons.  First, it contains no findings that a reduction of
visitation was in the child's best interest. [Fn. 1]  Second, the
reduction was ordered without giving A.H. an opportunity to be
heard.  When a superior court is asked to make a material and
substantial change to a visitation arrangement, it should not do so
without permitting all parties to be heard, at least
telephonically. [Fn. 2]
          3.   A.H. also argues on appeal that it was error not to
grant A.H.'s December 7, 1998 motion for recusal.  The superior
court did not reach the merits of A.H.'s recusal motion because the
court believed A.H. had not served a copy of the motion on P.B. 
The record, however, contains A.H.'s original December 7, 1998
certificate of service which was apparently filed with the recusal
motion.  Upon remand, the superior court must first consider the
recusal motion.  If there is any lingering question about whether
it was actually served on P.B., P.B. should be given an opportunity
to oppose the motion.
          4.   A.H. also implies that the superior court exhibited
partiality to P.B. by accepting ex parte communications from P.B.,
and by functioning as P.B.'s "personal secretary" when it forwarded
to A.H. copies of P.B.'s ex parte communications.  The record does
not establish that the court acted inappropriately in this regard. 
Both parties, one who appeared pro se at all times, and the other
who appeared pro se after her attorney withdrew in 1997, besieged
the superior court with communications expressly, and sometimes
impliedly, seeking relief of various sorts.  Some of these
communications were ex parte, or were not accompanied by proof of
service.  The Alaska Code of Judicial Conduct prohibits a judge
from initiating, permitting, or considering ex parte communications
in pending or impending matters. [Fn. 3]  Dealing with pro se
litigants who are unable or unwilling to follow service
requirements and procedural formalities can be problematic.  Even
pro se litigants should be instructed to avoid ex parte
communications and to submit certificates of service.  Ultimately,
ex parte communications should not be accepted for filing unless
service has been made by the filing party, or unless the court
makes service itself.  Here the superior court appears to have
attempted to follow this practice consistently.  Any possible
lapses were few, and do not demonstrate any bias against A.H.
          5.   Equally problematic is the ambiguity of informal
requests for relief, such as the February 15, 1999, letter P.B.
sent to the superior court in this case.  A.H. treated this letter
as a request for relief, and filed an opposition.  The best
practice is for a trial court, if it intends to give consideration
to such a request, to indicate that it is treating the request as
a motion for relief.  Other parties may then respond as necessary
without wondering whether the court has simply accepted the
communication for filing and intends not to act on it absent
further notice. 
          6.   The precise issue raised by A.H. in this appeal,
whether it was error to reduce his telephonic visitation, may
actually be moot.  The record contains Michael Stark's affidavit,
in which Stark stated that A.H. was subject to a mandatory prison
release date of March 4, 2000.  It is therefore possible that A.H.
is no longer in custody and that he is no longer limited to
telephonic visitation.  
          7.   For these reasons, we VACATE the March 4, 1999 order
modifying visitation and REMAND for further proceedings.   CARPENETI, Justice, dissenting.

          While I do not necessarily disagree with the rule that
material and substantial changes to visitation arrangements require
a hearing, I believe that this is an inappropriate case in which to
formulate such a rule.  We have not previously decided in what
circumstances trial courts must hold an evidentiary hearing before
a change in visitation can be ordered, and I believe we should not
do so in this case for two reasons: the case is moot and the
briefing is inadequate.  In these circumstances, we should not
formulate an important new rule.
          This case is moot because, as the court notes, an
assistant attorney general has notified us that A.H. was subject to
a mandatory prison release date of March 4, 2000.  The case is
inappropriate for the formation of a new rule also because we have
received almost no assistance from the briefing in this case. 
A.H., who was incarcerated out of state when he prepared his brief,
appears pro se; P.B., who apparently is also not represented by
counsel at this point, has not even filed a brief with this court. 
As a result, we have heard from only one side, and even that
presentation was less than optimal.
          Under these circumstances, I would decline to formulate
an important new rule.


Footnote 1:

     See AS 25.20.110(a).  

Footnote 2:

     Cf. Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998);
Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska 1997).  Our
ruling extends to cases involving material and substantial changes
in visitation orders.  We do not suggest that hearings must be held
upon request in all cases involving visitation disputes. The
controversy here did not deal with the minutiae of a detailed
visitation arrangement; rather, the superior court's order cut
A.H.'s visitation in half.  

Footnote 3:

     See Alaska Code of Jud. Cond., Canon 3(B)(7).