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J.L.P. v V.L.A. (09/14/2001) sp-5470
J.L.P. v V.L.A. (09/14/2001) sp-5470
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
J.L.P., )
) Supreme Court No. S-9239/9240
Appellant, )
) Superior Court No.
v. ) 3AN-91-5190 CI
)
V.L.A., ) O P I N I O N
)
Appellee. ) [No. 5470 - September 14, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: J.L.P., pro se, Copper Center.
V.L.A., pro se, Anchorage.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
BRYNER, Justice, with whom MATTHEWS, Justice,
joins, concurring as to the result reached in section IV.A.
EASTAUGH, Justice, dissenting as to section
IV.A.
I. INTRODUCTION
After the 1992 divorce of Veronica [Fn. 1] and Jerry, the
parties' two children, Dora and Rodney, lived with Veronica. In
1997 Veronica sent Rodney to live with Jerry when the situation
between Rodney and his stepfather became troubled. Jerry moved to
modify the 1992 custody agreement, asking for divided custody and
for primary physical custody of Rodney. Veronica later moved for
sole legal custody of Dora. Both parties moved to modify child
support. Superior Court Judge Rene J. Gonzalez granted legal and
physical custody of Rodney to Jerry, left Dora in the shared legal
custody of both parents and her primary physical custody with
Veronica, required both parents to be equally responsible for the
children's medical costs, denied Jerry's motion for attorney's
fees, and set the amount of child support and its effective date.
Both parties appeal various aspects of these rulings. We affirm
the superior court's rulings in all respects except as to uncovered
health care costs for the children that are in excess of $5,000.
We remand on that sole issue.
II. FACTS AND PROCEEDINGS
A. Facts
Veronica and Jerry were divorced in 1992. They reached
a settlement agreement that was incorporated into their divorce
decree. It provided that they would have joint legal custody of
their two minor children, Dora and Rodney. The agreement also gave
Veronica primary physical custody of the children. Veronica and
the children lived together in Anchorage until March 2, 1997 when,
due to problems between Rodney and his stepfather, Veronica sent
Rodney to live with his father in Copper Center with almost no
prior notice. Dora remained with Veronica. By all accounts,
Rodney's move to live with his father has been satisfactory. Dora
expressed a desire to remain with her mother, even though she had
encountered problems with substance abuse and her relationship with
her stepfather was, at times, troubled.
B. Proceedings
1. Modification of custody
On May 13, 1997, after Rodney had lived with Jerry for
over two months, Jerry moved to modify the 1992 custody agreement,
seeking divided custody and primary physical custody of Rodney. On
August 17, 1998 Veronica filed a motion to modify custody of Dora,
seeking sole legal custody of her daughter. [Fn. 2] Superior Court
Judge Rene J. Gonzalez ordered a child custody investigation. On
October 14, 1998 the custody investigator recommended that Jerry be
awarded sole legal and primary physical custody of Rodney and that
Veronica be awarded sole legal and primary physical custody of
Dora.
The case came on for trial in October 1998. Following
trial, Judge Gonzalez granted Jerry's motion for primary physical
custody of Rodney and, sua sponte, awarded him sole legal custody
of Rodney as well. The court denied Veronica's motion for sole
legal custody of Dora. The court's order addressed Dora's
circumstances, including her treatment for substance abuse and the
confrontations between Dora and her stepfather, and concluded that
"modification of her legal custody would not serve her welfare and
best interests." The court also ordered the parties to share the
children's medical expenses equally. Veronica retained primary
physical custody of Dora.
On November 3, 1998 Jerry filed a motion for
reconsideration of the court's order that he pay half the cost of
Dora's treatment for substance abuse and depression. He argued
that Veronica had denied him his "rightful participation in the
health care of [our] daughter"and therefore Veronica should be
responsible financially for it and that it was simply too expensive
for him to shoulder. The superior court denied this motion on
November 8. On November 13 Jerry filed a motion for sole legal
custody of Dora. The superior court denied this motion.
2. Modification of support payments
While the custody modification motions were pending, the
superior court issued an interim child support order on October 2,
1997, based on the parties' 1996 incomes, requiring Jerry to pay
$165 per month, effective March 2, 1997. In the October 27, 1998
order granting Jerry sole legal and primary custody of Rodney, the
court recalculated the child support obligation using 1997 incomes
and ordered that Veronica pay $90.25 per month, without discussing
the effective date of her obligation. On March 2, 1999, the court
issued an amended order setting the effective date of the modified
child support order as June 1, 1997. Veronica moved for
reconsideration of the effective date of her child support
obligation. Her motion was denied.
3. Request for attorney's fees
On October 23, 1998, while the custody motions were
pending, Jerry amended his earlier-filed motion for attorney's
fees, seeking reimbursement from Veronica for costs incurred to
modify custody of Rodney. Jerry has proceeded pro se in these
disputes with the exception of the original divorce action and a
brief period in 1997. The superior court denied the motion on
November 5. Jerry moved for reconsideration, which the court
denied.
Jerry appeals the denial of his motion for legal custody
of Dora, the denial of his motion that Veronica be responsible for
all of Dora's medical costs, and the denial of his motion for
attorney's fees. Veronica cross-appeals the denial of her motion
concerning the effective date of child support and the amount of
child support.
III. STANDARDS OF REVIEW
Trial courts are vested with broad discretion in child
custody matters. [Fn. 3] We will reverse a lower court's decision
regarding child custody modification only if the lower court abuses
its discretion or if its controlling factual findings are clearly
erroneous. [Fn. 4] A trial court abuses its discretion if it fails
to consider statutorily mandated factors, assigns too much weight
to some of the factors, or considers improper factors. [Fn. 5] A
finding of fact is clearly erroneous only when a review of the
entire record leaves us with a definite and firm conviction that
the trial court has made a mistake. [Fn. 6]
"With respect to modification of custody and visitation
orders, we review the denial of a motion for attorney's fees for
abuse of discretion."[Fn. 7] "The trial court's discretion in
awarding attorney's fees is broad and . . . will not be disturbed
on appeal unless it is 'arbitrary, capricious, manifestly
unreasonable, or stems from an improper motive.'"[Fn. 8]
The interpretation of Alaska Civil Rules governing child
support orders is reviewed de novo; we will adopt the rule of law
that is most persuasive in light of precedent, reason, and policy.
[Fn. 9] A trial court's decision to modify a child support award
will not be disturbed unless the trial court abused its discretion.
[Fn. 10] We will set aside a lower court's factual findings only
when they are clearly erroneous. [Fn. 11]
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion in
Denying Jerry's Motion for Modification of Legal Custody.
The superior court denied both Jerry's motion for
modification of Dora's legal custody and his motion for
reconsideration of that order without offering any reasons. Jerry
argues that the trial court abused its discretion in issuing these
orders because: (1) it did not conduct a "complete custody
modification proceeding, which afforded him the opportunity to
present evidence needed for the court to make an informed decision
that was in the best interest of [Dora]"; (2) it made "no mention
of any of the [statutory factors] even being considered"; (3) it
did not state on the record its reasons for denial as required by
AS 25.20.100 and AS 25.20.110; and (4) it failed to apply its
earlier conclusion that "the failure of the parties to communicate
and cooperate with each other defeats their joint legal custody
arrangement."
Two conditions must be satisfied before a motion to
modify custody will be granted: first, the non-custodial parent
must establish that a change in circumstances has occurred; and
second, the modification must be in the best interests of the
child. [Fn. 12] "The required change in circumstance must be
significant or substantial, and must be demonstrated relative to
the facts and circumstances that existed at the time of the prior
custody order that the party seeks to modify."[Fn. 13] The
superior court may deny custody modification without an evidentiary
hearing if 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."[Fn. 14] The
moving parent bears the burden of making a prima facie showing of
a substantial change of circumstance as a threshold matter. [Fn.
15] Once the movant meets that threshold 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."[Fn. 16]
1. Jerry's motion to modify legal custody of Dora was
a de facto motion for reconsideration.
The content and timing of Jerry's motion to modify
custody of Dora is dispositive in this case. It is critical to
understand the procedural context of the dispute before the
superior court. Jerry originally moved for modification of the
1992 agreement, seeking divided custody and primary physical
custody of Rodney. Veronica cross-moved for sole legal custody of
Dora. Jerry opposed that motion, noting that Veronica bore the
burden of showing changed circumstances and alleging that she would
be unable to meet that burden. Although these pleadings concerning
Dora referred mostly to legal custody, by the time the case came to
trial, the court was clearly considering the issue of Dora's
physical custody. [Fn. 17] First, the child custody investigator
had recommended only two weeks before that Dora's physical custody
remain with Veronica. Second, substantial portions of the trial
were devoted to the question of Dora's custody, including aspects
of her physical custody. [Fn. 18] Finally, on at least two
occasions during the trial Jerry affirmed that he wanted the court
to do nothing about Dora's custody at that time and that she should
remain placed with her mother.
The superior court issued its order granting Jerry's
motion for primary physical custody of Rodney, awarding him sole
legal custody of Rodney, and denying Veronica's motion for sole
legal custody of Dora on October 27, 1998. Seven days later, on
November 3, Jerry moved for reconsideration of that part of the
order that required that the parties be "equally responsible for
the payment of all costs of reasonable health care expenses,
including treatment for substance abuse . . . ." The superior
court denied that motion on November 8. On November 13, Jerry
filed a motion [Fn. 19] for custody of Dora. He made no sufficient
claim of changed circumstances since the trial. The court denied
the motion on January 7, 1999.
This sequence of events and the considerations noted by
the superior court in its order of October 27, 1998 convince us
that Jerry's motion to modify custody of Dora was in fact a motion
for reconsideration of the court's October 27 decision, a decision
made just two weeks prior to Jerry's motion. As such, not only was
Jerry's motion untimely, [Fn. 20] but it was also properly denied
by the superior court. The court considered extensive evidence
concerning Dora's custody at trial. And the court asked pointed
questions as to the propriety of Dora's situation. After
considering the evidence, the court concluded that it was not in
Dora's best interests to modify custody. Jerry's motion provided
no basis for reconsideration of that fully-litigated and considered
conclusion. And he failed to make a prima facie showing of changed
circumstances in the two weeks that had elapsed since trial. [Fn.
21] We thus conclude that the superior court did not err when it
denied Jerry's November motion to modify Dora's custody.
2. The superior court was not required to perform a
best-interests analysis or consider an updated child custody report
or the AS 25.20.090 factors.
Jerry argues that the superior court must consider
specific factors under AS 25.20.090 [Fn. 22] in determining an
award of custody and that this was not done in this case. He
argues that Cushing v. Painter [Fn. 23] establishes his right to a
hearing in this case. There, the trial court granted a change of
permanent custody on the basis of an abbreviated, "interim"
hearing. [Fn. 24] In those circumstances, we said that 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."[Fn. 25] But when a motion to modify custody is
denied, the trial court is not required to grant a hearing in order
to perform the best-interests analysis if it is plain that the
facts alleged in the moving papers would not warrant a
modification. [Fn. 26]
Jerry argues that he is entitled to a "full custody
modification proceeding"on his motion to modify custody of Dora.
He ignores that the court had just entertained litigation
concerning Dora's custody and declined to change her custody
arrangement. [Fn. 27] Moreover, Jerry did not even request such a
hearing in his motion. [Fn. 28] And had a timely request for a
hearing to consider a custody investigator's report been made, the
court would have been justified in denying it, both because it had
considered and decided the issue of Dora's custody only two weeks
before, [Fn. 29] and because the decision to appoint a custody
investigator is itself a discretionary one. [Fn. 30]
Jerry's motion for modification of legal custody was in
fact a motion for reconsideration of the October 27 court order.
He did not allege changed circumstances that would justify a change
in legal custody. Thus, the court was not required to undertake a
best-interests analysis. Because Jerry did not ask for a hearing
and the court was not required to have an updated custody report
before deciding the motion, it was not error to deny the motion
without holding a hearing.
3. The superior court did not err when it denied the
motion for modification of Dora's legal custody without making
findings on the record under AS 25.20.100.
Alaska Statute 25.20.100 provides: "If a parent or the
guardian ad litem requests shared custody of a child and the court
denies the request, the reasons for the denial shall be stated on
the record." Jerry argues that the superior court violated this
provision when it denied his motion while making "no mention as to
the reasons"for denial. However, the plain terms of the statute
apply to requests for shared custody, not requests to modify a
shared custody arrangement to sole custody. The superior court
made adequate findings in its October 27, 1998 order and was not
required to make further findings on what we conclude was Jerry's
motion to reconsider the court's decision regarding Dora's legal
custody.
4. The denial of the motion without setting forth
conclusions on the record did not violate AS 25.20.110.
Jerry argues that the superior court's conclusory denial
of his motion to modify Dora's legal custody violated AS
25.20.110(a), which provides that "[i]f a parent opposes the
modification of the award of custody or visitation with the child
and the modification is granted, the court shall enter on the
record its reason for the modification." However, the plain terms
of the statute apply to grants of modification, not to denials.
When a motion to modify custody is denied, the trial court is not
required to grant a hearing in order to perform the best-interest
analysis if it is plain that the facts alleged in the moving papers
would not warrant a modification. [Fn. 31] Because we conclude
that Jerry's motion was one for reconsideration of the October 27
order denying a change to Dora's legal custody, we hold that the
superior court did not err in denying Jerry's motions without
stating its reasons.
5. The trial court's "non-cooperation"finding
underlying its decision to give sole legal custody of Rodney to
Jerry did not compel a grant of Jerry's motion concerning Dora's
custody.
Jerry argues that the superior court abused its
discretion by failing to conclude that its previous determination,
that the "failure of the parties[] to communicate and cooperate
with each other defeats their joint legal custody arrangement [of
Rodney],"compels the further conclusion that Jerry ought to have
been afforded the opportunity to have a hearing regarding legal
custody of Dora. Jerry suggests that the court's prior conclusion
of non-cooperation regarding Rodney justifies a change in custody
of Dora. But the superior court made quite clear that its concern
was the parties' inability to cooperate "in addressing the welfare
and best interests of the minor child [Rodney]." There was no
similar changed circumstances determination with respect to Dora;
indeed, the superior court explicitly stated that Dora's legal
custody should not be changed. We therefore conclude that the
superior court's "non-cooperation"finding regarding Rodney did not
compel further action regarding Dora and that the court did not err
in denying Jerry's motion.
B. The Parties' Responsibility for Uncovered Medical
Expenses in Excess of $5,000 for Their Children Is Ambiguous.
Jerry appeals the denial of his motion for
reconsideration of the court's order requiring that he be
responsible for fifty percent of the children's medical expenses,
including the costs of Dora's treatment for substance abuse and
depression. Jerry argued that since Dora was not in his custody
when she developed the need for treatment, and since he was not
informed of her substance abuse problems and did not consent to her
treatment, he should not have to pay. When denying the motion, the
superior court characterized it (and Jerry's motion for attorney's
fees discussed below) as an attempt to impose upon Veronica full
responsibility for Dora's medical expenses.
Under the modified custody arrangement, the superior
court ordered Jerry and Veronica to share equally the children's
health care costs:
Both parties have the duty to provide
health care insurance for the two minor children and the health
insurance costs are allocated equally between them. . . .
Both parties are equally responsible for
the payment of all costs of reasonable health care expenses,
including treatment for substance abuse for the minor children.
Alaska Civil Rule 90.3(d)(1) requires the superior court to
consider the children's health care coverage and to require
insurance if it "is available to either parent at a reasonable cost
. . . . The court shall allocate equally the cost of this
insurance between the parties unless the court orders otherwise for
good cause." As to uncovered health care expenses, the version of
Civil Rule 90.3(d)(2) in effect at the time of the hearings in this
case provided that uncovered health care expenses will be allocated
equally between the parties unless otherwise ordered for good cause
"except that a reasonable, uncovered expense in excess of $5,000
must be allocated based on the parties' relative financial
circumstances when the expense occurs."
The superior court did not abuse its discretion in
denying Jerry's motion insofar as uninsured health care expenses do
not exceed $5,000. However, there are two court orders that
reference health care expenses that render the responsibility for
uncovered medical costs over $5,000 ambiguous. One order is the
standard court form for child support orders. It specifically sets
out the rule regarding allocation of costs over $5,000 based on the
parties relative financial circumstances. The other is the court's
October 27, 1998 order in which the court ordered that "the parties
are equally responsible for the payment of all costs of reasonable
health care expenses, including treatment for substance abuse for
the minor children." The latter order does not mention what
happens if those expenses exceed $5,000. It is also unclear on
this record whether the parties actually incurred health care
expenses in excess of $5,000. [Fn. 32]
Because the superior court's orders are ambiguous as to
the responsibility for uncovered medical costs over $5,000, we
remand for consideration of this issue.
C. The Trial Court Did Not Abuse Its Discretion in Denying
Jerry's Motion for Award of Attorney's Fees for Litigation
Concerning Custody of Dora.
Jerry argues that the superior court erred in denying his
request for $4,000 in attorney's fees in the proceedings to modify
custody of Rodney and Dora. In the superior court, he claimed that
he was entitled to attorney's fees under AS 25.20.115 [Fn. 33] and
Rowen v. Rowen [Fn. 34] because Veronica had acted in bad faith.
However, our law is clear that "[l]ay pro se litigants
cannot recover attorney's fees."[Fn. 35] With the exception of a
brief period of time, Jerry has proceeded pro se in all the matters
presently being appealed. Thus, he cannot recover attorney's fees
in this case. While Jerry did retain an attorney for some of the
proceedings on appeal, he filed more motions in these matters as a
pro se litigant -- even during the time he obtained the services of
counsel -- than did his attorney. [Fn. 36] Furthermore, one of
those pro se motions specifically withdrew all pending motions
regarding Rodney's custody. On these facts it was not an abuse of
discretion for the superior court to deny Jerry's amended motion
for attorney's fees. We therefore affirm the superior court's
denial of his motion for attorney's fees.
D. The Trial Court Did Not Err in Modifying Child Support.
On cross-appeal, Veronica argues that the superior court
erred in retroactively changing the date of child support. She
argues that the interim child support order, dated October 2, 1997,
governed the parties' obligations until November 1, 1998, when
custody became final.
1. The modification was not retroactive.
While the motions for modification of child custody were
pending, the superior court issued an interim child support order.
The interim order stated that "[c]hild support in this case shall
be modified effective March 2, 1997, the date [Rodney] moved to
defendant's home." The court concluded that Jerry's child support
obligation was $165 per month. The court used the parties' 1996
income to calculate this support obligation.
In its October 27, 1998 custody modification order, the
superior court recalculated child support obligations and found
that Veronica should pay child support to Jerry in the total amount
of $1,083 per year in twelve equal monthly payments of $90.25
without specifying an effective date. This calculation was based
on the court's findings that "[i]n 1997, [Jerry's] gross income was
substantially reduced from $33,006.68 to $18,775. [Veronica]'s
income increased from $21,704.68 to $27,710." This order was
vacated on November 5, 1998 when the court determined that it was
"inconsistent with the court's order regarding physical and legal
custody of the children which was issued on the same date." The
court issued an amended order providing that "the effective date of
the Amended Child Custody and Support Order entered on November 5,
1998, under which [Veronica] is obligated to pay the sum of $90.25
as child support under the split custody arrangement shall be June
1, 1997." Veronica moved for reconsideration of the effective date
of her child support obligation, which the court denied.
Child support may not be modified retroactively. [Fn. 37]
The superior court explained that "[a] modification which is
effective on or after the date a motion for modification is served
on the opposing party is not considered a retroactive modification
of the child support award." The court concluded that the June 1
effective date was "supported by the law and facts of this case"
because "Defendant's motion to modify the child support order of
the parties' minor son was filed on May 14, 1997. The minor child
was in the physical custody of his father prior to May 14, 1997 and
child support was provided by the father without contribution by
the plaintiff."
The superior court did not abuse its discretion in
setting the June 1, 1997 effective date. Rule 90.3(h)(2)
specifically clarifies that a modification of child support that is
effective on or after the date that notice of petition or motion
for modification was served on the opposing party is not a
retroactive modification. Since the parties do not dispute that
Veronica was served before June 1, 1997 the superior court's order
did not constitute a retroactive modification. [Fn. 38] We
therefore affirm the superior court's determination that June 1,
1997 was the effective date for Veronica's child support
obligation.
2. The superior court did not err in calculating
support based on 1997 income.
In the alternative, Veronica argues that even if the
superior court did not err in setting the effective date, it did
err in setting the dollar amounts to be paid by the parties
because the superior court used the parties' 1997 incomes to
determine support obligations in the modified order.
The superior court did not abuse its discretion in making
its support calculations. The Commentary to Rule 90.3 provides
that "[c]hild support is calculated as a certain percentage of the
income which will be earned when the support is to be paid."[Fn.
39] And in cases involving modification of child support, we have
stated that "child support is both based on and paid out of the
obligor's current income."[Fn. 40] Here, the support in question
was to be paid in 1997. Therefore, the superior court correctly
based its support calculations upon 1997 income. We therefore
affirm the superior court's modified child support order.
V. CONCLUSION
Because Jerry's motion to modify legal custody of Dora
was in fact a motion for reconsideration of the court's October 27,
1998 order resolving Dora's legal custody, and because Jerry showed
no changed circumstances with regard to Dora's legal custody, [Fn.
41] we AFFIRM the superior court's denial of Jerry's motion.
Jerry has an obligation to pay for half of his children's
uncovered medical expenses up to $5,000. We therefore AFFIRM the
superior court's denial of his motion for reconsideration of the
order that he share equal responsibility for those expenses.
However, we REMAND the question of responsibility for uncovered
health care costs in excess of $5,000 for consideration of
allocation of those costs (if they exist) according to the parties'
relative financial condition at the time the costs were incurred.
We AFFIRM the superior court's denial of Jerry's motion
for attorney's fees.
Because the effective date of Veronica's child support
obligation did not create a retroactive modification, and the
amount of support was correctly calculated, we AFFIRM the superior
court's order modifying child support.
BRYNER, Justice, with whom MATTHEWS, Justice, joins, concurring.
While I agree with the court's opinion that the superior
court did not abuse its discretion in denying Jerry's post-trial
motion for modification of legal custody, I disagree with its
position that Jerry's request for physical custody was essentially
a motion for reconsideration of issues that had already been
addressed and decided at trial. In my view, Justice Eastaugh's
dissent correctly observes that Jerry never litigated the issue of
physical custody during the trial. As Justice Eastaugh's review of
the proceedings points out, the trial record establishes that Jerry
fully understood the difference between physical and legal custody
and carefully avoided litigating the issue of physical custody at
trial. [Fn. 1] I nevertheless disagree with Justice Eastaugh's
conclusion that the superior court erred in failing to explain its
reasons for denying Jerry's post-trial efforts to obtain physical
custody. I would hold that summary denial was proper because Jerry
did not properly move to modify physical custody.
When Jerry filed his post-trial motion to modify custody,
he specifically avoided raising the issue of physical custody,
expressly designating his motion as a "Motion to Modify Legal
Custody"(emphasis added). Veronica understandably read Jerry's
motion as asking only for legal custody; she relied on this
understanding in opposing the motion, neglecting to argue the issue
of physical custody.
Meanwhile, Jerry had separately moved for temporary
physical custody. Veronica separately opposed that motion,
properly focusing her opposition on the issue of physical custody.
Jerry reacted to Veronica's opposition by withdrawing his temporary
motion for physical custody; in so doing, he asserted --
inaccurately -- that he had raised the same issue in his original
motion for modification -- which actually raised only the issue of
legal custody. That same day, Jerry replied to Veronica's
opposition to his motion to modify legal custody. Although
Veronica had confined her opposition to that motion to the issue of
modifying legal custody, Jerry's reply purported to incorporate by
reference his just-withdrawn motion for temporary physical custody
and argued at length for both physical and legal custody. This
argument was doubly improper: it argued for relief beyond the scope
of the original motion; and it raised this new point for the first
time in a reply memorandum.
The record strongly suggests that Jerry contrived these
procedural maneuvers to impair Veronica's ability to defend against
Jerry's claim for physical custody. After filing his motions for
legal custody and temporary physical custody, Jerry waited until
Veronica submitted her oppositions. He then withdrew his motion
for interim physical custody, while simultaneously asserting a
claim for physical custody in his reply to the opposition that
Veronica had filed in response to his motion for legal custody.
This tactic effectively orphaned Veronica's opposition to Jerry's
motion for temporary physical custody: that opposition -- the
primary pleading in which Veronica addressed Jerry's request for
physical custody -- now responded to an abandoned motion. At the
same time, Jerry transferred the issue of physical custody to a
pleading that allowed Veronica no right of response: his reply to
Veronica's opposition to his motion for legal custody. Any
lingering doubt as to whether Jerry's actions were strategic
maneuvers vanished when, in response to Veronica's supplemental
response on the issue of physical custody, Jerry moved to strike
her new pleading, insisting that Veronica had no right to respond
to his reply.
Given these circumstances, I do not believe that the
superior court abused its discretion by summarily denying Jerry's
motion for modification. In pursuing his sudden change of
procedural course, Jerry abandoned the only pleading that properly
raised the issue of physical custody -- his motion for temporary
physical custody. And while his remaining motion to modify legal
custody belatedly sought to argue for physical custody, it did so
improperly.
On these facts, even though I agree with Justice Eastaugh
that the proceedings at trial did not foreclose Jerry from
attempting to litigate physical custody, I would hold that Jerry's
failure to squarely raise the issue of physical custody permitted
the superior court to summarily deny his motion to modify legal
custody. I would find no abuse of discretion and would affirm the
superior court's decision. [Fn. 2]
EASTAUGH, Justice, concurring in part and dissenting in part.
a. Introduction
I agree with the court's resolution of all issues other
than the issue of Dora's physical custody. These other issues are
thoroughly and capably discussed in Justice Carpeneti's opinion.
Except for the issues discussed in the separate opinions of Justice
Bryner and myself, the court unanimously agrees with Justice
Carpeneti's opinion. I also agree with the conclusion expressed by
Justice Bryner and shared by Justice Matthews -- a conclusion thus
shared by a majority of the court -- that the issue of Dora's
physical custody was neither tried nor decided. [Fn. 1] But I
respectfully disagree with the result -- affirmance -- four members
of the court reach regarding the issue of Dora's physical custody;
I also disagree with their view that Jerry did not properly raise
that issue after trial. Because Jerry adequately raised the issue
after trial, I think it was necessary to make best-interests
findings concerning Dora's physical custody.
Instead of affirming, we should remand for best-interests
findings on the issue of Dora's physical custody. We should also
permit the superior court, in its discretion, to hear additional
evidence and order an updated child custody investigator's report
bearing on Dora's physical custody.
b. Pertinent Facts and Proceedings
The history of the physical custody dispute is important.
The history reveals that neither explicitly nor implicitly did the
parties try or the trial court decide the issue whether to modify
Dora's physical custody. It also reveals that Jerry adequately
raised the issue after trial.
The litigation history of this case is extensive. This
is an attempt to summarize only the relevant events.
1. The issues tried and decided
Veronica and Jerry divorced in 1992. Their 1992 divorce
decree incorporated their agreement that they would have joint
legal custody of their two minor children, Dora and Rodney. As
they agreed, the 1992 decree awarded Veronica primary physical
custody of both children and awarded Jerry visitation.
In 1997 Jerry filed a motion seeking primary physical
custody of Rodney. In August 1998 Veronica filed a motion to seek
sole legal custody of Dora. A hearing on both motions was set for
October 1998.
The superior court had ordered a child custody
investigation in 1997, and the report was completed October 14,
1998. The report stated, among other things, that "[n]either
parent contests [Dora]'s primary placement with her mother, so her
situation is not discussed in great depth." The report stated that
"[Dora] was seen just one time,"was living with her mother, and
desired "to stay in that placement." It reported that Veronica's
new husband, J.A., had "spanked [Dora] on one occasion and shoved
her against the wall on another,"and that Dora had gone "to a
friend's home until emotions settled down." The report also noted
that Dora had failed at one school and had entered an in-patient
program for substance abuse that would end October 16, when she was
to enter a three- to six-month residential treatment program. The
report stated that "[Dora]'s placement is not contested. She wants
to remain in her mother's home and both parents want her to remain
there." The report recommended that Jerry "be awarded sole legal
and primary physical custody of [Rodney],"and that Veronica "be
awarded sole legal and primary physical custody of [Dora]."
The superior court heard testimony October 26, 1998. The
court characterized the hearing as one on Veronica's and Jerry's
motions to modify custody of Dora and Rodney. The parties
characterized the issues similarly. Veronica's attorney, at the
start of the hearing, questioned the child custody investigator
about her recommendation regarding legal custody of the children.
During her closing statements, Veronica's attorney explained that
Veronica was seeking sole legal custody of Dora. Following the
testimony of the child custody investigator, the superior court
told Jerry that he could present any "additional evidence"that he
wished the court to consider, and asked Jerry to explain his
objections to the child custody investigator's recommendations
regarding Dora. Jerry explained that he was asking the court "to
defer their decision on [Dora]'s situation." The court then asked
Jerry, "what it is you're asking the court to do regarding [Dora]?"
Jerry responded, "nothing at this time,"but asked that the court
leave Dora in the parents' joint legal custody until more could be
learned about her substance abuse problem.
Veronica testified at the hearing that a physical
altercation had taken place between her new husband, J.A., and
Dora, resulting in police intervention and a Division of Family and
Youth Services (DFYS) investigation. During his closing statement,
Jerry reiterated his desire for the "best possible environment"for
his children, stating that the "environment that Veronica and J.A.
have presented has been less than desirable." He again asked the
court to "defer any decision on [Dora]'s custody right now until we
have a full picture of what's going on with [Dora]." The court
interrupted Veronica's attorney's closing statement and asked, "on
the basis of the information that I have right now [regarding the
physical altercation between J.A. and Dora and the on-going DFYS
investigation], how can I conclude that [Dora] has been provided
with a stable, satisfactory home environment in her mother's
custody?" Veronica's attorney then suggested that if the court had
concerns about Dora's safety in the J.A. household, the court
should "have the custody investigator look further into that."
Veronica's attorney again explained that she was "asking that
[Veronica] have sole legal custody of [Dora]." (Emphasis added.)
Just before the hearing ended, the court stated that "the
information I've been provided today regarding [Dora] is
substantial new information [regarding the physical altercation and
the DFYS investigation] and should have been investigated . . .
more fully by the custody investigator."
The superior court entered an order on October 27, 1998
disposing of the trial issues. The order noted that there were two
motions before the court: Jerry's 1997 motion to modify Rodney's
custody [Fn. 2] and Veronica's 1998 motion seeking sole legal
custody of Dora. The order then awarded primary physical and sole
legal custody of Rodney to Jerry. In doing so, it first held that
Jerry had demonstrated a "substantial change of circumstances"
since entry of the 1992 custody decree, and then held that Rodney's
"welfare and best interests"were served by awarding his primary
physical custody to Jerry.
The order then dealt with Veronica's motion seeking sole
legal custody of Dora. It noted that Dora was fourteen, had a
serious substance abuse problem, and was then in a voluntary
residential treatment program that might last three to eight
months. It noted Dora's confrontation with her stepfather, his use
of inappropriate force against her, and the ensuing intervention by
the Anchorage Police Department (APD). It noted that a report of
harm had been filed with DFYS. The order then found that "the
modification of [Dora's] legal custody would not serve her welfare
and best interest."(Emphasis added.) The court consequently
denied Veronica's motion to modify Dora's custody.
The October 26, 1998 trial produced evidence that would
have been relevant to both Dora's legal custody and her physical
placement, but the only dispute the October 27 order discussed
concerning Dora's custody pertained to Veronica's motion to modify
Dora's legal custody. The order did not address the topic of
Dora's physical custody or note that there was any dispute before
the court about Dora's physical custody. Given the care taken by
the superior court to craft its order, it is clear that with
respect to Dora, the court was ruling only on Veronica's motion to
modify Dora's sole legal custody, and was not addressing Dora's
physical custody. [Fn. 3] Given that no motion put Dora's physical
custody in issue as well as Jerry's statements that he was not
seeking physical custody of Dora, there was no reason for the order
to deal with that topic. The parties did not litigate the issue
and the court did not decide it.
So far as I can see, the record does not permit a
conclusion that the superior court actually considered or decided
whether to modify Dora's physical custody when it conducted the
October 26, 1998 trial. I therefore think it is incorrect to imply
that the trial court decided this non-issue, [Fn. 4] to imply that
it was "fully-litigated,"[Fn. 5] or to say that the trial court
"was clearly considering the issue of Dora's physical custody."
[Fn. 6]
In support of the latter proposition, the opinion refers
to the child custody investigator's October 14 recommendation that
Dora's physical custody remain with Veronica. [Fn. 7] But there is
no indication in the record that the superior court acted on that
recommendation, and indeed, the report itself noted that Dora's
physical custody was not in issue. The opinion next notes that
"substantial portions of the trial were devoted to the question of
Dora's custody, including aspects of her physical custody."[Fn. 8]
Certainly there was trial evidence concerning her mother's ability
to care for her and the situation in the J.A. household. That
evidence was relevant to Dora's legal custody. It also would have
been relevant to her physical custody, had that issue been tried.
But that does not mean that the parties actually tried or the
superior court considered any issue of Dora's physical custody.
Finally, the opinion observes that "on at least two occasions
during trial Jerry affirmed that he wanted the court to do nothing
about Dora's custody at that time and that she should remain placed
with her mother."[Fn. 9] This observation is correct, but it does
not support a conclusion that the superior court decided Dora's
physical custody. It instead confirms that Dora's physical custody
was not on trial. Thus, it is hard to see how the superior court
could have considered it or why Jerry was foreclosed from raising
it after trial.
2. Post-trial events
The history of Jerry's post-trial motions is also
important. This history first demonstrates that Jerry established
that circumstances regarding Dora's physical custody had materially
changed during the relevant interval. That was the interval
between entry of the last order determining Dora's physical
custody, the 1992 decree, and the filing of Jerry's post-trial
efforts raising the physical custody issue.
This history also demonstrates that Jerry adequately
brought the issue to the superior court's attention, despite
Jerry's procedural backing and filling and aggressive approach to
litigation. Jerry was pro se. Although he appears to have been an
articulate and relatively capable pro se, it was necessary to read
his pleadings for their substance, not for their strict
terminology.
Here is what they reveal. On November 13 Jerry filed his
November 10, 1998 "Motion to Modify Legal Custody." Although its
title only referred to Dora's "legal custody,"Jerry's motion noted
that Jerry had previously asked the court to delay modifying
custody pending a motion for mediation to guide the parties in what
would best serve Dora during her treatment for substance abuse and
depression. Noting that the court had denied Jerry's previous
mediation motion, Jerry's November 10 motion asked the court to
apply to Dora the same standard it had applied on October 27 in
awarding Rodney's sole legal custody to Jerry; in support, Jerry
discussed the evidence produced at the October 26 trial regarding
Dora, her stepfather's inappropriate use of physical force, her
involvement with the APD and DFYS, numerous reports of harm, her
medical records, her school records, runaway reports, a shoplifting
charge, and a teen-smoking violation. He asserted that "[t]he body
of evidence above alone indicates that plaintiff has not provided
for [Dora]'s physical, emotional, mental and social needs and lacks
the capacity to do so." Jerry consequently asked to be awarded
sole legal custody of Dora.
Although his November 10 motion can be fairly read to
have sought only legal custody of Dora, Jerry soon filed his
November 23, 1998 "Motion for Temporary Change in Physical Custody
of . . . [Dora]." This new motion squarely alleged circumstances
that would have, if true, potentially justified modifying Dora's
physical custody. It alleged that Dora was "in harm's way from a
number of fronts"and that "it would be in [Dora]'s best interest
to be placed with her father." It alleged that Dora should not
return to the undesirable environment where Veronica's new husband
might assault her. It sought an immediate change in the child's
physical custody. It is significant that it also referred as
follows to Jerry's still-pending November 10 "Legal Custody"
motion: "[Jerry] petitioned this court for sole legal and physical
custody of [Dora] November 10, 1998 and incorporates that motion
with this one." (Emphasis added.) The proposed order Jerry
submitted with his November 23 motion contained the following
sentence: "[Jerry] petitioned this court November 10, 1998 for
sole legal and physical custody of Dora and that motion shall
receive due process. Final custody, support and visitation issues
will be addressed in that process." (Emphasis added.)
Veronica opposed Jerry's motion for temporary change of
custody on November 30 and attached a copy of a letter she had sent
Jerry several days before, even before Jerry had mailed his
November 23 motion for temporary change of custody. Her letter
alleged that there are no support facilities where Jerry lives and
alleged that rural Alaska would expose Dora to drugs, alcohol, or
tobacco. Veronica's letter therefore squarely addressed the
propriety of Dora's physical residence, even before Jerry had filed
his motion seeking a temporary change in Dora's physical custody.
On December 4 Jerry filed his December 3 reply supporting
his motion to modify Dora's legal custody. Some of its passages
were most relevant to legal custody, such as those referring to the
parties' inability to communicate and cooperate. But other
passages were most relevant to physical custody. One referred to
the DFYS investigation and its relevance to a change in custody.
One noted that Dora had been safe in recent weeks because she had
not resided in Veronica's home. One referred to assault charges
against Veronica's new husband resulting from an altercation with
Dora. One noted that Veronica had not responded to Jerry's claim
that she is unable to provide for Dora's physical, emotional,
mental, and social needs. One alleged that Veronica had given Dora
too much freedom, putting her in jeopardy. One noted that Jerry
had moved for a temporary change in Dora's physical custody on
November 23, and that although he was withdrawing that motion, "the
body is incorporated into this motion." (Emphasis added.) Jerry's
reply also alleged that the parties had verbally agreed that Dora
would be "placed"with the father. Finally, it contended that
Veronica "should be granted visitation rights according to the
visitation schedule." There would be no reason to grant visitation
rights if there were no change in Dora's physical custody and if
the only change were in her legal custody.
Jerry also filed several other documents on December 4.
One was a motion for expedited consideration of his motion to
modify legal custody of Dora. The expedited consideration motion
asserted that Dora left residential treatment on November 20 and
had resumed residing with Veronica. It again commented negatively
on the J.A. household environment and alleged that "it is in the
child's best interests to be living with her father in a fresh
environment as soon as possible." It asked the court "to expedite
the process to diminish the risk to the minor child, [Dora]."
Jerry also submitted on December 3 a proposed order that
would have granted his "motion to modify legal and physical
custody"of Dora.
On December 4 Jerry also filed his December 3 "Withdrawal
of Motion for Temporary Change of Physical Custody"of Dora. The
withdrawal notice contained this statement: "[Jerry's] reply to
[Veronica's] opposition will serve the intent of [Jerry], and makes
this motion for temporary change of physical custody redundant."
(Emphasis added.) Of course, a permanent change of physical
custody would make a temporary change redundant. The withdrawal
notice also made the following statement: "[Jerry] will respond to
[Veronica's] opposition to [Jerry's] motion for sole legal and
physical custody of [Dora]." (Emphasis added.)
Veronica's opposition to Jerry's motion for temporary
change confirmed that she understood that Jerry was seeking a
change in both legal and physical custody of Dora. Her December 11
filing was titled "Opposition to Defendant[']s Motion for a Change
in Legal and Physical Custody of the Parties['] Minor Daughter,
[Dora]." The first paragraph of her opposition referred to Jerry's
"request for a change of legal and physical custody of . . .
[Dora]." Her opposition squarely addressed the unsuitability of
Jerry's Copper River Basin residence for Dora. It stated that
Jerry's "request for change in legal and physical custody should be
denied."
Thus, even though the titles of some of Jerry's documents
were potentially misleading, his filings in substance and context
made it clear that he was seeking a change in Dora's physical
custody. They also made it clear that he was relying on the
circumstances identified at the October 26 trial and on the new
circumstance that Dora had left, apparently prematurely, the
residential treatment program and was again living in the J.A.
household. I also read them to preserve the issue of permanent
physical custody even though he had withdrawn his motion to modify
Dora's temporary physical custody.
c. Discussion
Citing AS 25.20.110, Jerry asserts on appeal that the
superior court abused its discretion in failing to set out findings
of fact and conclusions of law stating why Jerry's motion to modify
was not in Dora's best interests. Citing AS 25.20.100, he asserts
that it was error to deny his motions for physical custody and to
modify Dora's physical custody without stating the reasons for
denial. Citing AS 25.20.090, he asserts that the court abused its
discretion in denying his motion for physical custody.
I agree with his first two propositions. As to the third
proposition, because there are no findings, I cannot say whether it
was an abuse of discretion to deny the motion to modify.
In my view, Jerry's post-trial motions (1) did not simply
seek reconsideration of something already decided; (2) made out a
change of circumstances that justified revisiting the custody
issue; and (3) alleged changes supported by admissible evidence.
First, as seen above in Part B.1, the record establishes
that Dora's physical custody was not at issue at the October 26
trial and that the October 27 order did not address or decide that
issue. And it is not necessary to decide whether a parent can
"hold a custody dispute in reserve,"[Fn. 10] because Dora's
physical custody was not in dispute at trial.
Second, Jerry's November and December 1998 filings showed
that circumstances regarding Dora's physical custody had changed
since entry of the 1992 decree. Because the 1992 decree was the
last order that awarded physical custody of Dora, it set the
relevant factual baseline. The current circumstances, as evidenced
at the October 26, 1998 trial, could not set an October 26, 1998
baseline because the October 27, 1998 order did not decide Dora's
physical custody. It therefore does not matter that Jerry may not
have established that circumstances had changed since October 26,
1998. What was critical was that they had materially changed since
1992. [Fn. 11]
Third, Jerry made out a prima facie and procedurally
sufficient showing of changed circumstances because he relied on
evidence introduced in open court in October 1998. The trial
produced admissible evidence revealing that there had been many
significant changes relevant to Dora's physical custody since the
1992 decree was entered. To the extent he relied on evidence
introduced at the trial, Jerry was not required to offer evidence
in affidavit form. Likewise, Jerry's reliance on trial evidence
that clearly established a change of circumstances made it
irrelevant that his partial reliance on unsworn post-trial events
may have been procedurally deficient.
Because Jerry clearly demonstrated that circumstances had
changed, a best-interests determination was necessary. [Fn. 12]
Even though the superior court had only recently heard all or
substantially all of the relevant evidence, its orders contain no
best-interests findings on a change of Dora's physical custody, and
we cannot infer any such findings from the highly disputed trial
evidence. We should therefore remand for the findings required by
statute.
The concurring opinion reads the record to suggest that
Jerry "contrived . . . procedural maneuvers"and engaged in tactics
or strategies to disadvantage Veronica. [Fn. 13] This is one
plausible characterization of Jerry's filings, but it is not the
only one. The trial court was the proper forum to decide whether
Jerry engaged in improper litigation tactics, and, if he did,
whether that was cause for denying his motion to modify. The trial
court did not give that as a ground for denying Jerry's motion.
More important, the focus should be on the child, not the parent.
Given the substantial evidence that justified reexamining Dora's
physical placement, her father's litigation tactics were not so
egregious as to allow us to hold as a matter of law that they
preclude consideration of the child's best interests. Nor are they
so egregious that we should suppose that they caused the superior
court to deny the motion without addressing the child's best
interests.
Jerry also argues on appeal that he was entitled to a
hearing and an updated child custody investigator's report. Given
the recency of the report and the trial, and given Jerry's failure
to establish by affidavit that there was additional evidence to be
heard beyond that presented at trial, the superior court did not
abuse its discretion by not conducting a hearing or ordering a new
report. But because I would remand for findings, I would permit
the superior court to decide whether to receive additional
evidence, assuming no party establishes that there is new evidence
of such relevance that it mandates a hearing. I would likewise
also permit the superior court to decide whether to order an
updated report focusing on Dora's physical custody. [Fn. 14]
d. Conclusion
For these reasons, I would vacate the January 7, 1999
order denying Jerry's motion to modify custody of Dora and remand
for best-interests findings and for further proceedings addressed
to the discretion of the superior court.
I fully concur in the court's opinion to the extent it
deals with non-custody issues.
FOOTNOTES
Footnote 1:
Pseudonyms have been used throughout this opinion for all
family members.
Footnote 2:
The substantial period of time between these motions is
explained by the tortuous procedural history of this case: Jerry
filed several other motions beginning in May 1997, but he withdrew
all of them in July 1997. Then, at a status hearing in September
1997, he stated that he wished to pursue modification of Rodney's
custody, and the trial court appointed a custody investigator. In
June 1998 the court issued a calendaring order, setting on a
hearing before a special master in July. The hearing was first
continued until August and then vacated because the custody
investigation was not complete. Shortly after Veronica filed her
motion to modify custody of Dora, the court set trial on the
competing motions for October.
Footnote 3:
See Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000) (citing
Julsen v. Julsen, 741 P.2d 642, 648-49 (Alaska 1987)).
Footnote 4:
See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (per
curiam) (citing Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977)).
Footnote 5:
See Pearson, 5 P.3d at 242 (citing Kessler v. Kessler, 827
P.2d 1119, 1119 (Alaska 1992)).
Footnote 6:
See Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993).
Footnote 7:
B.J. v. J.D., 950 P.2d 113, 119 (Alaska 1997) (citing Kessler,
827 P.2d at 1120 n.4).
Footnote 8:
Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (quoting
Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).
Footnote 9:
See State, Dep't of Revenue, Child Support Enforcement Div. v.
Schofield, 993 P.2d 405, 407 (Alaska 1999).
Footnote 10:
See id.
Footnote 11:
See id.
Footnote 12:
See AS 25.20.110(a) ("An award of custody of a child or
visitation with the child 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
child."); see also Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska
1990).
Footnote 13:
Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000) (internal
citations omitted).
Footnote 14:
Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999) (quoting
Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999); see also C.R.B.
v. C.C., 959 P.2d 375, 378 (Alaska 1998)).
Footnote 15:
See Harrington, 984 P.2d at 3; Long v. Long, 816 P.2d 145, 149
(Alaska 1991) (citing Lee v. Cox, 790 P.2d 1359, 1361 (1990)).
Footnote 16:
Lee, 790 P.2d at 1361.
Footnote 17:
Jerry's motion for divided custody, on its face, raised the
question of the custody arrangement as to both children.
Footnote 18:
A review of the log notes of the trial suggests that more time
was devoted by the parties to the question of Dora's custody than
to the question of Rodney's custody. For example, it appears that
Jerry spent at least half of his testimony discussing Dora's
situation. The same is true of Veronica's testimony. During
closing arguments, the court's focus was on Dora, not Rodney.
Footnote 19:
The motion was entitled "Motion to Modify Legal Custody,"but
it appears clear in context of the supporting materials that Jerry
intended to move to modify Dora's physical custody as well. And,
on November 23, 1998 Jerry filed a motion for a "temporary change
in physical custody of [Dora]." He declared that this motion
incorporated his previous motion, which he then characterized as a
motion for "sole legal and physical custody of [Dora]." On
November 30 Veronica opposed the motion. But on December 3 Jerry
withdrew his motion for temporary physical custody of Dora,
concluding that his reply to Veronica's opposition to his motion
"serve[d] [his] intent"and rendered the motion for temporary
change of physical custody "redundant."
Footnote 20:
Alaska R. Civ. P. 77(k) provides in part that "[a] motion to
reconsider a ruling must be made within ten days after the date of
notice of the ruling."
Footnote 21:
The concurrence assumes that Jerry's assertion at the hearing
-- that he wanted Dora's physical custody left as is -- kept open
the possibility that he could litigate this issue immediately after
trial through a motion to modify custody. This assumption is
incorrect. A litigant in a child custody proceeding may not hold
a custody issue in reserve until after he (or she) learns the
ruling of the court, and then, as here, seek to litigate the issue
that he previously declined to address at trial without showing
changed circumstances. See, e.g., Gratrix v. Gratrix, 652 P.2d 76,
82-3 (Alaska 1982) ("The 'changed circumstances' rule . . . is
intended to discourage continual relitigation of custody decisions.
. . . [T]he general application of the requirement of a change in
circumstances reflects the judicial assumption that finality and
certainty in custody matters are critical to the child's emotional
welfare.").
Footnote 22:
These factors include the needs of the child, the child's
preferences, the stability of the home environment likely to be
offered by each parent, and several others.
Footnote 23:
666 P.2d 1044 (Alaska 1983).
Footnote 24:
Id. at 1045.
Footnote 25:
Id. at 1046.
Footnote 26:
See Naquin v. Naquin, 974 P.2d 383, 385 (Alaska 1999); see
also Deivert v. Oseira, 628 P.2d 575, 577-78 (Alaska 1981). In
explaining the balancing of values inherent in the court's
discretion to resolve motions for modification of custody, the
Deivert court explained:
While judges may not abdicate their judicial
responsibilities, they also must be given some power to resolve
child custody litigation. No purpose would be served in requiring
a "substantial change of circumstance"before custody modification
if a full hearing must be held on motions that do not contain a
prima facie showing of either a change that warrants reexamination
of the question, or that the best interests of the children would
be served by a change of custody.
Id. at 578.
Footnote 27:
The court had before it the original custody investigation
report when it decided the question of Dora's legal custody. That
report noted that "[n]either parent contests [Dora]'s primary
placement with her mother." While the report reveals that Dora's
interests were not given primary attention because custody of Dora
was not disputed at that time, the custody investigator made the
following prescient remark: "[Dora] wants to remain in her mother's
home and both parents want her to remain there. If either parent's
position changes before the trial, one is forced to wonder at the
cause." These comments were filed with the court very shortly
before the court's custody order, and about a month before Jerry's
motion for sole legal custody of Dora.
Footnote 28:
It is true that, in his motion for reconsideration, Jerry did
request that the court consider the updated recommendation of a
child custody investigator that the court had previously requested.
But the court was under no obligation to consider an issue raised
for the first time in a motion for reconsideration. See DeNardo v.
GCI Communication Corp., 983 P.2d 1288, 1290 (Alaska 1999) ("Issues
raised for the first time in a motion for reconsideration are
untimely. Because these issues are not properly before us on
appeal, we decline to consider them.") (citing Stadnicky v.
Southpark Terrace Homeowners' Ass'n, Inc., 939 P.2d 403, 405
(Alaska 1997)).
Footnote 29:
See Carter v. Brodrick, 816 P.2d 202, 204-05 (Alaska 1991)
(explaining that hearing is not required in custody cases where
there is no showing of changed circumstances); see also C.R.B. v.
C.C., 959 P.2d 375, 378-79 (Alaska 199) (explaining that court is
not required to hold hearing on motion to modify custody upon all
requests to do so).
Footnote 30:
See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (holding
that trial judge has discretion whether or not to appoint custody
investigator) (citing Lacy v. Lacy, 553 P.2d 928, 930 (Alaska
1976)).
Footnote 31:
See cases cited supra note 29.
Footnote 32:
Veronica points out that health insurance covered ninety-five
percent of Dora's drug treatment program. She claims that Dora's
treatment costs totaled $25,180 and that Jerry's obligation for the
uncovered portion was $1,195. Jerry never contested this amount.
However, at trial, some rather large dollar amounts were mentioned:
a one-time fee of $10,000; expenses for Dora and the Volunteers of
America Fee schedule at $42,000; and a bill for Dora at Providence
for $13,351. But there is no indication as to who may have paid
these costs, or even if they were actually incurred.
Footnote 33:
Alaska Statute 25.20.115 provides:
In an action to modify, vacate, or enforce
that part of an order providing for custody of a child or
visitation with a child, the court may, upon request of a party,
award attorney fees and costs of the action. In awarding attorney
fees and costs under this section, the court shall consider the
relative financial resources of the parties and whether the parties
have acted in good faith.
Footnote 34:
963 P.2d 249, 257 n.7 (Alaska 1998).
Footnote 35:
Gates v. City of Tenakee Springs, 822 P.2d 455, 463 (Alaska
1991) (citing Alaska Fed. Sav. & Loan v. Bernhardt, 794 P.2d 579,
581-82 (Alaska 1990)).
Footnote 36:
Jerry filed numerous motions in 1997. After Jerry withdrew
these motions, his attorney filed only a few court papers between
August and October 1997 and then withdrew by June 1998. During
this time, Jerry continued to file numerous briefs pro se.
Footnote 37:
See Alaska R. Civ. P. 90.3(h)(2); see State, Dep't of Revenue,
Child Support Enforcement Div. v. Schofield, 993 P.2d 405, 407
(Alaska 1999) (holding that Alaska law prohibits, with few
exceptions, retroactive modification of child support obligations).
Footnote 38:
See Rowen, 963 P.2d at 256 (holding that setting effective
date of modified child support order on date after which it was
undisputed that opposing party had been served in modification
proceeding was not an abuse of discretion).
Footnote 39:
Alaska R. Civ. P. 90.3 Commentary III.E.
Footnote 40:
Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998) (citing
Flannery v. Flannery, 950 P.2d 126, 133 (Alaska 1997) (holding that
the superior court erred when it did not consider the obligor's
income from the time of a motion to modify onward as the relevant
period of changed circumstances)).
Footnote 41:
Chief Justice Fabe joins the author of this opinion in
agreeing with this rationale. Two other members join in the
conclusion to affirm the denial of Jerry's motion for the reason
that Jerry did not properly move to modify physical custody.
FOOTNOTES (Bryner / Matthews Concurrence)
Footnote 1:
I do not suggest that Jerry had a right to hold the issue of
physical custody in reserve until the issue of legal custody was
decided. My point is that, regardless of whether he had the right
to reserve the issue, the court allowed him to reserve it and did
not purport to rule on the issue at trial. Indeed, the superior
court's willingness to entertain the question of physical custody
when Jerry first filed his post-trial motions establishes that the
court itself considered physical custody to be an open issue until
Jerry withdrew his interim motion for physical custody.
Footnote 2:
This disposition would, of course, leave Jerry free to revisit
the issue of physical custody -- by a proper motion -- if he still
perceived a problem.
FOOTNOTES (Eastaugh Concurrence/Dissent)
Footnote 1:
See Slip Op. at 24 (Bryner, J., concurring). I therefore
disagree with the suggestion of two members of the court that the
issue of Dora's physical custody was considered at the October 1998
hearing and that the evidence produced there set the baseline for
determining whether there was a change of circumstances. See Slip
Op. at 9.
Footnote 2:
The order initially erroneously referred to Jerry's motion as
one to modify Dora's custody. But the order correctly treated that
motion as only pertaining to Rodney's custody, and resolved Jerry's
motion in that context.
Footnote 3:
It is potentially significant that the superior court chose to
enlarge on the relief Jerry sought with respect to Rodney. The
court modified custody by giving Jerry primary physical custody of
Rodney, as Jerry had requested. It then also gave Jerry sole legal
custody of Rodney because the parties' failure to communicate and
cooperate with each other had defeated their joint legal custody
arrangement. The court nonetheless dealt narrowly with Dora's
custody, discussing and resolving only Veronica's request for sole
legal custody without mentioning any issue about Dora's physical
custody.
Footnote 4:
Thus, I do not agree with the implication resulting from the
statement that the trial court "left . . . her primary physical
custody with Veronica." Slip Op. at 2. Likewise, I do not agree
with the implication resulting from the statement that the trial
court "declined to change her custody arrangement." Slip Op. at
13. The trial court was much more specific in describing the
custody issue presented concerning Dora and in denying Veronica's
motion to modify Dora's legal custody. The October 27 order did
not purport to resolve any issue concerning Dora's physical
custody. I therefore also disagree with the implication that
results when the opinion characterizes as "fully-litigated and
considered"the trial court's conclusion "that it was not in Dora's
best interests to modify custody." Slip Op. at 11. The opinion
cites Excerpt 39 in support. But the superior court there only
found that "the modification of her legal custody would not serve
her welfare and best interests." (Emphasis added.)
Footnote 5:
Slip Op. at 11.
Footnote 6:
Slip Op. at 9.
Footnote 7:
See Slip Op. at 9.
Footnote 8:
Slip Op. at 9.
Footnote 9:
Slip Op. at 9.
Footnote 10:
See Slip Op. at 11 n.21. In any event, I agree with Justice
Bryner's observation that the trial court "allowed [Jerry] to
reserve it and did not purport to rule on the issue at trial."
Slip Op. at 24 n.1. (Bryner, J., concurring).
Footnote 11:
The two members of the court who conclude that Dora's physical
custody was actually in issue on October 26 reason that Jerry's
post-trial motion papers either sought reconsideration of a matter
that was "fully-litigated,"or "failed to make a prima facie
showing"that circumstances had changed in the two weeks between
October 26, when the trial ended, and November 10, when Jerry filed
his motion to modify. Slip Op. at 11. These comments imply that
the facts adduced on October 26 set the factual baseline for Dora's
physical custody and that only circumstances changing after that
date were relevant to deciding whether Jerry met the changed-
circumstances threshold for considering whether to modify Dora's
physical custody. But as seen above in Part B.1, the issue was
neither "fully-litigated"at the October 26 trial nor decided by
the October 27 order. The relevant baseline was therefore set by
the 1992 decree.
Footnote 12:
See AS 25.20.110(a) ("An award of custody of a child or
visitation with the child 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
child."); see also Schuyler v. Briner, 13 P.3d 738, 741-42 (Alaska
2000); C.R.B. v. C.C., 959 P.2d 375, 381 (Alaska 1998).
Footnote 13:
See Slip Op. at 25 (Bryner, J., concurring).
Footnote 14:
The October 16 report noted that "[Dora] was seen just one
time,"and also stated that "[Dora]'s [physical custody] is not
contested."
