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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Elliott v. Elliott (02/17/2006) sp-5985
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DARLIS L. ELLIOTT, | ) |
| ) Supreme Court No. S- 11944 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-00-11425 CI |
| ) | |
| NATHAN W. ELLIOTT, | ) O P I N I O N |
| ) | |
| Appellee. | ) [No. 5985 - February 17, 2006] |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Herbert M. Pearce, Law Office
of Herbert M. Pearce, Anchorage, for
Appellant. No brief filed by Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
In this case the superior court modified a child
custody arrangement between Darlis and Nathan Elliott without
holding a hearing and without making any factual findings.
Because this type of modification requires both a hearing and
findings of fact, we reverse.
II. FACTS AND PROCEEDINGS
Darlis and Nathan Elliott were married for almost ten
years. Two children, Jordan and Kathleen, resulted from the
marriage. The parties divorced in late 2000 and initially agreed
that Nathan would receive full legal and physical custody of the
children. Instead of setting out a specific visitation schedule
at the time of the divorce, the parties checked the box on the
form petition for dissolution that states [w]e do not want to
state specific visitation times here. We agree that we will be
able to amicably decide in the future on reasonable visitation
times. What happened next must be pieced together from the
parties moving papers and affidavits. The facts are disputed
where noted.
According to Nathan, for several years following the
divorce Darlis visited with the children on alternating weekends.
He claims that Darlis set this schedule and he never objected.
That schedule changed in 2004 when Nathan says he agreed to a
temporary arrangement that allowed the children to spend
alternating weeks with Darlis. After some time, Nathan claims to
have found the weekly visitation arrangement harmful to the
children and proposed to Darlis a return to the initial alternate
weekend schedule with the addition of every Friday night. Darlis
rejected that proposal.
Darliss affidavit states that she had frequent and
unhampered access to Jordan and Kathleen for an unspecified
period of time following the divorce. She makes no mention of a
specific alternate weekend visitation arrangement. Darlis claims
that in late 2002 she began to have difficulty contacting Nathan
and the children. She does not indicate with more specificity
how that difficulty impacted her visitation schedule with the
children. Darliss account is consistent with Nathans in that she
acknowledges participating in an alternating week visitation
arrangement beginning and ending in 2004. She claims that this
arrangement lasted from June to November.
Darlis moved for a modification of child custody and
support pursuant to AS 25.20.110(a) after she claimed that Nathan
unilaterally ended the alternating week visitation schedule. She
urged the superior court to order a visitation schedule
reflecting that which the parties operated under from June to
November 2004 and requested a hearing. Nathan opposed the
motion. He requested a visitation schedule that provided for
Jordan and Kathleen to spend alternate weekends, one half of the
major holidays, and one month each summer with Darlis. The
superior court denied Darliss motion and ordered the visitation
schedule proposed by Nathan. It did so without holding a hearing
or making any factual findings. The superior court denied
Darliss motion for reconsideration and this appeal followed.
III. DISCUSSION
Darlis claims error in the superior courts failure to
hold a hearing and its lack of findings. She is correct on both
points.
A. Hearing Requirement
Darlis claims that the superior court was required to
hold an evidentiary hearing before modifying the custody
arrangement. Alaska Statute 25.20.110(a) provides that child
custody may be modified if the court determines that a change in
circumstances requires the modification . . . and the
modification is in the best interests of the child. While the
text of this statute does not specifically require a hearing, we
have held that it is improper for a court to make custodial
modifications without holding an evidentiary hearing.1
Procedural due process considerations underlie the hearing
requirement. More specifically, a hearing is required in order
to give the parties an opportunity to present the quantum of
evidence needed [for the court] to make an informed and
principled determination. 2
An exception to the rule that a custody modification
must be preceded by a hearing hinges on the degree of the
modification. [W]hen a motion to modify seeks only a scheduling
change or a similar insubstantial alteration to custody or
visitation, the [superior] court may act without an evidentiary
hearing assuming there are no factual conflicts that require
resolution.3 Therefore, a court may escape the hearing
requirement when it modifies a custody arrangement if that
modification is sufficiently minor.4
Here the facts fit squarely into the rule requiring a
hearing. While the superior court denied Darliss motion to
modify, it modified the custody arrangement between the parties
nonetheless.5 Where once the parties simply had an agreement to
agree on a visitation schedule, they now have a court-ordered
schedule to which they are bound. That modification was not
insignificant. In fact, it reflected the first visitation
determination made by the court. That aspect alone is enough to
require an evidentiary hearing.6 For example, in D.D. v. L.A.H.,
the parties initially agreed on a visitation arrangement that
would last until their son entered school. As the child prepared
to start school some years later, the parents each moved to
modify the voluntary custody arrangement and the court granted
the husbands motion without holding a hearing.7 The superior
courts action technically modified custody. In substance,
though, it made its first custody determination in the matter.8
On appeal, we noted the difference between an initial custody
determination and the type of scheduling change or other
insignificant alteration to custody that may be made without a
hearing before concluding that making an initial determination in
the absence of a hearing was reversible error.9 Here too, if the
parties initially operated under a visitation agreement at all,
it was not court ordered. Therefore, the courts modification
order is plainly an initial custody determination that called for
a hearing.10
B. Findings Requirement
Darlis claims that the superior court also erred
insofar as it modified the child custody arrangement without
making any factual findings. Alaska Statute 25.20.110(a)
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. We have held that [i]t is reversible error for a
judge to modify custody without making findings regarding the
change in circumstances and the best interests of the child.11
Here the court modified the custody arrangement by
ordering a specific visitation schedule, yet no factual findings
accompanied the order. This too constitutes error.12
IV. CONCLUSION
Because it was error to modify custody without holding
a hearing and entering any factual findings, we VACATE the
modification order and REMAND this case for further proceedings.
_______________________________
1 See, e.g., D.D. v. L.A.H., 27 P.3d 757, 759 (Alaska
2001); Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998)
(impermissible for superior court to grant opposed motion to
modify custody without holding a hearing).
2 Walker, 960 P.2d at 622 (quoting Howlett v. Howlett,
890 P.2d 1125, 1127 (Alaska 1995) (alteration in original)).
3 D.D., 27 P.3d at 760; see also A.H. v. P.B., 2 P.3d
627, 628 n.2 (Alaska 2000) (suggesting that a hearing is not
required when a modification deals only with the minutiae of a
visitation arrangement).
4 D.D., 27 P.3d at 760.
5 Additionally, Nathans opposition to Darliss motion is
best taken as a cross-motion for modification because in it he
requested the specific visitation schedule that the court
eventually ordered. In this sense, the superior courts action
can be more simply characterized as the grant of an opposed cross-
motion for modification.
6 See D.D., 27 P.3d at 760.
7 Id. at 758-759.
8 Id. at 760.
9 Id.
10 See id.
11 Howlett, 890 P.2d at 1127; see, e.g., Lee v. Cox, 790
P.2d 1359, 1362 (Alaska 1990).
12 See id.
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