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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

Elliott v. Elliott (02/17/2006) sp-5985, 129 P3d 449

     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,


) Supreme Court No. S- 11944
) Superior Court No.
v. ) 3AN-00-11425 CI
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.

          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.
          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.
          Darlis  claims error in the superior courts failure  to
hold  a hearing and its lack of findings.  She is correct on both
     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
          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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