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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. King v. Carey (09/22/2006) sp-6048
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
| MARY M. KING, | ) |
| ) Supreme Court No. S- 12124 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-93-1943 CI |
| ) | |
| MICHAEL L. CAREY, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6048 - September 22, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Phyllis A. Shepherd, Law Office
of Dan Allan and Associates, Anchorage, for
Appellant. William T. Ford, Anchorage, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
On September 6, 2005, Mary King moved for modification
of custody of her son Sean, requesting shared legal and physical
custody. Seans custody had been most recently modified fourteen
months prior, on July 14, 2004, when the superior court awarded
Seans father Michael full legal and physical custody. Marys 2005
motion alleged that Sean would prefer to live with both parents.
As her sole evidentiary support for the existence of changed
circumstances, Mary submitted an affidavit signed by Sean stating
that it was now his preference to live with both parents. Mary
did not initially request a hearing on the motion.
On September 20 Michael filed an opposition to Marys
motion, arguing that the motion was an attempt to avoid child
support obligations, alleging that Mary manipulated Sean into
signing the affidavit, and requesting a hearing should the court
determine Mary made a prima facie case for modification. At the
end of September, Sean was enrolled as a resident student in the
Alaska Military Youth Academy. At that time both parents signed
a power of attorney delegating custody of Sean to the Academy
pursuant to AS 13.26.020. On October 4 Mary filed a reply to
Michaels opposition, alleging for the first time that in his
fathers custody Sean was using alcohol and drugs, was living
unsupervised on the first floor of his fathers duplex with his
step-brother, his step-brother was threatening him, and Seans
schoolwork was in rapid decline. Mary requested a hearing on her
motion when she filed her reply memorandum. On October 13 the
superior court denied Marys motion for modification without
hearing or comment.
On October 23 Mary filed a motion for reconsideration,
arguing that the multitude of disputed facts as to whether there
was a change in circumstances justifying modification entitled
her to an evidentiary hearing. On October 27 the superior court
denied Marys motion for reconsideration, finding (1) that the
sole basis for Marys original motion, Seans affidavit, did not
establish a change in circumstances; (2) that even assuming,
arguendo, that the court would consider the allegations raised in
Marys reply, those allegations, taken as true, would not
establish a change in circumstances; and (3) that with Sean in
the Alaska Military Youth Academy there was no point in modifying
custody. Mary appeals the denial without a hearing of her motion
for modification of custody and the denial of her motion for
reconsideration.
Because Mary failed to demonstrate a substantial change
in circumstances, we conclude that she was not entitled to an
evidentiary hearing, and the motion for modification of custody
was properly denied. Because grounds for granting a motion for
reconsideration were not established, we conclude that the motion
for reconsideration was also properly denied.
The question of whether Mary has met her burden of
demonstrating a change in circumstances so as to be entitled to
an evidentiary hearing is a matter of law which this court
reviews de novo.1 Under AS 25.20.110(a) [a]n award of 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. A
preliminary showing of changed circumstances entitles the
non-custodial parent to a hearing to consider whether, in light
of such changed circumstances, it is in the childs best interest
to alter the existing custodial arrangement.2 The change in
circumstances must be significant or substantial.3
The superior court accurately summarized the evidence
Mary presented in her motion for modification:
1. [Seans] opinion of best interest,
2. [Seans] view the parents should have
shared custody,
3. [Seans] belief shared custody would
share parenting burdens, and
4. [Seans] preference to live with both
parents.
We agree with the court that [t]hose opinions accepted as true do
not constitute a change in circumstances. Mary contends that
Seans preference was deemed a sufficient change in circumstances
to warrant modification in 2004. Prior to Michaels motion for
modification, Seans wishes had not been considered by the court
because he was too young. In the course of considering Michaels
2004 motion, the court found that Sean ha[d] reached an age where
his preferences should be accorded substantial weight and his
expression of desire to reside with his father represent[ed] a
change of circumstances justifying a modification of custody.
The changed circumstance at the time of Michaels motion was that
Sean had reached an age where his preferences could be considered
by the court, not that he had changed his mind about where he
wanted to live. In our view the superior court did not err in
concluding that Seans affidavit was not a sufficient preliminary
showing to warrant a hearing in view of its conclusory nature,
its failure to offer any persuasive reason for wanting to change
the custodial arrangement so that Sean could split his time
fifty/fifty between his parents, and the fact that little more
than a year before, custody had been changed to Michael based in
part on Seans wishes.
Mary argues that her allegations of decline in Seans
academic performance, substance abuse issues, inadequate
supervision, and domestic violence entitled her to an evidentiary
hearing. These allegations were raised for the first time in
Marys reply to Michaels opposition to her motion to modify
custody. They were therefore properly disregarded.4
On the motion for reconsideration Mary argued that an
evidentiary hearing was required because there were disputed
issues of fact as to whether there was a substantial change in
circumstances. One ground for granting a motion for
reconsideration is if the court, in reaching its decision, has
overlooked or misconceived some material fact.5 In this case,
since the disputed facts were raised only in reply, and thus were
properly disregarded by the court in deciding the motion to
modify, they were not overlooked or misconceived by the court in
reaching its decision. The court therefore did not err or abuse
its discretion in denying the motion.6 Our conclusion in this
respect is also supported by the superior courts sensible
conclusion that there was no real point to modifying the custody
in light of Seans attendance at the Alaska Military Youth
Academy.
We therefore AFFIRM the superior courts denial without
a hearing of the motion for modification of custody and its
denial of the motion to reconsider.
_______________________________
1 See C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998),
overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078,
1085 (Alaska 2004).
2 Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990).
3 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
4 Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 611 (Alaska
1998) (The function of a reply memorandum is to respond to the
opposition to the primary motion, not to raise new issues or
arguments . . . .); Alaska State Employees Assn v. Alaska Pub.
Employees Assn, 813 P.2d 669, 671 n.6 (Alaska 1991) (As a matter
of fairness, the trial court could not consider an argument
raised for the first time in a reply brief.).
5 Alaska R. Civ. P. 77(k)(1)(ii).
6 Absent an abuse of discretion a trial courts decision
on a motion for reconsideration will not be reversed on appeal.
Cline v. Cline, 90 P.3d 147, 150 (Alaska 2004).
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