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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wells v. Barile (03/28/2008) sp-6244
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
| TAMMY S. BARILE n/k/a TAMMY | ) |
| S. WELLS, | ) Supreme Court No. S- 12709 |
| ) | |
| Appellant, | ) Superior Court No. 3PA-03-176 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| PRIMO J. BARILE, | ) No. 6244 March 28, 2008 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: John C. Pharr, Law Offices of
John C. Pharr, Anchorage, for Appellant.
Primo Barile, pro se, Palmer.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Some three years after entry of a child custody order
for Tammy Wells and Primo Bariles son, Tammy filed a motion to
modify the child custody order, alleging changed circumstances
and requesting an evidentiary hearing. The superior court denied
the motion without addressing some of the most significant
alleged changed circumstances and without holding an evidentiary
hearing. Because Tammys motion made out a prima facie showing of
changed circumstances, it was error to deny her motion without
conducting an evidentiary hearing. We therefore vacate the
denial order and remand.
II. FACTS AND PROCEEDINGS
Tammy Wells and Primo Barile are the parents of Chance
Barile, born in March 1997. Tammy and Primo married in December
1995 and divorced in September 2003. In November 2003 the
superior court held a two-day trial. Tammy and Primo both
attended.
Following the hearing, the court found that [w]hile
Tammy has provided fairly well for her children, . . . Primo is
probably better able to meet Chances social needs; that Primo is
somewhat better able to meet Chances educational needs; that
[t]here is evidence of domestic violence between the parties; and
that the Custody Investigators recommendation indicates more
concerns with Tammys household than with [Primos] household with
respect to child neglect and abuse.
In January 2004 the court awarded shared physical
custody, giving Primo custody fifty-four percent of the time and
Tammy custody forty-six percent of the time. The court also
awarded Primo sole legal custody for purposes of Chances
enrollment at school and where Chance will live within the Palmer-
Wasilla area. The court did not award child support.
In February 2007 Tammy filed a motion to modify custody
and a request for an evidentiary hearing. Her motion sought sole
legal and primary physical custody. She alleged the following
changed circumstances warranted a custody modification: (1) her
remarriage to Lance Wells; (2) Primos remarriage to Tasa Barile;
(3) both parties new stepfamilies; (4) facts implying domestic
violence; (5) facts implying abuse and neglect of Chance; (6)
Chances deteriorating grades; (7) Chances suspension from school
for terroristic threatening; (8) Primos driving Chance without a
license or insurance; (9) her move to Anchorage from the Mat-Su
Valley; (10) Chances preference to live with her; and (11) a
voluntary change to the visitation schedule.
Primo opposed the motion and requested that he be
awarded full legal and physical custody with [Tammy] having
[custody] every other weekend. Primos response denied Tammys
allegations of changed circumstances, asserted that Tammy is a
convicted felon, and alleged that Chances new stepfather has a
history of domestic violence.
In February 2007 Tammy also filed a motion to prohibit
Primo from transporting Chance. Her supporting affidavit alleged
that Primo drove Chance without insurance or a valid drivers
license.1 Primos response denied that he knowingly drove Chance
while he was uninsured and asserted that he stopped driving when
he discovered that he had issues with [his] license.
On May 8, 2007, without conducting an evidentiary
hearing, the superior court denied Tammys motion to modify
custody without prejudice. The court also denied Tammys motion
to prohibit Primo from transporting Chance.2
Tammy appeals.
III. DISCUSSION
A. Standard of Review
Whether a moving party has made out a prima facie
showing sufficient to justify a custody modification hearing is a
matter of law that we review de novo.3 We will affirm the denial
of a custody modification motion without a hearing if, in our
independent judgment, 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.4
We review allegations of multiple changed circumstances in the
aggregate to determine whether modification is warranted.5
B. An Evidentiary Hearing Is Required Because Tammys
Allegations, if Proved, Would Warrant Modification.
The superior court denied Tammys motion without a
hearing because it found that Tammys allegations, even if
entirely true, may not arise to the level of a substantial change
in circumstances. Tammy argues that she made a prima facie
showing of a substantial change in circumstances affecting
[Chances] welfare and that the superior court erred by denying
her motion without conducting an evidentiary hearing.
The superior court explicitly addressed the following
allegations when it denied Tammys custody motion: an informal
change to the visitation schedule, Tammys remarriage, Primos
remarriage, Tammys relocation to Anchorage, Chances behavior and
poor grades, new stepfamilies, Primos neglect of Chance, Primos
driving of Chance without a license, and Chances alleged
preference for living with Tammy.
The superior court did not mention Tammys allegations
of child abuse or domestic violence. Tammy had asserted in an
affidavit that Primo smack[ed] Chance with a rolled up newspaper
in the buttocks, back and neck; that Primo had sent Chance to
his room many, many times; and that Chance is frightened by the
pretty severe corporal punishment administered to Primos new
stepson by Primo and Primos new wife. Tammys affidavit also
alleged mistreatment of Primos new stepson by both Primo and
Primos new wife. Thus, it alleged that Primos new wife threw
Primos stepson onto a bed so hard he bounced up and hit the wall
and fell to the floor; that Primos new wife used a coat hanger to
spank Primos stepson; and that Primo spanks his stepson nearly
daily.
Because a finding of domestic violence would establish
changed circumstances,6 it was error to not address Tammys
allegations of abuse or domestic violence; an evidentiary hearing
is required to provide Tammy an opportunity to prove her
allegations.7
In addressing Tammys allegation that Primo drove
without a license, the superior court remind[ed] both parties
that driving without a license is a crime and . . . a conviction
for such a crime may negatively affect custody rights. But the
allegation that Primo drove Chance without a license is also an
allegation that Primo placed Chances safety at risk; the
allegation that he drove without insurance potentially raises a
question whether Chance could receive adequate medical treatment
in event of an accident. These allegations, if still potentially
valid, should also be considered during a changed circumstances
analysis on remand.
Furthermore, there must be an evidentiary hearing
before Tammys motion can be granted or denied because Tammys
allegations in the aggregate, if proved, potentially warrant
modification.8 Some of Tammys individual allegations of changed
circumstances would certainly not be compelling reasons to modify
custody, but taken together, her allegations collectively require
a factual hearing.9
IV. CONCLUSION
Because Tammys allegations, if proved, could warrant
modification of Chances custody, we VACATE the order denying
modification and REMAND for an evidentiary hearing.10 Some of the
circumstances or conditions alleged in Tammys February 2007
motion for modification may be transient. Even if they no longer
exist, it will be within the discretion of the superior court to
decide whether they remain relevant on remand.
_______________________________
1 In September 2006 Primo drove a car involved in an
accident. Because Primo did not have insurance at the time of
the accident, his license was suspended.
2 Before the superior court denied Tammys motion to
modify custody, Tammy filed, among other things, several
discovery motions. The order denying Tammys custody motion also
denied without prejudice Tammys other outstanding motions,
including her discovery motions. On appeal Tammy argues that
denying her discovery motions denied her right to procedural due
process. Because we remand for an evidentiary hearing, we do not
need to address Tammys procedural due process argument. The
scope of discovery on remand is addressed to the discretion of
the superior court.
By not modifying Chances custody, the superior courts
May 8, 2007 order denied, at least implicitly, Primos request
for modification. Primo does not appeal the denial of his
request for modification.
3 Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999).
4 Id.
5 Long v. Long, 816 P.2d 145, 150, 152 (Alaska 1991)
(noting that we review multiple changed circumstances to
determine whether, in the aggregate, the changes are sufficient
to warrant change of custody); see AS 25.20.110(a) (An award of
custody of a 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 Lashbrook v. Lashbrook, 957 P.2d 326, 328-29
(Alaska 1998) (noting that [t]he ultimate focus of the custody
modification statute is the best interests of the child[]).
6 AS 25.20.110(c) (In a proceeding involving the
modification of an award for custody of a child . . . a finding
that a crime of domestic violence has occurred since the last
custody . . . determination is a finding of change of
circumstances.); see Lashbrook, 957 P.2d at 329 (stating finding
of a crime involving domestic violence is a changed circumstance
as a matter of law).
7 Harrington, 984 P.2d at 3; see J.L.P. v. V.L.A., 30
P.3d 590, 595 (Alaska 2001).
8 See Long, 816 P.2d at 152.
9 See id. (stating custodial parents decision to move
within state, but hundreds of miles away from noncustodial
parent, presents factor court should include in changed
circumstances analysis); see also Bunn v. House, 934 P.2d 753,
758 (Alaska 1997) (stating that change in custodial or visitation
patterns may constitute material change in circumstances).
10 The text of the May 8, 2007 order that denied Tammys
modification motion appears to increase Primos custody of Chance
by one percent, from fifty-four to fifty-five percent. Because
the order uses the word current to describe the custody schedule,
we assume that the order reflects either a clerical error or an
unintentional mischaracterization, rather than a modification of
custody.
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