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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hunter v. Conwell (11/13/2009) sp-6432
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
| BOBBIE ANN HUNTER, | ) |
| ) Supreme Court No. S- 13336 | |
| Appellant, | ) |
| ) Superior Court No. 2KB-06- 85 CI | |
| v. | ) |
| ) O P I N I O N | |
| SHAUN T. CONWELL, | ) |
| ) No. 6432 - November 13, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Richard H. Erlich, Judge.
Appearances: Bobbie A. Hunter, pro se,
Fairbanks, Appellant. Margaret OToole
Rogers, Foster & Rogers, LLC, Fairbanks, for
Appellee.
Before: Carpeneti, Chief Justice, Eastaugh,
Fabe, Winfree, and Christen, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Bobbie Ann Hunter and Shaun Conwell are the parents of
two boys. After their relationship ended, Conwell filed a
complaint for custody. Hunter received the complaint but did not
respond. Conwell filed an application for entry of default and
requested default judgment. After a hearing at which Conwell was
present and Hunter was not, the superior court granted Conwell
sole legal and primary physical custody of the boys. Almost two
years later, Hunter filed a pro se motion to modify custody. The
superior court denied the motion without holding a hearing
because it found Hunters allegations insufficient to constitute a
substantial change in circumstances. Hunter filed a motion for
reconsideration, which the superior court also denied, although
it entered an order requiring Conwell to comply with a telephonic
visitation schedule. Hunter appeals. We reject her arguments
regarding the initial custody determination as time-barred,
reverse the superior courts denial of her motion for
modification, and remand for a hearing on that issue.
II. FACTS AND PROCEEDINGS
Bobbie Ann Hunter and Shaun Conwell have two sons
together. The couple never married but they lived together for
approximately six years. Their relationship ended in early 2006
and at that point the parties began living in different
communities; Conwell lived in Kotzebue, Hunter lived in
Fairbanks, and the boys moved between the two homes.
On June 19, 2006, Conwell filed a complaint requesting
sole legal and primary physical custody of the boys. A state
trooper served a summons, the custody complaint and an answer
packet for answering a complaint, on Hunter on June 20, 2006.
Hunter did not respond. On August 18, 2006, Conwell filed an
application for the entry of default and default judgment
pursuant to Alaska Civil Rule 55. The clerk entered default that
day and scheduled a hearing on the request for default judgment.
A default custody hearing took place in the superior
court on August 24, 2006. Conwell was present; Hunter was not.
The court asked Conwell why he was seeking sole legal custody,
and Conwell responded that his concern was the safety of my kids.
While staying with Hunter, he said, one of the boys suffered a
dog bite and was injured on a ride at a fair. Conwell expressed
concern that Hunter cant really handle the boys in public.
Conwell further testified that since the couple stopped living
together, Conwell had custody of the boys during the school year
and Hunter had custody over the summer. When the court asked
Conwell why Hunter did not respond to his complaint, Conwell
testified that Hunter did not make time for paperwork because she
worked at night and cared for the children, or slept, during the
day. Conwell proposed making official the arrangement that he
would have physical custody of the boys during the school year.
The court said there needs to be a child support order entered
and asked Conwell what Hunters income was; Conwell did not know
but guessed approximately $4,500 per month based on his knowledge
of her income while the two were living together. Conwell said
that he believed he and Hunter could work out a visitation
schedule and that he expected the boys would live with Hunter
during the summer. The court asked if Conwell believed this
arrangement was in the best interests of the children, and
Conwell replied affirmatively. The court then stated on the
record:
Mr. Conwell has filed a complaint for
custody. Ms. Hunter was served and has not
filed an answer. Legal custody of the
children is awarded to the plaintiff, Mr.
Conwell. Primary physical custody is awarded
to Shaun T. Conwell. The visitation schedule
for these children will be as follows:
reasonable visitation, but Ms. Hunter shall
have the children two weeks after school is
out and return the children two weeks before
school resumes.
Based on Conwells estimate, the court imputed $4,500 of
income per month to Hunter and calculated child support based on
that figure. In closing, the court said that [b]ased on the
testimony of Mr. Conwell, Ive approved the orders that are
necessary; theyre not final until I get sign the child support
order, so lets get that done today. The court entered a written
order consistent with its statements on the record, along with a
child support order requiring Hunter to pay $953 per month to
Conwell.
In August 2007 Child Support Services Division (CSSD)
filed a motion to modify the existing child support order based
on documentation Hunter provided about her income. CSSD
requested that Hunters monthly payments be reduced from $953 to
$401. Conwell opposed the motion but the superior court granted
it on September 6, 2007, decreasing Hunters monthly support
obligation to $401.
On July 7, 2008, Hunter filed a pro se motion seeking
modification of the custody order. She requested a hearing on
her motion. Hunter argued that modification was appropriate
because it is in the best interest of the children, and a
substantial change in circumstances has occurred. She made
several factual allegations: (1) over the telephone, she heard
Conwells live-in girlfriend screaming at the younger son, and she
was sufficiently concerned to call the Kotzebue police to ask
that they check on the situation; (2) Conwell frequently did not
answer the phone when Hunter called, and he changed his phone
number twice; (3) the older son asked Hunter whether Conwells
girlfriend was his mother; (4) Conwell travels for work, causing
him to be away from the children for several weeks at a time; (5)
Conwell is attempting to alienate [Hunters] children against
their mother; (6) Hunter has and will continue to foster Conwells
relationship with the children; (7) Hunter had custody of the
boys before they traveled to Kotzebue to be with their father
while their grandfather was dying, and when she went to Kotzebue
to retrieve them, she was served with papers regarding the
custody case; Hunter was assured by [Conwell] he would let her
know when the hearing was to be held, but [h]e never did so and
Conwell received custody by default; (8) Hunter believed Conwell
was neglecting proper parental guidance and allowing the boys to
misbehave in public; (9) [b]oth children have extreme anger
problems; (10) Conwell delayed permitting the boys to receive
counseling and did not renew their Denali Kid Care health care
benefits, demonstrating a lack of interest in the childrens
emotional and physical needs. Hunter requested primary legal and
physical custody.
Conwell opposed Hunters motion. He asserted that
Hunters factual claims were insufficient to meet her burden of
showing that there had been a substantial change in circumstances
since the default custody order was entered. Regarding Conwells
travel schedule, Conwell contended that he is employed in
Kotzebue and works a standard schedule and that [w]hen he is not
home with the boys including one trip to Wisconsin from April 6
to April 12, 2008 he leaves the children in the care of family
members. He also asserted that Hunter had trouble disciplining
the boys and that they only displayed anger problems while in her
care. Conwell conceded that Hunter called the police to check on
the welfare of the boys but contended there was no legitimate
reason for her to do so. Conwell argued that he permits Hunter
to speak to the boys on the telephone but Hunter often calls
after 8:30 p.m. when the boys are already asleep. He conceded he
once changed his phone number, but argued he immediately gave
Hunter the new number. Conwell also asserted that when the boys
asked about his girlfriends relationship to them, he tried to
explain that they will have two mommies with [his girlfriend] to
be their stepmother. As to the initial custody proceeding,
Conwell argued that Hunter had the same notice [Conwell] had, did
not appear or even provide the Court with a phone number to reach
her, and that the court defaulted her is no ones responsibility
except hers. Conwell also denied that he allowed the boys to
misbehave in public. He argued the boys were thriving and
physically and emotionally healthy, that they only had anger
problems while with Hunter, and that he agreed to allow the boys
to attend counseling in Fairbanks to help the boys deal with the
custody issues. Conwell also argued that the boys have medical
coverage through his employer and through the Alaska Indian
Health Service. He asked the court to deny Hunters motion.
Hunters reply brief reasserted some of her factual
claims, made others in defense of her parenting abilities, and
explained she was bewildered by the custody complaint and could
not and cannot afford a lawyer. She also complained that when
Conwell was away from home, he leaves the children with his
mother or other relatives or friends rather than allowing Hunter
the opportunity to spend time with them. Hunter attached a
report from the Kotzebue Police Department regarding its welfare
check following Hunters call to report the person she heard
yelling over the telephone and affidavits from a neighbor and
Hunters mother stating that the boys misbehaved upon arrival in
Fairbanks in the summers of 2007 and 2008 but improved after
living with Hunter. The neighbor said the boys were difficult to
handle and disorderly and Hunters mother described them as unruly
and quite difficult to handle, almost to the point of being out
of control.
On September 3, 2008, the superior court denied Hunters
motion to modify the custody order without holding a hearing.
The court noted that the first inquiry under AS 25.20.110 is
whether the parent requesting modification of custody has shown
that a substantial change in circumstances has occurred since the
time the last custody order was entered. The court concluded
that Hunter had not met this burden. The court characterized
Hunters arguments as a) the alienation of the childs affections,
which implicated AS 25.24.150(c)(6), and b) a failure to meet the
childs needs, which implicated AS 25.24.150(c)(1) and (2). The
court found the childs question about whether Conwells girlfriend
was his mother was a natural question for a five-year old, ruled
that a parents new relationship is not sufficient to require
custody modification, and found that the welfare check prompted
by Hunters call to the police resulted in no evidence of abuse.
The court advised both parties that they are under a continuing
obligation to keep each other timely apprised of any change in
contact information that occurs in the future and imposed a
schedule of regular phone calls to be made between 7:30 and 8:00
p.m. on Tuesday, Thursday, and Sunday, unless the parties come to
some other written mutual agreement. The court further found the
children had health insurance from the Indian Health Service,
that [t]here is insufficient evidence to suggest that [Conwell]
has contributed to the childrens [behavioral] problems, that
Conwells employment situation has not changed since the custody
order was entered and that one trip to Wisconsin is not constant
travel constituting a change in circumstances.
Hunter filed a timely motion for reconsideration. She
alleged that Conwell was not complying with the courts order,
explaining that she had repeatedly called the children at the
times directed by the superior court but had not been able to
speak to them. She provided exhibits documenting over twenty
phone calls she made to Conwell in the nine weeks before the
default custody proceeding, reiterating that she relied on
Conwell to tell her when the custody hearing was to occur. Hunter
separately filed a motion requesting enforcement of the
telephonic visitation order.
Conwell opposed the motion to enforce telephonic
visitation, explaining that he was making an effort to spend time
outdoors with the boys in the fall months so they were sometimes
unavailable when Hunter called. He also asserted that Hunter
should provide him with a calling card if she wanted him to
return her calls. Conwell requested that the court modify the
times for calls from between 7:30 and 8:00 p.m. to between 7:00
and 7:30 p.m.
The superior court denied the motion for
reconsideration, observing that Hunter had not made any new
allegations of mistreatment by Conwells girlfriend nor of any
other facts constituting a substantial change in circumstances.
The court separately ordered the parties to abide by its
telephone visitation schedule1 and ruled that Conwell did not
have to give Hunter the opportunity to care for the children
whenever he traveled out of Kotzebue.
Hunter appeals.
III. STANDARD OF REVIEW
We review de novo [w]hether a moving party has made a
prima facie showing sufficient to justify a custody or child
support modification hearing and will affirm a denial of a
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. 2
IV. DISCUSSION
A. Hunters Challenges to the Initial Custody Determination
Are Time-Barred.
Though Hunter appeals from the denial of her motion for
modification of custody, her brief raises several issues
regarding the initial custody determination.3 Even if we
construe these arguments as requests that we set aside the
default judgment pursuant to Alaska Civil Rule 60, the rule that
allows the most generous time period for challenging a superior
court final order, the arguments are all time-barred.4 Hunter
filed her motion for reconsideration almost two years after the
custody order was entered. She does not dispute that she was
served with the complaint and that she failed to answer it. She
does not claim that she was unaware of the custody order.5
Hunter could have filed for reconsideration in the trial court at
that time, but she did not do so. It is too late to challenge
the basis for the 2006 custody decision.
B. Hunters Motion for Modification of Custody Alleged
Facts Sufficient To Require that the Superior Court
Hold a Hearing.
Hunter argues that the absence of findings supporting
the default custody order impaired her ability to demonstrate
that a significant change of circumstances occurred, and that the
superior court failed to consider several arguments that should
have been relevant to the resolution of the motion to modify
custody. We construe Hunters argument to be that the superior
court erred by denying her request for modification of the
custody order without a hearing.6
Alaska Statute 25.20.110(a) provides that [a]n 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. We explained in Ebertz v. Ebertz7 that
modifying an existing custody order entails a two-step process:
the parent seeking modification must establish a significant
change in circumstances affecting the childs best interests; only
if the parent makes this showing does the court proceed to
determine whether modification is in the best interests of the
child.8
The superior court concluded that none of the facts
Hunter alleged were sufficient to determine that a change in
circumstances had occurred. Where no hearing is held, we will
uphold the denial of a motion to modify custody 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.9
This standard requires that we assess whether Hunter alleged
facts that, if true, demonstrate that a change in circumstances
has occurred. Assessing whether a significant change of
circumstances has occurred is difficult in this case; the record
does not include oral or written findings from the default
judgment proceeding, which would typically provide a snapshot of
the circumstances that existed at the time the original custody
order was entered.10
Hunter alleged that the boys may have been exposed to
verbal abuse since the time the custody order was entered. She
also claims that the boys have extreme anger problems manifested
in uncontrolled outbursts involving hitting, kicking, and
screaming. Hunter filed her own affidavit and affidavits from
third parties substantiating these claims. Hunters affidavit
includes the statement that she heard Conwells girlfriend
screaming and belittling her son in a manner she described as so
vicious [that Hunter] was concerned for her childrens safety.
Hunter also alleged that when she confronted Conwell about her
concerns, he admitted that his girlfriend was being mean to the
children, so she was no longer living with them. But Hunter
claims she later discovered that Conwell continued to allow his
girlfriend to care for the children when he was not present.11 If
established at an evidentiary hearing, the allegation of verbal
abuse, the allegation that the boys may still be left in the care
of Conwells girlfriend, and the allegation that the boys have
exhibited significant anger and behavioral issues after returning
from Conwells home, could warrant modification of custody.
Therefore, Hunter is entitled to a hearing on her motion.
Hunters motion included other allegations that could
justify modification of custody or visitation if proven at an
evidentiary hearing. She alleged that Conwells employment
required that he live away from the children for several weeks at
a time. And she argued that her schedule would allow her to
provide more consistent care for the boys. The superior court
found that Conwells employment situation ha[d] not changed since
the custody order was entered. But the record provides evidence
to the contrary. Conwells complaint for custody listed his
employer as Bering Air. The affidavit he filed in conjunction
with his opposition to the motion to modify states that he works
for OTZ Telephone. Conwell argued that he only infrequently
travels for work. His opposition argues that he traveled to
Wisconsin for six days in April of 2008, but we note that the
affidavit he filed with his opposition was not notarized because
he was working in a bush location. It is not clear how often his
employment requires that he work in a bush location, but Hunters
allegation that work-related travel requires Conwell to leave the
children in the care of third-party custodians several weeks each
year has not been convincingly refuted. The merit of this
allegation must be established at an evidentiary hearing.
Hunter also alleged that Conwell failed to foster her
relationship with the boys. The record available at the time the
motion was considered showed that Hunter continued to reside in
Fairbanks while the boys were living in Kotzebue and that Hunter
had modest visitation (approximately eight weeks per year) with
no specific provision for holiday visitation. Hunter alleged
that Conwell interfered with her ability to talk with the boys by
twice changing his telephone number, by not making the boys
available when she called, and by failing to let her know where
she could contact the boys when he traveled out of town. The
court acknowledged the importance of telephonic visitation in
this case, imposing a schedule for the telephone calls and
ordering the parties to abide by it. But in light of the limited
time Hunter had with the boys, the time and expense required to
travel between Fairbanks and Kotzebue, and the fact that the
record includes evidence that the boys are exhibiting emotional
and behavioral problems, we believe that Conwells alleged
interference with telephonic visitation was extremely serious.
In her motion for reconsideration, Hunter alleged that
Conwell continued to interfere with her telephonic visitation
even after the court ordered a specific schedule for the calls.
This allegation was not part of the record at the time the court
denied the motion to modify custody, but because this case is
remanded for a hearing, we note that Conwell did not refute this
allegation. He essentially responded by explaining that he
considered it more important to allow the boys to play outside
than making them available for Hunters telephone calls, and he
implied that he would not return Hunters calls unless she
provided him with a calling card. The courts order did not
require that Hunter provide a calling card. Where geographic
separation makes frequent in-person visitation impossible,
telephonic visitation is crucial.12 On remand, both parties will
have an opportunity to address whether Hunter has had continued
difficulty contacting the boys by telephone and if so, whether
any interference by Conwell constitutes a substantial change of
circumstances.
In light of Hunters allegations and the uncontested
facts, we conclude that she is entitled to an evidentiary hearing
to assess whether a substantial change in circumstances has
occurred since the time of the original custody order. Abuse,13 a
change in employment requiring significant time away from the
children,14 signs that the children are developing mental health
problems,15 and interference with visitation16 can all be reasons
to find a substantial change in circumstances. If Hunters
assertions are proven, she is entitled to a hearing during which
the court considers evidence regarding the factors set out in
AS 25.24.150 to determine the custody and visitation schedule
that is in the boys best interests.17
V. CONCLUSION
We decline to address Hunters arguments regarding the
initial custody determination because they are time-barred. We
REVERSE the superior courts denial of Hunters motion for
modification and REMAND for an evidentiary hearing.
_______________________________
1 The order required Hunter to place calls on the
existing schedule and Conwell to ensure the boys are available
and ensure the children return their mothers calls in a
reasonable manner.
2 Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)
(quoting Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999))
(footnote omitted).
3 She argues that her due process rights were violated by
the denial of an opportunity to be heard at the initial custody
hearing; that she did not have notice of the custody hearing
because she was not told of the change of date; that she did not
receive notice of the entry of default; and that Conwell
continually advised he would inform her of date and time of
hearing but never did so.
4 See Alaska R. Civ. P. 60(b) (On motion and upon such
terms as are just, the court may relieve a party or a partys
legal representative from a final judgment, order, or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; . . . (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party . . . . The motion shall be made
within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the date of notice of the judgment or
orders.).
5 Conwell states in his brief on appeal that he provided
her with a copy of the courts order the day after it was issued,
and Hunter does not deny receiving it.
6 See Bauer v. State, Dept of Corr., 193 P.3d 1180, 1184
(Alaska 2008) ([P]ro se litigants should be held to less
stringent standards than those of lawyers. (quoting Breck v.
Ulmer, 745 P.2d 66, 75 (Alaska 1987)) (internal quotation marks
omitted)).
7 113 P.3d 643 (Alaska 2005).
8 Id. at 647 (citing Barrett v. Alguire, 35 P.3d 1, 5-6
(Alaska 2001)).
9 Harrington, 984 P.2d at 3 (quoting Morino, 970 at 428).
10 Platz v. Aramburo, 17 P. 3d 65, 71 (Alaska 2001)
(parents failure to file a responsive pleading, resulting in
default, does not justify entry of custody order without best
interests determination).
11 The superior court discounted Hunters allegations
because she offer[ed] no real evidence that [verbal abuse] occurs
and the allegations [of yelling] were not substantiated by the
welfare check following Hunters call to the Kotzebue police. But
the report resulting from Hunters request for a welfare check
indicates that the police did not visit the house or otherwise
investigate the situation after speaking to Conwell on the phone,
and Hunter alleges that Conwell admitted to her that his
girlfriend was being mean to the boys. This is not a
circumstance in which Hunters allegations are convincingly
refuted by competent evidence, as to create no genuine issue of
material fact requiring a hearing. Harrington, 984 P.2d at 3
(quoting Morino, 970 P.2d at 428).
12 Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005)
(because distance separated children from non-custodial parent,
court reasonably placed enhanced importance on willingness of
custodial parent to foster an open relationship with non-
custodial parent).
13 See Barile v. Barile, 179 P.3d 944, 946-47 (Alaska
2008) (holding that allegations of domestic violence would, if
true, constitute a substantial change in circumstances).
14 See Iverson v. Griffith, 180 P.3d 943, 946 (Alaska
2008) (remanding for hearing on modification where parent
alleged that other parents new employment situation prevented him
from caring for the child on a regular basis and child was often
in custody of a family not approved by the court).
15 Cf. Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998)
(affirming a custody determination based in part on a parents
ability to meet a childs psychological and emotional needs).
16 See Kelly v. Joseph, 46 P.3d 1014, 1017 (Alaska 2002)
(holding that [a]ctions by a custodial parent which substantially
interfere with the non-custodial parents visitation rights,
including a detrimental and well established pattern of behavior
on the part of [the custodial parent] to erode the bonds of love
and affection between the [other parent] and the children, can
suffice to meet the changed circumstances requirement (quoting
Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990);
Pinneo v. Pinneo, 835 P.2d 1233, 1238 (Alaska 1992)) (internal
quotation marks omitted)).
17 The change in circumstances required for modification
of visitation rights . . . need not rise to the level sufficient
to warrant a change of custody. Acevedo v. Liberty, 956 P.2d 455,
457 (Alaska 1998) (quoting Hermosillo, 797 P.2d at 1209).
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