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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Debra P. v. Laurence S. (9/27/2013) sp-6831
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DEBRA P., )
) Supreme Court No. S-14568
Appellant, )
) Superior Court No. 3AN-10-09706 CI
v. )
)
LAURENCE S., ) O P I N I O N
)
Appellee. ) No. 6831 - September 27, 2013
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Debra P., pro se, Anchorage, Appellant. No
appearance by Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
At the trial call for this child custody case, the superior court suggested that
the parties could introduce evidence regarding an interim custody order at the next
hearing, so that they would have more time to reach a final settlement. Then, during the
next hearing, both parties expressed some uncertainty about the purpose of the hearing.
However, at the conclusion of the hearing, the court made findings to support a final
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custody judgment. We conclude that this procedure violated the mother's right to due
process of law. We therefore reverse and remand for a new custody trial.
II. FACTS AND PROCEEDINGS
Debra P. and Laurence S. are the parents of Dennis S., who was born in
1
2002. Dennis lived with both parties in Alaska from the time of his birth until sometime
in 2008 when the parties' relationship ended. In December 2008 Debra took Dennis to
California, where he resided with her until August 2009. In August 2009 Debra asked
Laurence to assume physical custody of Dennis. Laurence traveled to California to
collect Dennis, and Dennis resided with Laurence for the next 12 months.
Dennis continued to reside with Laurence in Alaska until Debra returned
to the state in August 2010. Shortly after her return, Debra resumed physical custody of
Dennis by refusing to return Dennis to Laurence following a visit. Laurence filed a
complaint to regain custody of Dennis and a motion for interim custody. He requested
primary physical and legal custody of Dennis, allowing for weekend visitation with
Debra. Following an evidentiary hearing on October 1, 2010, the superior court issued
an interim order. The order granted Laurence primary physical custody of Dennis, but
allowed Debra visitation with Dennis every weekend except for the first weekend of each
month.
At a hearing on May 23, 2011, the superior court scheduled a trial call for
September 7 and trial for the week of September 19. At the trial call, the parties stated
that they were working toward a settlement. At the beginning of the trial call, the judge
announced that trial would occur in two weeks if the parties could not reach a settlement.
But by the end of the hearing, the judge indicated that the next hearing would be for an
1 Pseudonyms have been used to protect the privacy of the parties.
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interim order to allow the parties more time to reach a complete settlement. The judge
explained:
Everybody comes back here on [September 21] and ready to
present evidence at a minimum on . . . a new interim order
and I can take testimony on the issue of the counselor and
what a more long term custody order will be. It may not be
final, but at least it would be a better long term order in terms
of an interim order and what it would look like. The purpose
of that would be, one, it will give you two time between now
and Wednesday the 21st because if you're gonna come to an
agreement you probably can do it by that time or come pretty
close to it. And if you can't we can use that time to take
evidence on the interim order and we can also schedule time
to take additional evidence if we need to for a final order if
that's what we want to do. But at a minimum you need to be
prepared to show up and give me testimony on what it should
look like for an interim order and then the counseling.
The court later reiterated the purpose of the September 21 hearing: "I have it set up as
an evidentiary hearing at a minimum for an interim order so if you've got witnesses and
evidence you want to present we're going to do that." The court then told the parties that
if they were unable to reach settlement "then . . . if we gotta have a hearing that's fine -
we'll have a trial on it."
The parties returned to court on September 21 to present evidence. There
was no discussion of a settlement or the purpose of the hearing. The court asked if the
parties were ready to proceed and then asked each to make an opening statement. After
Laurence made his opening statement, Debra stated that she "didn't know [the parties]
had to [make] opening statements." The judge urged her to tell him what she wanted him
to order. After Debra made her statement, the judge stated that both parties appeared to
agree that Laurence would have custody during most school weeks from Monday
through Friday.
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Laurence called Debra as his first witness. After the court took a recess,
Debra notified the court that she had a time conflict. When the judge inquired what
witnesses Debra planned to call, she stated, "I didn't have any questions prepared. I
wasn't real familiar with what was going to go on today - the procedures." She
explained that she had to return to work at noon, and the court assured her that there
would be enough time to complete the proceeding. The court then heard testimony from
Laurence and from Debra's mother.
Both parties made closing arguments. After the court announced it would
take a short recess, Laurence asked whether the order would be interim or final, and the
court clarified that the order would be final. The court then made findings supporting
a final custody and visitation order.
After the hearing, Debra moved for reconsideration, stating, "I was unaware
that the hearing scheduled [for] September 21 was change[d] to a trial." In her affidavit
she elaborated, "I was ex[]pecting a hearing for [Laurence] and I to discuss our
Agreement, and I found out it was a trial. [A]s a result . . . of being unprepared . . . to
present evidence there are points on the final ruling that I strongly disagree with and [I]
want them reconsidered." The issues Debra listed included a provision allowing Dennis
to attend the school zoned for Laurence's residence; the requirement that Debra provide
a detailed description of her residence and its occupants before she would be able to have
Dennis with her for overnight visits; the scheduling of Christmas visitation; and the
entitlement to claim Dennis as a dependent for tax purposes. The court denied Debra's
motion without any explanation.
This appeal followed.
III. STANDARD OF REVIEW
"The adequacy of the notice and hearing afforded a litigant in child custody
proceedings involves due process considerations. A constitutional issue presents a
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question of law which we review de novo, and to which we apply our independent
judgment." 2
IV. DISCUSSION
A. Due Process
Debra argues that the superior court erred when it changed the evidentiary
hearing scheduled for September 21, 2011, into a final custody trial without giving her
notice. She contends that she was denied an opportunity to present a substantive case
with supporting evidence. This is essentially a due process argument. "Procedural due
process under the Alaska Constitution requires notice and opportunity for hearing
3
appropriate to the nature of the case." We have emphasized that "[i]t is essential to
contested custody proceedings that the parties be afforded a hearing which grants them
the opportunity to present the quantum of evidence needed to make an informed and
principled determination."4
In Cushing v. Painter, we held that a mother's due process rights were
violated when a hearing that was initially scheduled to determine interim custody for the
impending school year was transformed - without notice - into one that decided the
2 Lashbrook v. Lashbrook , 957 P.2d 326, 328 (Alaska 1998) (citing Wright
v. Black , 856 P.2d 477, 479 (Alaska 1993)).
3 Id. (quoting Wright, 856 P.2d at 480) (internal quotation marks omitted).
4 Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983).
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5
question of permanent custody. There, we noted that the record did not establish waiver
6
on the mother's part "as to the procedural infirmities implicated in the hearing."
In Wright v. Black, we considered a similar issue - whether the failure to
notify a party that the issue of paternity would be determined at a hearing violated due
7
In that case, the court failed to give the parties notice prior to the hearing, but
process.
informed the parties at the beginning of the hearing that the paternity issue would be
8
In Wright, we distinguished Cushing because
resolved, and the parties did not object.
the parties in Cushing were not notified of the import of the proceeding at issue until
9
after the hearing. The Wright court acknowledged that notice at the hearing "still may
not have been constitutionally sufficient," but it held that even if the notice were assumed
deficient for due process purposes, the appellant had waived his right to object.10
This case is more like Cushing. The court's comments at the September 7
trial call suggested that the September 21 hearing would decide issues of interim custody
and that another final hearing would be scheduled if the parties were unable to reach a
settlement. Unlike in Wright, the court here did not clarify the purpose of the September
11
Also, the parties' comments here indicated that they were
21 hearing at its beginning.
5 Id.
6 Id. at 1046 n.10 (citing Milne v. Anderson , 576 P.2d 109, 112 (Alaska
1978)).
7 856 P.2d at 479-80, overruled on other grounds by B.E.B. v. R.L.B., 979
P.2d 514 (Alaska 1999).
8 Id. at 480.
9 Id.
10 Id.
11 Id.
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confused about the purpose of the hearing. Further, the court in this case did not clarify
that it was prepared to enter a final ruling until after the parties had already made their
presentations and delivered their final arguments. Finally, Debra brought her concerns
to the court's attention when she filed her motion for reconsideration.
For the foregoing reasons, we conclude that it was a violation of Debra's
right to due process of law when the superior court made a final custody and visitation
decision after a hearing, which Debra reasonably believed would resolve only interim
custody and visitation issues.
B. Other Issues
Debra argues that the superior court erred when it denied her request for
appointment of a custody investigator or a guardian ad litem. She also argues that the
court erred when it discontinued a pretrial requirement for the parties to submit random
urinalysis drug tests. She offers no legal authority to support her position on these
12 From
issues; her arguments are so undeveloped that we could treat them as abandoned.
this limited briefing and our review of the record, we cannot say that the superior court
committed an abuse of discretion on these points.
Debra raises several other issues in this appeal. Many of these issues could
also be treated as abandoned for insufficient briefing. However, we are not required to
decide these issues because Debra will have an opportunity to be heard when the
superior court holds a trial on remand.
IV. CONCLUSION
We REVERSE the judgment of the superior court and REMAND for a new
trial.
12
A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) (finding waiver due to
inadequate briefing by pro se litigant).
-7- 6831
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