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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fredrickson v. Hackett (10/27/2017) sp-7210

Fredrickson v. Hackett (10/27/2017) sp-7210

           Notice:   This opinion is subject to correction before publication in the P                         ACIFIC  REPORTER.  

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                        THE SUPREME COURT OF THE STATE OF ALASKA                                           

JACK  W.  FREDRICKSON,                                              )  

                                                                    )          Supreme  Court  No.  S-16298  

                                  Appellant,                        )  

                                                                    )          Superior  Court  No.   1SI-12-00009  CI  



                                                                    )          O P I N I O N  


ALLISON O. HACKETT,                                                 )  


                                                                    )          No. 7210 - October 27, 2017  


                                  Appellee.                         )  


                       Appeal from the Superior Court of the State of Alaska, First  



                       Judicial District, Sitka, David V. George, Judge.  


                       Appearances:  Jack W. Fredrickson, pro se, Sitka, Appellant.  


                       James W. McGowan, Sitka, for Appellee.  


                       Before:   Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                       and Carney, Justices.  


                       STOWERS, Chief Justice.  



                       A  married couple with the assistance of an attorney-mediator reached a  


settlement agreement and filed for divorce in January 2012.  Under the agreement the  


marital home and primary physical custody of the couple's three children were awarded  


to the mother.  


                       After the divorce the father moved into a cabin and expanded it to the point  


that it was able to adequately house the children.  The father moved to modify custody  


on  the  grounds  that  there  had  been  a  substantial  change  in  circumstances  since  the  


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original custody order.  The superior court denied the motion without a hearing, and the  


father appeals.   We hold that the father presented evidence of a substantial change in  


circumstances and that the court should have conducted an evidentiary  hearing.   We  


therefore reverse and remand for further proceedings.  




                     Jack W. Fredrickson and Allison O. Hackett married in  February  1996.  


Three children were born during the marriage, all of whom are still minors.  An attorney- 


mediator assisted Fredrickson and Hackett in settling property and custody issues and in  


jointly filing their divorce petition in January 2012.  The superior court issued a divorce  


decree in March 2012 adopting the parties' "Child Custody, Child Support, and Property  


 Settlement Agreement."  


                     Under  their  property  agreement,  Fredrickson  received  a  cabin  that  was  


rented to a tenant at the time, and Hackett received the family home.  Their child custody  


agreement provided that Fredrickson and Hackett would have shared legal custody and  


that Hackett would have primary physical custody.   It set forth a detailed schedule of  


when the children would be with Fredrickson.  Under this schedule Hackett would have  


physical custody of the children approximately 75% of the time and Fredrickson would  


have physical custody of the children approximately 25% of the time.  


                     In  August  2015  Fredrickson,  representing  himself,  filed  a  motion  and  


affidavit to modify custody, visitation, and child support.  Fredrickson requested shared  


physical custody, seeking approximately 40% custody of the children instead of 25%.  


Hackett,  represented  by  counsel,  partially  opposed  the  motion  to  modify,  opposing  


modification of custody and visitation but agreeing that modification of child support was  



                     In his motion and affidavit Fredrickson stated that the agreement to give  


Hackett  the  family  home  left  him  without  suitable  housing  for  the  children.                                          While  


                                                                   -2-                                                           7210

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Hackett and the children lived in the family home, Fredrickson initially lived with family                                                                                                                                                                                   

and friends and, briefly, at his church.                                                                                            Later, the tenant of the cabin that Fredrickson                                                                       

received in the divorce moved out, and Fredrickson moved into the cabin.                                                                                                                                                                              He then built                

an approximately 1,300-square-foot addition, so the cabin had "a large kitchen/living area                                                                                                                                                                                           

with two and a half bathrooms" and separate bedrooms for each child.                                                                                                                                                   

                                             The   superior   court   denied   Fredrickson's   motion   to   modify   custody   and  

visitation without a hearing and requested more information with respect to the motion                                                                                                                                                                                     

to modify child support.                                                           The court's order explained that Fredrickson's remodeling of                                                                                                                                            

the   cabin   constituted   "merely   an   improvement   insufficient   to   establish   a   significant  

change in circumstances."         

                                             Fredrickson   appeals   the   denial   of   his   motion   to   modify   custody   and  

visitation without a hearing.                                                                   The child support modification is not at issue on appeal.                                                                                                            

III.                   STANDARD OF REVIEW                                           

                                             We review de novo the denial of a motion to modify custody or visitation                                                                                                                                              


without a                         hearing.                                                                                                                                                                                                                      

                                                                       "[W]e  take  the  moving  party's  allegations  as  true"  to  determine  


whether  the  moving  party  has  demonstrated  a  sufficient  change  in  circumstances  to  



                                                                      "[W]e will affirm the denial if 'the facts alleged, even if proved,  

warrant a hearing. 


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.' " 

                       1                    Abby D. v. Sue Y.                                          , 378 P.3d 388, 391 (Alaska 2016).                                                             



                                            Id.  (quoting Collier v. Harris, 261 P.3d 397, 405 (Alaska 2011)).  



                                            Id.  (quoting Bagby v. Bagby , 250 P.3d 1127, 1128 (Alaska 2011)).  

                                                                                                                                             -3-                                                                                                                   7210

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IV.	        DISCUSSION  


            A.	        The   Superior   Court  Did   Not  Err   In   Interpreting   The   Custody  


                       As an initial matter, Fredrickson argues that in their settlement agreement  


the parties intended to provide for shared physical custody with a 60/40 custody split. He  


notes that some of the child support materials, including the child support order, stated  


that the parties would have shared 60/40 custody.  Child support was calculated based on  


this custody division, and this shared-custody child support calculation was incorporated  


into the child support section of the settlement agreement.  The superior court concluded  


that "[t]here was no ambiguity about the custody and visitation," that "[t]he terms of the  


parties' agreement . . . were specific and detailed," and that use of a 60/40 split for child  


support "embodie[d] a simple clerical error."  


                       We  review  de  novo  the  superior court's interpretation of the  settlement  




                    and agree that there was no ambiguity about the approximate amount of time  


each party would have custody.  The custody section of the agreement stated that Hackett  


would have primary physical custody and provided a detailed schedule of the dates and  


times Fredrickson would have custody. All references to shared 60/40 custody were brief  


and concerned child support.  "We construe settlement agreements in dissolutions using  



traditional contract principles."                         "In contracts, as in statutes, 'where one section deals  


with a subject in general terms and another deals with a part of the same subject in a more  


detailed way, the two should be harmonized if possible; but if there is a conflict, the  



specific  section  will  control  over  the  general.'  "                                     We  affirm  the  superior  court's  

            4          See Martin v. Martin                 , 303 P.3d 421, 429 (Alaska 2013).               



                       Id.  (citing  Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012)).  



                       Norville v. Carr-Gottstein Foods Co. , 84 P.3d 996, 1004 (Alaska 2004)  


                                                                         -4-	                                                               7210

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interpretation of the custody agreement.                                                     We next consider Fredrickson's argument that                                                     

there was a change in circumstances sufficient to warrant a hearing.                                                                   

               B.	             Fredrickson's    Allegations    About    Changes    In    Living    Conditions  

                              Warrant A Hearing.           

                              Alaska Statute 25.20.110(a) provides, "An 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 have held that "[a] parent seeking to modify physical custody                                                                  

must . . . demonstrate that a substantial change in circumstances has taken place since the                                                                                                     


last   custody   order   was   entered."                                                                                                                                                         

                                                                                     "The  'change  in  circumstances'  requirement  is  


'intended to discourage continual relitigation of custody decisions, a policy motivated by  


the judicial assumption that finality and certainty in custody matters are critical to the  



child's emotional welfare.' " 


(quoting In re Estate of Hutchinson , 577 P.2d 1074, 1075 (Alaska 1978)).  




                              Fredrickson  argues  that  the  settlement  agreement  was  rushed  and  that  


neither he nor the attorney-mediator understood the agreement.  He did not argue this in  


superior court, and even if true, the settlement agreement is unambiguous.  Fredrickson  


also argues that he should be able to modify the custody agreement under the provision  


for modification in the agreement.  But that provision states simply that either party may  


file a motion to modify custody if the party believes there has been a substantial change  


in  circumstances,  the  standard  for  motions  to  modify  under  AS  25.20.110.                                                                                                      These  


arguments similarly fail.  



                               Collier  v.  Harris,  261  P.3d  397,  403  (Alaska  2011)  (citing  Hunter  v.  


Conwell, 219 P.3d 191, 195-97 (Alaska 2009)).  



                              Id. (quoting Peterson v. Swarthout , 214 P.3d 332, 340-41 (Alaska 2009)).  

                                                                                                -5-	                                                                                7210

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                        We   have   explained   that   the   denial   of   a   motion   to   modify   custody   or  


visitation without a hearing is analogous to a decision on summary judgment.                                                                      

                                                                                                                                          The trial  


court must take the allegations of the moving party as true and may deny a hearing only  


when "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." 


                        For      determining             whether          there       has      been       a     substantial   change                 in  


circumstances  in  this  case,  the  relevant  date  of  comparison  is  March  9,  2012,  when  


Fredrickson  and  Hackett  obtained  a  divorce  decree  incorporating  their  settlement  


agreement.  In his motion to modify custody Fredrickson alleged that by giving Hackett  


the marital home, the settlement agreement left him without a permanent home and his  


lack of a permanent home left him without living conditions suitable for the children.  


At  the  same  time  the  agreement  also  provided  that  Hackett  would  receive  primary  


physical custody of the children.  Fredrickson's circumstance - his ability to provide  


living  conditions  suitable  for  children  -  substantially  changed  when  Fredrickson's  


previous tenant left and Fredrickson moved into his cabin and enlarged it to  provide  


suitable housing for the children.  


                        We have suggested that changes of this nature could require a hearing.  In  


the  unpublished  case  Ware  v.  Farquhar we  affirmed  a  superior  court  decision  that  


modified visitation based on the father obtaining "proper accommodations for longer  



                   The  prior  custody  order  in  Ware  "explicitly  envisioned  modification"  by  

            10         Id.  at 404 (citing            C.R.B. v. C.C.           , 959 P.2d 375, 378 (Alaska 1998)).               



                       Abby  D. v. Sue  Y. , 378  P.3d  388, 391  (Alaska  2016) (quoting Bagby  v.  


Bagby , 250 P.3d 1127, 1128 (Alaska 2011)) (citing Collier, 261 P.3d at 405).  



                       No. S-6838, 1996 WL 34396516, at *3 (Alaska Nov. 20, 1996).  

                                                                          -6-                                                                 7210

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providing that the visitation schedule it set out would govern until the father "[could]                                                    


provide proof of proper accommodations for longer visits."                                                                                           

                                                                                                                 We concluded that the  


father "obtain[ing] a larger apartment . . . constituted a change in circumstances adequate  



to modify the visitation agreement."                                                                                                                 

                                                                   Although the parties' settlement agreement in this  


case contained no such provision, the custody section of the agreement provided that  


Hackett would have primary custody at the same time the property division section left  


Fredrickson without suitable accommodations for the children.  This alleged change in  



Fredrickson's living situation is therefore substantial. 


                        Hackett  argues  that  Fredrickson's  expansion  of  his  cabin  was  a  "mere  


improvement" and that our cases concerning "mere improvements" by one party control  



this case.           It is true that we have said "mere improvements" in the position of one party  

            13          Id.  at  *1,  *3.  

            14          Id.  at  *3  (citing  Kramer  v.  Kramer ,  738  P.2d  624,  626  (Utah   1987)).  

            15          In   Yvonne  S.   v.   Wesley  H.  we   explained   that   an   alleged   change   in   living  

conditions   might   have   warranted   a   hearing   except   the   superior   court   had   previously  

identified   the   mature   child's   strong   preference   as   the   "most   significant   factor"   in   its  

custody  decision  and  neither  party  alleged  that  this  preference  had  changed.   245  P.3d  

430,  431,  435-36  (Alaska  2011).   Neither  party  in  this  case  alleged  that  a  factor  other  than  

the parties' living conditions  was the most significant factor.  Of c   ourse, a   fter a hearing  

the superior court may find that housing  was  not a     significant  factor to the parties when  

they   agreed   on   custody   or   that   it   should   not   be   a   significant   factor   now.    Whether   a  

hearing  on  custody  modification  is  needed  presents  a  purely  legal  question,  but  after  a  

hearing  the  superior  court  may  make  factual  findings  and  has  broad  discretion  in  deciding  

whether  to  modify  custody.   Collier  v.  Harris ,  377  P.3d   15,  20  &  n.14  (Alaska  2016).  



                        Hackett  cites  our  discussion  of  "mere  improvement[s]"  in  Nichols  v.  


Mandelin , 790 P.2d 1367, 1372 n.15 (Alaska 1990) (first quoting Gratrix v. Gratrix, 652  


P.2d 76, 82 (Alaska 1982); then quoting Garding v. Garding, 767 P.2d 183, 186 (Alaska  


                                                                           -7-                                                                  7210

----------------------- Page 8-----------------------


do not establish a substantial change in circumstances sufficient to modify custody.                                                                    But  

these   cases   concern   motions   to   modify   custody   because   of   a   non-custodial   parent's  

newfound   sobriety   or   because   of   general   improvements   in   maturity   and   economic  

situation by both parties.                  18  


                                                Where a parent has developed a record of "overall maturation"  


and "sustained control of a former drinking problem," we have found a substantial change  



in circumstances.                    In this case Fredrickson obtained a permanent residence and then  


substantially increased its size.  This change was not temporary and was directly related  


to  Fredrickson's  ability  to  house  the  children.                                    Fredrickson  has  alleged  a  substantial  


change in his living situation.  


                        Fredrickson  alleges  a  substantial  change  in  his  living  conditions.                                                    This  


substantial change is a change sufficient under AS 25.20.110(a) to require a hearing.  


                        Because we conclude that Fredrickson's allegations about his change in  


living situation are sufficient to require a hearing on his motion to modify custody, we  


need not consider whether he has alleged a change in circumstances sufficient to modify  



visitation, which requires "a lesser showing."                                         We also need not consider whether the  


other allegations in Fredrickson's motion and affidavit would warrant a hearing.   On  


remand the superior court is free to consider all relevant evidence with respect to potential  


changes in custody or visitation.  

            17          See Abby D. v. Sue Y., 378 P.3d 388, 394-97 (Alaska 2016);                                                    Garding, 767  

P.2d at 185-86;              Gratrix, 652 P.2d at 83-84.           



                        See Abby D., 378 P.3d at 394-97; Garding, 767 P.2d at 185-86; Gratrix, 652  


P.2d at 83-84.  



                        Nichols , 790 P.2d at 1372.  



                         Collier v. Harris, 261 P.3d 397, 408 (Alaska 2011) (citing Havel v. Havel ,  


216 P.3d 1148, 1151 n.6 (Alaska 2009)).  

                                                                             -8-                                                                   7210

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V.        CONCLUSION  

                   We AFFIRM the superior court's interpretation of the settlement agreement.  


But we REVERSE the court's order denying Fredrickson's motion to modify custody and  


visitation without a hearing and REMAND for further proceedings consistent with this  



                                                             -9-                                                        7210

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