Dd v. Lah

27 P.3d 757, 2001 Alas. LEXIS 101, 2001 WL 898601
CourtAlaska Supreme Court
DecidedAugust 10, 2001
DocketS-9894
StatusPublished

This text of 27 P.3d 757 (Dd v. Lah) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dd v. Lah, 27 P.3d 757, 2001 Alas. LEXIS 101, 2001 WL 898601 (Ala. 2001).

Opinion

27 P.3d 757 (2001)

D.D., Appellant,
v.
L.A.H., Appellee.

No. S-9894.

Supreme Court of Alaska.

August 10, 2001.

Jennifer L. Holland, Gruenberg, Clover & Holland, Lynne Freeman, Davis, Black, Freeman, LLC, Anchorage, for Appellant.

Peter F. Mysing, Kenai, for Appellee.

Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

*758 OPINION

MATTHEWS, Justice.

I. INTRODUCTION

D.D. (Daniell)[1] and L.A.H. (Leif) filed opposing motions to modify custody of their son, T.H. (Travis). Without holding a hearing or making findings the superior court granted Leif's motion and denied Danielle's. We reverse and remand because an evidentiary hearing and findings are required in opposed custody modification proceedings. Further, we hold that the record does not support failing to grant visitation to Danielle during the nine months of the year that Leif has custody.

II. FACTS AND PROCEEDINGS

Danielle and Leif were granted a decree of dissolution of marriage on September 6, 1996. The parties had one child during their relationship, Travis, who was born in December 1994. Danielle also has a daughter from a previous relationship, J.D. (Jane), who is three years older than Travis.

The parties negotiated a dissolution agreement which gave them shared custody of Travis, then twenty-one months old, providing Leif with custody and visitation during approximately seven months of the year and Danielle with custody and visitation for the approximately five remaining months of the year.[2] This arrangement, which was intended to be in effect until Travis commenced school, was made based on a shared assumption that Danielle would be living and studying in Minnesota during the course of the school year, and that Leif would be available to care for Travis full-time during the winter months, when Leif is unemployed. The agreement stated that its visitation schedule

will remain in effect until August 15, 2000. At this time, parents agree to submit to the court a revised custody arrangement to better suit the needs of a child attending school. Parents agree that this temporary arrangement best suits the needs of [Travis] while his mother is finishing her degree, as well as during summer months while his father is working. During winter months, [Leif] is unemployed. The agreement allows [Travis] to stay at home with his father instead of spending unnecessary time in a daycare situation. During summer [Danielle] and her daughter, [Jane] (from a prior relationship) will be on summer break and able to travel to Alaska for the care of [Travis].

By November 1996, Danielle had given up her studies in Minnesota and returned to Alaska. The parties agreed then to share custody of Travis on a week on/week off basis. In May 1997, Danielle moved from Kenai to Anchorage in order to study at the University of Alaska Anchorage, and the parties shifted to a two-weeks-on/two-weeks-off schedule in order to reduce travel time. This continued until the trial court's order of August 12, 2000. The original written custody agreement was never modified to reflect the new 50/50 arrangement.

According to Danielle, in August 1999 Leif agreed that Travis would attend school in Anchorage at Polaris K-12 School, where Jane was already enrolled. Then, following an open house in May 2000 at which Travis was introduced to his future teacher, Leif changed his mind and decided that he wanted Travis to attend school in Kenai. Leif disputes this account and claims that Danielle agreed in August 1999 that Travis would attend school in Kenai and live with Leif during the course of the school year.

On June 19, 2000, Danielle filed a motion to modify child custody and to appoint a custody investigator. Danielle argued that a substantial and material change in circumstances had occurred since the original child custody agreement was made: "Although the parties have shared custody of [Travis] 50/50, he is now of school age and will be ready to start kindergarten this fall." Danielle explained *759 that "[t]he problem we are now facing is where our son [Travis] should be residing during the school year." (Emphasis in original.) Danielle argued that because Travis had been enrolled at Polaris K-12 School, a unique public school attended by his sister Jane; because he and Jane share gymnastics lessons; and because Danielle provides a more stable environment for Travis, it was in Travis's best interests to reside in Anchorage during the school year.

Leif opposed both Danielle's motion to modify custody and her motion to appoint a custody investigator. Leif also filed a counter-motion to modify custody so that he would have custody of Travis during the school year. Leif agreed with Danielle that "[Travis]'s entry into school constitutes a substantial change in circumstances under AS 25.20.110(a) since the parties will no longer be able to share 50-50 custody of [Travis]." Leif explained that his job as a roofer prohibits him from spending time with Travis in the summers but during the winters "he devotes [his] time exclusively to [Travis]." Therefore, Leif argued, it was in Travis's best interests to award Leif custody during the school year. In support of his opposition to Danielle's motions and his own motion to modify custody, Leif submitted his affidavit and several unsworn supporting letters from family members attesting to the strength of Leif's parenting abilities.

Danielle responded, arguing that she was better suited to have primary custody. Danielle submitted her affidavit and notarized letters from friends attesting to Danielle's parenting abilities and to Leif's agreement to permit Danielle to have custody of Travis during the school year.

On August 12, 2000, Superior Court Judge Jonathan H. Link denied both of Danielle's motions and granted Leif's counter-motion for primary custody during the school year. Danielle was not awarded visitation rights during this period. With regard to Danielle's motion to appoint a custody investigator, Judge Link explained that "there is sufficient information in the file to determine the custody and visitation issues raised in the cross-motions to modify custody." With regard to the custody order, the court made no findings and gave no explanation.

III. DISCUSSION

A. It Was Error to Modify the Parties' Custody Arrangement Without Conducting an Evidentiary Hearing.

Danielle argues that under this court's precedent she has a constitutional due process right to be heard prior to the issuance of a custody order. She cites Walker v. Walker for the proposition that an opposed custody modification may not be granted without an evidentiary hearing.[3] In Walker, a father moved for modification of a custody agreement which originally provided the mother with primary physical custody and was modified to provide the father with physical custody during one specified school year.[4] After the mother submitted an affidavit opposing the father's motion and contesting his factual assertions, the superior court granted the father's request to modify the agreement to provide him with legal and physical custody with visitation rights in the mother.[5] We reversed, holding that "[t]he superior court is not permitted to grant an opposed motion to modify custody without holding a hearing."[6]

Leif contends that Danielle waived her right to a hearing by failing to request one as required by Civil Rule 77(e)(1).

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Bluebook (online)
27 P.3d 757, 2001 Alas. LEXIS 101, 2001 WL 898601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dd-v-lah-alaska-2001.