House v. House

779 P.2d 1204, 1989 Alas. LEXIS 115, 1989 WL 105533
CourtAlaska Supreme Court
DecidedSeptember 8, 1989
DocketS-2882
StatusPublished
Cited by57 cases

This text of 779 P.2d 1204 (House v. House) 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
House v. House, 779 P.2d 1204, 1989 Alas. LEXIS 115, 1989 WL 105533 (Ala. 1989).

Opinions

OPINION

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ'.

MOORE, Justice.

This child custody case concerns the children of Patricia and Patrick House. Patrick now has custody of the parties’ two children, and he intends to move with them to California. Patricia requested a change of custody which the superior court denied. The issues on appeal are whether the superior court erred in denying a request for continuance and whether the court erred in finding that Patricia did not present sufficient evidence to justify a change in custody.

I.

Patricia and Patrick House were married in Décember of 1979 and divorced on February 2, 1984. The marriage produced two children: Diana, bom January 11,1980 and Kyle, bom May 28, 1982. In the divorce proceeding, Patrick defaulted and the court awarded Patricia custody of both children. In 1984, Patricia was ill and unable to care for the children. As a result, on February 20, 1985, the parties agreed to have the decree amended to make Patrick the “main custodial parent” of the children and to give Patricia custody for 30 days during each summer.

In November of 1987, Patrick informed Patricia that he and his new wife intended to move with the children to California. Patricia then requested the court to return primary custody of the children to her. In Patricia’s memorandum to support her motion, she claimed that Patrick’s custody of the children was intended to be temporary while she recovered from her drug addiction and financial difficulties. She presented the court with a financial declaration [1206]*1206indicating that she currently earned $700 per month through her employment.

On May 31, 1988, a hearing was held before Master Lucinda McBurney. Kathy Yeotis, the custody investigator who had been assigned to the case, testified that her investigation as to the change of custody motion was not complete. Nevertheless, Master McBurney recommended that 1) Patricia have summer visitation rights of one month, 2) a Change of Custody Hearing be held before Superior Court Judge Carlson on June 22, 1988, and 3) Patrick be permitted to remove the children from Alaska pending resolution of the change of custody if the issue was not resolved on June 22, 1988.

Patricia moved on June 21 to continue the June 22 hearing. She claimed that she needed access to the children’s school records, needed to have psychological examinations of all parties conducted, and needed 10 days within which to review the child custody investigator’s report, which was not complete at the time. On June 22, 1988, Judge Carlson denied the motion and conducted the hearing. After hearing from Patricia, Patrick’s attorney and the child custody investigator, the superior court held that primary physical custody would remain with Patrick. Patricia was granted eight weeks of visitation each summer and ordered to pay child support of $40 per month per child. Patrick was awarded $250 in attorney’s fees as the prevailing party. Patricia appeals.

II.

Patricia argues that her due process rights were violated because she did not have adequate notice and time to prepare for the hearing.1 She contends that the pretrial order clearly states that no hearing would be scheduled until after the custody investigator’s report was filed and made available to the parties, unless emergency or extraordinary circumstances prevented it. Judge Carlson denied Patricia’s motion to continue the hearing without stating a reason.

This court will not disturb a trial court’s refusal to grant a continuance unless an abuse of discretion is demonstrated. Gregoire v. National Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966); see also Sanguinetti v. Sanguinetti, 628 P.2d 913, 916 n. 3 (Alaska 1981). An abuse of discretion exists when a party has been “deprived of a substantial right or seriously prejudiced by the lower court’s ruling.” Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973).

We agree with Patricia that the superior court did not follow the pretrial order. The order states on page 3:

7. Child Custody Determination.
All motions seeking a determination of child custody shall be referred to the court custody investigator when it is known that the motion is at issue.... No hearing shall be calendared or heard, absent emergency circumstances or other justification, until completion of the investigation.

(Emphasis added). Here, the hearing was scheduled despite the undisputed fact that the investigation was not complete. However, the investigation was completed by the time the hearing took place, and the investigator’s testimony was considered by the superior court. Although she did not have a written copy of the report before the hearing, Patricia had opportunity at the hearing to contest the investigator’s findings. She has not presented evidence establishing any prejudice she may have suffered as a result of the court’s refusal to continue the hearing.

Furthermore, we think Patricia had adequate time to prepare for the hearing. She moved to modify the amended divorce decree on May 3, 1988. On June 9, she was given actual notice of the date of the hearing. The hearing was held on June 22, 1988. She thus had from May 3 to June 22 [1207]*1207to pursue psychiatric examinations of the children; she was not required to wait for the investigator’s approval.

Patricia has not shown that the court’s failure to postpone the June 22 hearing has deprived her of a substantial right or caused her serious prejudice. Patricia’s right to seek custody of her children is a substantial one which the courts strive to protect, but this court will not lightly overturn a lower court’s decision which was based on a review of all the relevant evidence and in which the complaining party had reasonable opportunity in court to introduce evidence and contest the other side’s evidence. Inability to mount a successful case does not mean that due process was violated or that an abuse of discretion occurred. We thus hold that Judge Carlson did not abuse his discretion in denying Patricia’s motion to continue the hearing.

III.

Patricia argues that the court failed to consider the statutory criteria for awarding child custody2 by failing to conduct an examination into the children’s preferences and their emotional and mental needs. The superior court concluded:

Plaintiff has submitted insufficient evidence of any changed circumstances in the present custodial arrangements likely to be detrimental to the children so as to warrant any change of custody. The recommendation of the custody investigator that primary physical custody of the parties’ two minor children continue with the Defendant is adopted by the Court.

(Emphasis added).

This court will only disturb the trial court’s resolution of custody issues “if the record shows an abuse of discretion or if controlling findings of fact are clearly erroneous.” Faro v. Faro, 579 P.2d 1377, 1379 (Alaska 1978).

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Cite This Page — Counsel Stack

Bluebook (online)
779 P.2d 1204, 1989 Alas. LEXIS 115, 1989 WL 105533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/house-v-house-alaska-1989.