Siekawitch v. Siekawitch

956 P.2d 447, 1998 Alas. LEXIS 68, 1998 WL 164793
CourtAlaska Supreme Court
DecidedApril 10, 1998
DocketS-8233
StatusPublished
Cited by49 cases

This text of 956 P.2d 447 (Siekawitch v. Siekawitch) 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
Siekawitch v. Siekawitch, 956 P.2d 447, 1998 Alas. LEXIS 68, 1998 WL 164793 (Ala. 1998).

Opinion

OPINION

FABE, Justice.

I. INTRODUCTION

This appeal arises out of a dispute between Daniel and Amy Siekawitch over the custody of their two children. The parties filed a petition for dissolution of marriage in which they agreed that Daniel would have physical custody and that they would amicably arrange for visitation. Their subsequent efforts to agree upon a visitation schedule failed, and Amy moved for a “Specific Physical Custody Schedule.” Following a hearing, the superior court ordered the parties to share physical custody equally. Daniel appeals on three grounds. First, he argues that the superior court violated his due process rights by failing to provide him with notice of its intention to modify physical custody. Second, he argues that the superior court erred by failing to find a change in circumstances sufficient to modify custody. Finally, he argues that the superior court erred by failing to consider the proper statutory criteria in determining the best interests of the children. We affirm.

II. FACTS AND PROCEEDINGS

Daniel and Amy Siekawitch married in 1987. They separated for the final time in October 1994 and were divorced by decree of dissolution of marriage in July 1995. They are the parents of two children, ages two and four at the time of the divorce. In their dissolution petition, Daniel and Amy agreed that they would be awarded joint legal custody and that Daniel would be awarded physical custody of the children. They checked the box on the form petition for dissolution that states, “[w]e do not want to state specific visitation times here. We agree that we will be able to amicably decide in the future on reasonable visitation times.”

After their separation in October 1994, Daniel and Amy lived with their respective *449 parents. The children lived with Daniel during the week and with Amy during the weekend. Amy enrolled in Alaska Computer Institute, graduated in April 1995, and was employed several weeks later. By October Amy had moved into her own home and sought additional time with the children. According to Amy, Daniel was not receptive to this idea.

Daniel and Amy sought to mediate their dispute over the course of several months. The mediation was unsuccessful, and Amy filed a “Motion for Specific Physical Custody Schedule.” Superior Court Judge Michael L. Wolverton granted the motion, deeming it a “Motion for Specific Visitation Schedule,” and ordered each party to file a proposed visitation schedule. Amy proposed alternating week visitation during the school year and alternating two-week periods during the summer. Daniel proposed that Amy have visitation three weekends per month and one night per week during the school year, and alternate weekends and one week per month during the summer.

Daniel then moved for an evidentiary hearing, which was held in April 1997. Following the hearing, the court announced that it had “come to a visitation schedule or shared custody schedule” that was different than either party’s proposal. Under the superior court’s schedule, each parent was to have the children approximately fifty percent of the time. Amy was awarded physical custody of the children from Thursday evening until Monday morning three weeks in a row and from Thursday evening until Saturday morning of the fourth week. Daniel was to have custody of the children during the remaining times. Daniel filed a motion for reconsideration, which the trial court denied. This appeal followed.

III. DISCUSSION

A Standard of Review

We set forth the proper standard of review in Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997):

The superior court is vested with broad discretion in determining child custody. The superior court’s custody determination will not be set aside unless the record shows that its controlling findings of fact are clearly erroneous or the court abused its discretion. A finding of fact is clearly erroneous only when a review of the record leaves the court with a definite and firm conviction that the superior court has made a mistake. An abuse of discretion has occurred if the superior court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others.

Id. at 134 (citations omitted).

B. Due Process

Daniel argues that the superior court failed to provide him with notice of its intention to modify custody. He maintains that he believed the sole purpose of the hearing was to establish a visitation schedule, and that he was therefore denied the opportunity to call witnesses and present evidence on the issue of physical custody. He contends that this denial constituted a violation of his right to due process under the Alaska Constitution. 1

Under the Alaska Constitution, procedural due process 2 requires that a party be afforded “notice and opportunity for a hearing appropriate to the nature of the case.” Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950)). In a child custody proceeding, the parties are entitled to a hearing that “grants them the opportunity to present the quantum of evidence needed to make an informed and principled determination.” Cushing v. Painter, 666 P.2d 1044, *450 1046 (Alaska 1983); accord, Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska 1997). We have previously held that a parent’s right to due process was violated where she was denied adequate notice of the potential custodial consequences of a hearing. See Cushing, 666 P.2d at 1046 (holding due process violated where court reached permanent custody decision after a hearing held for the limited purpose of determining interim custody for the impending school year).

In this case, however, Daniel had notice that Amy sought equal time with the children. First, Amy proposed that the parties have equal time in her memorandum in support of her motion for a specific custody schedule, in her reply to Daniel’s opposition to the motion, and in her proposed visitation order. Amy reiterated this proposal in her testimony at the hearing. 3 Second, the record discloses that Daniel was aware of Amy’s intentions; in his opposition to Amy’s motion, he expressly acknowledged that Amy sought to share physical custody equally with him.

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Bluebook (online)
956 P.2d 447, 1998 Alas. LEXIS 68, 1998 WL 164793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siekawitch-v-siekawitch-alaska-1998.