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Siekawitch v. Siekawitch (4/10/98), 956 P 2d 447


     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

DANIEL S. SIEKAWITCH,         )
                              )    Supreme Court No. S-8233
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-95-4803 CI
                              )
AMY SIEKAWITCH,               )    O P I N I O N
                              )
             Appellee.        )    [No. 4966 - April 10, 1998]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.


          Appearances: Dan Allan, Law Office of Dan
Allan, Anchorage, and Colleen Baxter, Ross & Miner, Anchorage, for
Appellant.  Kathryn M. Coleman, Law Office of Kathryn M. Coleman,
Anchorage, for Appellee.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          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 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. [Fn. 1]
          Under the Alaska Constitution, procedural due process
[Fn. 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
(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, 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. [Fn. 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.  Furthermore,
Daniel's counsel questioned Amy about her proposed "week on, week
off"visitation schedule, [Fn. 4] and commented in his closing
statement that she sought "shared physical custody."[Fn. 5]  In
fact, at oral argument before this court Daniel's counsel conceded
that Daniel "indeed had notice"of Amy's intentions.  Although
there may have been confusion about whether to characterize the
time that Amy sought with the children as visitation or physical
custody, [Fn. 6] the record discloses that Daniel had notice at the
time of the hearing that she sought equal time.  In light of these
facts, we conclude that Daniel's right to due process was not
violated.
     C.   Change of Circumstances
          Daniel argues that Amy did not allege or prove a
substantial change of circumstances and that the court "did not
provide justification for modification of custody."  Assuming
arguendo that Amy sought to modify physical custody, AS
25.20.110(a) governed the superior court's decision.  This statute
provides that child custody "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."  AS 25.20.110(a).  The noncustodial parent bears the burden
of establishing that a change of circumstances has occurred.  See
Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990).  A court
may also find a change of circumstances on its own motion.  See
T.M.C. v. S.A.C., 858 P.2d 315, 318-19 & n.1 (Alaska 1993).  
          In their petition for dissolution, Daniel and Amy agreed
that Daniel would have "physical custody"of the children.  By
placing Daniel's name on the dissolution form as the parent having
"physical custody,"they apparently intended that Daniel would have
primary physical custody of the children, with the specifics of a
mutually agreeable visitation arrangement to be worked out later.
[Fn. 7]  Beyond this general agreement, however, Daniel and Amy did
not specify any terms of a visitation schedule.  Rather, they
stated that "we will be able to amicably decide in the future on
reasonable visitation times."  This shared belief in their ability
to agree upon a visitation schedule was a fundamental premise upon
which their agreement was based.  When efforts to agree upon a
visitation schedule failed, they were without guidance as to how to
divide time with the children.  Under these circumstances, their
inability to agree upon how the children's time would be divided
between them represented a change from their original agreement and
thus warranted the superior court's re-examination of the physical
custody arrangement. [Fn. 8]
     D.   Best Interests of the Children
          Daniel argues that "there is no evidence in the record
that the trial court properly considered any of the statutory
requirements"in making its custody determination.
          Custody determinations must be made in accordance with
the best interests of the child.  See AS 25.24.150(c).  "We review
alleged inadequacy of a trial court's fact findings to determine
whether they give a clear indication of the factors considered
important by the trial court or allow us to determine from the
record what considerations were involved."  Borchgrevink v.
Borchgrevink, 941 P.2d 132, 137 (Alaska 1997) (citing Bird v.
Starkey, 914 P.2d 1246, 1249 n.4 (Alaska 1996)).  In Borchgrevink,
the trial court did not expressly refer to AS 25.24.150(c) in
making its findings.  We nonetheless concluded that the trial
court's findings adequately revealed its reasoning process as they
provided a clear indication of the factors the court found
important.  See id. at 137.
          We are presented with a similar situation here.  Although
the superior court did not expressly refer to AS 25.24.150(c) in
its findings, it did address the pertinent statutory factors.  The
court found that "[b]oth parties are committed and caring parents
capable and willing to meet the children's needs."  See AS
25.24.150(c)(2).  The court explained that its visitation schedule
would not cause "disruption"in the children's lives and emphasized
the importance of stability.  See AS 25.24.150(c)(1), (5).  It
further found that its schedule "will keep the children from being
away from either parent for significant blocks of time."  See AS
25.24.150(c)(5).  We conclude that these findings are sufficient to
reveal the court's reasoning and indicate that the court considered
the relevant statutory criteria in devising its custody schedule.
[Fn. 9] 
IV.  CONCLUSION
          The decision of the superior court is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     He further contends that he "might well have requested the
appointment of a child custody investigator and/or a Guardian ad
Litem"had he known the court was considering custody modification.


Footnote 2:

     Article I, section 7 of the Constitution of the State of
Alaska provides in part:

          Due Process.  No person shall be deprived of
life, liberty or property without due process of law.


Footnote 3:

     Amy's testimony included the following exchange with her
counsel:

          Q:   What is the schedule that you believe is
in the children's best interests?

          A:   A week on, week off schedule.

               . . . .

          Q:   Is this your proposal for a year-around
or is this school year or summer time?

          A:   For school year.  During the summer, I'll
make the -- the two weeks; two week on, two week off schedule.


Footnote 4:

          Amy's testimony included the following exchange with
Daniel's counsel:

          Q:   And you said that you think it's in the
best interest of the children that you have week on, week off
during the school year and two weeks on and two weeks off during
the summer time because you want to be a pro-active parent?

          A:   That is correct.

          Q:   You feel that you can't be that active in
their lives unless that's the type of visitation schedule you have?

          A:   It is very hard to do that . . . .


Footnote 5:

     In his closing statement, Daniel's counsel observed that
"[t]hey're still seeking to change physical custody to shared
physical custody, week on, week off.  That's shared physical
custody.  That's not a visitation schedule."  At no point in the
hearing, however, did Daniel indicate that he would present
different or additional argument or evidence if the court chose to
adopt Amy's proposal or any other custody schedule.  Furthermore,
his arguments that Amy failed to show a sufficient change of
circumstances and that the court must look to the children's best
interests suggest that his approach would have been similar whether
the hearing was to determine visitation or custody.


Footnote 6:

     To the extent that both terms refer to the time a parent
spends with a child, the distinction may be more semantic than
substantive.  At oral argument, for example, Daniel's counsel
conceded that a shared custody arrangement with a sixty-five
percent - thirty-five percent division of the children's time
between the parties would be "acceptable as a visitation schedule
. . . as long as, of course, it was in the best interests of the
children."


Footnote 7:

     We note that had the dissolution form reflected an agreement
by the parties to joint physical custody, their dispute would
merely be over establishing visitation rather than modifying
custody.  In such a case, no change of circumstances would be
necessary.


Footnote 8:

     We note that Amy's substantial lifestyle changes subsequent to
the divorce, including her move out of her parents' home and into
her own residence, and her employment after graduation from school,
also represent a change of circumstances in this case.  See, e.g.,
Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990) (holding
that in the aggregate, parent's maturation, changed marital status,
employment, and control of drinking problem constituted a
substantial change in circumstances).


Footnote 9:

     There was no need for the court to consider the preferences of
the children, as they are not of sufficient age.  See AS
25.24.150(c)(3); Borchgrevink v. Borchgrevink, 941 P.2d 132, 138
(Alaska 1997) (affirming a finding that nine year old's expression
of preference could be discounted).  The love and affection
existing between the children and each parent was undisputed.  See
AS 25.24.150(c)(4).  There was no evidence of domestic violence or
substance abuse.  See AS 25.24.150(c)(7), (8).  By ordering a more
equal division of time with the children, the court addressed Amy's
concern that Daniel interfered with her ability to engage in a
frequent relationship with the children.  See AS 25.24.150(c)(6).