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L.H. v. Y.M. (5/15/98), 961 P 2d 414
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
) Supreme Court No. S-7604
) Superior Court No.
v. ) 4FA-90-2234 CI
Y.M., ) O P I N I O N
Appellee. ) [No. 4986 - May 15, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Edward R. Niewohner, Shauna F.
Morris, Niewohner & Wright, P.C., Fairbanks, for Appellant. Donna
M. Meyers, Delaney, Wiles, Hayes, Gerety & Ellis, Inc., Anchorage,
Before: Compton, Chief Justice, Matthews,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]
In a prior custody proceeding, L.H. was barred from
visiting his young daughter R.H. after his older daughter C.C.
accused him of past sexual abuse. In the present case, L.H. moved
to modify the prior custody order, claiming that C.C. has recanted
her accusation. The superior court denied L.H.'s motion because of
his continuing refusal to produce psychological records that the
court ordered produced in the prior proceeding. L.H. claims that
he is being impermissibly punished for asserting his constitutional
right against self-incrimination. Because L.H. did not preserve
his self-incrimination claim in the prior proceeding or assert it
before the superior court in the current proceeding, we reject it
L.H. and Y.M. were divorced in 1992 after an eight-year
marriage. Y.M. was awarded legal and physical custody of their
daughter, R.H., who was then five years old. The custody order
gave L.H. frequent visitation. In 1993 Y.M. moved to change the
custody order by indefinitely suspending L.H.'s unsupervised
visitation rights. Y.M.'s motion was based on an accusation by
C.C., L.H.'s seventeen-year-old daughter by a prior marriage, who
stated that L.H. had sexually molested her when she was growing up
and that she feared that he would begin sexually molesting R.H.
After filing the modification motion, Y.M. sent L.H. a
discovery request asking him to list all mental health
professionals he had consulted in connection with Y.M.'s motion and
to produce copies of their reports. Over the following months,
L.H. ignored or resisted Y.M.'s discovery efforts and violated
court orders seeking to enforce them.
Based on L.H.'s failure to comply with the court's
discovery orders, Superior Court Judge Richard D. Savell eventually
found that L.H. had waived any objection to production of the
requested psychological records; the judge established a final
deadline for their production. After L.H. ignored the deadline,
Y.M. moved for sanctions. L.H. objected, asserting for the first
time his privilege against self-incrimination. The court
nevertheless granted Y.M.'s motion for sanctions, modifying the
custody decree by terminating L.H.'s right to unsupervised
visitation with R.H.
L.H. did not appeal this order. More than a year later,
however, he moved to change custody, requesting sole legal and
physical custody of R.H. L.H. based his motion chiefly on an
affidavit from his older daughter, C.C., recanting her past
allegations of sexual abuse.
In her opposition to L.H.'s motion, Y.M. disputed the
truthfulness of C.C.'s recantation and urged the court to deny
modification because of L.H.'s continued failure to produce his
psychological records. Y.M. argued:
The defendant still has not complied with
the court's order compelling discovery. The subject matter of the
discovery request goes to the heart of the matter involved in both
the plaintiff's earlier motion to modify visitation and the
defendant's present motion to change custody -- whether [L.H.]
sexually abused his daughter [C.C.]. The defendant should not be
permitted to use the court to achieve his own ends while in
flagrant disobedience of this court's discovery orders.
The superior court agreed with this argument. After a
detailed review of the case's history, the court pointed out that
"the pivotal question"at issue was whether L.H. had in fact
sexually abused C.C., thereby making it reasonable to fear that he
would pose a risk to his younger daughter R.H. The court found
that the veracity of C.C.'s conflicting stories could not be
decided without delving into the issues presented in Y.M.'s earlier
motion to terminate L.H.'s visitation rights and that, accordingly,
L.H.'s "psychological makeup is at issue." For this reason, the
court rejected L.H.'s claim that production of his psychological
records was irrelevant to his current claim of recantation.
Based on L.H.'s continuing failure to produce his
psychological records, the court denied his motion to change
custody, declining to hear his allegations of C.C.'s recantation
"[u]nless and until [L.H.] either complies [with the prior
production orders] or obtains relief from an appellate court."
L.H. unsuccessfully moved for reconsideration and then filed this
L.H.'s primary argument on appeal may be summarized as
follows: the superior court's original discovery orders required
him to produce potentially incriminating documents, in violation of
his right against self-incrimination; because he remains in
jeopardy of criminal prosecution, the superior court still cannot
lawfully compel him to produce the disputed records; accordingly,
its denial of his motion to change custody based on his continued
failure to produce the records amounts to a constitutional
We accept arguendo L.H.'s premise that Y.M.'s original
discovery requests called upon him to produce incriminatory
information as to which he had a valid claim of constitutional
privilege. [Fn. 1] We nevertheless reject L.H.'s claim of
constitutional infringement for several case-specific reasons.
First, it is clear from the record that the superior
court entered its original order denying L.H. unsupervised
visitation with R.H., not as punishment for asserting his
constitutional privilege, but rather as a sanction for his
persistent and unexplained disregard of the court's discovery
orders. That L.H. may have had a valid claim of privilege neither
explains nor justifies his repeated failure to assert that claim in
a timely manner in response to orders compelling him to produce the
disputed records. Nor does it explain or justify his complete
disregard of a court order establishing a specific procedure to
determine if he had any valid privileges to assert or any other
legitimate basis for resisting production.
L.H.'s belated claim of constitutional privilege -- a
claim first mentioned after the superior court had already found
that L.H.'s disregard of its discovery orders amounted to a waiver
of any objections to production, after the court had issued and
L.H. had simply ignored a renewed order to produce, and after the
court had reached the stage of establishing appropriate sanctions
for L.H.'s discovery violations -- did not convert his prior
disobedience into constitutionally protected silence.
Second, as indicated above, by the time the superior
court terminated L.H.'s visitation as a sanction for his failure to
produce his psychological records, the court had already found that
L.H.'s disregard of its prior orders -- particularly its order
seeking to establish L.H.'s basis for resisting discovery --
amounted to a waiver of "any claim that [L.H.'s] expert's report is
privileged." Because L.H. failed to appeal the superior court's
order terminating his unsupervised visitation, the finding of
waiver became final. L.H. is now barred from relitigating the
issue. [Fn. 2]
Third, it is in any event undisputed that the superior
court did not deny L.H.'s change-of-custody motion as punishment
for his past conduct, but rather as a sanction for his present
refusal to produce his records for use in connection with the
current motion. In arguing on appeal that he has a continuing
right to refuse production, L.H. does not contend that the
materials sought by Y.M. are now protected from disclosure by any
privilege other than his privilege against self-incrimination: [Fn.
3] he relies exclusively on the constitutional privilege. Yet in
presenting his motion to change custody to the superior court, L.H.
never asserted this privilege as a basis for his continued
unwillingness to produce his records.
L.H.'s change-of-custody motion made no mention of his
psychological records. His ongoing failure to produce the records
was first raised in the opposition to L.H.'s motion, where Y.M.
urged the court to reject the motion because L.H. had not yet
complied with the court's prior discovery orders. In his reply to
Y.M.'s opposition, L.H. did not mention his privilege against self-
incrimination. He merely claimed that his noncompliance with the
production order was irrelevant to his current motion. [Fn. 4]
The only references to L.H.'s constitutional privilege in
the superior court record occur in his motion for reconsideration
of the superior court's order denying his change-of-custody motion.
After pointing out that L.H. "was under criminal investigations for
alleged sexual assault of his minor daughter"at the time of the
prior custody proceeding, L.H.'s motion for reconsideration
asserts: "If this Court had forced [L.H.] to produce the report it
would have violated his Fifth Amendment Constitutional Right given
the pendency of criminal charges against him at that time." L.H.'s
counsel also assures the court in a footnote that "no report exists
that states with medical certainty that L.H. committed the acts he
is accused of. However, even a . . . nonconclusive [report] . . .
could have been used against him in the criminal investigation."
L.H. concludes his argument for reconsideration by reiterating that
his "failure to comply with this court's discovery order in 1994
was a good faith assertion of his Fifth Amendment privilege."
These references to L.H.'s constitutional privilege are
in the past tense. They allude to his past assertions of the
privilege and attempt to explain and justify his past failure to
produce his records. They do not claim self-incrimination as a
basis for L.H.'s continuing failure to produce. To the contrary,
their wording unmistakably suggests that L.H. no longer stands in
jeopardy of self-incrimination and no longer seeks to claim the
We find no further mention of the constitutional
privilege in the record. While L.H. expressly notes in his motion
for reconsideration that "in the original 1994 action, [he] argued,
and still maintains, that a failure to produce a report under the
provisions of Rule 35 is not a discovery violation that should end
litigation,"he gives no comparable indication of "still
maintaining"an ongoing claim of potential self-incrimination.
In short, before he filed this appeal, L.H. did not claim
the privilege against self-incrimination as a basis for his
continuing failure to produce his records. Having failed to claim
the constitutional privilege below, L.H. cannot raise the claim
here. [Fn. 5]
L.H.'s remaining points on appeal require only brief
attention. L.H. argues that production of his psychological
records is irrelevant to the issue of whether C.C.'s recantation is
truthful; that the superior court's order denying his motion to
change custody failed to take account of the best interests of
R.H.; that the record does not support the imposition of
litigation-ending sanctions; and that his motion to change custody
set forth changed circumstances requiring an evidentiary hearing.
Given the procedural history of this case, however, the
superior court did not abuse its discretion in finding that the
questions raised by C.C.'s recantation were inseparable from those
raised in the prior custody proceeding and that L.H. could not
demand to litigate the truthfulness of C.C.'s conflicting stories
without calling into issue the credibility of his own denials of
past sexual abuse. Thus, the court did not err in ruling that
L.H.'s psychological records remain relevant and that their
production is necessary to ensure a meaningful resolution of L.H.'s
motion to change custody.
As the party moving for modification of custody, L.H.
bears the burden of showing changed circumstances. See S.N.E. v.
R.L.B., 699 P.2d 875, 878 (Alaska 1985). While a party moving to
change custody is ordinarily entitled to a hearing upon alleging
facts that would warrant the proposed change if proved, see Deivert
v. Oseira, 628 P.2d 575, 578 (Alaska 1981), and while L.H.'s motion
alleges facts that might warrant a change if true, L.H.'s refusal
to produce his psychological records effectively establishes his
unwillingness to litigate his allegations fully. In declining to
consider L.H.'s motion to change custody, the superior court did
little more than acknowledge the futility of holding an evidentiary
hearing until L.H. is willing to produce the disputed records. [Fn.
6] The court did not categorically deny L.H.'s motion; it
indicated that the motion would not be considered "unless and
until"L.H. produced his records.
Accordingly, the trial court's order does not amount to
a litigation-ending sanction. Instead, it merely recognizes that,
given L.H.'s current reluctance to disclose relevant evidence, he
cannot succeed in carrying his burden of proving that modifying
custody will best serve R.H.'s interests. [Fn. 7]
The order denying L.H.'s motion to change custody is
We express no view on the issue except to note that, given the
facts of this case, determining the precise scope of L.H.'s
privilege against self-incrimination under the federal and Alaska
constitutions would present difficult questions. Compare, e.g.,
Baltimore City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549
(1990), United States v. Doe, 465 U.S. 605 (1984), Fisher v. United
States, 425 U.S. 391 (1976), and Pratt v. Kirkpatrick, 718 P.2d
962, 965-66 (Alaska 1986), with State v. Summerville, 948 P.2d 469
(Alaska 1997), and Scott v. State, 519 P.2d 774 (Alaska 1974).
See Matter of Pacific Marine Ins. Co., 877 P.2d 264, 267
(Alaska 1994) (explaining requirements for collateral estoppel);
cf. Calhoun v. Greening, 636 P.2d 69, 72-73 & n.4 (Alaska 1981)
(indicating that collateral estoppel may be based on any appealable
Specifically, on appeal L.H. does not dispute Y.M.'s argument
that he waived the attorney-client and attorney work product
privileges during the prior custody proceeding.
On the issue of his continuing failure to produce, L.H.'s
reply to Y.M.'s opposition says only: "For whatever reason he chose
not to comply with this court's prior order, it has no bearing on
the outcome of this motion. This motion is based upon the sole
grounds that the act for which he was limited custody and
visitation . . . has now been acknowledged as untrue."
See, e.g., Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska
1993); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985). Since it is well settled that the constitutional
privilege may be lost through lack of assertion, see Minnesota v.
Murphy, 465 U.S. 420, 427 (1984), and that the claimant of the
privilege has the burden of establishing some "real or substantial
hazard of incrimination,"E.L.L. v. State, 572 P.2d 786, 788
(Alaska 1977), there is no plain error here.
The futility of a hearing is apparent not only as to L.H.'s
primary ground for changing custody -- C.C.'s recantation -- but
also as to the alternative grounds asserted by L.H. in his motion
to change custody -- principally Y.M.'s recent change of residence.
L.H.'s secondary grounds obviously would not support an award of
custody to L.H. unless the court first determined that he had not
sexually abused C.C. and therefore posed no ongoing risk to R.H.
Our ruling makes it unnecessary to decide L.H.'s claim that
the superior court erred in considering the affidavit of Janna