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Morino v. Swayman (1/15/99), 970 P 2d 426


     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
                                 


PAUL THOMAS MORINO,           )
                              )    Supreme Court No. S-8331
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-95-04509 CI
                              )
ANNE ELIZABETH SWAYMAN,       )    O P I N I O N
                              )
             Appellee.        )    [No. 5064 - January 15, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances: William T. Ford, Anchorage, for
Appellant.  Steven Pradell, Anchorage, for Appellee.


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


          MATTHEWS, Chief Justice.
          FABE, Justice, with whom BRYNER, Justice,
joins, dissenting.


I.   INTRODUCTION
          Paul Morino filed a motion in superior court to modify a
court-approved visitation schedule to allow him an additional
overnight visitation per week with his children.  He appeals the
superior court's denial of his motion and its award of $1,370 in
attorney's fees to Anne Swayman, the children's mother.  The court
denied Morino's motion without a hearing, ruling that Morino had
failed to demonstrate a substantial change in circumstances.  It
also awarded Swayman her actual attorney's fees because Morino's
financial resources were greater than Swayman's and because the
court found that his motion was not filed in good faith.  We
conclude that the court should have held a hearing on Morino's
motion to modify. 
II.  FACTS AND PROCEEDINGS
          Paul Morino and Anne Swayman were divorced on February
12, 1996.  They have two young children of the marriage.
          During the divorce proceedings, Morino and Swayman signed
a "Custody, Visitation, and Child Support Agreement."  The agree-

ment provided that Swayman would have sole legal custody of both
children.  Morino would have two consecutive overnight visitations
per week, one three-hour evening visitation mid-week, and summer
and holiday visitation.  The agreement also provided that beginning
on September 1, 1999, the parties would change the visitation to a
50/50 visitation schedule by which they would rotate custody on a
weekly basis.  The superior court incorporated the agreement into
the divorce order, finding that the custody and visitation
agreement was in the best interests of the children.
          On July 25, 1997, Morino filed a motion to modify
visitation to allow him three consecutive overnight visitations per
week, and also filed an accompanying motion requesting a hearing. 
He affied that from September 1996 until late June 1997, he had
visitation with the children for three overnights per week pursuant
to an informal agreement with Swayman.  He also affied that in
early June, he had asked Swayman to sign a stipulation to formally
change the visitation schedule to reflect the actual visitation. 
Approximately two weeks later, however, Swayman informed him that
she would not agree to the modification, and would instead return
to the original visitation schedule because she felt the
modification was not in the children's best interests.
          Morino argued that the parties' informal agreement to
modify the visitation schedule and the ten-month period when the
visitation had actually changed was a substantial change in
circumstances and that it was in the best interests of the children
to continue with the modified schedule.  Swayman opposed the
motion, arguing that she had merely tried to accommodate extra
visitation, but had not agreed to a formal modification of the
visitation order.  She argued that Morino had failed to demonstrate
a substantial change in circumstances entitling him to an
evidentiary hearing and increased visitation would not be in the
children's best interests.
          The superior court denied Morino's motions without a
hearing, holding that Morino failed to show a change in
circumstances.  It also denied Morino's motion for reconsideration,
emphasizing that an informal accommodation in visitation is not a
changed circumstance, because such a result would discourage
custodial parents from allowing favorable deviations from
visitation agreements.
          Swayman then moved for actual attorney's fees under AS
25.20.115.  The court awarded her $1,370 in actual attorney's fees,
finding that Morino's relative financial resources were clearly
greater than Swayman's and that Morino's motion was "vexatious and
not in good faith." 
          Morino appeals the superior court's denial of his motion
to modify visitation, as well as the award of actual attorney's
fees to Swayman. 
III. DISCUSSION

     The Superior Court Should Have Conducted a Hearing Because
     Morino Alleged Facts Which Could Have Justified a Modification

          Reasoning that Morino had failed to demonstrate a
substantial change in circumstances, the superior court denied
Morino's motion to modify visitation and denied his motion for a
hearing.  Morino argues that the court erred in failing to hold an
evidentiary hearing because the agreement with Swayman to modify
the visitation schedule constituted a substantial change in
circumstances. 
          A trial court may modify a visitation award if it
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 parent moving for
modification has the burden of proving a substantial change in
circumstances as a threshold matter.  See Long v. Long, 816 P.2d
145, 150 (Alaska 1991).  The change in circumstances required to
modify visitation, though, is not as great as that required for a
change in custody.  See Carter v. Brodrick, 816 P.2d 202, 204
(Alaska 1991). 
          A movant who demonstrates a change in circumstances is
entitled to an evidentiary hearing to determine whether the
modified visitation would be in the child's best interests.  See
A.H. v. W.P., 896 P.2d 240, 244 (Alaska 1995).  However, a trial
court is not required to grant a hearing on a modification motion
if it is "plain that the facts alleged in the moving papers, even
if established, would not warrant a change."  Deivert v. Oseira,
628 P.2d 575, 578 (Alaska 1981).  We recently clarified that the
question of whether the moving party has met its burden of
demonstrating a change in circumstances so as to be entitled to an
evidentiary hearing is a matter of law which we review de novo. 
See C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998).  Thus if a
trial court denies a motion to modify visitation without a hearing,
"[w]e will affirm if, in our independent judgment, the facts
alleged, even if proved, cannot warrant modification, or if the
allegations are so general or conclusory, and so convincingly
refuted by competent evidence, as to create no genuine issue of
material fact requiring a hearing."  Id.  
          Because the superior court denied Morino's motion to
modify visitation without a hearing, the issue is whether Morino
alleged facts that, taken as true, could warrant modification. 
Morino presented the following in support of his motion.  He affied
that beginning in September of 1996 Swayman consented to his
keeping the children overnight on his mid-week visitation instead
of just visiting with them for three hours pursuant to the
visitation order.  Morino also affied that he subsequently began
keeping the children for three consecutive overnights, which
replaced his mid-week visitation.  Swayman agreed to this change in
a letter to Morino.  She wrote:
               Starting Thursday, February 6, 1997,
you'll have the kiddos from 6:00 p.m. until Sunday at 12:00 p.m. 
This will give us the same schedule with them without breaking up
their routine as much.

Morino argued that it was in the best interest of the children to
continue with this schedule, that the children benefitted from the
increased time which they spent with him, that the informal
agreement to the schedule "demonstrates that such a scheme meets
the children's mental, emotional and social needs,"and that the
schedule "is easier on the children because it involves fewer
change-overs."  In response to Swayman's opposition, Morino
contended that since the new visitation arrangement had been in
place since September of 1996 another change would be destabilizing
and contrary to the children's best interests.  Further he
contended that the children while in his custody were nurtured in
a placid and stable home life while, by contrast, in Swayman's
household they were exposed to considerable domestic strife.
          Morino argues that the informal agreement and de facto
change in the visitation schedule constitute a substantial change
in circumstances which entitles him to an evidentiary hearing.  It
is uncontested that the parties informally agreed to modify the
visitation schedule.  For a ten-month period the informal agreement
effectively substituted one additional overnight visitation per
week for Morino's three-hour mid-week visitation.  The original
visitation schedule had only been in effect for seven months before
this change in visitation.  Arguably, this substitution could be
regarded as a substantial change from the original visitation
schedule. 
          Custodial parents should have the flexibility to experi-

ment with new visitation schedules without fearing that every
temporary change could be the basis for modifying visitation.  See
Gaston v. Gaston, 954 P.2d 572, 574 n.4 (Alaska 1998) ("Alaska's
family law encourages custodial parents to be flexible in
experimenting with visitation schedules, and in most cases parents
should feel free to end such experiments if they conclude that they
are not working.").  As noted by the superior court, if temporary
variations in visitation schedules always constituted a substantial
change in circumstances, primary custodians would be discouraged
from allowing any favorable deviation from the visitation order.
          Nonetheless, at some point, informal or de facto
modifications of custodial or visitation arrangements should be
formalized.  Child support amounts and the number of visitation
days allotted to the non-custodial parent are interdependent under
Civil Rule 90.3(a) and (b).  A premise of the rule is that it is in
the best interests of the children that child support amounts bear
a prescribed relationship to the time the children spend with each
parent.  But this can only be accomplished where the decree
reflects actual practice.  Thus, justice is best served if the
child support amount reflects the actual responsibilities and
burdens of the parties. [Fn. 1]
          A de facto change with respect to the custody of a child
may be a change of circumstances for the purpose of changing a
custodial decree. [Fn. 2]  It follows that a de facto change with
respect to visitation of a child may be a change of circumstances
for the purpose of modifying decreed visitation.  Of course,
experimental changes lasting only a few months should not qualify
as a change in circumstances.  Just as surely, de facto changes of
a lengthy duration, especially when they are such as to change
child support payments when given de jure status, should qualify. 

          It is a fair question whether the interests of
flexibility and experimentation are outweighed by the interest in
formalizing a de facto change in this case.  We are unable to say
as required by Deivert that it is "plain that the facts alleged
. . . would not warrant a change."  628 P.2d at 578.  Nor can we
say, to use the terms of C.R.B., that "the facts alleged . . .
cannot warrant modification."  959 P.2d at 378.  Instead, we have
what appears to be a case where the facts as alleged may or may not
warrant modification. [Fn. 3]  An exercise of the trial court's
judgment is required.  That judgment should be exercised by a fully
informed trial court judge after the parties have an opportunity to
make their presentations at an evidentiary hearing.
          Our disposition in this case concerning the need for a
hearing on Morino's motion for modification requires that the
court's award of attorney's fees be vacated.
IV.  CONCLUSION
          For the reasons stated, the orders denying Morino's
motion to modify and granting an award of attorney's fees to
Swayman are VACATED and this case is REMANDED for further
proceedings consistent with this opinion.

FABE, Justice, with whom BRYNER, Justice joins, dissenting.
I.   INTRODUCTION
          I disagree with the court's conclusion that Paul Morino
alleged facts sufficient to require a modification hearing.  Our
decision in Gaston v. Gaston [Fn. 1] clearly suggests that a minor
visitation change of one day per week, in place for ten months, is
not a substantial change of circumstances that would entitle a
movant to a hearing.  Additionally, the court's ruling runs
contrary to the goals of Alaska's family law by discouraging
parties from amicably resolving disputes through experimentation
with informal visitation agreements.  For these reasons, I
respectfully dissent.  
II.  DISCUSSION
     A.   Morino Did Not Allege a Substantial Change of
Circumstances Sufficient to Justify a Modification Hearing.
          As the court points out, we should affirm the denial of
a visitation modification hearing when "the facts alleged, even if
proved, cannot warrant modification . . . or . . . are so general
or conclusory . . . as to create no genuine issue of material
fact."[Fn. 2] The court also acknowledges that a movant, in order
to be entitled to such a hearing, must allege both a change in
circumstances and that the change affects the best interests of the
child. [Fn. 3]  Although I agree with this two-pronged test for
entitlement to a hearing, I disagree with the court's ultimate
conclusion that Morino demonstrated a substantial change of
circumstances.  
          The change in circumstances that Morino alleges here is
the experimental visitation arrangement itself. [Fn. 4]  In holding
that such an arrangement does constitute a substantial change of
circumstances, the court reasons that, "at some point, informal or
de facto modifications . . . should be formalized."[Fn. 5]  But
the court does not define this threshold, except to say that
"experimental changes lasting only a few months should not qualify
as a change in circumstances,"whereas changes of a "lengthy
duration, especially when they are such as to change child support
payments when given de jure status, should qualify."[Fn. 6]  By
using such language, the court implies that changes lasting for
more than "a few months"should automatically be considered of
sufficient duration to trigger a modification hearing.  Such a
standard would be undesirable for several reasons.
          First, such a rule would be inconsistent with our recent
opinion in Gaston v. Gaston. [Fn. 7]  In that case, the parents
signed a custody agreement allowing them to change the arrangement
after one year and providing for automatic mediation in case of
disagreement. [Fn. 8]  Nine months into the agreement, the Gastons
adopted an informal modified visitation schedule, much like the one
in this case.  When the mother wanted to end the arrangement one
year later, the father disagreed and sought mediation.  We upheld
his right to mediation under the original agreement. [Fn. 9]  
          In footnote 4 of Gaston, after describing the policy of
Alaska's family law favoring out-of-court dispute resolution, we
suggested that, but for the unique facts of the case, we would not
have allowed the moving parent to come back into court: 
          Alaska's family law encourages custodial
parents to be flexible in experimenting with visitation schedules,
and in most cases parents should feel free to end such experiments
if they conclude that they are not working. . . . Our decision in
this case that Susan should not be able to revoke her agreement to
a change in the visitation schedule without entering mediation is
based on the unique language of the custody agreement she and
Samuel signed.[ [Fn. 10]]
This language indicates our recognition that a one-year -- and, by
implication, a ten-month -- de facto change in visitation that is
minor in nature would not constitute a substantial change of
circumstances sufficient to trigger a modification hearing. 
Although we did not have occasion in Gaston to reach the change of
circumstances issue, the court today offers no reason for sending
a conflicting message by setting the threshold duration at "a few
months"rather than at least one year.
          Second, the court conflates two different legal standards
by stating that a material change sufficient to modify child
support should also qualify as a substantial change sufficient to
modify custody or visitation. [Fn. 11]  Whereas determination of a
material change under Rule 90.3 calls for a straightforward
assessment of changes in the parties' financial status or support
burden, a determination of a substantial change for modifying
custody or visitation requires a broader inquiry into social,
physical, and emotional aspects of the change and their effect on
the children's welfare.  Although these standards may not be in
tension in any given case, we should avoid creating a presumption
that a significant change in either parent's financial obligations
necessitates revisiting the original visitation or custody order. 
          More fundamentally, the duration of an informal
arrangement should not be the sole, or even the primary, factor in
a court's decision to modify an original court order based on the
existence of the arrangement.  Of course, certain de facto changes
in visitation or custody may be "substantial"and may justify
modification.  But when making such a determination, we should look
not only to duration but also to such crucially relevant factors as
the magnitude of any effect on the children and the nature and
quality of the schedule change.  Thus, whereas evidence of a minor
experimental adjustment for ten months to a year (such as in this
case and Gaston), without additional allegations, would not
constitute a substantial change, a more significant shift, such as
changing a child's residence during the school week, may be
sufficient even if lasting for a few months, assuming the change
was in the child's best interests. 
     B.   The Court's Ruling Will Discourage Amicable Out-of-Court
Resolution of Visitation and Custody Disputes and Will Punish
Parties for Agreeing to Compromise.

          By declaring that an informal visitation agreement of any
more than a few months may trigger a hearing, the court sends a
message to custodial parents that they may be dragged back into
court if they choose to compromise. [Fn. 12]  In doing so, we risk
encouraging unnecessary litigation and discouraging post-divorce
cooperation between parents.
          In codifying the change in circumstances doctrine, the
Alaska legislature found that "it is in the best interests of a
child to encourage parents to implement their own child care
agreements outside of the court setting."[Fn. 13]  Children have
a better chance of emerging intact from divorce if the parents are
generous to each other with respect to visitation matters.  As one
commentator explains:
          Research shows that children are the "innocent
victims of family breakdown and the more intense the parental
conflict following separation, the more likely that the children
will be torn apart by a conflict of loyalties over their parents."[
[Fn. 14]]

As a result, we should avoid fashioning a rule that would
discourage one parent from granting the other additional visitation
out of fear that such a change could precipitate a modification
hearing.  
          We also should not encourage unnecessary hearings in
cases involving change of visitation or custody.  Such hearings
force the custodial parent to pay attorney's fees, call witnesses,
and incur the expense of psychologists and other experts. 
Professor Janet Weinstein notes the counterproductive effect of
unnecessary litigation on all parties:
          Rather than teaching parents to communicate
and collaborate effectively after divorce for the benefit of their
children, [the adversarial system] builds higher walls. . . .
Further, the process is disempowering, as it forces the parties to
place their fates in the hands of their attorneys and the court. 
In the process, the family's resources are expended and depleted
with no beneficial outcome for the child or the parents.[ [Fn. 15]]

          The court's opinion acknowledges that Alaska's family law
encourages out-of-court compromises and experiments with respect to
visitation arrangements. [Fn. 16]  Nonetheless, the court argues
that children's best interests are generally served by conforming
child support payments to reflect "actual practice."[Fn. 17]  This
observation is undeniably true, but it does not necessarily lead to
the conclusion that the children's interests are best served by
formalizing the de facto arrangement.  For example, Morino's child
support payments would just as much conform to reality if the court
chose to follow the original order, which is exactly what Swayman
attempted to do.
          While it is important that trial judges give parties an
opportunity to be heard before ruling on disputed custody matters
when such parties make sufficient factual allegations, [Fn. 18]
this is not such a case.  We also must be aware that, while
allowing the adversarial process to continue unnecessarily after
the court issues a custody order may be cathartic for the parents,
it only hurts the child.
III. CONCLUSION
          Because Morino failed to allege a substantial change of
circumstances, the superior court was correct in denying a
modification hearing.  The majority's approach, which considers any
de facto agreements of more than "a few months"to constitute a
substantial change of circumstances, places undue emphasis on the
duration of the arrangement and is in tension with our analysis in
Gaston.  Moreover, the court's ruling will discourage parents from
being generous with each other in custody matters and, to that
extent, runs counter to the goals of Alaska's family law and the
needs of Alaska's children of divorce.  For these reasons, I
respectfully dissent.




                            FOOTNOTES


Footnote 1:

     See Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996):

          Child support awards should be based on a
custody and visitation order.  If the parties do not follow the
custody order, they should ask the court to enforce the custody
order or should move to modify the child support order.  Cf.
Karpuleon v. Karpuleon, 881 P.2d 318, 320 (Alaska 1994) (burden is
on parents to apply promptly for modification when a child changes
residency).


Footnote 2:

     See Boone v. Boone, 960 P.2d 579, 582 (Alaska 1998)
(children's change in residence for a period of ten months a
material change in circumstances even though former custodial
parent argued that it was a "temporary, and voluntary, physical
custody arrangement which was never ordered by the court").


Footnote 3:

     As previously noted, the substantive requirements for a
modification are findings of a substantial change of circumstances
and that modification is in the best interest of the children. 
Supra at 4-5.  Our conclusion that Morino made a prima facie case
justifying a hearing thus necessarily applies to both requirements. 
As to the best interest requirement, the showing he made summarized
above is sufficient.  The duration of the informal modification
implies that continuity and stability interests will be advanced. 
The modified schedule brings closer-to-equal contact with each
parent and implies improved transitions now, as well as an easier
transition to equal contact which will occur as agreed on September
1, 1999.  The fact that Swayman agreed to the informal change
implies that she thought initially that the changed schedule was at
least not in conflict with the children's best interests. 

                       FOOTNOTES (Dissent)


Footnote 1:

     954 P.2d 572 (Alaska 1998).


Footnote 2:

     Op. at 5 (quoting C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)).


Footnote 3:

     Op. at 9 n.3.  The court's recognition of the "best interests of the child"requirement
is not entirely consistent with its earlier statement that "[a] movant who demonstrates a
change in circumstances is entitled to an evidentiary hearing to determine whether the
modified visitation would be in the child's best interests."  Op. at 5 (citing A.H. v. W.P., 896
P.2d 240, 244 (Alaska 1995)).  Our prior cases confirm that the determination of whether a
change is "substantial"necessarily involves an inquiry into whether and how the change
affects the best interests of the children.  As we wrote in C.R.B. v. C.C.:

          When a parent moves to modify custody, the court must
"consider"the motion, but need not hold a hearing if it is plain that the facts alleged in the
moving papers, even if established, would not warrant a change.  The moving parent must
show changes that affect the child's welfare, reflect more than a mere passage of time, and
overcome our deep reluctance to shuttle children back and forth between parents.

959 P.2d at 381 (emphases added) (citations omitted).


Footnote 4:

     Morino argued in his motion for hearing that:

          The "change of circumstances"that has arisen here is the
parties' de facto adoption of a visitation schedule in September 1996 under which Paul has
the children overnight at least three days each week.  Such a move by the parties is certainly
a significant change of circumstances.


Footnote 5:

     Op. at 7.


Footnote 6:

     Op. at 8.


Footnote 7:

     954 P.2d 572 (Alaska 1998).


Footnote 8:

     See 954 P.2d at 572.


Footnote 9:

     See id. at 575.


Footnote 10:

     Id. at 574 n.4 (emphases added).


Footnote 11:

     See Op. at 8 ("[C]hanges of a lengthy duration, especially when they are such as to
change child support payments when given de jure status, should qualify [as substantial].")
(emphasis added).


Footnote 12:

     See, e.g., Jacobs v. Jacobs, 657 N.E.2d 580, 587 (Ohio App. 1995) (reversing
referee's decision to modify visitation, preferring "to encourage the amicable resolution of
parental disputes in visitation matters rather than penalize those who have made efforts to
compromise").


Footnote 13:

     Ch. 88, sec. 1(b) SLA 1982.  See also Garding v. Garding, 767 P.2d 183, 185 (Alaska
1989).


Footnote 14:

     Christy L. Hendricks, The Trend Toward Mandatory Mediation in Custody and Visitation
Disputes of Minor Children: An Overview, 32 U. Louisville J. Fam. L. 491, 495 (1994)
(citation omitted).


Footnote 15:

     Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of the Child and
the Adversarial System, 52 U. Miami L. Rev. 79, 133 (1997).  See also id. at 124 ("Litigation
costs drain resources which could otherwise be used for the children's needs.").


Footnote 16:

     See Op. at 7 (quoting Gaston, 954 P.2d at 574 n.4).


Footnote 17:

     Op. at 7.


Footnote 18:

     See, e.g., Acevedo v. Liberty, 956 P.2d 455, 456-57 (Alaska 1998) (reversing lower
court's denial of modification hearing because movant's relocation to another city constituted
a substantial change of circumstances as a matter of law).