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Vinzant v. Elam (3/19/99), 977 P 2d 84
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
JOHN M. VINZANT, )
) Supreme Court No. S-8564
) Superior Court No.
v. ) 3KN-95-33 CI
TAMMY L. ELAM, ) O P I N I O N
Appellee. ) [No. 5094 - March 19, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Phil N. Nash, Law Offices of
Phil N. Nash, Kenai, for Appellant. Carol A.
Brenckle, Kenai, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
John VinZant challenges a child custody modification
order and the motions which preceded its entry. We conclude that
John's rights of due process were violated by the lack of notice
that his custody rights were at issue at the hearing that preceded
entry of the modification order. We therefore vacate that order
2. FACTS AND PROCEEDINGS
John VinZant and Tammy Elam divorced in August 1995. The
superior court adopted the parties' agreement regarding custody of
their three children; it granted joint legal custody to both
parties, but gave primary physical custody to Tammy.
Following the divorce, John moved in the superior court
to vacate the settlement agreement, to obtain interim custody, and
to have the court appoint a custody investigator. Before the court
could consider John's motion, the parties agreed to transfer the
children's primary physical custody to John. At a February 1997
status hearing, the superior court agreed to implement this
agreement "on an interim basis." It permitted Tammy to move for
modification of the agreement if, upon further consideration, she
ultimately disagreed with the arrangements. Tammy did not so move.
In March 1997 the superior court issued an order unconditionally
approving the agreement.
Claiming that John failed to make the children available
for visitation in the months following the hearing, Tammy moved in
the superior court to enforce the visitation order. Accordingly,
the superior court issued the following notice:
[Tammy] has filed a Motion seeking enforcement
of her right to visitation. It appears that
[John] has failed, for reasons unknown to this
court, to abide by the Court's Order . . . .
Consequently, [John] is ordered to show cause
why he should not be held in contempt at a
hearing before the court . . . .
The superior court conducted the noticed show-cause hearing in
December 1997. During the hearing Tammy testified that she wanted
the court to grant her primary physical custody of the children.
After considering the file and the parties' testimony,
the superior court gave sole legal and primary physical custody of
the children to Tammy. Its February 1998 order stated that the
custody change was based on John's refusal to cooperate with Tammy
and his efforts to undermine the children's relationship with her.
It specifically noted:
I find that [John] has been engaged in a
course of conduct which has been intentionally
designed to frustrate the agreement of the
parties and the Orders of this Court. A
consequence of this action cannot help but
have had a serious adverse [e]ffect upon the
love and affection existing between the
children and [Tammy]. Certainly, it indicates
that [John] has no desire to allow an open and
loving frequent relationship between the
child[ren] and the other parent. See AS
John's nine grounds for appeal basically assert that the
superior court (1) violated John's constitutional rights to due
process and equal protection of the laws; (2) abused its discretion
by considering irrelevant factors in making its post-divorce
custody determination; and (3) abused its discretion when it denied
1. Standard of Review
John's constitutional arguments present questions of
law, 1 which we review de novo; we will adopt the rule of law that
is most persuasive in light of precedent, reason, and policy. 2 The
custody decision will be reversed only if the superior court's
findings of fact are clearly erroneous or if the superior court
abused its discretion. 3
2. Constitutional Challenges
1. Did entry of the custody order following the show-
cause hearing violate John's due process rights?
John argues that the superior court violated his right to
due process by modifying custody without giving him notice and the
opportunity to be heard. Tammy contests John's constitutional
challenge, contending that John had adequate notice and ample
opportunity to "prepare, defend and be heard"regarding custody.
She argues that John knew that the issue of custody was unsettled
because the superior court at the February 1997 status hearing
approved the parties' agreement only on an interim basis. She
alleges that John had sufficient opportunity to argue his position
and introduce evidence during their post-divorce appearances before
the court, including the December show-cause hearing.
Procedural due process under the Alaska Constitution
requires that parties in a custody proceeding receive adequate
notice and "a hearing which grants them the opportunity to present
the quantum of evidence needed to make an informed and principled
determination."4 John had neither.
In reaching this conclusion, we are persuaded by our
opinion in a case in which the superior court permanently modified
custody based on a prior hearing in a domestic violence proceeding
which it consolidated with the divorce proceeding. 5 We vacated the
custody order in that case because it violated due process; the
superior court did not provide an adequate hearing. 6 We first
noted that domestic violence proceedings are distinct from custody
proceedings. 7 Neither party had been given notice that permanent
custody was at issue in the domestic violence proceeding. 8
Further, the finding of domestic violence was a change of
circumstances that justified conducting a hearing on the issue of
modification of custody, and was relevant to deciding whether to
change custody. 9 But the superior court in the domestic violence
proceeding did not consider the eight other statutory factors that
are potentially relevant to the children's best interests. 10 And
it did not hold a hearing at which the parties could present
evidence on the remaining factors. 11 We therefore held that entry
of the custody modification order violated due process. 12
Likewise, the December show-cause hearing in the case now
before us was not adequate to decide whether there should be a
permanent change of custody. Show-cause proceedings, like domestic
violence proceedings, are distinct from custody modification
proceedings. The show-cause hearing was directed at determining
whether John had frustrated Tammy's right to visitation under the
agreement and was therefore in contempt of court, whereas a custody
modification proceeding focuses on the best interests of the
children. The best interests determination requires the court to
consider the statutory factors applicable in a given dispute.
Although the finding that John had frustrated Tammy's visitation
constituted a changed circumstance, the superior court at the show-
cause hearing did not address the statutory factors that are
potentially relevant to the children's best interests in this case.
Moreover, neither party had notice that custody was at
issue in the show-cause hearing. Notwithstanding the superior
court's statements at the February 1997 hearing, the written March
1997 order unconditionally approved the parties' agreement to give
primary physical custody of the children to John. Tammy did not
ask the court to modify custody after entry of the March order.
The superior court scheduled the December 1997 hearing to address
Tammy's motion to enforce the provisions of the existing custody
and visitation arrangement. The superior court gave written notice
that the hearing would address an "order to show cause"regarding
John's failure to accommodate Tammy's right to visitation. This
notice did not inform John that permanent custody might turn on his
denial of visitation.
Therefore, we conclude that it was error to modify
custody permanently on the basis of the show-cause hearing. We
vacate the February 1998 order awarding primary physical custody to
Tammy and remand for consideration of whether the children's best
interests justify awarding primary physical custody to Tammy.
John's frustration of Tammy's visitation rights is sufficient to
establish the threshold burden of changed circumstances. 13 The
trial court may maintain the children's current custody arrangement
pending a new hearing and resolution of this matter.
2. Was Civil Rule 81 inequitably applied so as to
deprive John of due process and equal protection of
John complains that the superior court, pursuant to Civil
Rule 81, rejected two pleadings he filed pro se after his attorney
attempted to withdraw, but failed to apply the same rule to a
pleading Tammy filed pro se. Because John does not explain how the
superior court's allegedly inconsistent exercise of its discretion
violated his right to due process, we decline to consider this
Nor is there adequate basis for John's argument that the
superior court's inconsistent exercise of discretion was a per se
violation of John's right to equal protection. The inquiry in
equal protection claims is whether there has been a deliberate and
intentional plan to discriminate based on some unjustifiable or
arbitrary classification. 15 John makes no showing of any such
discrimination. Moreover, it is as likely as not that any possible
error was the result of clerical oversight, and not discrimination.
We have held that the mere errors of judgment of officials do not
amount to unconstitutional discrimination and that the good faith
of officials is presumed. 16 We cannot meaningfully consider John's
3. John's Other Arguments
Because we vacate the February 1998 custody order on
constitutional grounds, we need not reach John's arguments that the
superior court abused its discretion by considering irrelevant
factors and weighing certain factors too heavily when modifying
custody. We do note, however, that evidence that one parent has
consistently frustrated the other parent's visitation rights is one
of the factors relevant to a change of custody. 17
We also decline to reach John's claims that the superior
court abused its discretion by (1) denying John financial relief
without making fact findings when Tammy allegedly refused to permit
him to visit the children; and (2) failing to appoint a guardian ad
litem (GAL). We nonetheless note that it might be appropriate to
appoint a custody investigator or GAL in this case, given the
parties' allegations that the children were exposed to undesirable
Because it will affect any future child support order, we
consider John's argument that the superior court abused its
discretion by declining to recalculate child support after John
received primary physical custody of the children in March 1997.
The parties' December 1996 agreement switching primary
physical custody of the children from Tammy to John contemplated
possible recalculation of child support after the parties submitted
child support guideline affidavits and supporting documentation.
But neither party submitted the required information. For this
reason, the superior court denied John's July 1997 motion to
recalculate child support.
John argues that the superior court abused its discretion
because the law provides that support is due "whether a support
order exists or not." We agree. A parent is obligated both by
statute and at common law to support his or her children regardless
of the existence of a support order. 19
The fact that the court lacked information about John's
finances should not defeat John's motion. Because John had
primary physical custody for more than seventy percent of the year,
John's own financial means were probably not relevant absent
circumstances not present here. Therefore, John's failure to
provide a financial affidavit did not justify denying a change in
child support. 20
On remand, the parties should submit the required
information per the guidelines so that the court may calculate the
child support Tammy owes from the date on which John actually
received primary physical custody of the children (on or around
February 10, 1997) until the date on which Tammy received primary
physical custody of the children (on or around February 1998). The
court should also calculate the child support John owes from the
date on which Tammy received primary physical custody of the
children (about February 1998). 21
We VACATE the February 1998 order and REMAND for further
proceedings consistent with this opinion.
1 See Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1241
2 See Ford v. Municipality of Anchorage, 813 P.2d 654, 655
3 See Howlett v. Howlett, 890 P.2d 1125, 1126 (Alaska
4 Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983);
see also Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska 1997)
(holding that superior court abused its discretion by granting
motion to modify child custody order without hearing); Howlett, 890
P.2d at 1127 (holding that superior court erred by ruling on motion
to modify custody without hearing).
5 See Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska
6 See id. at 329-30.
7 See id. at 329.
8 See id.
9 See id.; see also AS 25.24.150(c).
10 See Lashbrook, 957 P.2d at 329; see also AS 25.24.150(c).
11 See Lashbrook, 957 P.2d at 330.
12 See id.
13 See AS 25.20.110 (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 children involved); Lee v. Cox, 790 P.2d 1359, 1361
(Alaska 1990) (movant bears burden of establishing substantial
change in circumstances); cf. T.M.C. v. S.A.C., 858 P.2d 315, 319
(Alaska 1993) (continued lack of cooperation between parties
constitutes change of circumstances sufficient to modify custody).
14 See Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 410
15 See North Slope Borough v. Puget Sound Tug & Barge, 598
P.2d 924, 928 (Alaska 1979).
16 See Douglas v. Glacier State Tel. Co., 615 P.2d 580, 591
17 See AS 25.24.150(c).
18 See AS 25.24.310(c).
19 See Crayton v. Crayton, 944 P.2d 487, 489 (Alaska 1997);
Matthews v. Matthews, 739 P.2d 1289, 1299 (Alaska 1987).
20 Cf. Alaska R. Civ. P. 90.3(e) (permitting court to
withhold or assess costs or attorney's fees for failure to provide
financial information required to calculate child support).
21 Cf. Crayton, 944 P.2d at 489-90 (ordering mother to
reimburse father for her share of child support during period when
children were returned to father under interim custody order even
though interim order was silent on issue of child support).