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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Platz v. Aramburo (2/16/01) sp-5362

Platz v. Aramburo (2/16/01) sp-5362

     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
                                 


LISA PLATZ,                   )
                              )    Supreme Court No. S-9492
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-98-1849 CI
                              )
JOS ARAMBURO,                )    O P I N I O N
                              )
             Appellee.        )    [No. 5362 - February 16, 2001]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances:  Alan J. Hooper, Gloria Hanssen,
Hooper & Hanssen, Fairbanks, for Appellant.  Daniel L. Callahan,
Schendel & Callahan, Fairbanks, for Appellee.


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


          MATTHEWS, Justice.


I.   INTRODUCTION
          Lisa Platz appealed the trial court's entry of default
judgment against her and its decision to award full custody of her
daughter to the child's father, Jos Aramburo.  She argues that the
trial court lacked jurisdiction, violated her right to due process,
and failed to consider the statutory factors required in custody
determinations.  Following oral argument on September 22, 2000, we
issued an order remanding this case to the trial court, and advised
that an opinion would follow.  Because the trial court failed to
consider the factors required by AS 25.24.150(c) in making child
custody decisions, we vacated the order granting custody to Jos
Aramburo and remanded the case to the superior court for an
evidentiary hearing on the best interests of the child.
II.  FACTS AND PROCEEDINGS
          Lisa Platz and Jos Aramburo had a daughter, Rebbeca
Nicole Platz-Aramburo, in 1992, in Bellingham, Washington. 
Aramburo acknowledged paternity and is listed on Rebbeca's birth
certificate as her father.  Platz and Aramburo separated soon after
Rebbeca's birth.  Aramburo visited Rebbeca while Platz and Rebbeca
lived in Washington. An administrative child support order was
entered against Aramburo while Platz was in Washington.
          In February 1994 Platz and Rebbeca moved to Fairbanks.
While in Fairbanks, Platz married Robert Platz, who filed for a
step-parent adoption of Rebbeca.  The adoption was dismissed in
late 1997, and Platz subsequently divorced Robert Platz.  Around
April of 1998 Platz and Rebbeca left Fairbanks.
          According to Aramburo, once Platz moved to Fairbanks, she
did not allow him to have any contact with Rebbeca, and he was not
certain where Platz and Rebbeca lived.  Aramburo claims that Platz
told him that he would never see Rebbeca again and that she did not
want Rebbeca to learn that he was her father.
          Aramburo filed a Verified Petition for Determination of
Custody on July 31, 1998, in Fairbanks.  The petition alleged that
Platz had interfered with Aramburo's relationship with Rebbeca and
requested that Aramburo be given regular contact, including periods
of actual custody or visitation.  Aramburo requested that the court
make a custody determination based on the child's best interests,
allow for interim visitation, grant a restraining order preventing
Platz from taking Rebbeca across state lines or interfering with
his visitation, and enter a child support order.
          Aramburo located Platz, and served her on April 8, 1999,
in Avon, Ohio.  On May 10, 1999, Platz, appearing pro se, requested
and received a twenty-eight-day extension of time to file an
answer.  Platz did not file an answer.
          On June 15, 1999, Aramburo filed a Motion to Establish
Visitation, which was served on Platz by mail on that date. 
Aramburo requested that the court create a plan for him and Rebbeca
to re-establish their relationship and have contact and visitation. 
Platz did not respond to the motion, and the court entered a
temporary visitation order on July 19, 1999.  The court ordered
Platz to contact a mental health clinician or counselor and
schedule an appointment to help Rebbeca through the initial
contacts between her and Aramburo.  The court ordered phased-in
telephonic visitation and, ultimately, in-person visitation.  This
order was distributed by the clerk on July 23, 1999.
          On July 27, 1999, Aramburo applied for entry of default.
On August 4, 1999, the clerk entered default against Platz for
failure to file an answer.  The application for entry of default
and the entry of default were served on Platz.
          The court scheduled a default hearing, and Platz was
served with notice of the hearing.  The notice indicated that
Aramburo would "request a default judgment be entered in this
action in which legal and physical custody of the minor child . . .
is awarded to him."  The hearing was conducted on September 8,
1999, by Judge Mary E. Greene.  Aramburo's attorney appeared in
person; Aramburo and Platz appeared telephonically.
          At the hearing, Aramburo testified that Platz had not
contacted him, helped him visit Rebbeca, or worked with a
counselor.  Aramburo told the court that he wanted custody of
Rebbeca and would be willing to allow Platz to have visitation with
their daughter.  Aramburo testified that Platz had returned several
child support checks and not cashed the others.   
          Platz contested the court's jurisdiction.  Platz also
informed the judge that she had received the temporary orders only
a week previously and had not had time to hire an attorney.  The
judge explained to Platz that she needed to move to have the
default set aside.  Platz testified that she had taken Rebbeca
across state lines and failed to inform Aramburo of her
whereabouts, explaining that she had not read the temporary order.
When asked whether she would follow a court order to allow Aramburo
to visit with Rebbeca, Platz responded "I would love to say, yes,
if I believed that it would not damage her.  But I don't know that. 
I cannot predict the future and I do not know how the child will
react."
          At the conclusion of the hearing, the judge read the
temporary order to Platz and gave her two weeks to comply.  The
judge concluded the hearing by noting that she wanted Platz to file
a document in court that set forth her compliance with the order. 
The judge warned that if Platz did not file such a document by
September 23, the judge would "grant Mr. Aramburo custody to carry
out the Temporary Order's provisions."
          The court entered written findings of fact and an order
on September 30 reflecting the court's oral order entered at the
end of the September 8 hearing.  Specifically, the court found that
it had jurisdiction to hear the case, that Platz had not complied
with the Temporary Visitation Order, that Platz had denied Aramburo
contact with Rebbeca, and that it was in Rebbeca's best interests
to have a relationship with her father.  The court ordered Platz to
comply with the Temporary Visitation Order.    
          On October 19, 1999, Aramburo filed a motion requesting
that the court grant him physical custody of Rebbeca because of
Platz's failure to comply with the court's orders.  The court
agreed to give the motion expedited consideration and ordered Platz
to respond by October 28.  On October 25, Platz filed a motion to
dismiss because the court lacked jurisdiction.  Aramburo opposed
the motion as untimely and noted that the court had already ruled
on the matter of jurisdiction.  The court denied Platz's motion to
dismiss, concluding that it had properly asserted jurisdiction.
          On October 29 the court entered an order on Aramburo's
motion.  The court found that Platz had failed to comply with its
previous orders.  The court then awarded physical custody of
Rebbeca to Aramburo, with visitation for Platz, transportation
costs to be paid by Aramburo.
          Platz filed a motion in Ohio state court on November 5,
1999, arguing that Alaska was an inconvenient forum and that the
Ohio court should take exclusive jurisdiction of the case.  She
requested that the Ohio court stay enforcement of the Alaska court
order.  The Ohio court spoke with Judge Greene and concluded that
the Alaska court had jurisdiction.  The Ohio court dismissed the
case for lack of jurisdiction.
          Immediately after filing in Ohio, Platz filed a motion in
Alaska asking the court to reconsider its decision because Platz
did not have sufficient time to respond to Aramburo's motion for
custody.  Platz argued that it was in the child's best interests to
remain with her and that all further proceedings should occur in
the Ohio courts.  Judge Greene denied Platz's motion for
reconsideration on December 17; the order was distributed on
December 20, 1999.  Platz filed her Notice of Appeal on December
30, 1999.
III. STANDARD OF REVIEW
          Whether Platz's appeal is timely is a question of law
governed by the Appellate Rules. [Fn. 1]  This court exercises its
independent judgment in interpreting those rules. [Fn. 2]  "On
questions of law, [this court's] duty is to adopt the rule of law
which is most persuasive in light of precedent, reason, and
policy." [Fn. 3]  
          This court will not consider arguments that were not
raised before the trial court except to the extent that the errors
alleged constitute plain error. [Fn. 4]  "Plain error exists where
an obvious mistake has been made which creates a high likelihood
that injustice has resulted." [Fn. 5]  
          This court reviews the trial court's custody decision for
abuse of discretion. [Fn. 6] 
IV.  DISCUSSION
     A.   Timeliness
          Aramburo claims that Platz's appeal is untimely because
the order from which Platz appeals was entered on September 30,
1999, and she filed her appeal on December 30, 1999.  The appeal of
a child custody order must be filed within fifteen days of
distribution of that order. [Fn. 7] Platz argues that her appeal
was timely because the order from which she appeals was the October
29, 1999, order granting custody of Rebbeca to Aramburo.  She
asserts that the September 30, 1999, order was not a final
appealable order, because it directed her to file a document
detailing her compliance with the July 19, 1999, temporary
visitation order. 
          Because the order from which Platz appeals is the October
29, 1999, order granting custody of Rebbeca to Aramburo, we find
that her appeal was timely. [Fn. 8]  Platz appeals the award of
custody of Rebbeca to Aramburo.  The order granting custody to
Aramburo was entered on October 29, 1999.  The order entered
September 29, 1999, merely stated that the superior court had
jurisdiction, that Platz was required to file a document with the
court detailing her compliance with the court's previous visitation
order, and that the court would order a transfer of physical
custody should Platz not comply.  We therefore find that Platz's
appeal was timely filed.
     B.   Jurisdiction and Forum Non Conveniens
          Platz argues that the superior court erroneously
entertained Aramburo's suit because it did not have jurisdiction. 
She argues, in the alternative, that the court should have
dismissed the case on the grounds of forum non conveniens.  Because
we find that the superior court properly asserted jurisdiction, we
do not disturb that portion of the trial court's finding.
          The superior court found jurisdiction under the now-
repealed Uniform Child Custody Jurisdiction Act. [Fn. 9] 
Specifically, the court found jurisdiction under AS
25.30.020(a)(3), because no other state had jurisdiction under
provisions similar to AS 25.30.020(a)(1) or (2), and it was in the
best interests of Rebbeca for the court to assert jurisdiction.
          Platz claims that the court erred in asserting
jurisdiction because Arizona [Fn. 10] could have asserted
jurisdiction under its catch-all provision, which is similar to the
catch-all provision under which the superior court asserted
jurisdiction. [Fn. 11] She argues that since Rebbeca was
"permanently out of state," it was not in her best interests to
have Alaska hear her custody case.  However, that Arizona could
have asserted jurisdiction under its catch-all provision does not
deprive Alaska of jurisdiction. [Fn. 12]  Moreover, Rebbeca had
lived in Alaska for more than four of her six years, and the child
had no home state at the time the petition for determination of
custody was filed.  The court found that Alaska had more
information about the child than any other state, and that it was
therefore in the child's best interests for Alaska to assert
jurisdiction.  Under the foregoing circumstances, we cannot say
that it was an abuse of discretion to assume jurisdiction.
          Platz also argues that even if the court could have
asserted jurisdiction, it should have declined to do so because
Alaska is an inconvenient forum.  Platz did not raise this argument
in the court below, but she claims that it was plain error for the
court not to dismiss the case sua sponte, under AS 25.30.060. [Fn.
13]  Points not raised in the trial court are generally considered
to be waived for purposes of appeal, but they may be reviewed for
plain error.  The latter is said to exist "where an obvious mistake
has been made which creates a high likelihood that injustice has
resulted." [Fn. 14]
          The superior court did not plainly err when it did not
dismiss this case on the basis of forum non conveniens.  Factors
relevant to a forum non conveniens determination include
          the ease of access of proof, the availability
and cost of obtaining witnesses, the possibility of harassment of
the defendant in litigating in an inconvenient forum, the
enforceability of the judgment, the burden on the community in
litigating matters not of local concern, and the desirability of
litigating local matters in local courts."[ [Fn. 15]]
Except for Platz's unsworn statement that she and Rebbeca had been
out of the state for eighteen months and now lived in another
state, the court had no information before it that demonstrated
clearly that Alaska was an inconvenient forum.  The superior court
did not abuse its discretion in not dismissing the custody case on
a forum non conveniens basis.
          Because the court properly asserted jurisdiction under AS
25.30.020(a)(3), and because the court did not abuse its discretion
in dismissing the case for forum non conveniens, we affirm the
court's assumption of jurisdiction.  
     C.   The Child's Best Interests

          Platz argues that it was error for the court to award
custody of her daughter to the child's father without holding a
"best interests" hearing.  She contends that the court failed to
consider the factors required by statute when making child custody
determinations and that the court transferred custody of the child
as punishment for Platz's failure to comply with the court's orders
regarding visitation.  We proceed to consider these claims.
          Civil Rule 55 specifies procedures for defaults and
default judgments.  Subsection (c)(1) contemplates "such hearings
. . . as [the court] deems necessary and proper" when "in order to
enable the court to enter judgment . . . it is necessary . . . to
establish the truth of any averment by evidence . . . ." [Fn. 16] 
Under AS 25.24.150(c), custody issues shall be determined "in
accordance with the best interests of the child."  Alaska Statute
25.24.150(c) requires the court to determine the best interests of
the child by considering nine separate factors. [Fn. 17] 
          In our view, to use the language of Rule 55(c)(1), it was
necessary in order to establish the truth of Aramburo's best
interests averment to hold an evidentiary hearing at which all
factors relevant to that subject could be examined.  This
conclusion follows from our decision in Hakas v. Bergenthal. [Fn.
18]  We held in Hakas that the superior court could not change
custody solely because the current custodial parent had not
complied with orders of the court.  We stated:
               A best interest of the child inquiry is
an essential component of a custody determination, whether it is in
the context of an initial custody determination or modification of
an existing custody arrangement.  This inquiry is not obviated by
[the mother's] noncooperation.  In making a custody determination
the court must consider "all relevant factors including those
enumerated in AS 25.24.150(c)."  Contrary to [the father's]
assertions, review of the record reveals no express consideration
by the superior court of [the child's] best interests in any
context.  Rather, review of the superior court's findings persuades
us that the superior court awarded custody of [the child] to [the
father] as a sanction against [the mother] without undertaking a
best interests of the child analysis.[ [Fn. 19]]

          In Hakas we reversed the superior court's order changing
custody and remanded the case "for the purpose of redetermining
custody based upon a best interests of the child analysis with
appropriate findings of fact which address all relevant criteria of
AS 25.24.150(c)." [Fn. 20]  Just as a custodial parent's failure to
comply with court orders cannot justify a change of child custody
without a best interests determination, a parent's failure to file
a responsive pleading which results in a default cannot justify
such an order without such a determination.  The interests of a
third person, the child, are central to change of custody cases. 
This means that despite the wilful failure of a custodial parent to
follow court procedures or orders, custody cannot be changed
without addressing fully the question whether the change is in the
child's best interests.
          In the present case there was a post-default evidentiary
hearing on September 8, 1999.  But the focus of that hearing was on
whether Platz was willing to comply with the court's temporary
visitation order of July 19, 1999, rather than on the more general
subject of the best interests of Rebbeca.  The trial court found
following the hearing that it was in the best interests of Rebbeca
for her to have a relationship with her father and that to this end
a gradual reintroduction of Aramburo into the child's life would be
desirable.  These findings were well justified.  And the
willingness of a parent to allow a relationship between the child
and the other parent is one of the nine factors relevant to the
best interests of the child under AS 25.24.150(c).  But the court
did not demonstrate consideration of any of the other relevant
factors in its order following the September 8 hearing and made no
general finding concerning Rebbeca's best interests.  Thus the
September 8, 1999, hearing and order were not sufficiently
comprehensive to serve as a basis for a general custody change. 
          Based on the foregoing, we believe that the custody order
of October 29, 1999, must be vacated.  On remand an evidentiary
hearing concerning the best interests of the child must be held
following which the court should enter findings of fact which
address the relevant factors specified in AS 25.24.150(c). [Fn. 21]
V.   CONCLUSION
          For the above reasons the custody order of October 29,
1999, is VACATED and this case is REMANDED to the superior court
for further proceedings consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     See Alaska R. App. P. 204, 218.


Footnote 2:

     See Compton v. Chatanika Gold Camp Properties, 988 P.2d 598,
601 (Alaska 1999).


Footnote 3:

     Id. (quoting Grove v. Alaska Constr. & Erectors, 948 P.2d 454,
456 (Alaska 1997)).  


Footnote 4:

     See id.


Footnote 5:

     Id. (quoting Murray v. Feight, 741 P.2d 1148, 1156-57 (Alaska
1987)).


Footnote 6:

     See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).


Footnote 7:

     Alaska R. App. P. 218(d). 


Footnote 8:

     Although her appeal was filed more than fifteen days following
the custody order, it was within fifteen days of the denial of her
motion to reconsider that order. 


Footnote 9:

     AS 25.30.010-.910.  Former AS 25.30.020(a) stated: 

                         (a) The superior court has jurisdiction
                    to make a child custody determination by
                    initial or modification of decree if the
                    conditions set out in any of the following
                    paragraphs are met:
                         (1)  this state (A) is the home state of
                    the child at the time of commencement of the
                    proceeding, or (B) had been the child's home
                    state within six months before commencement of
                    the proceeding and the child is absent from
                    this state because of removal or retention by
                    a person claiming custody or for other
                    reasons, and a parent or person acting as
                    parent continues to live in this state; or
                         (2)  the child is physically present in
                    this state and is a child in need of aid as
                    defined in AS 47.10.990;  or
                         (3)  it (A) appears that no other state
                    would have jurisdiction under prerequisites
                    substantially in accordance with (1) or (2) of
                    this subsection, or another state has declined
                    to exercise jurisdiction on the ground that
                    this state is the more appropriate forum to
                    determine the custody of the child, and (B) is
                    in the best interest of the child that this
                    court assume jurisdiction. 
                    
                    
                    Footnote 10:
                    
                         Rebbeca was enrolled in school in Arizona
                    as of April of 1998, but she had not lived
                    there for six months as of the date Aramburo
                    filed his petition.  Therefore, Arizona was
                    not Rebbeca's home state.  See AS
                    25.30.909(7).
                    
                    
                    Footnote 11:
                    
                         See Ariz. Rev. Stat. Ann. sec.
                    25.433(A)(4)
                    (2000). 
                    
                    
                    Footnote 12:
                    
                         See Former AS 25.30.020(a)(3).
                    
                    
                    Footnote 13:
                    
                         Former AS 25.30.060, in effect at the
                    time, reads as follows:
                    
                         (a) The superior court may decline to
                    exercise its jurisdiction any time before
                    issuing a decree if it finds that it is an
                    inconvenient forum to make a custody
                    determination under the circumstances of the
                    case and that a court of another state is a
                    more appropriate forum.
                         (b) A finding of inconvenient forum may
                    be made upon the court's own motion or upon
                    motion of a party . . . .
                         (c) In determining if it is an
                    inconvenient forum, the court shall consider
                    if it is in the interest of the child that
                    another state assume jurisdiction.  For this
                    purpose it may take into account the following
                    factors, among others:
                         (1) if another state is or recently was
                    the child's home state;
                         (2) if another state has a closer
                    connection with the child and the child's
                    family or with the child and one or more of
                    the contestants;
                         (3) if better evidence concerning the
                    child's present or future care, protection,
                    training, and personal relationships is
                    available in another state, or if equally
                    substantial evidence is more readily available
                    in another state; 
                         (4) if the parties have agreed on another
                    forum no less appropriate; and
                         (5) if the exercise of jurisdiction by a
                    court of this state would contravene any of
                    the purposes stated in AS 25.30.010.
                    
                    
                    Footnote 14:
                    
                         Murray v. Feight, 741 P.2d 1148, 1156-57
                    (Alaska 1987).
                    
                    
                    Footnote 15:
                    
                         Bodzai v. Arctic Fjord, 990 P.2d 616, 621
                    n.28 (Alaska 1999) (quoting Crowson v.
                    Sealaska Corp., 705 P.2d 905, 908 (Alaska
                    1985)).
                    
                    
                    Footnote 16:
                    
                         See Alaska R. Civ. P. 55(c)(1) ("If, in
                    order to enable the court to enter judgment or
                    to carry it into effect, it is necessary to .
                    . . establish the truth of any averment by
                    evidence or to make an investigation of any
                    other matter, the court may conduct such
                    hearings or order such references as it deems
                    necessary and proper.").
                    
                    
                    Footnote 17:
                    
                         According to AS 25.24.150(c):
                    
                         The court shall determine custody in
                    accordance with the best interests of the
                    child under AS 25.20.060--25.20.130.  In
                    determining the best interests of the child
                    the court shall consider
                         (1) the physical, emotional, mental,
                    religious, and social needs of the child;
                         (2) the capability and desire of each
                    parent to meet these needs;
                         (3) the child's preference if the child
                    is of sufficient age and capacity to form a
                    preference; 
                         (4) the love and affection existing
                    between the child and each parent;
                         (5) the length of time the child has
                    lived in a stable, satisfactory environment
                    and the desirability of maintaining
                    continuity;
                         (6) the desire and ability of each parent
                    to allow an open and loving frequent
                    relationship between the child and the other
                    parent;
                         (7) any evidence of domestic violence,
                    child abuse or child neglect in the proposed
                    custodial household or a history of violence
                    between the parents;
                         (8) evidence that substance abuse by
                    either parent or other members of the
                    household directly affects the emotional or
                    physical well-being of the child;
                         (9) other factors that the court
                    considers pertinent.
                    
                    
                    Footnote 18:
                    
                         843 P.2d 642 (Alaska 1992).
                    
                    
                    Footnote 19:
                    
                         Id. at 644-45 (citations and footnotes
                    omitted).
                    
                    
                    Footnote 20:
                    
                         Id. at 645.
                    
                    
                    Footnote 21:
                    
                         Our disposition in this case makes it
                    unnecessary to discuss Platz's claim that her
                    entitlement to due process of law has been
                    violated.