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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. D.D. v L.A.H. (08/10/2001) sp-5447

D.D. v L.A.H. (08/10/2001) sp-5447

     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


D.D.,                         )
                              )    Supreme Court No. S-9894
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3KN-96-510 CI
                              )
L.A.H.,                       )    O P I N I O N
                              )
             Appellee.        )    [No. 5447 - August 10, 2001]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Jonathan H. Link, Judge.


          Appearances:  Jennifer L. Holland, Gruenberg,
Clover & Holland, Lynne Freeman, Davis, Black, Freeman, LLC,
Anchorage, for Appellant.  Peter F. Mysing, Kenai, for Appellee.


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


          MATTHEWS, Justice.


I.   INTRODUCTION
          D.D. (Danielle) [Fn. 1] and L.A.H. (Leif) filed opposing
motions to modify custody of their son, T.H. (Travis).  Without
holding a hearing or making findings the superior court granted
Leif's motion and denied Danielle's.  We reverse and remand because
an evidentiary hearing and findings are required in opposed custody
modification proceedings.  Further, we hold that the record does
not support failing to grant visitation to Danielle during the nine
months of the year that Leif has custody. 
II.  FACTS AND PROCEEDINGS
          Danielle and Leif were granted a decree of dissolution of
marriage on September 6, 1996.  The parties had one child during
their relationship, Travis, who was born in December 1994. 
Danielle also has a daughter from a previous relationship, J.D.
(Jane), who is three years older than Travis.
          The parties negotiated a dissolution agreement which gave
them shared custody of Travis, then twenty-one months old,
providing Leif with custody and visitation during approximately
seven months of the year and Danielle with custody and visitation
for the approximately five remaining months of the year. [Fn. 2] 
This arrangement, which was intended to be in effect until Travis
commenced school, was made based on a shared assumption that
Danielle would be living and studying in Minnesota during the
course of the school year, and that Leif would be available to care
for Travis full-time during the winter months, when Leif is
unemployed.  The agreement stated that its visitation schedule 
          will remain in effect until August 15, 2000.
At this time, parents agree to submit to the court a revised
custody arrangement to better suit the needs of a child attending
school. Parents agree that this temporary arrangement best suits
the needs of [Travis] while his mother is finishing her degree, as
well as during summer months while his father is working.  During
winter months, [Leif] is unemployed.  The agreement allows [Travis]
to stay at home with his father instead of spending unnecessary
time in a daycare situation.  During summer [Danielle] and her
daughter, [Jane] (from a prior relationship) will be on summer
break and able to travel to Alaska for the care of [Travis].

          By November 1996, Danielle had given up her studies in
Minnesota and returned to Alaska.  The parties agreed then to share
custody of Travis on a week on/week off basis.  In May 1997,
Danielle moved from Kenai to Anchorage in order to study at the
University of Alaska Anchorage, and the parties shifted to a two-
weeks-on/two-weeks-off schedule in order to reduce travel time.
This continued until the trial court's order of August 12, 2000.
The original written custody agreement was never modified to
reflect the new 50/50 arrangement.
          According to Danielle, in August 1999 Leif agreed that
Travis would attend school in Anchorage at Polaris K-12 School,
where Jane was already enrolled.  Then, following an open house in
May 2000 at which Travis was introduced to his future teacher, Leif
changed his mind and decided that he wanted Travis to attend school
in Kenai.  Leif disputes this account and claims that Danielle
agreed in August 1999 that Travis would attend school in Kenai and
live with Leif during the course of the school year.
          On June 19, 2000, Danielle filed a motion to modify child
custody and to appoint a custody investigator.  Danielle argued
that a substantial and material change in circumstances had
occurred since the original child custody agreement was made: 
"Although the parties have shared custody of [Travis] 50/50, he is
now of school age and will be ready to start kindergarten this
fall."  Danielle explained that "[t]he problem we are now facing is
where our son [Travis] should be residing during the school year."
(Emphasis in original.)  Danielle argued that because Travis had
been enrolled at Polaris K-12 School, a unique public school
attended by his sister Jane; because he and Jane share gymnastics
lessons; and because Danielle provides a more stable environment
for Travis, it was in Travis's best interests to reside in
Anchorage during the school year.
          Leif opposed both Danielle's motion to modify custody and
her motion to appoint a custody investigator.  Leif also filed a
counter-motion to modify custody so that he would have custody of
Travis during the school year.  Leif agreed with Danielle that
"[Travis]'s entry into school constitutes a substantial change in
circumstances under AS 25.20.110(a) since the parties will no
longer be able to share 50-50 custody of [Travis]."  Leif explained
that his job as a roofer prohibits him from spending time with
Travis in the summers but during the winters "he devotes [his] time
exclusively to [Travis]."  Therefore, Leif argued, it was in
Travis's best interests to award Leif custody during the school
year.  In support of his opposition to Danielle's motions and his
own motion to modify custody, Leif submitted his affidavit and
several unsworn supporting letters from family members attesting to
the strength of Leif's parenting abilities.
          Danielle responded, arguing that she was better suited to
have primary custody.  Danielle submitted her affidavit and
notarized letters from friends attesting to Danielle's parenting
abilities and to Leif's agreement to permit Danielle to have
custody of Travis during the school year.
          On August 12, 2000, Superior Court Judge Jonathan H. Link
denied both of Danielle's motions and granted Leif's counter-motion
for primary custody during the school year.  Danielle was not
awarded visitation rights during this period.  With regard to
Danielle's motion to appoint a custody investigator, Judge Link
explained that "there is sufficient information in the file to
determine the custody and visitation issues raised in the cross-
motions to modify custody."  With regard to the custody order, the
court made no findings and gave no explanation. 
III. DISCUSSION
     A.   It Was Error to Modify the Parties' Custody Arrangement
Without Conducting an Evidentiary Hearing.

          Danielle argues that under this court's precedent she has
a constitutional due process right to be heard prior to the
issuance of a custody order.  She cites Walker v. Walker for the
proposition that an opposed custody modification may not be granted
without an evidentiary hearing. [Fn. 3]  In Walker, a father moved
for modification of a custody agreement which originally provided
the mother with primary physical custody and was modified to
provide the father with physical custody during one specified
school year. [Fn. 4]  After the mother submitted an affidavit
opposing the father's motion and contesting his factual assertions,
the superior court granted the father's request to modify the
agreement to provide him with legal and physical custody with
visitation rights in the mother. [Fn. 5]  We reversed, holding that
"[t]he superior court is not permitted to grant an opposed motion
to modify custody without holding a hearing." [Fn. 6]
          Leif contends that Danielle waived her right to a hearing
by failing to request one as required by Civil Rule 77(e)(1). [Fn.
7]  Leif argues that
          [Danielle] was certainly on notice of [Leif's]
opposition to her motion and the specific facts he relied upon for
that opposition yet she did not request a hearing and elected to
submit the case to the court on the affidavits and other evidence. 
Moreover, even after the court denied her motion to modify custody
and [Danielle] filed a motion for reconsideration she still failed
to cite a need for an evidentiary hearing.

Leif attempts to distinguish this case from Walker, noting that in
Walker the mother was not represented by counsel and was unaware --
due to the court's failure to send her notice of an extension of
the time to secure counsel -- of the need to request a hearing.
[Fn. 8] Here, Danielle was both represented by counsel and given
adequate notice and opportunity to request an evidentiary hearing
on her motion.
          In reply, Danielle argues that her failure to request a
hearing prior to the court's order does not constitute waiver,
because pursuant to Rule 77(e)(1) her time to request a hearing had
not run by August 12, 2000, when the court entered its order.
          We agree with Danielle that the trial court erred in
granting Leif's motion to modify custody without conducting an
evidentiary hearing.  Our decisions in Walker and A.H. v. P.B. [Fn.
9] require an evidentiary hearing before an opposed motion to
modify custody can be granted.  In Walker we explained that 
          [p]rocedural due process under the Alaska
Constitution requires notice and opportunity for hearing
appropriate to the nature of the case.  We have repeatedly held
that a party opposing a motion to modify child custody has the
right to a hearing before the superior court grants the motion.  A
hearing is required in order to give the parties an opportunity to
present the quantum of evidence needed for the court to make an
informed and principled determination.[ [Fn. 10]]

Leif's contention that Danielle waived her right to a hearing by
failing to specifically request a hearing misses the mark. 
According to Walker, once Danielle "had opposed the motion, she was
not obligated to present any further opposition to the court in
order to earn a right to an evidentiary hearing." [Fn. 11] 
          A.H. is also instructive.  In A.H. we stated that "[w]hen
a superior court is asked to make a material and substantial change
to a visitation arrangement, it should not do so without permitting
all parties to be heard, at least telephonically." [Fn. 12]  The
opposing party in A.H., like Danielle, did not request a hearing,
but merely opposed the motion to modify the visitation arrangement.
[Fn. 13]
          This case must be distinguished from cases in which only
a minor modification to a custody order is sought.  Here the
original agreement was not meant to apply once Travis reached
kindergarten age.  Thus the trial court was essentially making an
initial custody determination.  By contrast, when a motion to
modify seeks only a scheduling change or a similar insubstantial
alteration to custody or visitation, the court may act without an
evidentiary hearing assuming that there are no factual conflicts
that require resolution. [Fn. 14]
          In sum, because Danielle opposed Leif's motion to modify
the custody arrangement and raised factual disputes regarding the
best interests of their child, the superior court should have
conducted an evidentiary hearing.
     B.   It Was Not Error to Decline to Appoint a Custody
Investigator.

          Danielle argues for several reasons that the trial court
abused its discretion when it refused to appoint a custody
investigator:  (1) because the only evidence before the court was
the contradictory affidavits of the parties; (2) because the court
had not provided a hearing; and (3) because Judge Link had not been
previously materially involved in this case.
          The purpose of custody investigations is to assist trial
judges in ascertaining the best interests of a child.  Trial courts
are granted wide discretion in deciding when to initiate custody
investigations. [Fn. 15]  Unless it can be shown that a court would
be unable to determine the child's best interest without a custody
investigation, a trial court does not abuse its discretion when it
decides not to appoint an investigator.  The reasons that Danielle
gives for appointing an investigator in this case will be
eliminated by an evidentiary hearing.  Hence, the superior court
did not abuse its discretion by declining to seek the assistance of
an investigator.
     C.   It Was Error Not to Make Findings of Fact and to Explain
the Reasons for Denial. 

          Danielle argues that "[c]ustody decisions must be
supported by adequate factual findings and conclusions of law
addressing all relevant criteria."  Danielle accurately cites
Howlett v. Howlett for the proposition that this court will reverse
modifications of custody made without findings. [Fn. 16]
          Leif responds by maintaining that under Deivert v. Oseira
trial courts are not required either to hold hearings or issue
findings where they conclude that there should be no change to a
custody arrangement. [Fn. 17]  He argues that the court therefore
did not need to enter findings or explain its reasons because the
order "denied Danielle's modification motion and left custody of
the minor child essentially unchanged."  Leif's contention that the
court's order was not a modification, but "essentially [a]
continu[ation of] [Travis's] primary placement with [Leif] during
the school year," is incorrect, if not disingenuous.  Leif not only
opposed Danielle's motion to modify custody, but also counter-moved
to modify custody in his favor, and admitted that the parties had
shared Travis equally for over three years at the time of the
motions.  Further, the August 12, 2000 order modifies even the
original negotiated agreement because it does not provide for any
visitation for Danielle during the course of the school year. [Fn.
18]
     D.   It Was an Abuse of Discretion to Fail to Provide for
Visitation Between Danielle and Travis During the School Year.
     
          Danielle argues that the order, which "created absolute
disruption and chaos for a six year old who had never been
separated from his mother and sister for more than two weeks at a
time," was, "on its face, not in [Travis's] best interests, and
therefore an abuse of discretion."
          With neither findings of fact nor a statement on the
record of the reasons for the grant of the custody modification, it
is impossible to understand the rationale for the court's failure
to grant Danielle visitation during the school year.  We see
nothing in the record that would justify such a lengthy separation
and thus conclude that the court abused its discretion in this
respect. [Fn. 19] 
IV.  CONCLUSION
          For the forgoing reasons, we REVERSE the judgment of the
superior court and REMAND for proceedings consistent with this
opinion.


                            FOOTNOTES


Footnote 1:

     We use pseudonyms for all family members mentioned by name in
this opinion.


Footnote 2:

     Under the agreement, Danielle had custody of Travis from May
1 through August 6 and from December 1 through December 31. Leif
had custody from August 7 through November 30 and from January 1
through April 30.  During the period in which Leif had custody,
Danielle was to have visitation rights for a total of five weeks.
During the period in which Danielle had custody, Leif was to have
visitation for up to three weeks.


Footnote 3:

     960 P.2d 620 (Alaska 1998).


Footnote 4:

     See id. at 621.


Footnote 5:

     See id.


Footnote 6:

     Id. at 622.


Footnote 7:

     Civil Rule 77(e)(1) provides:

               If either party requires oral argument on
the motion, that party shall file a notice of hearing within five
days after service of a responsive pleading or the time limit for
filing such a responsive pleading, whichever is earlier.    


Footnote 8:

     See Walker, 960 P.2d at 622.


Footnote 9:

     2 P.3d 627 (Alaska 2000).


Footnote 10:

     960 P.2d at 622 (internal quotations and footnotes omitted).


Footnote 11:

     Id.


Footnote 12:

     2 P.3d at 628.


Footnote 13:

     See id.


Footnote 14:

     See id. (requiring a hearing when "a superior court is asked
to make a material and substantial change to a visitation
arrangement" (emphasis added)).


Footnote 15:

     See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000).


Footnote 16:

     890 P.2d 1125, 1127 (Alaska 1995).


Footnote 17:

     628 P.2d 575 (Alaska 1981).


Footnote 18:

     Assuming the school year runs from September through May, the
superior court order would grant custody to Leif for nine months
without any provision for visitation and to Danielle for three
months without visitation for Leif.  This is clearly a modification
both from the parties' 50/50 de facto custody arrangement and from
the original agreement which gave custody to Danielle for
approximately five months of the year.


Footnote 19:

     See I.J.D. v. D.R.D., 961 P.2d 425, 432 (Alaska 1998) (holding
that trial courts must make specific findings to support a limited
award of visitation).