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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maxwell v. Maxwell (12/21/2001) sp-5518

Maxwell v. Maxwell (12/21/2001) sp-5518

     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
                                 

GARY L. MAXWELL,              )
                              )    Supreme Court No. S-10084
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-93-5831 CI
                              )
LAURIE A. MAXWELL,            )    O P I N I O N
                              )
             Appellee.        )    [No. 5518 - December 21, 2001]
______________________________)

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                       Mark Rindner, Judge.

          Appearances:  Gary L. Maxwell, pro se,
Anchorage.  No appearance for Laurie A. Maxwell.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          Gary Maxwell moved to modify custody of the parties' two
children after Laurie Maxwell, claiming to be unable to deal with
their daughter, twice within three months sent the child on short
notice from her home in Ketchikan to Gary in Anchorage.  Because
Gary failed to allege facts sufficient to establish a material
change in circumstances, the decision of the superior court denying
Gary's motion to modify custody is affirmed.
II.  FACTS AND PROCEEDINGS
          The marriage of Gary and Laurie Maxwell resulted in the
birth of two children: Brittany, born in 1984, and Brandon, born in
1987.  The parties divorced in 1989.  Laurie has had primary
physical custody of the children since that time.  Laurie and the
children live in Ketchikan.  Gary lives in Anchorage. 
          According to Gary, the current dispute began in November
2000 when Laurie sent Brittany on short notice to Anchorage to be
with her father.  Brittany returned to Ketchikan three days later. 
Brittany was again sent on short notice to Anchorage in January
2001.  Brittany returned shortly thereafter to Ketchikan.  In both
cases, Gary claims that Laurie called him, said the children were
out of control and that he had to take both of them, but then only
sent their daughter. 
          In January 2001, Gary filed a motion to modify custody
and a motion for expedited consideration.  He claimed that the
children were in an abusive environment in Ketchikan, including in
his motion numerous hearsay statements about the situation.  Laurie
opposed the motion and requested that the court assign an
investigator to interview the children in order to ascertain where
they would prefer to reside.  Because the children were sixteen and
thirteen, Laurie felt that they should be allowed to state their
preferences as to where they wanted to live.  In his reply brief,
Gary asked that the court order a psychological evaluation of
Laurie based on her recent behavior. 
          Superior Court Judge Mark Rindner denied expedited
consideration and appointed a custody investigator for the sole
purpose of interviewing the children.  The court further ordered
that Brandon remain with Laurie in Ketchikan and that Brittany
either stay in Anchorage or return home during the pendency of the
proceedings, at her choice, provided that she was enrolled in
school. 
          The custody investigator interviewed the children on
February 3, 2001.  Both children expressed the unqualified desire
to remain in their mother's home in Ketchikan.  Based on the
custody investigator's report, the superior court denied Gary's
motion to modify custody, concluding that further hearings were not
necessary because both children preferred the current custodial
relationship and there was no evidence that the environment they
were in was not a stable, satisfactory one. 
          Gary appeals to this court.
III. STANDARD OF REVIEW
          The superior court may deny a hearing on a motion to
modify custody "if it considers [the] motion and finds it plain
that the facts alleged in the moving papers, even if established,
would not warrant a change in custody." [Fn. 1]  Accordingly, we
"review de novo a court's decision to deny a hearing on a motion to
modify custody." [Fn. 2] 
IV.  DISCUSSION
     A.   The Superior Court Did Not Err in Foregoing a Best
Interests Hearing on Gary's Motion to Modify Custody.
          Gary argues that the trial court erred when it failed to
hold a hearing on his motion to modify custody.  We disagree.
          A motion to modify custody will be granted only when two
conditions are satisfied.  The non-custodial parent must first
establish that a change in circumstances has occurred.  The court
must then conclude that modification is in the best interests of
the child. [Fn. 3]  The superior court may deny a custody
modification without an evidentiary hearing if 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.' " [Fn. 4]  The moving parent
bears the burden of making a prima facie showing of a substantial
change of circumstance as a threshold matter. [Fn. 5]  Once the
movant meets that threshold burden, he or she is entitled "to a
hearing to consider whether, in light of such changed
circumstances, it is in the child's best interest to alter the
existing custodial arrangement." [Fn. 6] 
          In this case, Gary was not entitled to a hearing because
he failed to satisfy his burden of showing changed circumstances. 
Gary argues that Laurie's conduct in sending Brittany to him on two
occasions, together with his allegations of an abusive environment,
were sufficient to support a hearing on his motion to modify.  But
a trial court is not required to grant a hearing in order to
perform a best interests analysis if the allegations of changed
circumstances are convincingly refuted by competent evidence. [Fn.
7] 
          The facts alleged in this case do not warrant
modification.  Gary's motion was based on the two occasions Laurie
sent Brittany to Anchorage and his factually unsupported
speculation that the environment Laurie was providing the children
was abusive.  The custody investigator [Fn. 8] interviewed the
children separately and found that their desire to remain in
Ketchikan with their mother was sincere.  The custody investigator
also reported that the children had satisfactory relationships with
both parents, although a closer relationship existed between mother
and children.  Neither child reported abuse or out-of-control
behavior by their mother.  The superior court had sufficient
evidence before it to conclude that the facts alleged did not show
the existence of changed circumstances sufficient to warrant
modification.  Therefore, the superior court did not err when it
denied the motion to modify custody without holding a hearing.
          B.   The Superior Court Was Not Required To Make a Best
Interests Determination. 
          Gary argues that the superior court's conclusion that it
was in the best interests of the children to remain with their
mother was clear error or an abuse of discretion.  However, because
Gary did not allege facts sufficient to make the threshold showing
to warrant a modification of custody, we do not reach this issue.
V.   CONCLUSION
          Gary failed to meet his threshold burden of showing
changed circumstances.  Thus, the superior court was not required
to hold a hearing before it denied Gary's motion to modify custody. 
Accordingly, we AFFIRM the trial court's denial of the motion to
modify custody.




                            FOOTNOTES


Footnote 1:

     C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998) (internal
punctuation omitted).


Footnote 2:

     Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000).


Footnote 3:

     AS 25.20.110(a) ("An award of custody of a child or visitation
with the child 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 the child."); see also
Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990).


Footnote 4:

     Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999) (quoting
Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999)).  See also
C.R.B., 959 P.2d at 378 (holding that motion to modify custody may
be denied without hearing when facts alleged in moving papers, even
if established, would not warrant a change).


Footnote 5:

     Harrington, 984 P.2d at 3; Long v. Long, 816 P.2d 145, 149
(Alaska 1991) (citing Lee v. Cox, 790 P.2d 1359, 1361 (1990)).


Footnote 6:

     Lee, 790 P.2d at 1361.


Footnote 7:

     Harrington, 984 P.2d at 3; see also Carter v. Brodrick, 816
P.2d 202, 204 (Alaska 1991) (explaining that court has discretion
to deny hearing where there is no showing of changed circumstances
or of alteration in best interests of child); C.R.B., 959 P.2d at
378-79 (holding that court can deny motion to modify custody
without hearing based solely on pleadings or after considering
other material papers).


Footnote 8:

     The decision to appoint a custody investigator is
discretionary.  See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska
2000) (holding that trial judge has discretion whether or not to
appoint custody investigator).