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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. King v. Carey (09/22/2006) sp-6048

King v. Carey (09/22/2006) sp-6048, 143 P3d 972

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MARY M. KING, )
) Supreme Court No. S- 12124
Appellant,)
) Superior Court No.
v. ) 3AN-93-1943 CI
)
MICHAEL L. CAREY, ) O P I N I O N
)
Appellee. ) No. 6048 - September 22, 2006
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Phyllis A. Shepherd, Law Office
          of  Dan Allan and Associates, Anchorage,  for
          Appellant.  William T. Ford,  Anchorage,  for
          Appellee.

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

          MATTHEWS, Justice.

          On  September 6, 2005, Mary King moved for modification
of  custody of her son Sean, requesting shared legal and physical
custody.   Seans custody had been most recently modified fourteen
months  prior, on July 14, 2004, when the superior court  awarded
Seans father Michael full legal and physical custody.  Marys 2005
motion  alleged that Sean would prefer to live with both parents.
As  her  sole  evidentiary support for the existence  of  changed
circumstances, Mary submitted an affidavit signed by Sean stating
that  it was now his preference to live with both parents.   Mary
did not initially request a hearing on the motion.
          On  September 20 Michael filed an opposition  to  Marys
motion,  arguing that the motion was an attempt  to  avoid  child
support  obligations,  alleging that Mary manipulated  Sean  into
signing the affidavit, and requesting a hearing should the  court
determine Mary made a prima facie case for modification.  At  the
end  of September, Sean was enrolled as a resident student in the
Alaska  Military Youth Academy.  At that time both parents signed
a  power  of  attorney delegating custody of Sean to the  Academy
pursuant  to AS 13.26.020.  On October 4 Mary filed  a  reply  to
Michaels  opposition, alleging for the first  time  that  in  his
fathers  custody  Sean was using alcohol and  drugs,  was  living
unsupervised  on the first floor of his fathers duplex  with  his
step-brother,  his step-brother was threatening  him,  and  Seans
schoolwork was in rapid decline.  Mary requested a hearing on her
motion  when she filed her reply memorandum.  On October  13  the
superior  court  denied  Marys motion  for  modification  without
hearing or comment.
          On  October 23 Mary filed a motion for reconsideration,
arguing that the multitude of disputed facts as to whether  there
was  a  change in circumstances justifying modification  entitled
her  to an evidentiary hearing.  On October 27 the superior court
denied  Marys  motion for reconsideration, finding (1)  that  the
sole  basis for Marys original motion, Seans affidavit,  did  not
establish  a  change  in circumstances; (2) that  even  assuming,
arguendo, that the court would consider the allegations raised in
Marys  reply,  those  allegations,  taken  as  true,  would   not
establish  a change in circumstances; and (3) that with  Sean  in
the Alaska Military Youth Academy there was no point in modifying
custody.  Mary appeals the denial without a hearing of her motion
for  modification  of custody and the denial of  her  motion  for
reconsideration.
          Because Mary failed to demonstrate a substantial change
in  circumstances, we conclude that she was not  entitled  to  an
evidentiary hearing, and the motion for modification  of  custody
was  properly denied.  Because grounds for granting a motion  for
reconsideration were not established, we conclude that the motion
for reconsideration was also properly denied.
          The  question  of whether Mary has met  her  burden  of
demonstrating a change in circumstances so as to be  entitled  to
an  evidentiary  hearing  is a matter of  law  which  this  court
reviews  de  novo.1  Under AS 25.20.110(a) [a]n award of  custody
.  .  . may be modified if the court determines that a change  in
circumstances  requires  the  modification  .   .   .   and   the
modification  is  in  the  best  interests  of  the   child.    A
preliminary   showing  of  changed  circumstances  entitles   the
non-custodial parent to a hearing to consider whether,  in  light
of  such changed circumstances, it is in the childs best interest
to  alter  the  existing custodial arrangement.2  The  change  in
circumstances must be significant or substantial.3
          The  superior court accurately summarized the  evidence
Mary presented in her motion for modification:
          1.   [Seans] opinion of best interest,
          2.    [Seans]  view the parents  should  have
          shared custody,
          3.   [Seans]  belief  shared  custody   would
               share parenting burdens, and
          4.   [Seans]  preference to  live  with  both
               parents.
               
We agree with the court that [t]hose opinions accepted as true do
not  constitute  a change in circumstances.  Mary  contends  that
Seans  preference was deemed a sufficient change in circumstances
to  warrant  modification in 2004.  Prior to Michaels motion  for
modification, Seans wishes had not been considered by  the  court
because  he was too young.  In the course of considering Michaels
2004 motion, the court found that Sean ha[d] reached an age where
his  preferences should be accorded substantial  weight  and  his
expression  of  desire to reside with his father represent[ed]  a
change  of  circumstances justifying a modification  of  custody.
The  changed circumstance at the time of Michaels motion was that
Sean had reached an age where his preferences could be considered
by  the  court, not that he had changed his mind about  where  he
wanted  to live.  In our view the superior court did not  err  in
concluding  that Seans affidavit was not a sufficient preliminary
showing  to  warrant a hearing in view of its conclusory  nature,
its  failure to offer any persuasive reason for wanting to change
the  custodial  arrangement so that Sean  could  split  his  time
fifty/fifty  between his parents, and the fact that  little  more
than a year before, custody had been changed to Michael based  in
part on Seans wishes.
          Mary  argues that her allegations of decline  in  Seans
academic   performance,   substance  abuse   issues,   inadequate
supervision, and domestic violence entitled her to an evidentiary
hearing.   These allegations were raised for the  first  time  in
Marys  reply  to  Michaels opposition to  her  motion  to  modify
custody.  They were therefore properly disregarded.4
          On  the motion for reconsideration Mary argued that  an
evidentiary  hearing  was required because  there  were  disputed
issues  of  fact as to whether there was a substantial change  in
circumstances.    One   ground  for   granting   a   motion   for
reconsideration  is if the court, in reaching its  decision,  has
overlooked  or misconceived some material fact.5  In  this  case,
since the disputed facts were raised only in reply, and thus were
properly  disregarded  by the court in  deciding  the  motion  to
modify, they were not overlooked or misconceived by the court  in
reaching its decision.  The court therefore did not err or  abuse
its  discretion in denying the motion.6  Our conclusion  in  this
respect  is  also  supported  by  the  superior  courts  sensible
conclusion that there was no real point to modifying the  custody
in  light  of  Seans  attendance at  the  Alaska  Military  Youth
Academy.
          We  therefore AFFIRM the superior courts denial without
a  hearing  of  the motion for modification of  custody  and  its
denial of the motion to reconsider.
_______________________________
     1     See  C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska  1998),
overruled  on other grounds by Evans v. McTaggart, 88 P.3d  1078,
1085 (Alaska 2004).

     2    Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990).

     3    Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).

     4    Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 611 (Alaska
1998)  (The function of a reply memorandum is to respond  to  the
opposition  to  the primary motion, not to raise  new  issues  or
arguments  .  . . .); Alaska State Employees Assn v. Alaska  Pub.
Employees Assn, 813 P.2d 669, 671 n.6 (Alaska 1991) (As a  matter
of  fairness,  the  trial court could not  consider  an  argument
raised for the first time in a reply brief.).

     5    Alaska R. Civ. P. 77(k)(1)(ii).

     6     Absent  an abuse of discretion a trial courts decision
on  a  motion for reconsideration will not be reversed on appeal.
Cline v. Cline, 90 P.3d 147, 150 (Alaska 2004).

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