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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wells v. Barile (03/28/2008) sp-6244

Wells v. Barile (03/28/2008) sp-6244, 179 P3d 944

     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


TAMMY S. BARILE n/k/a TAMMY )
S. WELLS, ) Supreme Court No. S- 12709
)
Appellant, ) Superior Court No. 3PA-03-176 CI
)
v. ) O P I N I O N
)
PRIMO J. BARILE, ) No. 6244 March 28, 2008
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:  John C. Pharr, Law  Offices  of
          John  C.  Pharr,  Anchorage,  for  Appellant.
          Primo Barile, pro se, Palmer.

          Before:     Fabe,  Chief  Justice,  Eastaugh,
          Carpeneti, and Winfree, Justices.  [Matthews,
          Justice, not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION
          Some  three years after entry of a child custody  order
for  Tammy  Wells and Primo Bariles son, Tammy filed a motion  to
modify  the  child custody order, alleging changed  circumstances
and requesting an evidentiary hearing.  The superior court denied
the  motion  without  addressing some  of  the  most  significant
alleged  changed circumstances and without holding an evidentiary
hearing.  Because Tammys motion made out a prima facie showing of
changed  circumstances, it was error to deny her  motion  without
conducting  an  evidentiary hearing.   We  therefore  vacate  the
denial order and remand.
II.  FACTS AND PROCEEDINGS
          Tammy  Wells and Primo Barile are the parents of Chance
Barile,  born in March 1997.  Tammy and Primo married in December
1995  and  divorced  in  September 2003.  In  November  2003  the
superior  court  held  a two-day trial.   Tammy  and  Primo  both
attended.
          Following  the  hearing, the court found  that  [w]hile
Tammy  has provided fairly well for her children, . . . Primo  is
probably better able to meet Chances social needs; that Primo  is
somewhat  better  able  to meet Chances educational  needs;  that
[t]here is evidence of domestic violence between the parties; and
that  the  Custody  Investigators recommendation  indicates  more
concerns with Tammys household than with [Primos] household  with
respect to child neglect and abuse.
          In  January  2004  the  court awarded  shared  physical
custody, giving Primo custody fifty-four percent of the time  and
Tammy  custody  forty-six percent of the time.   The  court  also
awarded   Primo  sole  legal  custody  for  purposes  of  Chances
enrollment at school and where Chance will live within the Palmer-
Wasilla area.  The court did not award child support.
          In February 2007 Tammy filed a motion to modify custody
and a request for an evidentiary hearing.  Her motion sought sole
legal  and  primary physical custody.  She alleged the  following
changed  circumstances warranted a custody modification: (1)  her
remarriage to Lance Wells; (2) Primos remarriage to Tasa  Barile;
(3)  both  parties new stepfamilies; (4) facts implying  domestic
violence;  (5)  facts implying abuse and neglect of  Chance;  (6)
Chances deteriorating grades; (7) Chances suspension from  school
for terroristic threatening; (8) Primos driving Chance without  a
license  or insurance; (9) her move to Anchorage from the  Mat-Su
Valley;  (10)  Chances preference to live with her;  and  (11)  a
voluntary change to the visitation schedule.
          Primo  opposed  the  motion and requested  that  he  be
awarded  full  legal  and physical custody  with  [Tammy]  having
[custody]  every  other weekend.  Primos response  denied  Tammys
allegations of changed circumstances, asserted that  Tammy  is  a
convicted  felon, and alleged that Chances new stepfather  has  a
history of domestic violence.
          In  February 2007 Tammy also filed a motion to prohibit
Primo from transporting Chance.  Her supporting affidavit alleged
that  Primo  drove Chance without insurance or  a  valid  drivers
license.1  Primos response denied that he knowingly drove  Chance
while he was uninsured and asserted that he stopped driving  when
he discovered that he had issues with [his] license.
          On  May  8,  2007,  without conducting  an  evidentiary
hearing,  the  superior   court denied Tammys  motion  to  modify
custody  without prejudice.  The court also denied Tammys  motion
to prohibit Primo from transporting Chance.2
           Tammy appeals.
III. DISCUSSION
     A.   Standard of Review
          Whether  a  moving  party has made out  a  prima  facie
          showing sufficient to justify a custody modification hearing is a
matter of law that we review de novo.3  We will affirm the denial
of  a  custody modification motion without a hearing if,  in  our
independent  judgment, 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.4
We  review allegations of multiple changed circumstances  in  the
aggregate to determine whether modification is warranted.5
     B.   An  Evidentiary  Hearing  Is  Required  Because  Tammys
          Allegations, if Proved, Would Warrant Modification.
          
          The  superior  court  denied Tammys  motion  without  a
hearing  because  it  found  that  Tammys  allegations,  even  if
entirely true, may not arise to the level of a substantial change
in  circumstances.   Tammy argues that she  made  a  prima  facie
showing  of  a  substantial  change  in  circumstances  affecting
[Chances]  welfare and that the superior court erred  by  denying
her motion without conducting an evidentiary hearing.
          The  superior court explicitly addressed the  following
allegations  when  it denied Tammys custody motion:  an  informal
change  to  the  visitation schedule, Tammys  remarriage,  Primos
remarriage, Tammys relocation to Anchorage, Chances behavior  and
poor  grades, new stepfamilies, Primos neglect of Chance,  Primos
driving   of  Chance  without  a  license,  and  Chances  alleged
preference for living with Tammy.
          The  superior court did not mention Tammys  allegations
of  child abuse or domestic violence.  Tammy had asserted  in  an
affidavit  that Primo smack[ed] Chance with a rolled up newspaper
in  the  buttocks, back and neck;  that Primo had sent Chance  to
his  room many, many times; and that Chance is frightened by  the
pretty  severe  corporal punishment  administered to  Primos  new
stepson  by  Primo  and Primos new wife.  Tammys  affidavit  also
alleged  mistreatment of Primos new stepson  by  both  Primo  and
Primos  new  wife.  Thus, it alleged that Primos new  wife  threw
Primos stepson  onto a bed so hard he bounced up and hit the wall
and fell to the floor; that Primos new wife used a coat hanger to
spank  Primos  stepson; and that Primo spanks his stepson  nearly
daily.
          Because  a finding of domestic violence would establish
changed  circumstances,6  it  was error  to  not  address  Tammys
allegations of abuse or domestic violence; an evidentiary hearing
is  required  to  provide  Tammy  an  opportunity  to  prove  her
allegations.7
          In   addressing  Tammys  allegation  that  Primo  drove
without  a  license, the superior court remind[ed]  both  parties
that  driving without a license is a crime and . . . a conviction
for  such a crime may negatively affect custody rights.  But  the
allegation that Primo drove Chance without a license is  also  an
allegation  that  Primo  placed  Chances  safety  at  risk;   the
allegation that he drove without insurance potentially  raises  a
question  whether Chance could receive adequate medical treatment
in event of an accident.  These allegations, if still potentially
valid,  should  also be considered during a changed circumstances
analysis on remand.
          Furthermore,  there  must  be  an  evidentiary  hearing
before  Tammys  motion  can be granted or denied  because  Tammys
allegations  in  the  aggregate, if proved,  potentially  warrant
modification.8  Some of Tammys individual allegations of  changed
circumstances would certainly not be compelling reasons to modify
custody, but taken together, her allegations collectively require
a factual hearing.9
IV.  CONCLUSION
          Because  Tammys allegations, if proved,  could  warrant
modification  of  Chances custody, we VACATE  the  order  denying
modification and REMAND for an evidentiary hearing.10  Some of the
circumstances  or  conditions alleged  in  Tammys  February  2007
motion for modification may be transient.  Even if they no longer
exist, it will be within the discretion of the superior court  to
decide whether they remain relevant on remand.
_______________________________
     1     In  September  2006 Primo drove a car involved  in  an
accident.   Because Primo did not have insurance at the  time  of
the accident, his license was suspended.

     2     Before  the  superior court denied  Tammys  motion  to
modify   custody,   Tammy  filed,  among  other  things,  several
discovery motions.  The order denying Tammys custody motion  also
denied   without  prejudice  Tammys  other  outstanding  motions,
including  her  discovery motions.  On appeal Tammy  argues  that
denying her discovery motions denied her right to procedural  due
process.  Because we remand for an evidentiary hearing, we do not
need  to  address  Tammys procedural due process  argument.   The
scope  of  discovery on remand is addressed to the discretion  of
the superior court.

          By  not  modifying Chances custody, the superior courts
May  8,  2007 order  denied, at least implicitly, Primos  request
for  modification.   Primo  does not appeal  the  denial  of  his
request for modification.

     3    Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999).

     4    Id.

     5     Long  v.  Long, 816 P.2d 145, 150, 152  (Alaska  1991)
(noting   that  we  review  multiple  changed  circumstances   to
determine  whether, in the aggregate, the changes are  sufficient
to  warrant change of custody); see AS 25.20.110(a) (An award  of
custody  of a 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 Lashbrook v. Lashbrook, 957 P.2d  326,  328-29
(Alaska  1998) (noting that [t]he ultimate focus of  the  custody
modification statute is the best interests of the child[]).

     6      AS  25.20.110(c)  (In  a  proceeding  involving   the
modification of an award for custody of a child . . .  a  finding
that  a  crime of domestic violence has occurred since  the  last
custody   .  .  .  determination  is  a  finding  of  change   of
circumstances.); see Lashbrook, 957 P.2d at 329 (stating  finding
of  a crime involving domestic violence is a changed circumstance
as a matter of law).

     7     Harrington,  984 P.2d at 3; see J.L.P. v.  V.L.A.,  30
P.3d 590, 595 (Alaska 2001).

     8    See Long, 816 P.2d at 152.

     9     See  id. (stating custodial parents decision  to  move
within  state,  but  hundreds  of miles  away  from  noncustodial
parent,   presents  factor  court  should  include   in   changed
circumstances  analysis); see also Bunn v. House, 934  P.2d  753,
758 (Alaska 1997) (stating that change in custodial or visitation
patterns may constitute material change in circumstances).

     10     The  text of the May 8, 2007 order that denied Tammys
modification motion appears to increase Primos custody of  Chance
by  one  percent, from fifty-four to fifty-five percent.  Because
the order uses the word current to describe the custody schedule,
we  assume that the order reflects either a clerical error or  an
unintentional mischaracterization, rather than a modification  of
custody.

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