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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Iverson v. Griffith (04/11/2008) sp-6251

Iverson v. Griffith (04/11/2008) sp-6251, 180 P3d 943

     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 IVERSON, )
) Supreme Court No. S- 12567
Appellant, )
) Superior Court No.
v. ) 3HO-03-00116 CI
)
JEFF GRIFFITH, ) O P I N I O N
)
Appellee. ) No. 6251 - April 11, 2008
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Harold M. Brown, Judge.

          Appearances:  Mary Iverson, pro se,  Langley,
          Washington.  Charles Winegarden,  Kenai,  for
          Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
            In  this  ongoing custody dispute,  a  mother  sought
custody of her daughter after the father began a new job  on  the
North  Slope  that required him to be away from the daughter  for
two weeks each month.  The mother sought a hearing to address the
fathers new employment and its effect on his ability to care  for
the  child.  The superior court denied the mothers request for  a
hearing and various other motions.  Because the mother alleged  a
sufficient case of a change in circumstances to warrant a hearing
and because the superior court failed to make findings explaining
its denial of the mothers motion for appointment of a guardian ad
litem, we remand to the superior court to (1) hold a hearing  and
(2)   either  appoint  a  guardian  ad  litem  or  make  findings
explaining why such appointment is not necessary.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Mary  Iverson and Jeff Griffith married in  1995.1   On
December  15,  1995,  Iverson gave birth to  the  couples  child,
Cassidy.   The  couple  divorced in 1996.  The  original  custody
arrangements were determined through the dissolution  proceeding,
but  within  two years those arrangements required  modification,
and  extensive  litigation followed.  In June 1998  the  superior
court  in  Anchorage  entered a custodial and  visitation  order,
modifying  the original custody agreement and granting Mary  sole
legal  custody of Cassidy with reasonable visitation  rights  for
Jeff.
          Before  the  superior courts denial of the  motion  for
custody  modification that gave rise to the present  appeal,  the
court  had  modified  custody  three  times:  once  in  1998  (as
discussed above), once in 2003, and once in 2005.  Jeffs  motions
for modification that resulted in the 2003 and 2005 modifications
addressed the risk of Cassidy being exposed to domestic  violence
directed  toward  Mary.  The 2003 modification  stemmed  from  an
agreement reached by Mary and Jeff after Jeff had filed a  motion
to  modify that alleged that Cassidy was at risk of witnessing or
being  a  victim  of the domestic violence that Marys  boyfriends
perpetrated  against Mary.  The agreement granted  Mary  physical
custody  of  Cassidy every other week.  In 2004  Jeff  filed  his
second  motion to modify custody, based on the continued  dangers
presented  by Marys relationships with abusive men.   In  January
2005  the  superior  court granted Jeffs 2004  motion  to  modify
custody  and  awarded him legal and primary physical  custody  of
Cassidy, subject to Marys right of visitation, because it found a
substantial  change  of  circumstances and  determined  that  the
modification  was  in  Cassidys best interests.   On  appeal,  we
affirmed the superior courts modification of custody.
          Thus,  Jeff  had custody of Cassidy at  the  time  Mary
filed  the motion for modification at issue in this case, and  he
continues to have custody.  Currently, Jeff lives in North  Pole,
but  he  works  on  the  North Slope and  is  away  from  Cassidy
approximately  two weeks of each month.  When  Jeff  is  away  at
work,  Cassidy stays with Shannon and Gary Scheff in North  Pole.
Shannon, Cassidys primary caregiver when her father is away,  has
known Cassidy since 2001.  Shannon and Garys daughter, Emily, and
Cassidy  are  close friends, and Shannons mother, Kathy,  is  the
principal  at  the  school Cassidy attends.  After  the  superior
court  awarded custody of Cassidy to Jeff in January  2005,  Mary
returned to Washington state, where she lived with her parents on
Whidbey  Island.2  Mary has worked in hospitals in the past.   As
of July 2006 she worked part time as a deputy clerk for the court
system on Whidbey Island.
     B.   Proceedings
          On  April  12,  2006,  Mary filed a  motion  to  modify
custody, or in the alternative visitation, and for other  relief.
Although  the motion primarily sought a modification  of  primary
physical   and  legal  custody  of  Cassidy,  Mary  alternatively
requested  (1) six weeks of summer visitation, (2) permission  to
          exercise holiday visitations wherever she wants, including
Washington  state, (3) an order directing Jeff to  allow  her  to
speak  to Cassidy daily, and (4) an order directing him to  cease
and desist from recording or eavesdropping on Marys conversations
with  Cassidy.   Mary alleged that circumstances changed  because
Jeff  had  interfered with her visitation, and it had  been  more
than  two  years  since  she  was last  involved  in  an  abusive
relationship.
          After she had filed the motion but before the July  24,
2006  hearing on the motion, Mary learned that Jeff  had  changed
jobs  and was now working on the North Slope, causing him  to  be
away  from Cassidy for extended periods.  Mary notified the court
of  this  change at the hearing, but because of time  constraints
and  the  limited  time the parties lawyers  had  to  prepare  to
address  the issue, the court requested supplemental briefing  to
address  whether Jeffs change in employment constituted a  change
in circumstances.  The parties filed briefs in response.
          In October 2006 Mary filed various other motions: (1) a
supplemental  motion  to modify custody, or  in  the  alternative
visitation,  and for other relief; (2) a request for  a  hearing;
(3) a motion for appointment of a child custody investigator,  or
in  the  alternative, appointment of a guardian ad litem;  (4)  a
motion   for  an  order  directing  Jeff  to  provide  her   with
information  regarding Cassidys whereabouts; (5) a motion  for  a
change  of  venue;  and  (6) a motion for out-of-state  Christmas
visitation  in  2006.   The superior court denied  all  of  Marys
motions on December 2, 2006.  Mary appeals.
III. STANDARD OF REVIEW
          The  superior  court has broad discretion  in  deciding
child  custody  issues.3  We will not reverse a  superior  courts
custody  decision unless the court has abused its  discretion  or
the controlling factual findings are clearly erroneous.4  We also
apply  the  abuse  of  discretion standard  to  review  decisions
concerning  the appointment of a child custody investigator5  and
change of venue.6  The superior court abuses its discretion if it
considers  improper  factors  in determining  custody,  fails  to
consider    statutorily    mandated    factors,    or     assigns
disproportionate weight to certain factors while ignoring others.7
          We  review de novo a courts decision to deny a  hearing
on a motion to modify custody.8
IV.  DISCUSSION
     A.   It Was Error To Deny Marys Request for a Hearing.
          A.   The superior court denied Marys request for a hearing to
address  Jeffs employment and its effect on his ability  to  care
for  Cassidy.  The court stated that Mary was not entitled to  an
evidentiary  hearing in light of the courts most  recent  hearing
and  because  she  has failed to allege circumstances  which,  if
true,  would  entitle  her to such a hearing.   On  appeal,  Mary
argues  that  she should receive a full and fair  opportunity  to
present   evidence  at  an  unbiased  fair  hearing,  where   all
circumstances are carefully reviewed.  She also states  that  she
was  not given a Due process Fair Hearing on July 24, 2006.  Jeff
responds by arguing that the request was deficient as a matter of
law  under AS 25.20.110 because Mary failed to meet her threshold
          burden of showing changed circumstances.
          In  Maxwell v. Maxwell, we held that the superior court
may  deny  a  hearing on a motion to modify custody only  if  the
facts  alleged  in  the  motion would not  warrant  a  change  in
custody.9  Once the movant meets the threshold burden of  showing
a substantial change of circumstance, her or she is entitled to a
hearing to consider whether it is in the childs best interest  to
alter  the  existing custodial arrangement.10  However,  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.11
          In  Marys  supplemental motion to modify  custody,  she
alleged that Jeff was working two weeks on/two weeks off  on  the
North  Slope and that while he was on the Slope, Cassidy  was  in
the  custody  of  Shannon and Gary Scheff.  Jeff did  not  refute
these  facts.   Rather,  in his opposition  to  the  supplemental
motion,  he  admitted  the employment change  and  the  resulting
change  in Cassidys care.  Because Jeffs new employment situation
prevented  him  from caring for Cassidy on a  regular  basis  and
because Cassidy was often in the custody of a family not approved
by  the  court, Mary alleged a sufficient prima facie case  of  a
change in circumstances.  Thus, she was entitled to a hearing  at
which  the  superior  court  must determine  whether  it  was  in
Cassidys best interest to alter the existing custody arrangement.
For  this reason, we must remand this case to the superior  court
for an evidentiary hearing.12
     B.   The Superior Court Did Not Abuse Its Discretion by Denying
          Marys Motion for a Change of Venue, but on Remand the Superior
          Court May Consider a Venue Change.
          
          The superior court denied Marys motion for a change  of
venue  without explaining its decision.  Mary argues  that  venue
should  have been changed because [t]he witnesses live  in  North
Pole and because the superior court judge with responsibility for
Homer  was  biased.   Jeff responds that [t]he  ends  of  justice
certainly would not have been served by moving the matter because
[t]he  proceedings were concluded except for   the  courts  final
decision.   Jeff also alleges that Marys motion was made  in  bad
faith to plague him with endless litigation.
          Under AS 22.10.040, the superior court has the power to
change  the  place of trial in an action . . .  to  a  designated
place in another judicial district . . . (1) when there is reason
to  believe that an impartial trial cannot be had; [or] (2)  when
the  convenience of  witnesses and the ends of justice  would  be
promoted  by  the  change.  In Ben Lomond, Inc.  v.  Allen,13  we
affirmed  the superior courts denial of a motion for a change  of
venue  based  on the first statutory ground, reasoning  that  the
movant failed to come forward with any evidence that a local jury
would  be  biased against her.14  Regarding the second  statutory
ground, we explained in Coughlan v. Coughlan:15
          Where statutory ground (2) which states  that
          when  the  convenience of witnesses  and  the
          ends  of  justice  would be promoted  by  the
          change is urged, the affidavit must state the
          names of the witnesses and the nature of  the
          testimony expected from each, show that their
          proposed  testimony  is admissible,  relevant
          and material to an issue in the case as shown
          by  the record and state the reasons why  the
          attendance of each would be inconvenient.  In
          urging  this  statutory  ground,  the  moving
          party  bears the burden of proving  not  only
          that the convenience of the witnesses will be
          promoted  but also that the ends  of  justice
          will be promoted by the change since the  two
          conditions are stated conjunctively.[16]
          
          Mary  failed  to  meet her burden of showing  that  the
superior  court  judge  was biased or  that  the  convenience  of
witnesses and the ends of justice would have been promoted  by  a
change  in venue.  Under the first ground of AS 22.10.040,  Marys
conclusory  remarks  about the bias of the superior  court  judge
assigned  to the case were insufficient for a change in venue  on
the  ground  that  an impartial trial cannot be had  because  she
provided  no  specific evidence of the judges  bias.   Under  the
second  ground  of  AS  22.10.040, Mary  failed  to  specifically
describe the nature of potential witnesses testimony and why  the
attendance  of  each  potential witness  would  be  inconvenient.
Further,  she failed to explain how the ends of justice would  be
promoted  by  changing venue after the Homer court  had  presided
over  years of hearings and motion practice in this case.   These
failures  indicate  that Mary had not met her burden  of  proving
that  a  change in venue was appropriate.  In addition, there  is
evidence that Mary filed the motion in bad faith.  In an email to
Jeff,  she  wrote, Judge Brown will retire or we will  get  venue
changed  and  this  can go on forever . . . .  My  attorney  will
continue  to ask for custody of Cassidy and this will  eventually
happen.   The email indicates that at least part of Marys  intent
in  seeking  a change in venue was to threaten endless litigation
as  alleged  by  Jeff.  Thus, the superior courts denial  of  her
motion was within its discretion.
          Nevertheless, evidence in the record reveals  that,  as
the  result of the passage of time,  no one connected to the case
still lives in Homer.  In addition, Judge Brown has retired.   On
remand,  the  superior court may consider any renewed  motion  to
change venue.
     C.   On  Remand, the Superior Court Should Either Appoint  a
          Guardian Ad Litem or Make Findings Explaining Its Decision Not To
          Do So.
          The  superior court denied Marys motion for appointment
of  a  child  custody investigator or guardian ad  litem  without
explaining its decision.  Mary argues that Cassidy should be able
to  speak with a child custody investigator or guardian ad  litem
for  her  own  well being.  Jeff responds that  Marys  motion  is
deficient because AS 25.24.310 applies only to motions filed  and
determinations made before trial.
          Alaska  Rule of Civil Procedure 90.6 provides that  the
court   may  appoint  an  expert  under  Evidence  Rule  706   to
          investigate custody, access, and visitation issues and provide an
independent  opinion concerning the childs best interests.   Rule
90.7(a)  provides that the court may appoint a guardian ad  litem
for  the  child only when the court finds separate representation
of  the  childs  best interests is necessary.  But  Rule  90.7(c)
states that [i]f the court denies a motion for appointment  of  a
guardian  ad  litem, the court must make findings to explain  the
denial. Alaska Statute 25.24.310(c) requires  a guardian ad litem
when,  in the opinion of the court, representation of the  childs
best interests, to be distinguished from preferences, would serve
the welfare of the child.  In Faulkner v. Goldfuss,17 we held that
the  trial court erred in failing to make findings on the  record
explaining  the  courts  decision not to appoint  a  guardian  ad
litem, as required by Rule 90.7(c).18
          Here,  the  superior  court  denied  Marys  motion  for
appointment  of a guardian ad litem or child custody investigator
without  making  findings to explain the denial. On  remand,  the
superior  court must make findings explaining whether appointment
of a guardian ad litem is necessary.19
V.   CONCLUSION
          Because  Mary  alleged  sufficient  facts  to  show   a
substantial  change  of  circumstances, she  was  entitled  to  a
hearing on her motion for change of custody.  We therefore REMAND
to  the superior court to (1) hold a hearing regarding the effect
of Jeffs move, job change, and the changes in Cassidys daily care
on the current custody arrangement, (2) either appoint a guardian
ad  litem  (or  child  custody investigator)  or   make  findings
explaining  why  appointment  of  a  guardian  ad  litem  is  not
necessary,   and  (3)  consider  the  AS  25.20.110  factors   to
determine  whether  modification  of  custody  or  visitation  is
appropriate.  We AFFIRM the superior courts decision to deny  the
motion for change of venue although this motion may be renewed on
remand.

_______________________________
     1     This case was previously before us in 2006.  The facts
in  this section are drawn from our earlier opinion in the  case:
Iverson  v. Griffith, No. S-11843, 2006 WL 2578692 (Alaska  Sept.
6, 2006).

     2     After  the superior courts modification of custody  in
favor  of Jeff, Mary filed a new motion for modification, arguing
that  her  recent move to Washington state created  a  change  in
circumstances.   On October 21, 2005, the superior  court  denied
Marys  motion  to modify, concluding that her voluntary  move  to
Washington  is  not  a  basis  for a  change  in  visitation  [or
custody].  Mary did not appeal the October 21, 2005 order.

     3     Jenkins  v.  Handel, 10 P.3d 586,  589  (Alaska  2000)
(stating  that  [t]he  trial court has broad  discretion  in  the
determination of child custody issues and that [w]e will  reverse
a  trial courts resolution of custody issues only if . . . we are
convinced that the trial court abused its discretion . . .).

     4    Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).

     5    Ogden v. Ogden, 39 P.3d 513, 516 n.2 (Alaska 2001).

     6     Sever  v.  Alaska Pulp Corp., 931 P.2d  354,  360  n.7
(Alaska 1996).

     7    Fardig, 56 P.3d at 11.

     8     Maxwell  v.  Maxwell, 37 P.3d 424, 425  (Alaska  2001)
(quoting Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000)).

     9     Id.  at 425-26 (quoting C.R.B. v. C.C., 959 P.2d  375,
378 (Alaska 1998)).

     10     Id.  at 426 (quoting Lee v. Cox, 790 P.2d 1359,  1361
(Alaska 1990)).

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

     12     Mary also appears to argue that the absence of a full
hearing  violated her due process rights,  but she only  mentions
due  process in passing in her opening brief and attempts to more
fully  develop  the  argument in her reply brief.   As  we   have
repeatedly  explained,  where a point is  given  only  a  cursory
statement in the argument portion of a brief, the point will  not
be  considered on appeal.  Adamson v. Univ. of Alaska,  819  P.2d
886,  889  n.3  (Alaska  1991).  The rule  in  Adamson  has  been
extended to cases involving pro se litigants.  See, e.g., A.H. v.
W.P.,  896  P.2d 240, 243 (Alaska 1995).  Here, like in  Adamson,
Mary  mentions due process only in passing in her opening  brief,
although it is given more attention in the reply brief.  819 P.2d
at  889 n.3.  Because Mary fails to sufficiently address her  due
process  claim  in  her opening brief, we  do  not  consider  the
argument.   Her  pro se status does not preclude  the  conclusion
that  she  waived the due process claim.  See A.H., 896  P.2d  at
243.   Further, because a hearing appears to be required in these
circumstances by the modification statute itself, we do not  need
to  reach the constitutional question in order to find that  Mary
is entitled to a hearing.

     13    758 P.2d 92 (Alaska 1988).

     14    Id at 96-97.

     15    423 P.2d 1010 (Alaska 1967).

     16    Id at 1015.

     17    46 P.3d 993 (Alaska 2002).

     18    Id. at 1002.

     19     Mary raises miscellaneous other issues in her  brief.
None  has  merit:  (1)  The issue of 2006 out-of-state  Christmas
holiday visitation is moot because the 2006 Christmas holiday has
already  occurred.  (2)  Marys argument  regarding  the  superior
courts  denial  of  her  motion for an order  directing  Jeff  to
provide  information about Cassidys whereabouts is without  merit
because  Mary  failed  to  demonstrate that  she  does  not  know
Cassidys whereabouts. (3) Marys argument challenging the superior
courts  striking of her notice of filing letters  of  support  is
also  without  merit  because  the letters  contain  inadmissible
hearsay.   See  Alaska R. Evid. 801-802.  Even if Marys  argument
for  admission of the letters had merit, she cites  no  authority
for  the letters admission and offers no argument other than  the
conclusory statement that the court erred, so we do not  consider
the  point on appeal.  See Adamson v. Univ. of Alaska,  819  P.2d
886,  889 n.3 (Alaska 1991).  (4) Finally, we have not considered
Marys photo collage and evidence of her new marriage because they
were not part of the record below.

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