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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
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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