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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Groleske (12/05/2008) sp-6326
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
| KATHLEEN SMITH, | ) |
| ) Supreme Court No. S- 12628 | |
| Appellant, | ) |
| ) Superior Court No. 3KN-00- 699 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| JOSEPH GROLESKE, | ) No. 6326 - December 5, 2008 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles T. Huguelet, Judge.
Appearances: Carol A. Brenckle, Law Offices
of Carol A. Brenckle, Kenai, for Appellant.
Phil N. Nash, Law Offices of Phil N. Nash,
Kenai, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
Following a post-divorce visitation dispute, the
superior court entered judgment awarding statutory visitation
damages and attorneys fees and costs without a requested
evidentiary hearing. A subsequent request for reconsideration
was denied. Because it was error to enter sanctions without a
requested evidentiary hearing and because the court used the
wrong statute as the basis for its judgment, it was an abuse of
discretion to deny reconsideration. We therefore vacate the
judgment and remand for an appropriate evidentiary hearing.
II. FACTS AND PROCEEDINGS
Joseph Groleske and Kathleen Smith dissolved their
marriage in November 2000 while both lived in Kenai; they entered
into a court-approved custody and visitation agreement for their
two children. Following disagreement about the details of child
transfers, in June 2001 the court entered an order establishing
when and where the children would be exchanged.
Two months later Joseph requested sanctions under AS
25.20.1401 and AS 25.20.1152 after Kathleen caused him to miss a
two-and-one-half-hour visitation with the children. At an
October 2001 hearing a master concluded that there had been a
visitation violation but not a fundamental visitation breakdown.
The master found Kathleens conduct was not egregious and that she
did not act wilfully as the term is used in AS 25.20.140(b). The
master recommended that the parties amend their dissolution
agreement to include flexibility for make-up visitation and
warned that the court would consider the missed visit if an on-
going pattern developed.
That same day Kathleen moved to modify custody,
visitation, and child support, giving notice that she intended to
retire from her job at the end of the school year and move with
the children to Michigan. Before a scheduled modification
hearing in July 2002, the parties agreed to an outline for a
settlement. The parties orally notified the court of the
settlement and the hearing was cancelled. The parties then filed
written notice of the settlement, providing an outline form of
the agreement and indicating that the finished agreement shall be
prepared following the 4th of July Holiday and finalized pursuant
to court procedure. The agreement outline gave Kathleen sole
custody of the children, with Joseph having seven weeks of summer
visitation.3 The settlement was never finalized, and neither
party applied for an order approving or effectuating it, but both
parties honored the outlined terms in 2003, 2004, and 2005.
In 2006 the children, then eleven and fifteen years
old, were scheduled to fly to Alaska for Josephs seven weeks of
summer visitation. Joseph bought airline tickets and sent
Kathleen the travel itinerary. At some point before the
scheduled trip, Kathleen became aware that Joseph had a new job
working on the North Slope for two-week shifts and therefore
would be absent for part of the childrens visit, and she raised
concerns. A few days before the scheduled trip, Kathleen advised
Joseph that the children would not be traveling to Alaska.
Joseph filed a Motion For Enforcement Of Visitation,
asking the court to: (1) direct Kathleen to immediately place
the children on an airline with tickets to Kenai, at her expense;
(2) grant a full seven-week visitation; and (3) enter a judgment
for visitation sanctions and attorneys fees. In his supporting
memorandum, Joseph referred to the July 3, 2002, settlement
outline as an order for visitation, but in his supporting
affidavit he acknowledged that there actually was no final
settlement agreement or court order approving it.
Kathleen opposed the enforcement motion and filed a
cross-motion to modify visitation, submitting a contesting
affidavit and requesting an evidentiary hearing for both motions.
Kathleen affirmatively acknowledged that the 2002 settlement
outline for visitation was in effect, but argued that Josephs new
work schedule excused her decision not to allow the visitation
and provided the basis for a change in the visitation agreement.
Kathleen stated in her affidavit that: (1) Joseph refused to
communicate with her about where and with whom the children would
be staying while he was on the North Slope or how, if at all, he
had arranged his work schedule to be with the children during the
visitation period; (2) she believed it was not in the best
interests of the children to go to Alaska for seven weeks if
their father would be gone half of the time; and (3) it would be
negligent for her to send the children without additional
information.
Joseph submitted an additional affidavit on reply and
opposed the motion to modify visitation. In his affidavit,
Joseph referenced and attached a copy of a letter said to have
been mailed and delivered to Kathleen, in which he had advised
Kathleen that the children would be staying in my home and cared
for by my family and myself the same as they have every summer
since you moved them to Michigan.
Without a hearing of any kind, the superior court
granted Josephs motion to enforce visitation. The court signed
the order Joseph lodged, which noted that the motion was based on
the Settlement filed with the court in July of 2002 and also
referred to the masters comments during the 2001 visitation
dispute indicating that the missed visitation would be considered
if it turned out to be an on-going pattern. The order allowed
Joseph to file a separate motion for sanctions and fees.
Joseph then moved for visitation damages and attorneys
fees and costs under AS 25.20.140(b), seeking the statutory $200
damages sanction, slightly over $3,000 in attorneys fees, and
$347 for reimbursement of an airplane ticket purchased for an
adult to travel with the children. Kathleen opposed the motion.
She again submitted a contesting affidavit and again requested a
hearing.
Without a hearing, a master recommended that the
superior court grant Josephs motion for the $200 visitation
damages sanction, $5,274 in attorneys fees and costs, and $347 in
travel costs. The master used the order lodged by Joseph, which
noted the October 2001 visitation incident and included
conclusory language stating that Kathleens refusal to allow the
children to travel to Alaska was a willful failure without just
excuse to prevent visitation. Kathleen objected to and moved for
reconsideration of the masters recommendation, arguing: (1) she
did not have an opportunity to be heard; (2) the attorneys fees
were increased without explanation; (3) the amount awarded
represented one-third of her annual income; (4) Joseph had his
full summer 2006 visitation; (5) Joseph did not include a
statement of the parties earning capacities; and (6) her actions
were in good faith, reasonable, and justified. She submitted an
additional contesting affidavit with her objection.
The master later heard evidence and arguments regarding
the reasonableness of Josephs attorneys fees and reduced the
original recommendation for a fee award by $320. The master did
not hear evidence about the basis for Kathleens decision to
cancel the childrens scheduled visitation or her financial
capacity. The master recommended an order and judgment against
Kathleen for $200 in sanctions, just under $5,000 in attorneys
fees, and $347 in travel expenses. The trial court accepted the
masters recommendation, ordering Kathleen to pay Joseph a total
of $5,502.
Kathleen moved for reconsideration, arguing that the
court: (1) did not conduct an evidentiary hearing on the issues
of willfulness and financial capacity; (2) accepted Josephs
representations regarding billing charges without proof;
(3) ignored her claim that the decision not to send the children
was in the childrens best interests; (4) failed to consider that
Joseph actually was not denied visitation; and (5) relied on
Josephs intentional misrepresentations regarding past court
proceedings. The court denied reconsideration without comment.
Kathleen appeals the superior courts denial of her
motion to reconsider the entry of judgment, asking this court to
vacate the judgment and remand for an evidentiary hearing.4
III. STANDARD OF REVIEW
We review the denial of a motion for reconsideration
for abuse of discretion.5 We will find abuse of discretion only
when, after reviewing the entire record, we are left with a
definite and firm conviction that the lower court erred.6 The
appeal of a motion for reconsideration does not focus on the
merits of the underlying decision, but only on the propriety of
the denial of reconsideration.7
IV. DISCUSSION
The fundamental thrust of Kathleens reconsideration
motion was that she had been denied a requested evidentiary
hearing on the factual issues necessary for the entry of
sanctions after Josephs successful motion to enforce visitation.
Although she did not explicitly compare the two statutory
provisions, Kathleen also argued, as she had previously argued in
her opposition to the motion for sanctions, that the standards
for the imposition of sanctions should be those of AS 25.20.115
(for enforcement of visitation) and not of AS 25.20.140 (for
wrongful denial of specific court-ordered visitation). She makes
the same arguments on appeal and casts the failure to hold an
evidentiary hearing as a violation of her due process rights.
Due process requires that a party be given an
opportunity for a hearing on issues of consequence.8 We hold
that sanctions awarded under either AS 25.20.1409 or AS 25.20.11510
are issues of consequence requiring an evidentiary hearing if a
hearing is requested and if there are genuine factual disputes to
be resolved.11
To determine what procedures due process requires:
Alaska courts balance: (1) the private interest
affected by the official action; (2) the risk of
an erroneous deprivation of such interest through
the procedures used and the probable value, if
any, of additional or substitute procedural
safeguards; and (3) the governments interest,
including the fiscal and administrative burdens
that additional or substitute procedural
requirements would entail.[12]
Kathleen has an important private interest at stake:
not being assessed unwarranted and chilling monetary sanctions.
There is a high risk this interest will be erroneously deprived
if a court may sanction out-of-court conduct solely on the basis
of conflicting affidavits, rather than on the basis of an
evidentiary hearing that allows the court to resolve disputed
factual issues, see and hear witness testimony under both direct
and cross-examination, make reasonable credibility
determinations, and make necessary findings of fact for appellate
review. The added fiscal and administrative burden of an
evidentiary hearing, while not negligible, is not so significant
that it outweighs the benefits.
The balance weighs in Kathleens favor. And because due
process required an evidentiary hearing on contested issues
before the entry of statutory sanctions against Kathleen, it was
an abuse of discretion for the superior court to deny Kathleens
reconsideration motion after she pointed out: (1) disputed
issues of material fact raised by the parties affidavits; (2) her
earlier request for an evidentiary hearing; and (3) the courts
failure to conduct a hearing. We must therefore vacate the
judgment and remand for an evidentiary hearing.
Our conclusion is further supported by the superior
courts erroneous reliance on AS 25.20.140 rather than AS
25.20.115 when entering judgment. A judgment of sanctions and
attorneys fees may be entered under AS 25.20.140 only for a
wilful and without-just-excuse denial of visitation specified in
a court order, which is defined in the statute as a decree,
judgment, or order issued by a court of competent jurisdiction.13
Because the parties custody settlement agreement was never
submitted for court approval, it does not qualify as a court
order under AS 25.20.140. Joseph could not obtain attorneys fees
in an action under that provision even if his visitation had been
denied rather than merely delayed.
By contrast AS 25.20.115 governs attorneys fees in a
wider range of actions affecting custody and visitation,
including Josephs action to enforce visitation. Before 1990
awards of attorneys fees for both denial of visitation sanctions
and actions to enforce visitation were governed by the same
provision, AS 25.20.300.14 The legislature then enacted AS
25.20.115 to specifically govern actions to modify, vacate or
enforce that part of an order providing for custody of a child or
visitation of a child, providing different criteria for awarding
attorneys fees in such actions.15 We have construed AS 25.20.115
broadly, holding it applicable not only to actions to modify,
vacate, or enforce custody and visitation orders, but also to
actions seeking to alter the status quo of custody arrangements.
In Rowland v. Monsen,16 an unmarried couple with two
children entered into an agreement giving custody to the father
and visitation to the mother; the mother later petitioned for a
protective order against the father, claiming that the father
sexually abused the children.17 The court returned the children
to the father after the mother was unable to prove any abuse.18
We held that AS 25.20.115 allowed an award of attorneys fees
against the mother even though the action did not involve an
attempt to modify, vacate, or enforce a custody order, because it
is the substance of the proceeding that matters and she was, in
effect, trying to alter the status quo.19 In Rowland, we
discussed and relied on our earlier decision in B.J. v. J.D.:20
In that case, J.D. believed that he was the father
of V.J., and brought an action to gain custody of
V.J. When a paternity test showed that J.D. was
not the father, the court dismissed his complaint
and awarded custody to B.J. Several years later,
J.D. filed a new complaint seeking custody of V.J.
B.J. ultimately moved for an award of attorneys
fees in the new action and a dispute arose as to
whether AS 25.20.115 or the so-called divorce
exception to Civil Rule 82 set the standard for an
award. J.D. never filed a motion to modify,
vacate, or enforce custody. Nevertheless, AS
25.20.115 governed J.D.s efforts because his new
complaint attempted to modify the substance of the
courts earlier custody order and the status
quo.[21]
Here, Kathleen and Joseph dissolved their marriage and
obtained court orders regarding custody and visitation in 2000
and 2001. They agreed to modify custody and visitation in 2002
and notified the court of the outline of their agreement.
Although they never obtained a court order approving or
effectuating their agreement, they lived by it for four years and
it was the status quo. Kathleens decision to cancel Josephs 2006
summer visitation was an alteration of the status quo, and
Josephs motion to enforce that visitation ultimately maintained
the status quo. As in Rowland and B.J. v. J.D., AS 25.20.115
governs the award of attorneys fees in this case.
If sanctions are to be entered against Kathleen for her
delay of Josephs visitation, they must be entered within the
framework of AS 25.20.115 and must be limited to an award of
attorneys fees and costs after fully considering the [parties]
relative financial resources and whether the parties have acted
in good faith.22 After the evidentiary hearing on remand, the
superior court must make explicit findings to support its
decision to award attorneys fees and costs under this statute.23
We find no merit in Josephs argument that Kathleen laid
out her case in her affidavits and therefore an evidentiary
hearing was unnecessary. The affidavits and briefing in the
superior court reflect that the crux of the dispute was Kathleens
discovery that Joseph was working a two-week-on, two-week-off
schedule on the North Slope and her related concern about what
the children would be doing while Joseph was on the North Slope.
Joseph argues that as a matter of law changing jobs to
a North Slope schedule cannot be considered a change of
circumstances giving rise to any legitimate concerns by Kathleen,
but he did not have the benefit of our recent opinion in Iverson
v. Griffith.24 There we stated that a custodial parents change of
jobs to a North Slope schedule and the necessary change of child
care to a family not approved by the court was a sufficient prima
facie case of a change of circumstances warranting a hearing on a
requested modification of the existing custody arrangement.25
Iverson lends support to Kathleens position that she had a
legitimate right to raise concerns about where and with whom the
children would be while Joseph was on the North Slope.
But we also note the record in this case reflects that
during the 2000 dissolution, Kathleen recognized and agreed that
Josephs immediate family members had visitation rights with the
children, and that when Kathleen and Joseph settled their 2001
visitation dispute, they each agreed the other had discretion:
to delegate the physical care of the children to
another person, providing it is in the best
interests of the children, such as to provide that
the children spend time in the home of other
children or with friends of the parent, relatives,
or otherwise as that parent deems appropriate.
Kathleen stated in her affidavits that Joseph told her
it was none of her business with whom the children would be
staying, and that as the parent with legal and primary custody of
the children, she did not believe it prudent or in the best
interests of the children to send them from Michigan to Alaska
without knowing where they would be. Joseph stated in his
affidavit that he told Kathleen that he and his family would take
care of the children. Whether Kathleen acted in good faith
depends on what she actually knew or perhaps should have known
when she withheld the children from their trip to Alaska, and her
credibility appears to be a critical factor on this issue. Good
faith, like state of mind and intent, generally is not
susceptible to summary disposition where affidavits conflict.26
This case is no exception.
V. CONCLUSION
We VACATE the judgment entered against Kathleen and
REMAND for further proceedings consistent with this opinion.
_______________________________
1 AS 25.20.140 provides, in relevant part, as follows:
Action for failure to permit visitation with minor
child.
(a) When a court order is specific as to when a
custodian of a minor child must permit another
person to have visitation with that child, and the
custodian fails, wilfully and without just excuse,
to permit visitation with the child in substantial
conformance with the court order, the person
entitled to visitation has a separate cause of
action against the custodian for damages.
(b) The amount of damages recoverable under this
section is $200 for each failure of the custodian,
wilfully and without just excuse, to permit
visitation with the child for substantially the
length of time and substantially in the same
manner as specified in the court order. This
amount may not be increased or decreased once
liability has been established. The custodian is
not liable for more than one failure in respect to
what is, under the court order, a single
continuous period of visitation. The prevailing
party in an action commenced under this section is
entitled to recover a reasonable attorney fee.
(c) As used in this section,
(1) court order means a decree, judgment, or order
issued by a court of competent jurisdiction[.]
2 AS 25.20.115 provides as follows:
Attorney fee awards in custody and visitation
matters.
In an action to modify, vacate, or enforce that
part of an order providing for custody of a child
or visitation with a child, the court may, upon
request of a party, award attorney fees and costs
of the action. In awarding attorney fees and
costs under this section, the court shall consider
the relative financial resources of the parties
and whether the parties have acted in good faith.
3 The Notice of Settlement outline provided that for
summers:
Dad to have 7 weeks plus the weekend, defined
generally as: children to fly to Alaska to arrive
in Kenai in the afternoon at approximately the
time dad is off work on the third Friday of June
of each year. The kids will have seven weeks plus
the weekend with dad, such that they return to mom
the afternoon or early evening of the Monday after
the 7th Friday with dad.
4 The record does not reflect that the superior court
ever ruled on Kathleens motion to modify visitation. The record
does reflect that the State of Alaska, Child Support Services
Division, appeared in the case at Kathleens request to seek an
increase in Josephs child support payments. The superior court
later entered an order increasing Josephs child support
obligation, incorporating the basic custody and summer visitation
terms of the parties 2002 settlement outline. Kathleens appeal
does not concern any of these issues.
5 Manelick v. Manelick, 59 P.3d 259, 262 (Alaska 2002)
(citing Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997)).
6 Id. (citing Morgan v. State, Dept of Revenue, 813 P.2d
295, 297 n.4 (Alaska 1991)).
7 See Abraham v. State, 585 P.2d 526, 530 (Alaska 1978).
8 Heustess v. Kelley-Heustess, 158 P.3d 827, 835 (Alaska
2007) (citing Carvalho v. Carvalho, 838 P.2d 259, 262-63 (Alaska
1992) (holding that rejecting parents request to testify in child
custody hearing violated due process)); Lashbrook v. Lashbrook,
957 P.2d 326, 328 (Alaska 1998) (procedural due process requires
evidentiary hearing for contested custody proceedings).
9 AS 25.20.140, which relates to sanctions and damages
for wrongful failure to permit visitation specified in a court
order, was originally enacted in 1977 as AS 09.55.238, ch. 126,
2, SLA 1977, and later renumbered as AS 25.24.300, ch. 94, 9,
SLA 1980.
10 AS 25.20.115, which in relevant part relates to the
enforcement of visitation rights, was enacted in 1990. Ch. 130,
3, SLA 1990.
11 Cf. Hermosillo v. Hermosillo, 797 P.2d 1206, 1208 n.1
(Alaska 1990) (visitation order entered without a hearing not a
violation of due process if hearing not requested); Douglas v.
State, Dept of Revenue, 880 P.2d 113, 116-17 (Alaska 1994)
(prisoners due process rights were not violated by failure to
hold evidentiary hearing on inability to pay child support where
minimum support obligation was imposed regardless of inability
to pay because there were no factual issues to resolve).
12 Alyssa B. v. State, Dept of Health & Soc. Servs., 123
P.3d 646, 649 (Alaska 2005) (holding that due process does not
require jury trials in CINA proceedings) (internal quotation
marks omitted).
13 AS 25.20.140(c)(1).
14 L.L.M. v. P.M., 754 P.2d 262, 265 (Alaska 1988). AS
25.20.300 now is AS 25.20.140. See supra n. 9.
15 AS 25.20.115.
16 135 P.3d 1036 (Alaska 2006).
17 Id. at 1037.
18 Id.
19 Id. at 1039.
20 950 P.2d 113 (Alaska 1997).
21 135 P.3d at 1039 (internal citations omitted).
22 AS 25.20.115.
23 S.L. v. J.H., 883 P.2d 984, 985 (Alaska 1984) (in
making award of attorneys fees under AS 25.20.115, court must
make explicit findings as to relative financial resources and
good faith).
24 180 P.3d 943 (Alaska 2008).
25 Id. at 946.
26 See Wilcox Assocs. v. Fairbanks N. Star Borough, 603
P.2d 903, 906 (Alaska 1979) (Summary judgment is generally
inappropriate where a partys state of mind is at issue. But it
may be proper if the affidavits in regard to state of mind are
substantially uncontested.) (citing Poller v. CBS, Inc., 368 U.S.
464, 473 (1962) (regarding motive and intent); Croley v. Matson
Navigation Co., 434 F.2d 73, 77 (5th Cir. 1970) (regarding state
of mind)).
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