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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

Smith v. Groleske (12/05/2008) sp-6326, 196 P3d 1102

     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,


) Supreme Court No. S- 12628
) Superior Court No. 3KN-00- 699 CI
v. )
) O P I N I O N
JOSEPH GROLESKE, ) No. 6326 - December 5, 2008
          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.

          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.
          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
          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
          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
          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
          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
          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.
          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
          (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
          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

          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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