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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Debra P. v. Laurence S. (9/27/2013) sp-6831

Debra P. v. Laurence S. (9/27/2013) sp-6831, 309 P3d 1258

         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, email  

                                                                                         

          corrections@appellate.courts.state.ak.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



DEBRA P.,                                                )  

                                                         )        Supreme Court No. S-14568  

                            Appellant,                   )  

                                                         )        Superior Court No. 3AN-10-09706 CI  

         v.                                              )  

                                                         )  

LAURENCE S.,                                             )        O P I N I O N  

                                                         )  

                            Appellee.                    )        No. 6831 - September 27, 2013  

                                                         )  



                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                     

                   Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                   Appearances:  Debra P., pro se, Anchorage, Appellant.  No  

                                                                  

                   appearance by Appellee.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                      

                   Bolger, Justices.   



                   BOLGER,  Justice.  



I.        INTRODUCTION  



                   At the trial call for this child custody case, the superior court suggested that  

                                          



the  parties  could  introduce  evidence  regarding  an  interim  custody  order  at  the  next  



hearing, so that they would have more time to reach a final settlement.  Then, during the  

                                                                                    



next hearing, both parties expressed some uncertainty about the purpose of the hearing.  

                     



However, at the conclusion of the hearing, the court made findings to support a final  

                                                                                                       


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custody judgment.  We conclude that this procedure violated the mother's right to due                                     



process of law.  We therefore reverse and remand for a new custody trial.  



II.       FACTS AND PROCEEDINGS  



                    Debra P. and Laurence S. are the parents of Dennis S., who was born in  



         1 

                                                                         

2002.   Dennis lived with both parties in Alaska from the time of his birth until sometime  



                                                           

in 2008 when the parties' relationship ended.  In December 2008 Debra took Dennis to  



                                                                                        

California, where he resided with her until August 2009.  In August 2009 Debra asked  



Laurence to assume physical custody of Dennis.  Laurence traveled to California to  



collect Dennis, and Dennis resided with Laurence for the next 12 months.  



                    Dennis continued to reside with Laurence in Alaska until Debra returned  



                                                                                                                    

to the state in August 2010.  Shortly after her return, Debra resumed physical custody of  



                                                                                                         

Dennis by refusing to return Dennis to Laurence following a visit.  Laurence filed a  



                                                                     

complaint to regain custody of Dennis and a motion for interim custody.  He requested  



                                                                          

primary physical and legal custody of Dennis,  allowing for weekend visitation with  



             

Debra.  Following an evidentiary hearing on October 1, 2010, the superior court issued  



                                                                                                  

an interim order.  The order granted Laurence primary physical custody of Dennis, but  



                                                                                                            

allowed Debra visitation with Dennis every weekend except for the first weekend of each  



month.  



                                                                                       

                    At a hearing on May 23, 2011, the superior court scheduled a trial call for  



                                                                                       

September 7 and trial for the week of September 19.  At the trial call, the parties stated  



that they were working toward a settlement.  At the beginning of the trial call, the judge  



                                                                                                   

announced that trial would occur in two weeks if the parties could not reach a settlement.  



                                                                                                            

But by the end of the hearing, the judge indicated that the next hearing would be for an  



          1         Pseudonyms have been used to protect the privacy of the parties.  



                                                               -2-                                                             6831  


----------------------- Page 3-----------------------

interim order to allow the parties more time to reach a complete settlement.  The judge  

                                                                   



explained:  



                    Everybody comes back here on [September 21] and ready to  

                                                                     

                    present evidence at a minimum on . . . a new interim order  

                    and I can take testimony on the issue of the counselor and  

                                                            

                    what a more long term custody order will be.  It may not be  

                                                                                     

                    final, but at least it would be a better long term order in terms  

                                       

                    of an interim order and what it would look like.  The purpose  

                                                                

                    of that would be, one, it will give you two time between now  

                                                                

                    and Wednesday the 21st because if you're gonna come to an  

                    agreement you probably can do it by that time or come pretty  

                                                                            

                    close to it.  And if you can't we can use that time to take  

                                                                   

                    evidence on the interim order and we can also schedule time  

                                                                  

                    to take additional evidence if we need to for a final order if  

                    that's what we want to do.  But at a minimum you need to be  

                    prepared to show up and give me testimony on what it should  

                                                                                      

                    look like for an interim order and then the counseling.  



The court later reiterated the purpose of the September 21 hearing:  "I have it set up as  

                                                                                                                      



an evidentiary hearing at a minimum for an interim order so if you've got witnesses and  

                                         



evidence you want to present we're going to do that."  The court then told the parties that  



if they were unable to reach settlement "then . . . if we gotta have a hearing that's fine -  

                                                                            



we'll have a trial on it."  



                    The parties returned to court on September 21 to present evidence.  There  

                                                                                           



was no discussion of a settlement or the purpose of the hearing.  The court asked if the  

                                                                                                                  



parties were ready to proceed and then asked each to make an opening statement. After  



Laurence made his opening statement, Debra stated that she "didn't know [the parties]  

                                                                                                        



had to [make] opening statements."  The judge urged her to tell him what she wanted him  

                                                                                                    



to order.  After Debra made her statement, the judge stated that both parties appeared to  



agree  that  Laurence  would  have  custody  during  most  school  weeks  from  Monday  

                                                                  



through Friday.  



                                                               -3-                                                         6831
  


----------------------- Page 4-----------------------

                    Laurence called Debra as his first witness.  After the court took a recess,  



                                                                                                               

Debra notified the court that she had a time conflict.   When the judge inquired what  



                                                                                                                   

witnesses Debra planned to call, she stated, "I didn't have any questions prepared.  I  



                   

wasn't  real  familiar  with  what  was  going  to  go  on  today  -  the  procedures."    She  



                                                                                     

explained that she had to return to work at noon, and the court assured her that there  



                                                           

would be enough time to complete the proceeding.  The court then heard testimony from  



Laurence and from Debra's mother.  



                                                                                               

                    Both parties made closing arguments.  After the court announced it would  



                                                                    

take a short recess, Laurence asked whether the order would be interim or final, and the  



                                                                                              

court clarified that the order would be final.  The court then made findings supporting  



a final custody and visitation order.  



                    After the hearing, Debra moved for reconsideration, stating, "I was unaware  



                                                                                                  

that the hearing scheduled [for] September 21 was change[d] to a trial."  In her affidavit  



                                                                                                                  

she  elaborated,  "I  was  ex[]pecting  a  hearing  for  [Laurence]  and  I  to  discuss  our  



                                                                                        

Agreement, and I found out it was a trial.  [A]s a result . . . of being unprepared . . . to  



                                                                      

present evidence there are points on the final ruling that I strongly disagree with and [I]  



                                                                                              

want them reconsidered."  The issues Debra listed included a provision allowing Dennis  



                                                                                

to attend the school zoned for Laurence's residence; the requirement that Debra provide  



                                                                                                     

a detailed description of her residence and its occupants before she would be able to have  



                                                                                                                         

Dennis with her for overnight visits; the scheduling of Christmas visitation; and the  



                   

entitlement to claim Dennis as a dependent for tax purposes.  The court denied Debra's  



motion without any explanation.  



                    This appeal followed.  



III.      STANDARD OF REVIEW  



                                                                                                  

                    "The adequacy of the notice and hearing afforded a litigant in child custody  



                                                                                                                     

proceedings  involves  due  process  considerations.    A  constitutional  issue  presents  a  



                                                                -4-                                                         6831
  


----------------------- Page 5-----------------------

question of law which we review de novo, and to which we apply our independent  

judgment." 2  



IV.       DISCUSSION  



          A.       Due Process  



                   Debra argues that the superior court erred when it changed the evidentiary  

                                              



hearing scheduled for September 21, 2011, into a final custody trial without giving her  

                                                                        



notice.  She contends that she was denied an opportunity to present a substantive case  



                                                                   

with supporting evidence.  This is essentially a due process argument.  "Procedural due  



process  under  the  Alaska  Constitution  requires  notice  and  opportunity  for  hearing  



                                                       3  

appropriate to the nature of the case."   We have emphasized that "[i]t is essential to  



                                                   

contested custody proceedings that the parties be afforded a hearing which grants them  



                                                                                       

the opportunity to present the quantum of evidence needed to make an informed and  

principled determination."4  



                   In  Cushing v. Painter, we held that a mother's due process rights were  



                                         

violated when a hearing that was initially scheduled to determine interim custody for the  



                                                                                         

impending school year was transformed - without notice - into one that decided the  



          2        Lashbrook v. Lashbrook             , 957 P.2d 326, 328 (Alaska 1998) (citing Wright  



v. Black , 856 P.2d 477, 479 (Alaska 1993)).  



          3        Id. (quoting  Wright, 856 P.2d at 480) (internal quotation marks omitted).  



          4        Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983).  



                                                           -5-                                                     6831
  


----------------------- Page 6-----------------------

                                                5  

question of permanent custody.   There, we noted that the record did not establish waiver   



                                                                                                                           6  

on the mother's part "as to the procedural infirmities implicated in the hearing."   



                     In Wright v. Black, we considered a similar issue - whether the failure to  

                                                                          



notify a party that the issue of paternity would be determined at a hearing violated due  



             7  

                In that case, the court failed to give the parties notice prior to the hearing, but  

process.                                                                                          



informed the parties at the beginning of the hearing that the paternity issue would be  



                                                            8  

                                                                In  Wright, we distinguished Cushing because  

resolved, and the parties did not object. 



the parties in  Cushing were not notified of the import of the proceeding at issue until  



                          9  

                                                                                                     

after the hearing.   The  Wright  court acknowledged that notice at the hearing "still may  



                                                                          

not have been constitutionally sufficient," but it held that even if the notice were assumed  

deficient for due process purposes, the appellant had waived his right to object.10  



                     This case is more like Cushing.  The court's comments at the September 7  



                                                                                                 

trial call suggested that the September 21 hearing would decide issues of interim custody  



                                                                                                                       

and that another final hearing would be scheduled if the parties were unable to reach a  



                                                                    

settlement.  Unlike in Wright, the court here did not clarify the purpose of the September  



                                          11  

                                              Also, the parties' comments here indicated that they were  

21 hearing at its beginning. 



          5         Id.  



          6         Id. at 1046 n.10 (citing Milne v. Anderson , 576 P.2d 109, 112 (Alaska  



1978)).  



          7          856 P.2d at 479-80, overruled on other grounds by B.E.B. v. R.L.B., 979  



P.2d 514 (Alaska 1999).  



          8         Id. at 480.  



          9         Id.  



          10        Id.  



          11        Id.  



                                                                -6-                                                          6831
  


----------------------- Page 7-----------------------

                                                                                                               

confused about the purpose of the hearing.  Further, the court in this case did not clarify  



                                             

that it was prepared to enter a final ruling until after the parties had already made their  



                                                                          

presentations and delivered their final arguments.  Finally, Debra brought her concerns  



to the court's attention when she filed her motion for reconsideration.  



                                                                                              

                   For the foregoing reasons, we conclude that it was a violation of Debra's  



                                                       

right to due process of law when the superior court made a final custody and visitation  



decision after a hearing, which Debra reasonably believed would resolve only interim  



custody and visitation issues.  



          B.       Other Issues  



                                                                          

                   Debra argues that the superior court erred when it denied her request for  



                                                                                                                   

appointment of a custody investigator or a guardian ad litem.  She also argues that the  



court erred when it discontinued a pretrial requirement for the parties to submit random  



urinalysis drug tests.  She offers no legal authority to support her position on these  

                                                                                                                  12  From  

issues; her arguments are so undeveloped that we could treat them as abandoned. 



this limited briefing and our review of the record, we cannot say that the superior court  



committed an abuse of discretion on these points.  



                                                                                                 

                   Debra raises several other issues in this appeal. Many of these issues could  



also be treated as abandoned for insufficient briefing.  However, we are not required to  



decide  these  issues  because  Debra  will  have  an  opportunity  to  be  heard  when  the  



superior court holds a trial on remand.  



IV.       CONCLUSION  



                                                                                                                 

                   We REVERSE the judgment of the superior court and REMAND for a new  



trial.  



          12  

                                                                                                                     

                   A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) (finding waiver due to  

inadequate briefing by pro se litigant).  



                                                             -7-                                                         6831  

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