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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Laura B. v. Wade B. (7/6/2018) sp-7256

Laura B. v. Wade B. (7/6/2018) sp-7256

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



LAURA  B.,                                                        )  

                                                                  )    Supreme  Court  No.  S-16889  

                                 Appellant,                       )  

                                                                                                                                  

                                                                  )    Superior Court No. 3AN-12-10282 CI  

           v.                                                     )  

                                                                                            

                                                                  )    O P I N I O N  

              

WADE B.,                                                          )  

                                                                                                       

                                                                  )    No. 7256 - July 6, 2018  

                                 Appellee.                        )  

                                                                  )  



                                                                                                               

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

                                                                                                   

                      Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                            

                      Appearances:  Allison Mendel and John J. Sherman, Mendel  

                                                                                                               

                      Colbert & Associates, Inc., Anchorage, for Appellant.  Wade  

                                                            

                      B., pro se, Anchorage, Appellee.  



                                                                                                            

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                      and Carney, Justices.  



                               

                      PER CURIAM.  



I.         INTRODUCTION  



                                                                                                                                         

                      A father requested primary physical custody of his daughter, modifying the  



                                                                                                                                      

previous shared custody arrangement.  The mother opposed the change, arguing there  



                                                                                                                                  

had not been a substantial change in circumstances. The superior court ordered a limited  



                                                                                                                      

custody investigation to resolve a factual dispute related to the change in circumstances,  



                                                                                                                                

promising  a  second hearing  on  the  daughter's best  interests.   But  after  the  custody  



                                                                                                                                 

investigator reported that the daughter wanted to live with the father, the court granted  


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the father primary physical custody without holding a second hearing.                                                                                         The mother   



appeals on due process grounds.                                         We vacate the custody modification and remand for                                                         



further proceedings because the failure to hold the second hearing denied the mother due                                                                                         



process.  



II.           FACTS AND PROCEEDINGS            



                                                                     1  

                            Laura and Wade B.                                                                                                                                 

                                                                       married in 1989 and had three children together. Their  



                                                                                                                                                                               

youngest child, a daughter, is about a year from turning 18.  This appeal concerns only  



                                

the daughter's custody.  



                                                                                                                                                                              

                            Laura and Wade have joint legal custody of the daughter and have been  



                                                                                                                                                                                    

sharing physical custody on a week-on, week-off basis since their legal separation in  



                                                                                                                                                                        

2013.  In April 2017 Wade moved for full legal and physical custody.  Wade claimed  



                                                                                                                                                                      

that the daughter wanted to live with him full time, that Laura was leaving the daughter  



                                                                                                                                                                                  

home alone at night in violation of the existing custody order while working, and that the  



                                                                                                                                                                        

daughter was afraid when left alone at night.   Laura opposed the motion on various  



                                                                                                                                                                                      

grounds, including that custody could not be modified because Wade had not shown a  



                                                                                                                2  

                                                                                                                    

substantial change in circumstances had taken place. 



                            The superior court held a hearing on Wade's motion.  Each party - self- 

                                                                                                                                                                               



represented - was placed under oath at the beginning of the hearing.   The parties  

                                                                                                                                                                         



adamantly disagreed about whether the daughter was being left home alone at night. The  

                                                                                                                                                                                 



court indicated that being alone and afraid could be a substantial change in circumstances  

                                                                                                                                                           



but determined that it could not resolve whether the daughter was actually alone based  

                                                                                                                                                                            



              1             We use initials in place of the parties' last name to protect the privacy of                                                   



their daughter.   



              2             See AS 25.20.110(a) ("An award of custody of a child . . . may be modified  

                                                                                                                                                                      

if the court determines that a change in circumstances requires the modification of the  

                                                                                                                                                                                  

award and the modification is in the best interests of the child.").  

                                                                                                                         



                                                                                         -2-                                                                                 7256
  


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 on the parties' conflicting testimony.                                                                                                                                               The court ordered a limited custody investigation                                                                                                                                  



 to resolve the factual dispute.                                                                                                                       The court expressly told the parties there would be a                                                                                                                                                                                                                      



  second hearing on the daughter's best interests if the custody investigator reported that                                                                                                                                                                                                                                                                                                                           



 the daughter was alone and afraid at night.                                                                                                                                                                        



                                                                    A custody investigator interviewed the daughter and reported that she                                                                                                                                                                                                                                                                              



 wanted to live with Wade, that she was alone at night and it was "kinda scary," and that                                                                                                                                                                                                                                                                                                                             



 Laura would not let her go to church.                                                                                                                                                 The investigator assessed the daughter as honest,                                                                                                                                                             



 upset about being alone at night, and more upset about not being able to attend church.                                                                                                                                                                                                                                                                                                                                                   



 The superior court accepted the custody investigator's representations and issued a third                                                                                                                                                                                                                                                                                                                  



  supplemental custody order granting Wade primary physical custody without holding a                                                                                                                                                                                                                                                                                                                                              



  second hearing on the daughter's best interests.                                                                                                                                           



                                                                   Laura appeals, arguing solely that her due process rights were violated by                                                                                                                                                                                                                                                                               



 the failure to hold the second hearing.                                                                                                                                                      



 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                                                                                                                                    



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

judgment."3  



 IV.                              DISCUSSION  



                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                   TheAlaskaConstitutionprovidesthat"[n]o person shallbedeprived oflife,  



                                                                                                                                                                                                                                                      4  

                                                                                                                                                                                                                                                                                                                                                                                                                      

 liberty, or property, without due process of law."                                                                                                                                                                                                              Procedural due process under this  



                                                                                                                                                                                                                                                                                                                                                                                                                        

 clause "requires notice and opportunity for hearing appropriate to the nature of the  



                                  3                               Debra P. v. Laurence S.                                                                                                      , 309 P.3d 1258, 1260 (Alaska 2013) (quoting                                                                                                                                                  



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



                                  4                               Alaska Const. art I,  7.  

                                                                                                                                                                       



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            5  

case."   "[I]t is essential to contested custody proceedings that the parties be afforded a                                                                          



hearing . . . grant[ing] them the opportunity to present the quantum of evidence needed                                                                  

to make an informed and principled determination."                                                  6  



                                                                                                                                                                  

                          To comport with due process, custody should not be modified without an  

                                                                                                                                                          7     An  

                                                                                                                                                               

evidentiary  hearing  absent  a  specific  exception  to  the  hearing  requirement. 



exception may exist when "only a minor modification to a custody order is sought," such  

                                                                                                                                                              



as "a scheduling change or a similar insubstantial alteration" with "no factual conflicts  

                                                                                                                                                      

that require resolution."8   But when the requested change is "material and substantial,"9  

                                                                                                                                              

a hearing is requiredoncethenon-moving party opposes the motion.10  Wade's requested  

                                                                                                                                                     



modification - full legal and physical custody -and the superior court's ultimate order  

                                                                                                                                                             



-giving himprimary physical custody -were both material and substantial alterations  

                                                                                                                                                   



             5           Debra  P.,  309  P.3d  at   1261  (quoting  Lashbrook,  957  P.2d  at  328).  



             6           Id.  (quoting  Cushing  v.  Painter,  666  P.2d   1044,   1046  (Alaska   1983)).  



             7            See Elliott v.  Elliott, 129 P.3d 449, 451 (Alaska  2006) ("An exception to  



the  rule  that  a  custody  modification  must  be  preceded  by  a  hearing  hinges  on  the  degree  

of  the  modification.");  D.D.  v.  L.A.H.,  27  P.3d  757,  760  (Alaska  2001)  ("Our  decisions  

.  .  .  require  an  evidentiary  hearing  before  an  opposed  motion  to  modify  custody  can  be  

granted.");  A.H.  v.  P.B.,  2  P.3d  627,  628  (Alaska  2000)  ("When  a  superior  court  is  asked  

to make a material and substantial  change to a visitation  arrangement, it should not do  

so  without  permitting  all  parties  to  be  heard  .  .  .  .");  Walker  v.  Walker,  960  P.2d  620,  622  

(Alaska   1998) ("[T]he  superior  court  erred  when  it  modified  the  custody  and  support  

decree  without  first  conducting  an  evidentiary  hearing.").  



             8           D.D., 27 P.3d at 760.  

                                                           



             9            See A.H. , 2 P.3d at 628.  

                                                                



             10           See Walker, 960 P.2d at 622 ("Once [the non-moving parent] had opposed  

                                                                                                                                                       

the motion, [the parent] was not obligated to present any further opposition to the court  

                                                                                                                                                             

in order to earn a right to an evidentiary hearing.").  

                                                                               



                                                                                 -4-                                                                         7256
  


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                                                                                             11  

to the existing custody arrangement.                                                               The superior court was therefore required to hold                                                                  



a hearing before entering a custody modification order.                                                                          



                                   Wade argues that the initial hearing was sufficient to meet this requirement                                                                                   



because both parties testified under oath, and his testimony later was corroborated by the                                                                                                                                



custody   investigator.     But the                                                initial hearing                        was not adequate to grant Laura "the                                                       



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

                                                                     12  Finding a substantial change in circumstances is only the  

principled determination."                                                                                                                                                                                               



first step in a motion to modify custody; the second step is to determine the child's best  

                                                                                                                                                                                                                       

interests.13   The first hearing did not address the daughter's best interests - the superior  

                                                                                                                                                                                                            



court expressly directed the parties not to present evidence because a second hearing  

                                                                                                                                                                                                             



would follow if the custody investigator found that the daughter was being left alone at  

                                                                                                                                                                                                                             



night and was afraid of being alone.  

                                                                                                



                                   Had the superior court held a second hearing, Laura could have offered  

                                                                                                                                                                                                              



witnesses and other evidence supporting her contention that living with her was in the  

                                                                                                                                                                                                                         

                                                                                                                                                                                                                   14 and  

daughter's best interests. Laura also could have examined the custody investigator                                                                                                                                       

                                                                                                                                                                                     



rebutted his findings and credibility assessments with her own evidence. But without the  

                                                                                                                                                                                                                          



second hearing Laura was unable to challenge the custody investigator's findings or  

                                                                                                                                                                                                                           



                  11               See D.D.               , 27 P.3d at 758-59, 760 (concluding change from 50/50 custody                                                                                     



to father's primary physical custody was material).                                                                                    



                  12               See Debra P. v. Laurence S., 309 P.3d 1258, 1261 (Alaska 2013) (quoting  

                                                                                                                                                                                                           

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

                                                                                                                                   



                  13              Abby D. v. Sue Y. , 378 P.3d 388, 394 (Alaska 2016).  

                                                                                                                                                           



                  14               See Alaska R. Civ. P. 90.6(d)(2) (providing that party has right to call  

                                                                                                                                                                                                                       

custody investigator as witness to testify about investigator's report).  

                                                                                                                                                                                      



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                                                                                                                                                                                                                                                                                                                                                                         15  

present other evidence and arguments about the daughter's best interests.                                                                                                                                                                                                                                                                                                         This violated   



Laura's right to due process.                                                                         



V.                                CONCLUSION  



                                                                    We VACATE the third supplemental custody order and REMAND for an                                                                                                                                                                                                                                                                                                     



 expedited evidentiary hearing to determine the daughter's custody based on her best                                                                                                                                                                                                                                                                                                                                           



interests.  



                                  15                               See Debra P.                                                         , 309 P.3d at 1260 (holding that first hearing, where parties                                                                                                                                                                                                             



could not effectively present evidence and argument for final custody decision, did not                                                                                                                                                                                                                                                                                                                                             

cure failure to hold second hearing).                                                                                                    



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