search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Walker v. Walker (7/2/98), 960 P 2d 620
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.
THE SUPREME COURT OF THE STATE OF ALASKA
BETHANY ANN WALKER, )
) Supreme Court No. S-8319
) Superior Court No.
v. ) 4FA-97-1260 CI
DWAYNE PAUL WALKER, ) O P I N I O N
Appellee. ) [No. 5008 - July 2, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: David R. Edgren, Robertson,
Edgren & Christensen, LLC, Anchorage, for Appellant. Alan J.
Hooper, Law Office of Alan J. Hooper, Fairbanks, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
This appeal presents the question whether the superior
court may grant an opposed motion to modify custody without first
conducting an evidentiary hearing. Bethany Ann and Dwayne Walker
had two children during their marriage. Although Bethany insisted
in an affidavit to the court that her agreement to allow their
children to live with Dwayne was intended for the school year only,
the trial court granted Dwayne's motion for permanent custody
without resolving this factual dispute. Because Bethany was not
given a full opportunity to be heard on the motion, we reverse.
II. FACTS AND PROCEEDINGS
When Bethany and Dwayne were divorced in Muscogee County,
Georgia in 1991, the court's decree incorporated their agreement
that Bethany would have custody of both children and that Dwayne
would retain the right to reasonable visitation at mutually
agreeable times. The agreement also required Dwayne to pay Bethany
$400 a month in child support.
After the divorce, Bethany moved to Tennessee and Dwayne,
who is in the military, relocated to Fort Wainwright, Alaska. Five
years later, Bethany and Dwayne signed a modified custody
agreement, stating their purpose that the children "have a stable
environment for the 1996-1997 school year." The new agreement gave
Dwayne physical custody, suspended his child support obligation,
and granted Bethany reasonable visitation in Alaska. Although this
agreement was signed and notarized, it was never submitted to the
Muscogee County Court. In September 1996 the children moved to
Alaska to live with Dwayne and his new wife at Fort Wainwright.
At the end of the 1996-97 school year, Dwayne filed a
motion to modify custody in the Fairbanks Superior Court. In the
motion, Dwayne sought primary physical custody of the children on
the basis that Bethany had voluntarily relinquished custody to him.
Dwayne also claimed that Bethany was abusing narcotics and moving
so often that she deprived the children of a stable lifestyle.
Dwayne alleged that the children sometimes lived with Bethany's
parents, and attached a letter from them apologizing for Bethany's
behavior and supporting the transfer of custody to Dwayne.
Bethany responded to Dwayne's motion by filing an
affidavit that contested Dwayne's allegations about her behavior
and explained that their agreement to change custody had been
intended only for the school year. Bethany informed the court that
her situation had improved, that she was furthering her education,
and that she was able to provide a stable home for the children.
Finally, she communicated her wish to be notified of all further
developments in the case and requested a continuance so that she
could obtain counsel.
The superior court entered an order extending the time
Bethany had "to file any supplemental opposition"until August 11,
1997. But instead of mailing the order to Bethany at the address
provided by Bethany in her affidavit, the superior court sent it to
the address listed by Dwayne's attorney in his pleadings. Because
Bethany no longer lived at the address furnished by Dwayne, the
court's order did not reach her true address in time for her to
file a supplemental opposition by August 11, 1997.
Two days after the deadline for supplemental opposition,
the superior court entered an order modifying the Georgia divorce
decree. The order gave Dwayne legal and physical custody and
Bethany rights of reasonable visitation. Bethany was also ordered
to pay child support to Dwayne. The superior court again sent the
child custody and support order to the wrong address, and Bethany
apparently received it after the time for reconsideration had
expired. Bethany appeals.
A. Standard of Review
In Lashbrook v. Lashbrook, [Fn. 1] we observed that "the
notice and hearing afforded a litigant in child custody proceedings
involves due process considerations." A constitutional issue
presents a question of law, and we review such an issue de novo,
applying our independent judgment. [Fn. 2]
B. The Superior Court Erred in Granting Dwayne's Motion to
Modify the Child Custody and Support Decree without First
Conducting an Evidentiary Hearing.
Bethany argues that, because she opposed Dwayne's motion
to modify and disputed many of his factual assertions, the superior
court erred in ruling on Dwayne's motion without an evidentiary
hearing. Alternatively, Bethany argues that the superior court
committed reversible error by modifying custody without making any
finding on the best interests of the children. Dwayne claims that,
because Bethany failed to supplement her opposition when given the
chance, the trial court's decision to grant the motion without a
hearing was appropriate.
"Procedural due process under the Alaska Constitution
requires 'notice and opportunity for hearing appropriate to the
nature of the case.'"[Fn. 3] We have repeatedly held that "[a]
party opposing a motion to modify child custody has the right to a
hearing before the superior court grants the motion."[Fn. 4] A
hearing is required in order to give the parties an "opportunity to
present the quantum of evidence needed [for the court] to make an
informed and principled determination."[Fn. 5] We therefore agree
with Bethany that the superior court erred when it modified the
custody and support decree without first conducting an evidentiary
We are not persuaded by Dwayne's argument that the
superior court's choice to forego a hearing was justified by
Bethany's failure to supplement her opposition. The superior court
is not permitted to grant an opposed motion to modify custody
without holding a hearing, and Bethany's affidavit squarely
contested both Dwayne's allegation of unfit conduct and his
interpretation of their agreement. Once Bethany had opposed the
motion, she was not obligated to present any further opposition to
the court in order to earn a right to an evidentiary hearing.
The procedural posture of this case is similar to that of
Hernandez v. Freeman. [Fn. 6] There, the superior court granted
the moving parent's child custody motion without responding to the
opposing parent's letter contesting the motion and requesting an
extension of time to secure counsel and properly respond. We held
that the superior court abused its discretion. Accordingly, we
remanded for an evidentiary hearing to determine whether the
proposed modification would be in the best interests of the
children. [Fn. 7] Although Bethany failed to make a formal request
for a hearing under Alaska Rule of Civil Procedure 77(e), she never
heard from the trial court on her request for a continuance to
obtain counsel. Because the superior court failed to mail its
order setting a new response date to the address identified in
Bethany's affidavit, Bethany was never aware of the need to request
a hearing. [Fn. 8] Moreover, the trial court was obliged to
exercise its independent judgment in determining what would be in
the best interests of the children. [Fn. 9] The trial court could
not accomplish this task without first resolving the parties'
factual disputes in a hearing.
In sum, the trial court erred in failing to hold an
evidentiary hearing before ruling on this opposed motion to modify
custody. Because we reverse the trial court's decision and remand
to allow it to consider additional evidence, we need not address
the adequacy of its findings regarding the best interests of the
The superior court erred in granting Dwayne's motion for
child custody and support modification without affording Bethany a
full opportunity to oppose and be heard on the motion. We VACATE
the superior court's order and REMAND for further proceedings
consistent with this opinion.
___ P.2d ___, Op. No. 4974 at 4 (Alaska, April 24, 1998).
Wright v. Black, 856 P.2d 477, 480 (Alaska 1993) (quoting
Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)).
Lashbrook, Op. No. 4974 at 4; Hernandez v. Freeman, 938 P.2d
1017, 1018 (Alaska 1997); Howlett v. Howlett, 890 P.2d 1125, 1127
Howlett, 890 P.2d at 1127 (citations and quotations omitted).
938 P.2d at 1017-19.
See id. at 1018-19.
See id. at 1018.
See Howlett, 890 P.2d at 1127; AS 25.20.110(a).