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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Regina C., n/k/a Regina S. v. Michael C. (4/5/2019) sp-7350

Regina C., n/k/a Regina S. v. Michael C. (4/5/2019) sp-7350

           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                                         

REGINA  C.,  n/k/a  REGINA  S.                                     )  

                                                                   )    Supreme  Court  No.  S-16421  

                                 Appellant,                        )  


                                                                   )    Superior Court No. 3AN-14-10036 CI  

           v.                                                      )  


                                                                   )    O P I N I O N  


MICHAEL C.                                                         )  


                                                                   )   No. 7350 - April 5, 2019  

                                 Appellee.                         )  




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


                      Judicial District, Anchorage, Frank A. Pfiffner, Judge.


                      Appearances:  Deborah K. Burlinski, Burlinski Law Office,


                      LLC, Anchorage, for Appellant.  Roberta C. Erwin, Palmier


                      ~ Erwin, LLC, Anchorage, for Appellee.


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


                      and Carney, Justices.


                      BOLGER, Justice.


                      CARNEY, Justice, dissenting.




                      A mother and father divorced, and the superior court awarded "sole legal  


and primary physical custody of the children" to the mother.   The court did so with  


"reluctance," finding that the mother had "engaged in . . . egregious parental alienation,"  


but also finding that the children had become "adjusted . . . to life" in the mother's care.  

----------------------- Page 2-----------------------

The court awarded substantial periods of visitation to the father.                                                                                                                      It explained that if the                                

mother interfered with visitation, it "w[ould] likely change its custody determination to                                                                                                                                                          

award . . . custody" to the father.                                                            Visitation subsequently failed to occur, and the court                                                                                     

ordered the mother to show cause.                                                                     Following a hearing, the court held the mother in                                                                                            

contempt and modified the custody decree to give custody to the father.                                                                                                                    

                                      The mother                           appeals the modification                                                   of custody.                           She claims she had                               

inadequate notice that custody would be determined at the show-cause hearing and                                                                                                                                                             

contends that the superior court should have continued the hearing when her counsel                                                                                                                                               

withdrew several days earlier.                                                          She also claims the court's modification of custody was                                                                                              

based on the court's mistaken conclusion that she committed custodial interference, a                                                                                                                                                                

                                                                                1     We conclude that the mother had adequate notice of the  

crime of domestic violence.                                                                                                                                                                                                                     

hearing and that the trial court did not err when it found that her conduct constituted  


custodial interference.  Accordingly we affirm the superior court's judgment.  


II.                FACTS AND PROCEEDINGS  


                   A.                 Background  

                                      Regina S. and Michael C. married in 2000, and have two children, both  


boys, from the marriage.2  

                                                                           Regina filed for divorce in late 2014.  Regina alleged, and the  


superior court found, that Michael had engaged in domestic violence against her.  The  


court thus awarded temporary physical and legal custody of the children to Regina  


pending a divorce trial and permanent custody award.  The court restricted Michael to  


supervised visitation. Michaelnever actually had any supervised visits with the children,  


                   1                  AS   11.41.320-.330,   18.66.990(3)(A).  

                   2                  We  use   initials   in   lieu   of   the  parties'   last  names  to  protect  the   family's  


                                                                                                                        -2-                                                                                                               7350

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


however, because in May 2015 - when the visits were to begin - Regina left Alaska  


and took the boys with her.  


          B.        The Custody Investigation  


                    The       superior       court       appointed         a    custody        investigator          to    make  


recommendations concerning a permanent award of custody. The investigator prepared  


a report and later testified at trial.  


                    Based  on  interviews  with  the  parties  and  the  children,  psychological  


evaluations of both parties, references from individuals who were familiar with the  


family, and the parties' family histories, the custody investigator concluded that both  


parties had "a diminished ability to parent."  The investigator believed the children had  


already been "psychologically scarred" and that the  parties' continuing "actions . . .  


[were] likely to cause lifelong emotional damage to" them.  


                    In particular the investigator found that Regina had taken "steps" - such  


as removing the two boys from the state - that "ensure[d]" that contact between the  


children and Michael "would be very difficult."  As a result, the children had not been  


in contact with Michael for over 17 months, and neither child wanted any contact with  


him. The investigator believed that Regina had "facilitate[d] the boys' change in attitude  


about  their  father,"  and  she  characterized  this  case  as  involving  "severe  parental  




                    Finding the case to be "very complex[,] . . . with no easy answers," the  


custody investigator recommended - "[w]ith great difficulty" - that Regina "continue  


to  have  custody  of"  the  children.                     The  investigator  ruled  out  a  shared  custody  


arrangement because "[t]he parents [were] unable to communicate and [were] unlikely  


to be able to do so in the near future."  And because the boys were attending school in  


Arizona, where Regina was living, the investigator thought it better for them to remain  


with Regina.  The investigator further indicated that this option was preferable because  

                                                                -3-                                                         7350

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

transferring custody of the boys from Regina to Michael would cause them further                                                                                                                                       


                                    The investigator believed it was important for the children's development                                                                                           

that they reestablish a relationship with their father.                                                                                          She recommended that Michael                                       

"have visitation during the summers and alternate holidays."                                                                                                         She further stated that "if                                    

there are not monumental efforts to facilitate contact between the boys and their father,                                                                                                                                

 [she] would likely recommend a change of custody."                                                                                                  The investigator said any such                                           

                                                                                                                                                                                                  [  ]  

                                                                                                                                                                                                   3     . . . to avoid  

change of custody should "be done before the start of the school year                                                                                                                                                      

further disruption in the [children's] education."  


                  C.                The Custody Award  


                                    The superior court decreed the parties divorced in March 2016, and it  


issued a final custody award in June 2016 following trial.   In reaching its custody  


determination the court considered the testimony of the parties and other witnesses, the  


recommendations of the custody  investigator,  and  psychological evaluations of the  




                                    The  court  addressed  each  of  the  statutory  factors  concerning  the  best  


interests of the children4 in a written order.  The court explicitly "discount[ed]" one of  


thebest-interests factors -"thechild[ren]'s preference"5 -becausethecourt found that  


the boys' preference that they not have contact with their father was the "result of . . .  


 [Regina's] parental alienation."  Indeed, the court stated Regina had "engaged in the  


most egregious parental alienation that the . . . court ha[d] ever seen."  The court agreed  


                  3                 The investigator submitted her report in early May 2016, and the court later                                                                                                               

issued its custody award on June 30, 2016.                                                                            The school year would begin in August.                                                                           

                  4                 See AS 25.24.150(c).  


                  5                 AS 25.24.150(c)(3).  


                                                                                                                  -4-                                                                                                        7350

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


with the custody investigator "that contact between [Michael] and the children is . . .  


important to the children's development."  


                    The  court  adopted  the  custody  investigator's  recommendation  and  


"reluctan[tly]"  awarded  Regina  "sole  legal  and  primary  physical  custody  of  the  


children."        The  court  gave  Michael  substantial  periods  of  visitation,  including  the  


children's summer vacations.  The court explained that "[t]here [were] limits to the . . .  


custody award":  


                    If Regina fails to cooperate with [Michael] to ensure that the  


                    children have court-ordered visitation . . . , the court will  


                    likely change its custody determination to award sole legal  


                    and primary physical custody of the children to [Michael].  


                    Suchachangeunder thosecircumstances would beconsistent  


                    with the custody investigator's recommendation to the court.  


          D.	       The Order To Show Cause  


                    The superior court ordered the first period of visitation to begin on July 6,  


2016.  Regina was required to put the children on a flight so that they could travel from  


her home to Michael's home in Alaska to spend one month with Michael.  She did not  


do so.  


                    Michael subsequently moved "for an order that Regina . . . appear . . . and  


show cause as to why she should not be held in contempt of court for failing to have [the  


parties'] children in Alaska for visitation."  Michael pointed out that "[t]he court stated  


that it would entertain a change of custody if Regina . . . did not make visitation between  


the boys and [Michael] happen."  Regina filed a response in which she claimed that she  


had "act[ed] in good faith to try to make th[e] travel happen" but that the boys had  


refused to cooperate.  She accused Michael of "leverag[ing] [an] impossible situation  


into an effort to reverse custody."  

                                                                -5-	                                                        7350

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                                On July 19 the court issued an order for Regina to "show cause" at an                                                                                            

August 1 hearing "why [she] should not be held in contempt of court for willfully                                                                                                       

violating the [custody] order." The show-cause order further stated that Regina "should                                                                                                    

be prepared to advise the court why it should not change custody of the minor children"                                                                                                 

to Michael.                   

                E.              The Withdrawal Of Regina's Counsel                                          

                                Regina's counsel moved to withdraw before the August 1 show-cause                                                                                



                         On July 28 Superior Court Judge William F. Morse, who was not the judge  


assigned to the divorce and custody case, presided over a hearing on the withdrawal  


motion.  At the hearing, Regina asserted that she did not want her attorney to withdraw  


but "underst[ood]" that he needed to do so.  Judge Morse asked Regina whether she  


would be attending the show-cause hearing "on [her] own."   Regina responded, "I  


suppose, if I can't get an extension of time."  Judge Morse said it was "not really [his]  


call" whether to continue the show-cause hearing, but he permitted Regina's counsel to  




                F.              The Show-Cause Hearing And Custody Modification  


                                The  show-cause  hearing  was  held  as  planned  on  August  1.                                                                                             At  the  


beginning of the hearing, the superior court remarked - without comment or opposition  


by Regina - that Regina was "now representing herself."  The court explained that the  


hearing's  purpose  was  to  decide  whether  Regina  should  be  held  in  contempt  and  


"whether [the court] should order what some experts call a parentectomy, that is, a  


permanent transfer of custody."  


                                Regina testified first.  She asserted that she had done "everything [she]  


possibly could" to get the boys to board the flight to Alaska, including contacting the  

                6               Counsel  filed  the  motion  on  July  8.   

                                                                                                   -6-                                                                                                    7350  

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

police, but that they had been unwilling to do so.                                                                                                                                                                                                                                She further testified that she had tried                                                                                                                                                   

to get her children to speak to Michael on the phone but that they had "absolutely                                                                                                                                                                                                                                                                                                                                                   

refuse[d]."  Regina claimed the children were "reasonabl[y]" afraid of their father and                                                                                                                                                                                                                                                                                                                         

had witnessed "[d]omestic abuse their entire lives."                                                                                                                                                                                                                                                 

                                                                            The   custody  investigator   and   Michael   also   testified.     The   investigator  

recommended, based on various factors that she explained to the court, that there be "a                                                                                                                                                                                                                                                                                                                                                                                                   

 change   of   custody"   and   "that   the   children   have   intensive   counseling."     Michael  

 expressed his concern that if the court allowed Regina to retain custody, she would be                                                                

unlikely to cooperate with visitation and "[they'll] be right back in court wherever it is                                                                                                                                                                                                                                                                                                                                                                                                   

 [they] are."                                                     

                                                                           After the parties presented evidence and arguments, the superior court                                                                                                                                                                                                                                                                                                                       

 found that "there [was] no legitimate explanation for why the visitation didn't occur" and                                                                                                                                                                                                                                                                                                                                                                                         

that Regina's testimony about the children witnessing extensive domestic violence was                                                                                                                                                                                                                                                                                                                                                                                            

 "fantasy."   The court held Regina in contempt.                                                                                                                                                                                                                          

                                                                            The court also found that Regina had committed the crime of first-degree                                                                                                                                                                                                                                                                                  

 custodial interference:                                                                                                       she had intentionally "h[eld] the children for a protracted period                                                                                                                                                                                                                                                                  

 of time" out of the state, and Michael "was the legal custodian" under the June 2016                                                                                                                                                                                                                                                                                                                                                                                     

                                                                                       7            The court moreover reasoned that Regina committed two crimes -  

 custody award.                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

 since there were two children - and that she thus had a history of perpetrating domestic  


                                      7                                    AS11.41.330(a)(1) ("Apersoncommits                                                                                                                                                                                               the crime ofcustodial                                                                                                   interference  

in the second degree if . . . being a relative of a child . . . and knowing that the person has                                                                                                                                                                                                                                                                                                                                                                                     

no legal right to do so, the person takes, entices, or keeps that child . . . from a lawful                                                                                                                                                                                                                                                                                                                                                                

 custodian with intent to hold the child . . . for a protracted period."); AS 11.41.320(a) ("A                                                                                                                                                                                                                                                                                                                                                                                     

person commits the crime of custodial interference in the first degree if the person                                                                                                                                                                                                                                                                                                                                                                           

violates AS 11.41.330(a)(1) and causes the child . . . to be . . . removed from the state[]                                                                                                                                                                                                                                                                                                                                                                         

 or . . . kept outside the state.").                                                                                            

                                                                                                                                                                                                                                             -7-                                                                                                                                                                                                                             7350

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violence.    Thus the court considered its "hands . . . tied" by the domestic violence                                                                             


                             and concluded that it had "to take custody away from her immediately."  


The court also found that Regina posed a "danger of mental harm to the children" and  


reaffirmed its earlier best-interests analysis.  


                            The court "order[ed] an immediate transfer of custody so that [Michael]  


[would] have sole legal custody . . . and primary physical custody and" Regina would  


have "supervised visitation."  The court stated that it was "essentially following [the  


custody investigator's] recommendations."  


                            Reginamoved forreconsiderationand to staytheorder, butthecourt denied  


the motions.  She now appeals.  

III.	         DISCUSSION  


              A.	           Regina Received Adequate Notice That Custody Would Be Addressed  


                            At The Show-Cause Hearing, And Her Right To Due Process Was Not  



                            Regina claims that "the superior court erred . . . in considering a change in  


custody" at the show-cause hearing "upon only ten [days'] notice with no prior motion  


to  modify  custody  having  been  filed."                                               "Procedural  due  process  under  the  Alaska  


Constitution requires notice and opportunity for hearing appropriate to the nature of the  

              8             AS 25.24.150(h) ("A parent has a history                                             ofperpetratingdomestic violence                     

. . . if the court finds that . . . the parent has engaged in more than one incident of                                                                                          

domestic violence.").                          Per AS 18.66.990(3)(A), "domestic violence" includes "a crime                                                              

against the person under AS 11.41" that is an "attempt to commit . . . by a household                                                                          

member against another household member."                                  

              9             AS 25.24.150(g) ("There is a rebuttable presumption that a parent who has  


a history of perpetrating domestic violence against the other parent, a child, or a domestic  


living partner may not be awarded sole legal custody, sole physical custody, joint legal  


custody, or joint physical custody of a child.").  


                                                                                        -8-	                                                                               7350

----------------------- Page 9-----------------------


case."          The "adequacy of the notice and hearing afforded a litigant" is a question of                                                                  

constitutional law "to which we apply our independent judgment."                                                              11  

                         We conclude that under the circumstances Regina had timely and adequate  


notice  that  the  superior  court  would  consider  modifying  the  custody  award  at  the  


August 1 show-cause hearing. Most significantly, the July 19 order to show cause stated  


that Regina "should be prepared to advise the court why it should not change custody of  


the minor children" to Michael.  The order thus provided express notice 13 days before  


the show-cause hearing that permanent custody would be addressed at the hearing.  


                         Even before July 19, Regina should have been aware - and the record  


reflects she was in fact aware - that the court would reevaluate custody as a result of  


the children's failure to visit their father. The court stated in its June 2016 custody order  


that it "w[ould] likely change its custody determination" if Regina failed to comply with  


the order's visitation terms, and Michael raised the possibility of custody modification  


in his motion for an order to show cause.   Regina acknowledged in her response to  


Michael's show-cause motion that Michael was attempting to "reverse custody."  


                         Regina therefore had a sufficient amount of time to prepare - at least 13  


days - and could not reasonably have been surprised by the court's decision to address  


custody at the show-cause hearing. The period of notice was particularly appropriate in  


light of the custody investigator's recommendation that the court resolve the custody  


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

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

             11          Id. at 1260 (quoting Lashbrook, 957 P.2d at 328).  


                                                                               -9-                                                                       7350

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issue in an expedited manner - before the start of the school year in August - so that                                                                                                


the children's education would not be disrupted.                                                               

                             In arguing that her right to due process was violated, Regina relies on  


                                   13                                                                 14  In VinZant the superior court modified  

                                       and Lashbrook v. Lashbrook .                                                                                                        

 VinZant v. Elam                                                              


the parents' permanent custody arrangement following a show-cause hearing, and in  


Lashbrook the superior court issued a permanent custody award following a hearing on  


a  petition  for  a  domestic  violence  protective  order.15                                                                   In  each  case  we  reversed,  


concluding that the superior court had not given the parents notice that permanent  


custody was in issue and had failed to make findings on whether a modification of  


custody was in the children's best interests.16  


                             These cases are not helpful to Regina.  Unlike the parents in VinZant and  


Lashbrook, Regina received a show-cause order that explicitly indicated custody would  


be addressed at the hearing.  And unlike in  VinZant and Lashbrook, the superior court  


in this case addressed the best-interests factors by reaffirming the findings that it had  



made a little over a month earlier in the June 2016 custody award.                                                                                     


               12            See Dennis O. v. Stephanie O.                                       , 393 P.3d 401, 411 (Alaska 2017) (citing                                     

In re K.L.J.             , 813 P.2d 276, 279 (Alaska 1991)) (indicating that governmental interest in                                                                                     

protecting children can be taken into account in assessing what process a parent is due).                                                                                         

               13            977 P.2d 84 (Alaska 1999).  


               14            957 P.2d at 326.  


               15             VinZant, 977 P.2d at 85; Lashbrook, 957 P.2d at 327-28.  


               16             VinZant, 977 P.2d at 86-87; Lashbrook, 957 P.2d at 329-30.  


               17            Though the court reaffirmed its previous best-interests findings, it also  


noted that Regina's failure to facilitate visitation was a new development weighing in  


favor of custody modification.  Regina points out that to modify custody, the superior  



                                                                                          -10-                                                                                     7350

----------------------- Page 11-----------------------


                       Regina further argues that the present case is like                                 Cushing v. Painter              .    In  

that case we reversed a permanent custody award where the superior court had given the                                                          

parents only five days' notice and had informed them only that "interim" custody was   

              19  The present case is distinguishable because Regina had at least 13 days' notice  

in issue.                                                                                                                                  

- not 5 - of the hearing.  And Regina, unlike the parents in Cushing, could not have  


reasonably been under the impression that only temporary custody would be addressed  


at the hearing.  She should have known from the conditional nature of the June 2016  


custody award and from the language in the show-cause order that permanent custody  


was in issue.  


                       Regina claims she was "forced to proceed without an [a]ttorney" at the  


show-cause hearing due to her attorney's last-minute withdrawal, and she asserts that the  


                                                                                                                            20   But Regina  

lack of counsel "compounded" the supposed deficiencies with the notice.                                                                  


            17         (...continued)  


court must also find that there has been a "substantial change in circumstances." Bagby  


v. Bagby, 250 P.3d 1127, 1129 (Alaska 2011) (citing AS 25.20.110(a)).  Although the  


superior court did not use those words, it found that Regina intentionally and completely  


deprived Michael of contact with his children in violation of the custody award, behavior  


which  constituted  a  substantial  change  in  circumstances  as  a  matter  of  law.                                                        See  


Graham R. v. Jane S., 334 P.3d 688, 694-95 (Alaska 2014).  We discuss this in more  


detail below in Part III.D.  

            18         666 P.2d 1044 (Alaska 1983).  


            19         Id. at 1046.  


           20          Regina  does  not  argue  that  the  superior  court  abused  its  discretion  in  


allowing her counsel to withdraw.  See Willoya v. State, Dep't of Corr., 53 P.3d 1115,  


 1119 (Alaska 2002). She insinuates that the court did something improper, claiming that  


the court permitted counsel to withdraw "following an in-chambers consultation . . .  


which  excluded"  her.                    But  the  record  reflects  that  Regina  was  present  during  this  


discussion, and Regina has not requested that we review the sealed part of the record  



                                                                       -11-                                                                 7350

----------------------- Page 12-----------------------

never made a showing to the superior court that she lacked time or resources to retain                                                                                              

replacement counsel.                              Indeed, although her attorney withdrew mere days before the                                                                            

show-cause hearing, Regina received notice of the need to seek out replacement counsel                                                                                          

several weeks earlier when her attorney filed his motion to withdraw.                                                                                     And Regina is an                  

educated professional (a medical doctor) who had the assistance of her attorney in                                                                                                          

preparing a written response to the motion to show cause.                                                                         Even if she was "forced" to                               


proceed self-represented at the hearing, her right to due process was not violated.                                                                                                       

                              We finally point out that a "party raising a due process objection must show  


that [she] has suffered actual prejudice."22  Regina has not made such a showing.  She  


vaguely asserts that the supposedly short notice and her lack of counsel rendered her  


unable to present "additional information regarding [Michael's] behavior following the  


original custody trial."   But Regina had an opportunity to testify about Michael and  


cross-examine him at the show-cause hearing.  And as Michael points out, "[i]t is an  


undisputed fact that [Michael] had no contact . . . with the children or [Regina] after the  


custody trial."  


               20             (...continued)  


documenting the discussion.  See Raris v. Greek Corner, 911 P.2d 510, 511 n.5 (Alaska  


 1996) (indicating that a party waives an argument if she fails to cite facts or otherwise  


support the argument).  

               21             See  Dennis  O.  v.  Stephanie  O.,  393  P.3d  401,  409  (Alaska  2017)  


("[S]elf-represented . . . parents facing opposing parents represented by private counsel  


are not, as a class, deprived of due process rights solely because they do not have  


counsel.").                  We  point  out  that  Regina  has  not  contested  the  contempt  ruling.                                                                                  See  


Bustamante v. Alaska Workers' Comp. Bd., 59 P.3d 270, 274 (Alaska 2002) (noting the  


right to counsel in a contempt proceeding).  


               22            Moody v. Royal Wolf Lodge, 339 P.3d 636, 643 (Alaska 2014).  


                                                                                            -12-                                                                                     7350

----------------------- Page 13-----------------------

                                    Regina also asserts she was unable "to present witnesses from Arizona                                                                                                         

where [they] had been . . . doing well."                                                                        But within ten days of the modification of                                   

custody, Regina obtained statements from several witnesses, which she provided with                                                                                                                                          

her   motions for                             reconsideration   and   for   a stay.                                                     There is no                        basis in                the record                      to  

conclude that Regina could not have had these witnesses testify telephonically at the                                                                                                                                           

show-cause hearing.                                      

                                    Regina therefore has not established a due process violation or prejudice.                                                                                                

                  B.	               The Superior Court Was Not Required To Continue The Show-Cause                                                                                                   


                                    Reginaclaimsthat                                thesuperior court should                                           havecontinued                            theshow-cause   

hearing following the withdrawal of her attorney. We review denial of a continuance for                                                                                                                                          


abuse of discretion.                                                                                                                                                                                                                  

                                                            Failure to grant a continuance "is an abuse of discretion 'when a  



party [is] deprived of a substantial right or seriously prejudiced.' "                                                                                                                          We discern no  


abuse of discretion on this record.  


                                    At the hearing concerning her attorney's motion to withdraw, Regina told  


Judge Morse, the judge handling the attorney withdrawal motion, that she "suppose[d]"  


she would be attending the show-cause hearing on her own if she could not "get an  



extension of time."  This arguably constituted an implicit motion for a continuance. 

                  23                Clementine F. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                             

Servs., 375 P.3d 39, 43 (Alaska 2016).                                                 

                  24	               Shooshanian v. Dire, 237 P.3d 618, 623 (Alaska 2010) (quoting Siggelkow  


v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982)).  


                  25                See  Sengupta  v.  Univ.  of  Alaska,  139  P.3d  572,  581  (Alaska  2006)  


(referring to "our lenient approach" in construing motions by self-represented litigants).  


We note that Regina was technically not self-represented at that time but was in fact  


represented by counsel.  


                                                                                                               -13-	                                                                                                        7350

----------------------- Page 14-----------------------

                                Since Judge Morse was presiding at this withdrawal hearing, he stated that                                                                                         

it was "not really [his] call" whether to continue the show-cause hearing. Thus the court                                                                                                       

effectively reserved ruling on Regina's implicit motion.                                                                            It was therefore incumbent on                                     

Regina to renew her motion before the judge assigned to the case.                                                                                          26  

                               Regina never did so.   She did not file a  written  motion following the  


withdrawal hearing.27                                 And when she appeared at the show-cause hearing she did not  


orally request a continuance.  In fact she did not respond at all when the court remarked  


that she was "now representing herself."   Because Regina did not renew her earlier  


implicit motion, it does not appear that the judge assigned to the divorce and custody  


case - the judge who presided over the show-cause hearing - was aware of the motion  


or of any need to rule on it.  And the court was not required to raise the matter of a  


continuance sua sponte.28  


                C.             Regina Committed Custodial Interference.  


                               Regina claims the superior court erred in concluding she committed the  


crime of custodial interference.  The superior court found that she had committed the  


crime of custodial interference in the first degree. A person who is a "relative" of a child  


commits custodial interference in the second degree if, "knowing that [she] has no legal  


right to do so, [she] takes, entices, or keeps th[e] child . . . from a lawful custodian with  


                26             See id. ("[T]o preserve a claim based on a superior court's failure to rule                                                                 

on a motion, a party must make every effort to request                                                                                     and obtain a ruling before                       

proceeding to trial." (quoting                                        Taylor v. Johnston                          , 985 P.2d 460, 467 (Alaska 1999))).                                

                27             Regina  also  did  not  file  a  written  motion  for  continuance  before  the  


withdrawal hearing, even though she was represented by counsel at that time.  


                28             For the reasons set forth above, Regina has also failed to demonstrate that  


she was prejudiced by the failure to continue the show-cause hearing.  


                                                                                                 -14-                                                                                           7350

----------------------- Page 15-----------------------


intent to hold the child . . . for a protracted period."                                             The relative is guilty of custodial           

interference in the first degree if she commits the second degree offense and in addition                                                            

                                                                                                                                                 30   Regina  

"causes the child . . . to be removed from [Alaska]; or kept outside [Alaska]."                                                                        

alleges that the superior court erred when finding two elements of this crime satisfied,  


arguing that Michael cannot qualify as a lawful custodian and she did not have the  


required intent.  


                          1.	         The superior court correctly determined that Michael was a  


                                      lawful custodian of the children.  


                         Regina argues that, as a matter of law, she could not have committed this  


offense because under the superior court's permanent custody award she - not Michael  


- was the "lawful custodian."  We disagree.  


                         "We review statutory interpretations de novo."31  


                                                                                                                          "We interpret statutes  


according  to  reason,  practicality,  and common  sense,  taking into account the plain  



meaning and purpose of the law as well as the intent of the drafters."                                                                     Our analysis  

                                                                     33      Alaska  Statute  11.41.370(1)  defines  "lawful  


begins  with  the  text  of  the  statute. 

custodian" to mean "a parent, guardian, or other person responsible by authority of law  


for the care, custody, or control of another."  


             29          AS 11.41.330(a)(1).   

             30          AS 11.41.320(a).   

             31          Michael W. v. Brown, 433 P.3d 1105, 1109 (Alaska 2018) (citing Jude M.  


v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 394 P.3d 543, 550  


(Alaska 2017)).  


             32          Id . (quoting Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d 1078,  


 1082 (Alaska 2011)).  


             33          See City of Valdez v. State, 372 P.3d 240, 249 (Alaska 2016).  


                                                                              -15-	                                                                       7350

----------------------- Page 16-----------------------

                                  Michaelqualifies                            as alawfulcustodianbecausethesuperior courtmadehim                                                                                

responsible for the care, custody, and control of the children during the summer.                                                                                                                            The  

 superior court awarded Michael unsupervised visitation rights with the children from                                                                                                                        

July 6, 2016 through August 6, 2016.                                                             During this time the court expected Michael to                                                                     

 enroll the children in reunification therapy sessions, and Michael was responsible for the                                                                                                                       

 counselor's fees.                          Additionally the court authorized Michael to travel out-of-state with                                                                                             

the children during this and future summer visitations.                                                                                     Considered together, Michael                            

was made responsible by authority of law for the care, custody, and control of the                                                                                                                              


 children, thereby making him a lawful custodian for purposes of AS 11.41.370(1).                                                                                                                                    

                                  The dissent opines that the crime of custodial interference does not apply  


when a parent has only visitation rights. This evaluation is partly based on the existence  



 of a separate offense of failure to permit visitation with a minor under AS 11.51.125.                                                                                                                                    


                 34               Regina  argues  that our discussion of custodial interference in  Graham  R.  

v.  Jane  S.  should  control  this  case  because  we  noted  a  distinction  between  parents  with  

 custodial rights and visitation rights when interpreting "lawful custodian."   334 P.3d 688,  

 694 (Alaska 2014).  In that case a father with custodial rights held a  child out of  state,  

preventing  the  mother  from  exercising  her  weekend  visitation  rights.   Id .  at  694.   We  

reviewed  the  superior  court's  finding  that  this  was  a  change  in  circumstances  justifying  

 a   modification   of   custody.     Id .   at   694-95.     We   held   that   the   father's   substantial  

interference   with   the   mother's   visitation   rights   constituted   a   substantial   change   in  

 circumstances   justifying   the   modification,   but   declined   to   base   our  holding   on  

AS   11.41.330(a).     Id .     Because   our   brief   discussion   of   AS   11.41.330(a)   was   not  

necessary   to   the   holding   in   the   case,   we   consider   it   dicta.     See   Scheele   v.   City   of  

Anchorage ,   385   P.2d   582,   583   (Alaska   1963)   ("We   look   upon  what  we   said   in   [a  

previous]  case   .   .   .  as  obiter  dictum,   since  it  was  not  necessary  to  the  decision in  that  

 case."),  superseded  by  statute  on  other  grounds,  AS  09.65.070.   

                 35               Alaska Statute 11.51.125(a) provides:  


                                  A  custodian  commits  the  offense  of  failure  to  permit  


                                  visitation  with  a  minor  if  the  custodian  intentionally,  and  



                                                                                                        -16-                                                                                                 7350

----------------------- Page 17-----------------------

 But the elements of these two crimes differ greatly. Only a custodian may commit failure                                                                 


 to permit visitation, unlike custodial interference, which may be committed by anyone.                                                                                 

 And failure to permit visitation requires violation of a custody order - unlike custodial  


 interference, which one parent may commit against the other even when there is no  


 custody order.37   More importantly, to commit custodial interference a person must take,  


 keep, or entice the child from a lawful custodian with the intent to hold the child for a  


protracted period with no legal right to do so . Failure to permit visitation has no similar  


 intent element or duration element.  


                          If Regina had kept the children from Michael intending to hold them only  


 for a short period of time, then Regina might have committed only failure to permit  


 visitation but not custodial interference.  However, the superior court found that Regina  


 kept the children from Michael, intending to hold them for a protracted period when she  


 had  no  legal  right  to  do  so.                          Under  these  circumstances,  the  superior  court  could  


 reasonably conclude that Regina committed custodial interference.  


                          2.	          The superior court did not clearly err when it found that Regina  


                                       intentionally kept the children for a protracted period.  


                          To commit the crime of custodial interference, a person must not only take,  


 entice, or keep a child from a lawful custodian but also "know[] that [he or she] has no  


             35	          (...continued)  

                          without  just   excuse,   fails   to   permit   visitation   with a   child  

                          under    18   years    of    age    in    the    custodian's    custody    in  

                          substantial  conformance  with  a  court  order  that  is  specific  as  

                          to  when  the  custodian  must  permit  another  to  have  visitation  

                          with  that  child.  

             36           See AS  11.41.330(a).  


             37           See Vachon v. Pugliese, 931 P.2d 371, 377 (Alaska 1996); Strother v. State,  


 891 P.2d 214, 223-24 (Alaska App.  1995).  


                                                                               -17-	                                                                        7350

----------------------- Page 18-----------------------


legal right to do so" and "                              inten[d] to hold the child . . . for a protracted period."                                                                  Regina  

claims that "based on the evidence presented, it was not shown [that she] intended to                                                                                                             

hold the children out of state."                                       Instead she argues that she "did everything she could do                                                                  

to get the then 14 and 15 year old boys to board the plane."                                                                             The superior court did not                            

clearly err in discounting this evidence.                                                     

                               "A factual finding is clearly erroneous if 'a review of the entire record                                                                               

leaves us with a definite and firm conviction that the trial court has made a mistake.' "                                                                                                         39  

"The  trial  court's  factual  findings  enjoy  particular  deference  when  they  are  based  


 'primarily on oral testimony, because the trial court, not this court, judges the credibility  


of witnesses and weighs conflicting evidence.' "40  


                               The superior court made no such mistake here.  The court expressly found  


Regina not credible and that Regina's supposed efforts to put her children on a plane to  


Alaska were all for show:  


                               She got to the airport, made sure the police knew where she  


                               was at and all of that, but really didn't do the things that were  


                               necessary to get the children on the plane, or encourage them  


                               to really get on the plane, or perhaps explain to them what the  


                               consequences would be if they do not get on the plane.  


The superior court had previously found that "Regina ha[d] brainwashed the children  


into believing that Michael is a monster."  The court implicitly relied on this earlier  


finding in concluding that Regina was lying about being unable to convince the children  


to board the airplane: "I understand [Regina] has lots of explanations, teenage boys, who  


               38              AS   11.41.330  (emphases  added).  

               39             Faulkner  v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002) (quoting  Evans v.  

Evans,  869  P.2d  478,  479  (Alaska   1994)).  

               40             Limeres  v.  Limeres,  320  P.3d  291,  296  (Alaska  2014)  (quoting  Sheffield  v.  

Sheffield, 265 P.3d 332, 335 (Alaska 2001)).  



                                                                                               -18-                                                                                        7350

----------------------- Page 19-----------------------

 she says she can't control, I think she can control them, I think she has been controlling                                                                                                                                                                                                                                                                                             

them."   Reviewing the record as a whole, we find that the court did not clearly err when                                                                                                                                                                                                                                                                                                                          

it found that Regina intentionally kept the children with her during the summer.                                                                                                                                                                                                                                                                                  

IV.                               CONCLUSION  

                                                                  For   the   foregoing   reasons  we   AFFIRM the                                                                                                                                                                                    court's   decision   to   award  

primary physical custody and sole legal custody to Michael.                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                              -19-                                                                                                                                                                                    7350

----------------------- Page 20-----------------------


CARNEY, Justice, dissenting.  


                    I  agree  that  Regina  received  adequate  notice  that  custody  would  be  


addressed at the show cause hearing, that the superior court was not required to continue  


that hearing, and that the superior court appropriately changed custody of the children  


from Regina to Michael. But because I believe that as a matter of law she could not have  


committed custodial interference, I respectfully dissent.  


                    In its June 2016 order the superior court awarded "sole legal custody" and  


"primary physical custody" of the children to Regina and "visitation" to Michael. As this  


court notes, the superior court made its award with great reluctance, and it warned  


Regina that "[i]f [she] fail[ed] to cooperate . . . to ensure that the children have . . .  


visitation . . . [it would] likely change its custody determination to award sole legal and  


primary physical custody . . . to [Michael]."  


                    In their litigation regarding Regina's failure to honor the requirement for  


visitation with Michael, both parents and the superior court consistently and clearly  


differentiated  between  Regina's  custody  of  the  children  and  Michael's  visitation.  


Michael asked the court to hold Regina in contempt for failing to return the children to  


Alaska for visitation and reminded the court that it had "stated it would entertain a  


change of custody" to him if Regina failed to make the visitation happen.  In response  


Regina accused Michael of trying to make the court reverse its award of custody to her.  


In its order scheduling a hearing on Michael's motion to show cause, the court warned  


Regina to be prepared to explain why the court "should not change custody of the minor  


children" from her to Michael.  


                    Alaska's custodial interference statute states that a "relative" of a child  


commits the crime of custodial interference if, "knowing that [she] has no legal right to  


do so, [she] takes, entices, or keeps th[e] child . . . from a lawful custodian with intent to  

                                                               -20-                                                          7350

----------------------- Page 21-----------------------


hold the child . . . for a protracted period."                                                                                    The record is clear that Regina knew that the                                                                                  

children were supposed to be in Alaska for the court-ordered visitation with Michael.                                                                                                                                                                                        

It is also clear that she intended to, and did, keep the children for a protracted period in                                                                                                                                                                        

Arizona.    And further that she did not have a legal right to do so under the court's                                                                                                                                                             

custody order. But, as she argues, she was the children's "lawful custodian." As a result                                                                                                                                                             

she could not have committed custodial interference.                                                                        

                                                                                                                                                                                                                                                          2  and  

                                         In deciding that "Michael was a lawful custodian of the children"                                                                                                                                                    

affirming the superior court on that basis, this court ignores the difference between the  


custody awarded to Regina and the visitation awarded to Michael. It also disregards the  


law. Alaska Statute 11.51.125 establishes the offense of failure to permit visitation with  


a minor.  Its terms describe Regina's actions:  A custodian commits this offense "if the  


custodian intentionally, and without just excuse, fails to permit visitation with a child . . .  


in the custodian's custody [as required by] a court order that is specific as to when the  


custodian must permit another to have visitation with that child."3  


                                         The court emphasizes differences between the two statutes' mens rea and  


durational requirements.4   While those differences may suggest that someone other than  


a custodian, or any person when no custody order exists, could deprive another of  


visitation and not be charged with failure to permit visitation, those situations are not  


                     1                   AS11.41.330(a)(1). Removing                                                                      thechild                   fromthe                   state or keeping thechild   

outside the state elevates the offense to first-degree custodial interference, a felony.                                                                                                                                                                                     

AS 11.41.320(a)(1).                                              The superior court specifically found that Regina committed the                                                                                                                                 

felony because she kept the children outside Alaska.                                                                                      

                     2                   Opinion at 15.  


                     3                   AS  11.51.125(a).  


                     4                   Opinion at 16-17.  


                                                                                                                               -21-                                                                                                                        7350

----------------------- Page 22-----------------------

present here.                 Regina was the custodian and she did violate the custody order and fail to                                                                                    

permit Michael's court-ordered visitation with the children.                                                     

                              The court seems to assume that there is some undefined amount of time that                                                                                

transforms "visitation" into "custody."                                                 The custody statute distinguishes between an                                                      

award of shared custody to both parents and an award of custody to one parent while                                                                                                

providing only visitation to the other "if that is in the best interests of the child."                                                                                            5  Yet  

the court considers Michael's visitation "during the summer" sufficiently long to qualify  


as custody.6                  Based upon the visitation's length, it holds that although she might have  


been guilty of failure to permit visitation if she had intended to keep the children only  


for a short period, once the period became "protracted" Regina committed custodial  


interference.7  In elevatingRegina's conduct to custodial interference based on the length  


of time involved, the court appears to dismiss section (b) of the visitation offense, which  


provides that a "custodian may not be charged . . . with more than one offense in respect  


to what is . . . a single continuous period of visitation."8  


                              The court justifies its transformation of one offense into another by turning  


to a statute that defines "lawful custodian" as anyone with legal authority for "the care,  


custody, or control of another" and then concluding that unsupervised visitation "during  


the summer" includes enough "care, custody, and control" to change court-ordered  


visitation  into  court-created  custody.9                                                    This  conclusion  not  only  contradicts  the  


               5             AS  25.20.060(a),  (c).

               6              Opinion  at   16.

            AS   11.41.330(a)(1).  

               8             AS   11.51.125(b).  

               9              Given that  both  the   statute  relating  to  interference  with   custody   and  the  


                                                                                           -22-                                                                                     7350

----------------------- Page 23-----------------------

legislature's separation of the two concepts and establishment ofseparate punishments,                                                   10  


it also dismisses our only previous discussion of a similar situation.  In Graham R. v.  


Jane S.  we disapproved of the superior court's finding that Graham had committed  


custodial interference by keeping the child in another state for months in violation of a  

                                                                                 11  We stated:  


court order providing Jane with regular visitation. 

                      The . . . custody order granted sole legal custody and primary  


                      physical  custody  to  Graham.                     Jane  was  not  the  custodial  


                      parent (although she had visitation rights), and the "custodial  


                      interference" statute, by its terms, does not apply.[12]  


                      In that case we went on to affirm the court on a different basis - that the  


interference  with  visitation  constituted  a  substantial  change  in  circumstances  that  


justified modifying custody. 13                   The superior court's change of custody to Michael here  


is similarly justified.   But the superior court's reliance upon its mistaken belief that  


Regina had committed custodial interference was not harmless.  


                      Building upon its erroneous interpretation of the custodial interference  


 statutes, the superior court concluded that Regina had a history of perpetrating domestic  


           9          (...continued)  


 statute addressing failure to permit visitation were drafted in 1978 and that courts'  


approaches to child custody considerations in Alaska and throughout the United States  


have changed in the intervening decades, it may well be appropriate for the legislature  


to revisit the statutes and the concepts underlying them.  But until such time as they are  


amended, these laws continue to distinguish clearly between "custody" and "visitation."  

           10         Failure to permit visitation is a violation; custodial interference in this case  


is a felony.  See AS 11.41.320(b) (custodial intervention), AS 11.51.125(e) (failure to  


permit visitation); note 1, above.  


           11         334 P.3d 688, 694 (Alaska 2014).  


           12         Id.  

           13         Id. at 695.  


                                                                   -23-                                                            7350

----------------------- Page 24-----------------------

violence. As a result, the court limited Regina to supervised visitation with the children,                                                                                                                           


and it required her to "attend a 36-week domestic violence intervention program."                                                                                                                                                         I  


would  therefore  reverse  the  superior  court's  findings  that  Regina  had  committed  


custodial interference, that she had done so twice, and that the statutory presumption  


against unsupervised visitation applied to her; I would remand the matter to the superior  


court  to  reconsider  these,  and  any  other  rulings,  that  may  have  stemmed  from  its  


custodial interference determination.  

                   14                See  AS 25.24.150(j) (allowing "only supervised visitation" if parent has                                                                                                                       

history of perpetrating domestic violence, conditioned on parent completing parenting                                                                   

education program).   

                                                                                                                  -24-                                                                                                           7350

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