Opinion
Supreme Court No. S-12144.
July 12, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge. Superior Court No. 3AN-01-07958 CI.
W. Michael Stephenson, Jermain Dunnagan Owens, P.C., Anchorage, for Appellant.
No appearance by Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Fabe, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
The mother of two young girls moved in 2005 for modification of a 2002 child custody order. She asked the superior court to give her sole legal custody and to determine whether visitation with the girls' father was still in the girls' best interests. She also asked the court to preclude visitation between the father and the girls until the court had first determined his suitability for any visitation. The father did not oppose the motion. Without holding a hearing or entering any findings, the superior court awarded the mother sole legal custody and awarded the father thirty consecutive days of summer visitation, more than he had under the 2002 order. The mother appeals the visitation modification. Because a hearing was needed to resolve the factual dispute presented here, and because articulated findings are necessary for meaningful appellate review of an order modifying visitation, we vacate the visitation order and remand.
II. FACTS AND PROCEEDINGS
Andrea Siegfried and Richard Fowler never married, but had two daughters, born in 1997 and 1999. The couple separated in 1999. Both daughters have lived in Anchorage with Siegfried since birth. Fowler lived in Anchorage until November 2004 and now resides in Arizona.
In January 2002 Siegfried and Fowler participated in a settlement conference and reached agreement regarding custody, visitation, and support. They agreed that they would share legal custody and that Siegfried would have primary physical custody of both daughters. They also agreed that Fowler could visit the girls for five days every three weeks, for one uninterrupted week each summer (increased to two uninterrupted weeks in 2004), and on some holidays. The superior court approved the agreement and on February 27, 2002 issued findings of fact, conclusions of law, and a child custody and support order.
On September 8, 2005 Siegfried filed a motion to modify custody and visitation. She requested an order
1. Awarding plaintiff Andrea Siegfried sole legal and physical custody of the minor children;
2. Requiring that defendant Richard Fowler have visitation with the children as determined by the court after the parties have had the opportunity to present evidence as to Richard Fowler's suitability for visitation, including supervised visitation, if the court determines that supervised visitation is required to ensure that the visits are safe and appropriate; and
3. Ordering that no visitation be allowed until the court has made a determination with respect to the appropriateness of and limitations, if any, upon such visitation.
In her supporting affidavit and accompanying memorandum, Siegfried alleged that there had been a "substantial change in circumstances" since the initial custody agreement. Her affidavit stated that Fowler had moved to Arizona, had "increasingly distanced himself from [the] children," and had only visited the girls six times after February 2004. Her affidavit described numerous examples of how Fowler had "repeatedly violated the custody agreement." For example, it stated that Fowler had been accused of attacking his employee, that Siegfried believed Fowler had committed at least two acts of domestic violence against his current domestic partner (one of which the children witnessed), and that Fowler's partner's friend had petitioned unsuccessfully for a stalking protective order against Fowler. It stated that Fowler had "an ongoing problem" with paying child support. It stated that Fowler had told the girls that he planned to take them away from Siegfried and that they would never see her again. It also asserted that Fowler had exercised poor judgment while watching the children: on one occasion the children's young cousin had exposed himself to them. Finally, it stated that Siegfried was concerned that Fowler has "mental health issues."
Fowler did not oppose Siegfried's motion to modify. The superior court did not hold a hearing on the motion. On October 13, 2005 it issued an order modifying custody and visitation. The order awarded Siegfried sole legal and physical custody of both children and it granted Fowler thirty consecutive days of visitation with the girls during their summer vacation. The order contained only one finding: it found "a complete breakdown in civil communication between the parties." It also stated that "all other prior findings and orders shall remain in full force and effect." It did not address Siegfried's request that visitation end until Fowler's suitability was determined.
The February 2002 Child Custody and Support Order made no best interests findings, but concluded that the parties' custody and visitation agreement was in the best interests of the children.
Siegfried timely moved for reconsideration and argued that the superior court had "overlooked or misconceived" Fowler's suitability for extended visitation with his daughters in light of Siegfried's uncontroverted affidavit. She argued that the new order granted Fowler more visitation during the summer than he had under the original order and failed to address the issues Siegfried's motion raised regarding Fowler's suitability for visitation, including his move to Arizona, his threats to take the children from Siegfried, and his violent behavior. The reconsideration motion asked the court to preclude Fowler from having any visitation with the children until he demonstrated his suitability for visitation. It also requested that the court, if it would not limit Fowler's visitation until his suitability was determined, "set a hearing and require Mr. Fowler to demonstrate his suitability for a continuation of his visitation rights."
The superior court denied the reconsideration motion.
Siegfried appeals and argues that it was error and an abuse of discretion to modify the visitation schedule without holding a hearing, taking evidence, considering any statutory best interest factors, or making any factual findings that the modification was in the children's best interests. Fowler has not appeared in this appeal.
III. DISCUSSION
A. Standard of Review
We will reverse a superior court's decision regarding modification of child custody if the superior court abuses its discretion or if its controlling factual findings are clearly erroneous. We will find an abuse of discretion if the superior court "fails to consider statutorily mandated factors, assigns too much weight to some of the factors, or considers improper factors."
J.L.P. v. V.L.A., 30 P.3d 590, 594 (Alaska 2001).
Id.
Because "[t]he adequacy of the notice and hearing afforded a litigant in child custody proceedings involves due process considerations," whether it was error to modify visitation by increasing Fowler's continuous summer visitation over Siegfried's objection without holding a hearing is a question of law we review de novo. B. It Was Error Not To Hold an Evidentiary Hearing.
Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998).
Siegfried argues that it was error to modify visitation in a way that was contrary to the showing she had made and that was favorable to Fowler without holding a hearing. We agree.
A trial court may grant a motion to modify custody if a change in circumstances requires the modification and the modification is in the best interests of the child. Once the moving parent makes a preliminary showing of a substantial change in circumstances, "he or she is entitled `to a hearing to consider whether, in light of such changed circumstances, it is in the child's best interest to alter the existing custodial arrangement.'"
AS 25.20.110(a); Lashbrook, 957 P.2d at 329.
Lashbrook, 957 P.2d at 329 (quoting A.H. v. W.P., 896 P.2d 240, 244 (Alaska 1995) (quoting Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990))).
An evidentiary hearing is an essential component of a child custody proceeding because it gives the parties an "opportunity to present the quantum of evidence needed [for the court] to make an informed and principled determination." We have consistently held that evidentiary hearings are required in opposed custody modification proceedings. We have carved out two exceptions to that general rule. We have held that a superior court may deny a party's motion to modify without a hearing if the "facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conclusory, and so convincingly refuted by competent evidence, as to create no genuine issue of material fact requiring a hearing." And we have stated in dictum that a superior court may grant a motion to modify without an evidentiary hearing "when a motion to modify seeks only a scheduling change or a similar insubstantial alteration to custody or visitation" and there are "no factual conflicts that require resolution."
VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999) (quoting Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983)) (holding that it was error for superior court to permanently modify custody on basis of show-cause hearing where best interests of children not considered); Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998) (quoting Howlett v. Howlett, 890 P.2d 1125, 1127 (Alaska 1995)).
See, e.g., 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."); Walker, 960 P.2d at 622 ("The superior court is not permitted to grant an opposed motion to modify custody without holding a hearing. . . ."); Lashbrook, 957 P.2d at 328 (holding that superior court erred by granting motion to modify after only holding domestic violence hearing); Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska 1997) (holding that superior court abused its discretion by granting motion to modify custody without hearing despite non-moving parent's opposition to motion).
J.L.P., 30 P.3d at 595 (quoting Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)).
D.D., 27 P.3d at 760.
The first exception does not apply here because the ordergranted Siegfried's modification motion, albeit in a way that favored Fowler and disfavored Siegfried. And the second exception does not apply because, although Fowler did not oppose the motion, Siegfried had informed the court that there were material factual disputes that needed resolution through an evidentiary hearing. Her modification motion asked the court to determine visitation "after the parties have had the opportunity to present evidence as to . . . Fowler's suitability for visitation, including supervised visitation, if the court determines that supervised visitation is required to ensure that the visits are safe and appropriate." She repeated that request in her motion for reconsideration. Siegfried's motions therefore alerted the superior court to the need for a hearing to resolve a material factual dispute, i.e., Fowler's suitability for any visitation. It was therefore error to modify the visitation order in a way that was contrary to Siegfried's showing without first holding an evidentiary hearing to determine whether her factual contentions were correct.
Because the parties agreed to entry of the 2002 order, the court, in considering the 2005 modification motion, did not have the benefit of any prior trial evidence analyzing the children's best interests.
Because the superior court modified visitation, it must have first found a change in circumstances. It did not do so expressly, but implicitly did so in finding "a complete breakdown in civil communication between the parties." Siegfried's motion to modify adequately demonstrated a change in circumstances.
We note that the superior court could have entered the interim relief Siegfried requested — that no visitation be allowed before the court determined Fowler's suitability for visitation — without conducting a hearing. Because Siegfried made out the requisite prima facie showing of a substantial change in circumstances, because Fowler did not oppose her request for interim relief, and because Fowler's silence established that there were no factual disputes regarding that relief, it would not have been error to enter an order granting that interim relief.
C. It Was Error Not To Enter Findings.
Siegfried also argues that it was an abuse of discretion to modify visitation without conducting a best interests analysis or entering findings regarding the children's best interests.
Once a movant for modification of custody or visitation makes out a prima facie showing of a change in circumstances, the superior court must determine whether modification is in the children's best interests. The court must consider the statutory best interest factors in AS 25.24.150(c) and make findings regarding the change in circumstances and the children's best interests. Such findings are critical to appellate review; without sufficient findings, we are "unable to adequately evaluate the correctness of the court's decision to modify the custody decree." "The findings need not be extensive, but must either give us a clear indication of the factors which the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved."
Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001); see AS 25.20.110(a).
See Howlett, 890 P.2d at 1127 ("It is reversible error for a judge to modify custody without making findings regarding the change in circumstances and the best interests of the child."); Hakas v. Bergenthal, 843 P.2d 642, 644 (Alaska 1992) ("A best interest of the child inquiry is an essential component of a custody determination, whether it is in the context of an initial custody determination or modification of an existing custody arrangement.").
Lee v. Cox, 790 P.2d 1359, 1362 (Alaska 1990).
Bird v. Starkey, 914 P.2d 1246, 1249 n. 4 (Alaska 1996).
Because there were no findings here, we cannot review the modification order; we have no indication of the factors considered important or whether there was consideration of the statutory best interest factors. On remand, and after a hearing addressing all material factual disputes, a best interests analysis must be conducted and findings sufficient for appellate review must be entered.
IV. CONCLUSION
For these reasons we VACATE that portion of the modification order granting thirty consecutive days summer visitation to Fowler and REMAND for further proceedings consistent with this opinion. Although we express no opinion about whether the superior court should enter the interim relief requested by Siegfried in her September 2005 motion, our opinion does not preclude that relief.
Notwithstanding the provisions of Appellate Rules 507(b) and 512(a), this decision will take effect immediately, and the clerk of the appellate courts shall return the record to the superior court without waiting for expiration of the time for filing a petition for rehearing.