Laura B. v. Wade B. , 424 P.3d 315 ( 2018 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
LAURA B., )
) Supreme Court No. S-16889
Appellant, )
) Superior Court No. 3AN-12-10282 CI
v. )
) OPINION
WADE B., )
) No. 7256 – July 6, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Erin B. Marston, Judge.
Appearances: Allison Mendel and John J. Sherman, Mendel
Colbert & Associates, Inc., Anchorage, for Appellant. Wade
B., pro se, Anchorage, Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
PER CURIAM.
I. INTRODUCTION
A father requested primary physical custody of his daughter, modifying the
previous shared custody arrangement. The mother opposed the change, arguing there
had not been a substantial change in circumstances. The superior court ordered a limited
custody investigation to resolve a factual dispute related to the change in circumstances,
promising a second hearing on the daughter’s best interests. But after the custody
investigator reported that the daughter wanted to live with the father, the court granted
the father primary physical custody without holding a second hearing. The mother
appeals on due process grounds. We vacate the custody modification and remand for
further proceedings because the failure to hold the second hearing denied the mother due
process.
II. FACTS AND PROCEEDINGS
Laura and Wade B.1 married in 1989 and had three children together. Their
youngest child, a daughter, is about a year from turning 18. This appeal concerns only
the daughter’s custody.
Laura and Wade have joint legal custody of the daughter and have been
sharing physical custody on a week-on, week-off basis since their legal separation in
2013. In April 2017 Wade moved for full legal and physical custody. Wade claimed
that the daughter wanted to live with him full time, that Laura was leaving the daughter
home alone at night in violation of the existing custody order while working, and that the
daughter was afraid when left alone at night. Laura opposed the motion on various
grounds, including that custody could not be modified because Wade had not shown a
substantial change in circumstances had taken place.2
The superior court held a hearing on Wade’s motion. Each party — self-
represented — was placed under oath at the beginning of the hearing. The parties
adamantly disagreed about whether the daughter was being left home alone at night. The
court indicated that being alone and afraid could be a substantial change in circumstances
but determined that it could not resolve whether the daughter was actually alone based
1
We use initials in place of the parties’ last name to protect the privacy of
their daughter.
2
See AS 25.20.110(a) (“An award of custody of a child . . . may be modified
if the court determines that a change in circumstances requires the modification of the
award and the modification is in the best interests of the child.”).
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on the parties’ conflicting testimony. The court ordered a limited custody investigation
to resolve the factual dispute. The court expressly told the parties there would be a
second hearing on the daughter’s best interests if the custody investigator reported that
the daughter was alone and afraid at night.
A custody investigator interviewed the daughter and reported that she
wanted to live with Wade, that she was alone at night and it was “kinda scary,” and that
Laura would not let her go to church. The investigator assessed the daughter as honest,
upset about being alone at night, and more upset about not being able to attend church.
The superior court accepted the custody investigator’s representations and issued a third
supplemental custody order granting Wade primary physical custody without holding a
second hearing on the daughter’s best interests.
Laura appeals, arguing solely that her due process rights were violated by
the failure to hold the second hearing.
III. STANDARD OF REVIEW
“The adequacy of the notice and hearing afforded a litigant in child custody
proceedings involves due process considerations. A constitutional issue presents a
question of law which we review de novo, and to which we apply our independent
judgment.”3
IV. DISCUSSION
The Alaska Constitution provides that “[n]o person shall be deprived of life,
liberty, or property, without due process of law.”4 Procedural due process under this
clause “requires notice and opportunity for hearing appropriate to the nature of the
3
Debra P. v. Laurence S., 309 P.3d 1258, 1260 (Alaska 2013) (quoting
Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998)).
4
Alaska Const. art I, § 7.
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case.”5 “[I]t is essential to contested custody proceedings that the parties be afforded a
hearing . . . grant[ing] them the opportunity to present the quantum of evidence needed
to make an informed and principled determination.”6
To comport with due process, custody should not be modified without an
evidentiary hearing absent a specific exception to the hearing requirement.7 An
exception may exist when “only a minor modification to a custody order is sought,” such
as “a scheduling change or a similar insubstantial alteration” with “no factual conflicts
that require resolution.”8 But when the requested change is “material and substantial,”9
a hearing is required once the non-moving party opposes the motion.10 Wade’s requested
modification — full legal and physical custody — and the superior court’s ultimate order
— giving him primary physical custody — were both material and substantial alterations
5
Debra P., 309 P.3d at 1261 (quoting Lashbrook, 957 P.2d at 328).
6
Id. (quoting Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983)).
7
See Elliott v. Elliott, 129 P.3d 449, 451 (Alaska 2006) (“An exception to
the rule that a custody modification must be preceded by a hearing hinges on the degree
of the modification.”); D.D. v. L.A.H., 27 P.3d 757, 760 (Alaska 2001) (“Our decisions
. . . require an evidentiary hearing before an opposed motion to modify custody can be
granted.”); A.H. v. P.B., 2 P.3d 627, 628 (Alaska 2000) (“When a superior court is asked
to make a material and substantial change to a visitation arrangement, it should not do
so without permitting all parties to be heard . . . .”); Walker v. Walker, 960 P.2d 620, 622
(Alaska 1998) (“[T]he superior court erred when it modified the custody and support
decree without first conducting an evidentiary hearing.”).
8
D.D., 27 P.3d at 760.
9
See A.H., 2 P.3d at 628.
10
See Walker, 960 P.2d at 622 (“Once [the non-moving parent] had opposed
the motion, [the parent] was not obligated to present any further opposition to the court
in order to earn a right to an evidentiary hearing.”).
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to the existing custody arrangement.11 The superior court was therefore required to hold
a hearing before entering a custody modification order.
Wade argues that the initial hearing was sufficient to meet this requirement
because both parties testified under oath, and his testimony later was corroborated by the
custody investigator. But the initial hearing was not adequate to grant Laura “the
opportunity to present the quantum of evidence needed to make an informed and
principled determination.”12 Finding a substantial change in circumstances is only the
first step in a motion to modify custody; the second step is to determine the child’s best
interests.13 The first hearing did not address the daughter’s best interests — the superior
court expressly directed the parties not to present evidence because a second hearing
would follow if the custody investigator found that the daughter was being left alone at
night and was afraid of being alone.
Had the superior court held a second hearing, Laura could have offered
witnesses and other evidence supporting her contention that living with her was in the
daughter’s best interests. Laura also could have examined the custody investigator14 and
rebutted his findings and credibility assessments with her own evidence. But without the
second hearing Laura was unable to challenge the custody investigator’s findings or
11
See D.D., 27 P.3d at 758-59, 760 (concluding change from 50/50 custody
to father’s primary physical custody was material).
12
See Debra P. v. Laurence S., 309 P.3d 1258, 1261 (Alaska 2013) (quoting
Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983)).
13
Abby D. v. Sue Y., 378 P.3d 388, 394 (Alaska 2016).
14
See Alaska R. Civ. P. 90.6(d)(2) (providing that party has right to call
custody investigator as witness to testify about investigator’s report).
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present other evidence and arguments about the daughter’s best interests.15 This violated
Laura’s right to due process.
V. CONCLUSION
We VACATE the third supplemental custody order and REMAND for an
expedited evidentiary hearing to determine the daughter’s custody based on her best
interests.
15
See Debra P., 309 P.3d at 1260 (holding that first hearing, where parties
could not effectively present evidence and argument for final custody decision, did not
cure failure to hold second hearing).
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