DocketNumber: Supreme Court No. S-16421
Citation Numbers: 440 P.3d 199
Judges: Bolger, Carney
Filed Date: 4/5/2019
Status: Precedential
Modified Date: 7/19/2022
I. INTRODUCTION
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. 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 crime of domestic violence.
II. FACTS AND PROCEEDINGS
A. Background
Regina S. and Michael C. married in 2000, and have two children, both boys, from the marriage.
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 alienation."
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 transferring custody of the boys from Regina to Michael would cause them further trauma.
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 change of custody should "be done before the start of the school year[
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 parties.
The court addressed each of the statutory factors concerning the best interests of the children
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, *202including 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]. Such a change under those circumstances would be consistent 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."
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 hearing.
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 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.
*203The 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 custody award.
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."
Regina moved for reconsideration and to stay the order, but the court 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 Violated.
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 case."
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."
*204Regina 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 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 VinZant v. Elam
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.
Regina further argues that the present case is like Cushing v. Painter .
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 lack of counsel "compounded" the supposed deficiencies with the notice.
We finally point out that a "party raising a due process objection must show that [she] has suffered actual prejudice."
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 Hearing.
Regina claims that the superior court should have continued the show-cause hearing following the withdrawal of her attorney. We review denial of a continuance for abuse of discretion.
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.
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.
Regina never did so. She did not file a written motion following the withdrawal hearing.
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 intent to hold the child ... for a protracted period."
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."
Michael qualifies as a lawful custodian because the superior court made him 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 *207has 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.
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 legal right to do so" and "inten [d ] to hold the child ... for a protracted period."
"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.' "
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 *208believing 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 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.
AS 11.41.320 -.330, 18.66.990(3)(A).
We use initials in lieu of the parties' last names to protect the family's privacy.
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.
See AS 25.24.150(c).
AS 25.24.150(c)(3).
Counsel filed the motion on July 8.
AS 11.41.330(a)(1) ("A person commits the crime of custodial 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.").
AS 25.24.150(h) ("A parent has a history of perpetrating domestic 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."
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.").
Debra P. v. Laurence S. ,
Id. at 1260 (quoting Lashbrook ,
See Dennis O. v. Stephanie O. ,
VinZant ,
VinZant ,
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 court must also find that there has been a "substantial change in circumstances." Bagby v. Bagby ,
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. ,
See Dennis O. v. Stephanie O. ,
Moody v. Royal Wolf Lodge ,
Clementine F. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
Shooshanian v. Dire ,
See Sengupta v. Univ. of Alaska ,
See
Regina also did not file a written motion for continuance before the withdrawal hearing, even though she was represented by counsel at that time.
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.
AS 11.41.330(a)(1).
AS 11.41.320(a).
Michael W. v. Brown ,
Id . (quoting Marathon Oil Co. v. State, Dep't of Nat. Res. ,
See City of Valdez v. State ,
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."
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 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.
See AS 11.41.330(a).
See Vachon v. Pugliese ,
AS 11.41.330 (emphases added).
Faulkner v. Goldfuss ,
Limeres v. Limeres ,