Opinion
Supreme Court No. S-12387.
December 5, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court No. 3AN-04-09634 Civil.
Richard W. Dickens, pro se, Palmer. Rita M. Sabato (n/k/a Ellwood), pro se, Rathdrum, Idaho.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Bryner, Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Richard Wayne Dickens appeals the denial of his motion for change of custody and his motion for attorney's fees. Because Dickens fails to allege facts showing a substantial change in circumstances that would justify a shift in custody, we affirm the superior court's ruling on this issue. We also reject Dickens's appeal regarding attorney's fees as untimely because it was filed more than ten months after the superior court awarded partial attorney's fees to Dickens's ex-wife, Rita Marie Sabato, in connection with their divorce and custody litigation.
II. FACTS AND PROCEEDINGS
Sabato and Dickens married in November 1994 and, over the course of eight years, had five sons: Austin, Britt, Owen, Patric, and Gabriel. The couple was granted a divorce in October 2004 through a partial divorce decree, in which Superior Court Judge William F. Morse reserved property, child custody, visitation, and support issues for adjudication at a later date. A trial on those issues was held July 18-20, 2005, and on August 2, 2005, the court awarded Sabato sole legal and physical custody of the five boys. The court's order acknowledged that Sabato planned to move to Idaho with the children and her new husband, Randy Ellwood, over Dickens's strong objections. In August 2005 Sabato moved for attorney's fees pursuant to AS 25.24.140(a) on the grounds that her financial status was "vastly inferior" to Dickens's and that her attorney's fees were driven up by Dickens's "vexatious conduct and uncooperative behavior" during the divorce. On September 20, 2005, the court awarded Sabato partial attorney's fees of $8,787 for the divorce and custody litigation.
AS 25.24.140(a) provides in relevant part:
During the pendency of the action, a spouse may, upon application and in appropriate circumstances, be awarded expenses, including
(1) attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the action; in applying this paragraph, the court shall take appropriate steps to ensure that the award of attorney fees does not contribute to an unnecessary escalation in the litigation[.]
On May 9, 2006, Sabato filed a motion asking the court to order Dickens to pay the full cost of transporting their children to Alaska for scheduled visits with Dickens because he had not paid Sabato the $8,787 in attorney's fees. Following a hearing on June 8, 2006, the court denied Sabato's motion. During the hearing, Dickens expressed disagreement with a number of the court's earlier rulings, including the September 20, 2005 award of attorney's fees. The court stated that the earlier orders regarding custody and attorney's fees would stand unless reversed, and noted that Dickens had the option of appealing to the supreme court. The superior court cautioned Dickens that his appeal would be untimely and subject to the supreme court's discretion to accept an untimely appeal.
On June 28, 2006, Dickens filed motions for change of custody and attorney's fees with the superior court. Dickens's change of custody motion asked the court to grant him physical and legal custody of all five boys. He summarized the basis for his motion as follows:
The record shows that Dickens also filed identical motions with the superior court clerk's office on July 5, 2006. The superior court order denying both motions used the June 28, 2006 date for the motion on fees, and the July 5, 2006 date for the change of custody motion.
I believe the acts of fraud by the plaintiff show a character flaw, which negatively impacts her parental abilities. The plaintiff's failure to adhere to the court order IAW AS Sec. 25.24.150.6 Judgment for Custody which states; "the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent". I have doubt in the character of one Randy Ellwood who happens to be supporting the father role for my five children 10 months out of a calendar year.
Dickens also filed an affidavit and memorandum in support of both motions setting forth, in greater detail, the grounds for his requests. Dickens did not request a hearing on either motion.
Dickens's motion for attorney's fees requested that "Rita Marie Sabato be ordered to reimburse attorney fees incurred during our divorce." As a basis for the motion, he stated that, "I believe that the lack of cooperation, manipulation and perjury by the plaintiff caused unnecessary attorney fees during our divorce proceedings."
On July 15, 2006, the superior court denied both motions without a hearing. On the motion for change of custody, the court found that Dickens had not presented sufficient evidence to show a substantial change in circumstances that would justify modifying the earlier custody order, though it did direct Sabato to make greater efforts to foster communication between father and sons. The court treated the motion for attorney's fees as an untimely motion for reconsideration of its earlier award of partial attorney's fees to Sabato, and concluded that even if Dickens's motion had been timely, the court would have denied it for the reasons stated in its original fee award to Sabato.
Dickens appeals.
III. STANDARD OF REVIEW
This court applies the de novo standard of review to a denial without hearing of a motion to modify custody or visitation. The court will affirm if, in its independent judgment, the facts alleged, even if proven, cannot warrant modification, or if the allegations are so general or conclusory, and so convincingly refuted by competent evidence, that there is no genuine issue of material fact requiring a hearing.
C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).
Maxwell v. Maxwell, 37 P.3d 424, 425 (Alaska 2001); C.R.B., 959 P.2d at 378.
Trial courts have broad discretion to award or deny attorney's fees in divorce actions. This court will not reverse a trial court's determination on attorney's fees unless it is arbitrary, capricious, or manifestly unreasonable.
Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004) (citing Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001)).
Id.
IV. DISCUSSION
A. The Superior Court Did Not Err in Denying Dickens's Motion for Change of Custody.
Along with his motion for change of custody, Dickens submitted a "Best Interests Affidavit and Memorandum" asserting five grounds for his request for legal and physical custody of the five boys. He asserted that a change of custody was justified because: (1) his sons would benefit from being reunited with extended family members, friends, and neighbors in Alaska; (2) Sabato had impeded his relationship with his sons by interfering with his ability to talk with them by phone; (3) four of the five boys had expressed a desire to live in Alaska, or at least to live in both Idaho and Alaska, according to a July 15, 2005 court-ordered custody investigation report; (4) Sabato's husband, Randy Ellwood, might be unemployed in Idaho, and therefore unable to support the family financially, might be driving a vehicle with expired tags, and might be without a valid driver's license; and (5) Sabato allegedly committed fraud by submitting Permanent Fund Dividend (PFD) applications for the five boys while living out of state. Dickens's appeal of the superior court's denial of his motion repeats a number of these grounds, while focusing primarily on his claim that "Ms. Sabato and Mr. Ellwood's character is less tha[n] desirable to raise the five Dickens children." In support of this, he asserts that Sabato committed adultery and perjury during the divorce and custody litigation, and that Ellwood was behind in paying child support for his own children and had visited online adult bulletin board sites under a pseudonym.
By statute and established case law, a motion to modify child custody will be granted only if two conditions are satisfied. First, the non-custodial parent must establish that a substantial change in circumstances has occurred; and second, the court must conclude that modification of the custody arrangement would be in the child's best interest. The superior court may deny a custody modification without an evidentiary 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." The requirement of a "substantial change" in circumstances is not intended to limit a trial court's discretion in determining custody according to the best interests of the child. Rather, it is a rule of judicial economy designed to discourage discontented parents from perpetually renewing custody proceedings.
AS 25.20.110(a) ("An award of custody of a child or visitation with the 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."); see also Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989) (noting that a " substantial change" in circumstances is required to modify custody, even though AS 25.20.110 does not say "substantial") (emphasis added).
Maxwell, 37 P.3d at 426 (quoting Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)).
Deivert v. Oseira, 628 P.2d 575, 578 (Alaska 1981).
Id.
No purpose would be served in requiring a `substantial change in circumstances' before custody modification if a full hearing must be held on motions that do not contain a prima facie showing of either a change that warrants reexamination of the question, or that the best interests of the children would be served by a change of custody.
Id.
Once a moving party makes a prima facie 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." In assessing whether a substantial change in circumstance exists, courts must look to whether the asserted change has actually affected the children involved. The moving parent must "show changes that affect the child's welfare, reflect more than mere passage of time, and overcome our deep reluctance to shuttle children back and forth between parents."
Maxwell, 37 P.3d at 426 (quoting Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990)).
Long v. Long, 816 P.2d 145, 151 (Alaska 1991) ("What is important is that the circumstances of the children worsened as a result of their parents' actions."); see also House v. House, 779 P.2d 1204, 1207 (Alaska 1989) (crucial inquiry was whether the child "faced . . . a potentially disturbing and upsetting change in circumstances.").
C.R.B., 959 P.2d at 381 (citations omitted).
Here, two of the five grounds Dickens offered for his change of custody motion did not involve new or changed circumstances. The superior court was aware, at the time it issued its August 2, 2005 custody order, that Sabato planned to move to Idaho with her sons, and that this would take the boys away from relatives, friends, and neighbors in Alaska. Likewise, the superior court had access to the custody investigator's report paraphrasing statements by four of the five sons — Austin, Britt, Owen and Patric — regarding where they wished to live before it assigned custody to Sabato. Thus, neither the distance from family and friends nor the boys' statements about geographic preference can be considered a substantial change in circumstances because this information was known at the time of the trial on custody issues.
By contrast, Dickens's allegation that Sabato interfered with his ability to remain in contact with his sons by phone involves conduct that allegedly occurred after the trial and court order. In his "Best Interests Affidavit and Memorandum" Dickens asserted that only twenty-eight percent of the calls he placed to Sabato's home in Idaho resulted in actual conversations with his sons. In support of this claim, he attached charts, spread sheets, and phone records documenting his attempted and completed calls. The superior court's original August 2, 2005 custody order stated that: "[t]he children are allowed and should be encouraged to contact father, mother and all other relatives by phone, e-mail, etc. at reasonable times and for reasonable durations." It further stated that "[t]he father and relatives are allowed to contact the children by phone, e-mail, etc. at reasonable times and for reasonable durations. . . ." Addressing Dickens's claim, the superior court found that Dickens's chart showed that during one period, he called the children 107 times and was able to speak with them on the first try forty-nine times, while his phone calls were returned by the children on three other occasions. The superior court concluded that "[t]hus, as a result of the 107 calls he made, Dickens spoke with the children (eventually, by his count) on 52 occasions or 49% of the time." The superior court noted that "it may be that Sabato could try harder to have the children return or initiate calls" and that Dickens's chart "might warrant warning Sabato to encourage the boys to call their father and to return his calls more frequently." The superior court also recognized that "some level of interference with communication between father and children could prompt a change in physical custody." But the superior court concluded that "what Dickens has alleged is not even close to that level of interference." The court did not err in concluding that Dickens failed to show that Sabato's alleged interference with his phone calls to his sons constituted a substantial change in circumstances affecting the children involved.
Dickens's claims that Ellwood is unemployed, lacks a valid driver's license, and is driving a vehicle with expired tags also fall short of showing a substantial change in circumstances. In opposing Dickens's change of custody motion, Sabato responded that the claims related to Ellwood were "false and misleading" and asserted that Ellwood works as a self-employed contractor and that his vehicle is properly registered in Idaho. Dickens's claims are conclusory at best, and he failed to offer any credible link between the claims regarding Ellwood and the welfare of his sons. Instead, he merely speculates that Sabato and Ellwood lack sufficient funds to care for their children in Idaho and that Ellwood's alleged lack of a valid driver's license could result in his arrest, which "could have a devastating impact on any young children witnessing such an event." Such generalized speculation does not justify a change in custody, especially when the superior court's decision to award custody to Sabato did not hinge on Ellwood's employment status, driving record, or the validity of his vehicle registration. Moreover, after Sabato directly refuted Dickens's claims in her opposition to his motion, Dickens failed to allege specific facts in reply that would make the claims a relevant issue. For these reasons, the superior court did not abuse its discretion in disregarding this issue.
See C.R.B., 959 P.2d at 382 (describing appellant's obtainment of citizenship as irrelevant to change of custody motion because it did "not affect the children").
See id.
Similarly, Dickens's claim that Sabato may have committed fraud in 2006 involving PFD applications for her sons while living in Idaho does not amount to a substantial change in circumstances. In support of his accusation, Dickens merely provided the court with a name and contact number for a PFD fraud investigator; Dickens repeats the fraud allegations on appeal, but again fails to offer specifics or suggest that he could present evidence substantiating the allegations. Dickens's superior court motion stated that he was concerned about the impact Sabato's alleged fraud "might have on my children" and about the impact of any action the state might take against Sabato. As with the claims related to Ellwood, Dickens fails to allege that the purported fraud has actually affected the five boys.
In her "Best Interests Affidavit and Memorandum" opposing Dickens's motion, Sabato denied the fraud claim and explained that she filed PFD applications for her sons after being advised to do so by a "PFD case worker" to ensure that no one else could fraudulently apply for and collect dividends on their behalf. The PFD applications for her sons were subsequently denied, as Sabato says she "knew they would be." In C.R.B. v. C.C. this court stated that a party seeking a hearing on a motion to modify "cannot rest on a generalized allegation if other record evidence convincingly refutes it." Instead, the moving party must "indicate that they can produce admissible evidence of specific facts rebutting that evidence." Here, Sabato has refuted Dickens's fraud allegation, and Dickens has failed to indicate that he can produce admissible evidence in support of his claim. For this reason, and because Dickens failed to allege how the alleged fraud has actually affected his sons, the superior court did not err in disregarding this issue.
Id. (citing Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997)).
In sum, Dickens failed to meet his burden of demonstrating a substantial change of circumstances that would require the court to conduct a best-interests inquiry.
B. The Superior Court Did Not Err in Denying Dickens's Untimely Motion for Attorney's Fees.
Dickens also appeals the superior court's denial of his June 28, 2006 motion for attorney's fees in connection with the divorce and custody litigation. In his motion, Dickens asked the court to order Sabato to pay him $26,682.21, the full amount of his attorney's fees. In an affidavit and memorandum attached to his motion, Dickens claimed that he had attempted to settle the divorce without the involvement of attorneys and that Sabato had perjured herself throughout the divorce proceedings, causing him to incur higher attorney's fees. The superior court denied Dickens's motion, which it treated as an untimely motion for reconsideration of the court's September 20, 2005 award of fees to Sabato. The court also stated that even if Dickens had filed his motion at the same time Sabato filed her motion for attorney's fees, it would have ruled in favor of Sabato for the reasons stated in its September 20, 2005 order. On appeal to this court, Dickens does not address the untimeliness of his motion for attorney's fees. Rather, he repeats the same arguments he made in his superior court motion, adding that the superior court abused its discretion by awarding fees to Sabato because the difference in financial status between the parties was due to Sabato's unwillingness to work outside the home. In effect, then, Dickens is actually appealing the superior court's September 20, 2005 award of partial fees to Sabato.
Appellate Rule 204(a)(1) requires an appellant to file a notice of appeal "within 30 days from the date shown in the clerk's certificate of distribution on the judgment appealed from." The certificate on the superior court's order awarding attorney's fees and costs to Sabato indicates that it was distributed to the parties on September 20, 2005. Dickens thus had until October 20, 2005, to appeal the attorney's fees award. Because Dickens filed his appeal with this court on August 8, 2006, more than nine months after the thirty-day deadline to appeal the superior court's original ruling on attorney's fees, he waived his right to challenge this issue.
Alaska R. App. P. 204(a)(1); see also Olson v. Olson, 856 P.2d 482, 485 (Alaska 1993).
V. CONCLUSION
Because Dickens has failed to show a substantial change of circumstances entitling him to a best-interests inquiry, and because his appeal on the attorney's fees issue is untimely, we AFFIRM the superior court's judgment in its entirety.