Opinion
Supreme Court No. S-11998.
March 1, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-00-06855 Civil.
Karla F. Huntington, Anchorage, for Appellant.
Jeffrey M. Feldman and Susan Orlansky, Feldman Orlansky Sanders, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Eastaugh, Fabe, and Carpeneti, Justices. [Matthews, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. This case arises from a dispute between Kenneth Robertson and Natalie Phillips over custody of their son, Dashiell Robertson Phillips. In May 2005 Robertson moved for modification of the custody order that had been put in place in 2001, arguing that intervening events, including his adoption of two children and Dash's bonding with these children, constituted significant changes in circumstances requiring modification of the superior court's custody and visitation order. When Phillips opposed his motion, Robertson moved for an evidentiary hearing. The superior court denied the motion for an evidentiary hearing and denied the motion for a change of custody, awarding attorney's fees to Phillips.
This court's previous opinion refers to him as "Dash." Robertson v. Phillips, Mem. Op. J. No. 1074 (Alaska, April 17, 2002) 2002 WL 598934, at *1.
2. Robertson argues on appeal that the superior court erred by denying the motion to modify without first holding an evidentiary hearing. Among other contentions, Robertson claims that the change in his visitation with Dash from three weekends per month plus two additional weekdays to a more restricted schedule of alternate weekends and Wednesday evenings during the school year will deprive Dash of the time needed to bond with his two new siblings. Although Robertson has not made a prima facie showing of changed circumstances sufficient to justify an evidentiary hearing on the questions of legal custody or primary physical custody, we conclude that the superior court's failure to conduct an evidentiary hearing regarding retention of the more generous pre-kindergarten visitation schedule was error. We therefore affirm the superior court's decision, except with regard to the particulars of the visitation schedule and attorney's fees, and remand for an evidentiary hearing on the question whether retention of the more generous visitation schedule is in Dash's best interests. Although the superior court need not revisit the underlying issues of legal and primary physical custody, it of course retains full discretion with regard to the scope of the hearing and may address any other related matter that it deems appropriate.
He also alleges that the award of attorney's fees was erroneous because no motion for such fees had been filed, and because the court did not make findings to support its order.
3. In February 2001, after a full, four-day custody trial, the superior court found that "the level of cooperation and communication between the parties [was] inadequate to make joint legal custody work," and awarded sole legal custody and primary physical custody to Phillips. The court set up a detailed visitation schedule for Dash's preschool years, under which Robertson's visitation gradually increased from three afternoons per week and alternate Saturdays to three 3-night weekends and two weekdays per month. But the schedule provided for decreased visitation with Robertson once Dash enrolled in kindergarten, with their time together consisting of only two 3-night weekends per month and one visit every Wednesday afternoon during the school year. The court also provided a detailed holiday schedule, with Dash staying with his father at the following times: (1) every other week during summer vacation; (2) every day of spring break in odd-numbered years; (3) Thanksgiving afternoons in odd-numbered years; (4) the half of the winter holiday preceding noon on December 25 in odd-numbered years; and (5) the half of the winter holiday after noon on December 25 in even-numbered years. Robertson appealed the order, and this court affirmed it.
The schedule of three 3-night weekends and two additional weekdays was for a four-week period from October 18, 2003 until Dash's first day of kindergarten.
See Robertson, 2002 WL 598934, at *8 ("[W]e conclude that the trial court's findings . . . are not clearly erroneous. We recognize that this was not the only appropriate visitation schedule that could have been imposed; however, it does not amount to an abuse of discretion.").
4. In July 2001 Robertson married Helen Farnstrom and, since that time, Robertson and Farnstrom have adopted two children. Dmitri ("Dima") Z. Robertson, born December 23, 1999, was adopted in November 2002, and Julya M. Robertson, born December 18, 1998, was adopted in July 2003. Robertson argues that "Dash has formed a close sibling bond with both Dima and Julya," and Phillips concedes that "D[ash] enjoys spending time with his new siblings."
5. In May 2005 Robertson moved to modify the 2001 custody order, maintaining that his adoption of Dima and Julya, and Dash's bonding with the two children, constituted "significant changes in circumstances." Phillips opposed the motion and, in her opposition, requested "an award of fees in favor of Ms. Phillips." After both parties filed affidavits, Robertson moved for an evidentiary hearing, which Phillips also opposed. In June 2005 the superior court denied the motion to modify "for lack of changed circumstances," and denied the motion for an evidentiary hearing without explanation. The order denying modification also stated that "[t]he motion for attorney fees is GRANTED." Robertson moved to reconsider the award of attorney's fees on the ground that "there wasn't a pending motion for attorney fees and, thus, the issue was not yet ripe for determination by the court." The superior court denied the motion for reconsideration. Robertson appeals the denial of an evidentiary hearing, the denial of his motion to modify, and the award of attorney's fees.
The final section of Phillips's opposition to the motion to modify, which was devoted to the issue of fees, noted that Phillips was being represented pro bono, and claimed that an award of fees would allow the firm representing her "to devote more of its pro bono efforts to clients who lack counsel and whose cases have not yet been litigated . . . by the courts."
6. The burden of proof in a motion to modify custody is on the moving party, who "must make a prima facie showing of a substantial change in circumstances affecting the child['s] welfare." When such a motion is made, "the court must consider the motion, but need not hold a hearing if it is plain that the facts alleged in the moving papers, even if established, would not warrant a change." Courts are generally reluctant to reopen custody matters, as unending litigation is rarely in the best interest of the child, but "such a consideration should not be a reason for denying a hearing if the moving parent has otherwise met the prima facie burden."
Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999).
Id. (quotation marks omitted).
See id. at 4 ("[C]ommentators have noted the counterproductive effect of unnecessary litigation on all parties, including children."); Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982) ("[T]he general application of the requirement of a change in circumstances reflects the judicial assumption that finality and certainty in custody matters are critical to the child's emotional welfare.").
Harrington, 984 P.2d at 4.
7. In order to meet this burden, the alleged change in circumstances must not only be "significant or substantial, [but] . . . must [also] be demonstrated relative to the facts and circumstances that existed at the time of the prior custody order that the party seeks to modify." For this reason, if a parent demonstrates a significant change relative to certain "facts and circumstances that existed at the time of the prior custody order," but not others, the appropriate remedy is a limited modification focusing only on the changed facts and circumstances.
J.L.P. v. V.L.A., 30 P.3d 590, 596 (Alaska 2001) (quoting Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000); see also Valentino v. Cote, 3 P.3d 337, 340 (Alaska 2000).
J.L.P., 30 P.3d at 596.
Cf. Pearson v. Pearson, 5 P.3d 239, 242-44 (Alaska 2000) (affirming a superior court's decision to modify a visitation schedule on account of changed circumstances, but not to modify the underlying legal custody determination, on the grounds that the circumstances affecting the visitation order — the parents' geographical locations — had changed, but those affecting the underlying custody determination — primarily the mother's ability to provide a stable home for the children — had not).
8. A material change in circumstances is a change that "affect[s] the child's welfare" and "reflect[s] more than mere passage of time." Remarriage of one parent is generally not deemed a material change in circumstances. Whether the birth or adoption of new siblings constitutes a change in circumstances is a fact-specific inquiry, and we have adopted "no rigid rule prevent[ing] separation" of siblings.
Schuyler v. Briner, 13 P.3d 738, 742 n. 12 (Alaska 2000).
Cf. Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973) ("[I]f changes in custody are made with every change in the marital status of divorced parents, the lives of children of these broken homes would be made miserable through recurrent efforts of parents to satisfy their own desires and the paramount purpose [of custody adjudication] will be defeated.").
Compare Andrea S. v. David R., 116 P.3d 589, 592 (Alaska 2005) (noting, with approval, the superior court's determination that an unhealthy change in a sibling relationship — in this case, incest — "constituted a change in circumstances," and reversing the superior court's denial of a motion to modify custody without a hearing) with Harrington v. Jordan, 984 P.2d 1, 4 (Alaska 1999) (holding, after a hearing had been denied, that the movant's claim that the two siblings' "need to be together is not as strong as it once was" did not constitute a material change in circumstances where "the issues upon which the court based its original custody decree" remained unchanged). There does not appear to be any strong national trend on this issue in other jurisdictions. Compare, e.g., Shaffer v. Shaffer, 808 So. 2d 354, 358 (La.App. 2000) (holding that a child's "enrollment in school . . . affecting her relationship with her only full-blooded sibling" constituted a change in circumstances); Kasten v. Kasten, 1987 WL 20378, at *2 (Ohio App. 1987) (unpublished) (determining that an adverse change in "the natural sibling relationship" between two children of the marriage, caused in part by one of the parties, constituted "a substantial change in circumstances") with Lofthus v. Lofthus, 678 N.W.2d 393, 400 (Wis.App. 2004) (holding that an additional sibling from a subsequent marriage was not a substantial change); Files v. Thomasson, 578 S.W.2d 883, 885 (Tex.Civ.App. 1979) (holding that one party's remarriage and the pregnancy of that party's new wife "are neither material nor substantial [changes] absent a showing of a relationship of such developments to the welfare of the children").
I.J.D. v. D.R.D., 961 P.2d 425, 430 (Alaska 1998).
9. The changes alleged by Robertson do not go beyond the "mere passage of time" with regard to the three central holdings of the 2001 order: (1) that legal custody should be vested with one parent, rather than two, because of the lack of communication between Robertson and Phillips; (2) that Dash should have a stable, primary home (rather than spending an equal amount of time in both homes); and (3) that Phillips was in a better position to be the primary physical custodian because she "has been, and will continue to be, better able to meet Dash['s] needs during his childhood." Robertson's adoption of two children does not appear to have any effect on the level and quality of communication between him and Phillips. Nor does the adoption undercut "[t]he desirability of maintaining the continuity in a home that is healthy and happy for Dash" that was the superior court's basis for requiring a primary home for Dash. Dividing his time equally, or nearly equally, between two homes would permit Dash to spend more time with his new siblings, but it would also undercut the stability offered by a primary home that both parties acknowledge to be a stable situation in which the child is thriving. Likewise, Robertson's remarriage and adoption of two additional children does not appear to affect the comparison between his ability and Phillips's ability to provide for Dash's needs. As the superior court noted, Robertson's "failure to be able to communicate with the mother is . . . evidence [that] he has . . . some difficulty in putting the needs of others, including the needs of Dash, ahead of his own needs." Because this does not appear to have changed, and because of "the counterproductive effect of unnecessary litigation on all parties, including children," the conclusions underlying the superior court's order should not be relitigated.
Schuyler, 13 P.3d at 742 n. 12.
One indication that the level of communication has not changed is the fact that the adjustment in Dash's schedule coinciding with the start of kindergarten in the fall of 2003 is still being litigated in 2006.
Harrington, 984 P.2d at 4.
10. But the adoption of new siblings, combined with the reduction of scheduled visitation at the start of kindergarten, may constitute a change in circumstances at least with regard to the particulars of the visitation schedule. Robertson alleges not just that he has remarried, and not just that he has adopted children, but also that Dash has formed a close relationship with the adopted children — a relationship that could be diminished by a significant decrease in visitation time. It is unclear whether the visitation schedule would be revised to retain the pre-kindergarten schedule of visitation with Robertson if Robertson were permitted to flesh out this claim, but, on this issue, Robertson does appear to have raised "a genuine factual dispute as to the existence of a change in circumstances." For that reason, we hold that the superior court's denial of an evidentiary hearing to address this issue of retaining the more generous pre-kindergarten visitation schedule constituted error.
Cf. Pearson, 5 P.3d at 242 (affirming the modification of a visitation schedule and the refusal to modify the underlying custody determination).
Robertson asserts several other bases for finding a substantial change in circumstances, but his claim is based primarily on the relationship between Dash and his adopted siblings.
Andrea S., 116 P.3d at 592.
11. Because the attorney's fees were predicated on the denial of the motion to modify, and the superior court would have to make a new award to account for the costs of holding an evidentiary hearing, we vacate the award of attorney's fees pending the evidentiary hearing. But if the superior court awards fees or costs, it should make specific findings as to the basis of the award. As this court has held, "in making an award of attorney's fees and costs under AS 25.20.115, a court must make explicit findings as to the parties' relative financial resources and whether the parties acted in good faith." No such findings were made in the present case.
S.L. v. J.H., 883 P.2d 984, 985 (Alaska 1994); see also AS 25.20.115 ("In awarding attorney's fees and costs under [the statute permitting attorney fee awards for actions to modify child custody orders] . . . the court shall consider the relative financial resources of the parties and whether the parties have acted in good faith."). Phillips impliedly concedes this point by arguing that "[i]f this [c]ourt concludes that the trial court should have entered findings explaining the basis of the award, the remedy is to remand for such explanation," and then citing to S.L.'s adoption of the same remedy. See S.L., 883 P.2d at 986 ("Given the superior court's apparent noncompliance with the requirements of AS 25.20.115, we conclude that this case should be remanded to the superior court for the purpose of affording it the opportunity to enter findings of fact regarding the relative financial resources of the parties, and whether the parties acted in good faith, in explanation of any award it makes of attorney's fees and costs.").
12. For the reasons set forth above, we AFFIRM the judgment of the superior court, except as to the particulars of the visitation order and the award of attorney's fees. We REMAND for an evidentiary hearing to address the visitation schedule. Although the superior court need not revisit the underlying issues of legal and primary physical custody, it retains full discretion with regard to the scope of the hearing and may address any other related matters that it deems appropriate.