Opinion
Supreme Court No. S-12529.
September 12, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court No. 3AN-06-06974 Civil.
Allison E. Mendel and Lori A. Colbert, Mendel Associates, Anchorage, for Appellant. No appearance by Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
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
After a custody hearing in the superior court, the parents were awarded joint legal custody of their daughter while the mother was awarded primary physical custody. The mother appeals the award of joint legal custody. Although the parties were given notice that the custody hearing's purpose was to "finalize the divorce and all custody issues," the mother's attorney never requested an opportunity to address or present evidence on the issues of legal custody, and there was no evidence or indication that the parties were unable to communicate as co-parents during an interim period of joint custody. Thus, the decision of the trial court is affirmed.
II. FACTS AND PROCEEDINGS
Grace Spohnholz and Jacob Johnson's only child, Olive, was born on December 7, 2000. The parties were never married, but they lived together until Olive was ten months old. After the parties separated, Johnson never had a set visitation schedule and would simply call Spohnholz when he wanted to see Olive.
Spohnholz filed a complaint for custody on April 14, 2006, requesting sole legal and primary physical custody. Johnson opposed Spohnholz's request for sole custody; instead he sought shared custody. The trial court held an initial status hearing on June 30, 2006, and Superior Court Judge William F. Morse entered an interim order that the parties have joint legal custody, with Spohnholz to have primary physical custody of the child.
The superior court held a final custody hearing on October 5, 2006 at which Spohnholz was represented by counsel. Prior to the hearing, the superior court issued a calendaring order that provided notice that the hearing's purpose was "to finalize the divorce [and] all custody issues." During the hearing, the parties worked out a permanent visitation agreement under which Johnson was to start with visitation one evening per week and one night every other weekend, with visitation to increase to two nights every other weekend. After the custody hearing, the trial court issued a written order that also provided that the parties would have joint legal custody of the child.
Spohnholz filed for reconsideration of the custody order, arguing that joint legal custody was not appropriate. The court denied reconsideration, noting that Spohnholz had neither requested nor argued for sole legal custody at the custody hearing. Spohnholz filed a second motion for reconsideration, explaining that she had requested sole legal custody when she filed the complaint and that she had never agreed to joint legal custody. The court again denied reconsideration, stating:
Grace Spohnholz has asked the Court to reconsider its refusal to reconsider its award of joint legal custody. Even though Spohnholz asked for sole legal custody in her initial pleadings, she did not mention that request at the hearing on 5 October 2006 and the evidence presented at that hearing would not have supported such a request had it been brought up.
This appeal followed.
III. STANDARD OF REVIEW
A superior court's custody decision will only be reversed if "we are convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous."
McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986).
IV. DISCUSSION
Spohnholz argues that there are no facts in the record to support an award of joint legal custody. She also contends that the parties do not have a history of co-parenting and that the order awarding joint legal custody "rewards" Johnson for his lack of cooperation during the litigation and lack of regular involvement in Olive's life. In addition, Spohnholz points out that the trial court did not conduct a "best interests" analysis or make any findings on the issue of legal custody. Although the trial court relied on the legislative preference for joint legal custody, Spohnholz alleges it was error for the trial court to fail to take any testimony on the issue of legal custody or make any finding that joint legal custody was in Olive's best interest. Spohnholz argues that this court should either award her sole legal custody or remand the case to the trial court for findings regarding joint legal custody. Johnson did not file a brief responding to Spohnholz's arguments.
Under AS 25.20.060(c), the trial court can award shared custody "if shared custody is determined by the court to be in the best interests of the child." Although the legislature has expressed a preference for joint legal custody, "joint legal custody is only appropriate when the parents can cooperate and communicate in the child's best interest."
Ch. 88, § 1(a), SLA 1982. The act states in relevant part:
The legislature finds . . . that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing. While actual physical custody may not be practical or appropriate in all cases, it is the intent of the legislature that both parents have the opportunity to guide and nurture their child and to meet the needs of the child on an equal footing beyond the considerations of support or actual custody.
Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991).
Due process requires that the parties be given notice as to what issues the court plans to address at a scheduled hearing. The calendaring notice sent to the parties indicated that the purpose of the October 5, 2006 hearing was to "finalize . . . all custody issues." The parties were therefore on notice that all issues relating to the custody of Olive should be addressed at the hearing. Although the trial court conducted the custody hearing in an informal fashion, with the hearing often resembling a settlement conference on the record and no testimony taken under oath, the informality of this hearing was apparently helpful to the parties, who were able to reach an agreement on Johnson's visitation with Olive. Once the issue of Johnson's visitation schedule was settled, the court asked the parties: "Is there anything else?" Spohnholz's attorney failed to alert the court that there was any disagreement regarding legal custody.
See Potter v. Potter, 55 P.3d 726, 728-29 (Alaska 2002) (holding that it was a due process violation to modify visitation when the court had not indicated to the parties that visitation was at issue).
The trial court's earlier interim order had provided that the parties would have joint legal custody, and Spohnholz never indicated at the final custody hearing that there were any communication problems between the parties while the interim order was in effect. Although Johnson did not have regular visitation with Olive, there is no indication that the parties were unable to communicate regarding Olive. Prior to the final custody hearing, Johnson was visiting with Olive about one night a week, and he would call when he was available to set up that visitation. Spohnholz points to certain actions by Johnson during the pre-hearing proceedings, such as his failure to comply with court orders to put Olive on his health insurance or to provide a copy of his work schedule, as examples of his lack of cooperation. But while these examples may show that Johnson failed to comply with court orders, they do not show that Johnson and Spohnholz were unable to communicate effectively about Olive.
In its order on the first motion for reconsideration, the superior court stated: "There is a legislative preference for joint legal custody of a child unless the parents cannot meaningfully communicate. . . . The evidence of the parties' communication did reveal that there have been problems between them but not that their relation[ship] had so deteriorated that the legislative preference was not appropriate." And because Spohnholz failed to argue or present evidence on the issue of legal custody at the final custody hearing despite having been asked if there were any other issues she wished to address, she can now point to no evidence that would have justified the trial court awarding her sole legal custody. Although Spohnholz did move for reconsideration on this issue, a motion for reconsideration is not properly used to raise an issue for the first time.
Alaska R. Civ. P. 77(k); see also Lee v. State, 141 P.3d 342, 348 (Alaska 2006) (stating "issues raised for the first time in a motion for reconsideration are untimely").
Because the superior court informed the parties that the hearing would be a final hearing to resolve all child custody issues, and because Spohnholz neither raised the issue of legal custody at trial nor presented any evidence that the parties were unable to communicate about Olive, it was not an abuse of discretion for the superior court to award the parties joint legal custody of Olive.
V. CONCLUSION
The decision of the trial court is AFFIRMED.