BROOKS v. BROOKS, S-13544 (Alaska 1-13-2010)

CARMEN L. BROOKS, Appellant, v. RONALD A. BROOKS, Appellee.

Supreme Court No. S-13544.Supreme Court of Alaska.
January 13, 2010.

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.

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Superior Court No. 4FA-07-01380.CI

Joseph W. Miller, Law Offices of Joseph Miller, LLC, Fairbanks, for Appellant. Daniel L. Callahan, Callahan Law Office, Fairbanks, for Appellee.

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices. [Eastaugh, Justice, not participating.]

MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION
The trial court denied without a hearing a mother’s motion to modify custody of one of her four sons. The mother appeals the denial, arguing that she was entitled to a hearing because she made a sufficient threshold showing of a substantial change in circumstances. Because the mother made a sufficient threshold showing of a significant or substantial change in circumstances to warrant an evidentiary hearing, we vacate the trial court’s order and remand for further proceedings.

II. FACTS AND PROCEEDINGS
This case concerns custody of Carmen and Ronald Brooks’s second of four sons, born in 1995. Carmen and Ronald married in 1989 and separated in 2005. They had five children during the marriage, and their four sons were minors when Carmen and Ronald divorced.[fn1] Following a one-day trial on November 13, 2008, the court granted Carmen and Ronald a divorce and ordered that they share custody of their four sons. The court placed the second son in Ronald’s primary physical custody and placed the other three sons in Carmen’s primary physical custody. The court ordered that this arrangement be temporary until Ronald improved his residential situation, at which point Carmen and Ronald each would have physical custody of two boys, switching every week. The court also provided that Carmen and Ronald could agree in writing to modify the physical custody schedule based on their sons’ best interests, and that “[t]he wishes of a particular child will be given due consideration in regard to changes in his custody arrangement.”

On March 12, 2009, Carmen moved to modify custody of her second son. Based on allegations in her affidavit, Carmen argued that changed circumstances and the best interests of all her sons required modification of the custody award. Ronald opposed the motion, submitting his own affidavit and arguing that “Carmen ha[d] failed to establish there has been a substantial change of circumstances that would permit modification of the order” because her “motion [was] based entirely on hearsay statements.”

Carmen’s allegations focused on three issues.Page 3

First, Carmen’s affidavit stated that her second son, “with [Ronald’s] permission, stopped spending most weekdays at his father’s home.” Ronald admitted in his affidavit that although the three youngest boys “regularly” stayed with him on weekends, he had “not tried to have the children stay with [him] during the school week because they enjoy getting on the bus at [Carmen’s residence].”

Second, Carmen’s affidavit stated that her second son had expressed a preference “not [to] be separated from his siblings” and “not . . . to be in his father’s primary custody.” Ronald’s affidavit did not contest this allegation, although his opposition memorandum broadly characterized Carmen’s motion as based on hearsay statements.

Third, Carmen’s affidavit stated that the two oldest sons reported to her that Ronald had assaulted them and that “[r]eports have been made to both the Troopers and OCS [Office of Children’s Services] and an investigation is proceeding.” In her memorandum, Carmen characterized the incident as domestic violence and elaborated that Ronald began fighting with his second son, then assaulted the oldest son and one of the oldest son’s friends. Ronald did not deny or fully describe the incident in his affidavit, but he (1) pointed out that Carmen had not been present and (2) stated that he called the Troopers to help him locate the second son after the oldest son and his friend “showed up and demanded to take [the second son] with them.” Ronald submitted an OCS closing letter stating that the report of physical child abuse was “not substantiated.” Carmen then submitted a reply affidavit, stating that the two oldest sons reported to her that “[t]he assault resulted from a verbal altercation between [the second son] and [Ronald] that escalated into a physical conflict. . . . [And] that [Ronald] physically assaulted them by punching and hitting them.”

The trial court denied Carmen’s motion to modify her second son’s custody without holding a hearing, concluding Carmen had “presented insufficient evidence to show a change of circumstances.” Carmen appeals, asserting she is entitled to a hearing on her motion.

III. LEGAL FRAMEWORK AND STANDARD OF REVIEW
The question before us is whether Carmen’s allegations, taken as true, demonstrate a significant or substantial change in circumstances.[fn2] If so, she is entitled to evidentiary proceedings and an opportunity to establish that (1) there has been a significant or substantial change in circumstances and (2) “it is in the child’s best interest to alter the existing custodial arrangement.”[fn3]

Whether a moving party has made a prima facie showing of changed circumstances warranting a hearing is a question of law that we review de novo.[fn4] We will affirm the denial of a motion to modify custody without a hearing if, in our independent judgment, (1) “the facts alleged in the motion would not warrant a change in custody,”[fn5] or (2) the “allegations of changed circumstances are convincingly refutedPage 5
by competent evidence”[fn6] and the moving party then fails to indicate the ability to “produce admissible evidence of specific facts rebutting that evidence.”[fn7] “We review allegations of multiple changed circumstances in the aggregate to determine whether modification [would] be warranted” if the allegations were proven true at trial.[fn8]

IV. DISCUSSION
Carmen stated in her affidavit that the second son had “stopped spending most weekdays at his father’s home,” and Ronald admitted in his affidavit that the second son lives with Carmen instead of with Ronald during the school week. We have acknowledged that parents sharing custody should have flexibility to informally experiment with schedules without fearing such experiments could prompt a court to enter a modification order.[fn9] But there exists a point at which “informal or de facto modifications of custodial . . . arrangements should be formalized.”[fn10] Whether anPage 6
informal custody situation should be formalized depends not only on the experiment’s duration, [fn11] but also on “the magnitude of any effect on the children and the nature and quality of the schedule change.”[fn12] We have previously acknowledged that change in a child’s residence during the school week, even if the change lasts for only a few months, entitles the moving party to a hearing because it may be sufficient evidence of a significant or substantial change in circumstances to warrant modifyingcustody.[fn13]

Ronald acknowledged that the change in residence during the school week was his son’s preference and failed to directly dispute Carmen’s affidavit statement that her son had “repeatedly stated his preference that he not be separated from his siblings [and] that he does not want to be in his father’s primary custody.” Ronald’s acknowledgment of the parties’ fourteen-year old son’s preference obviates the need to rely on the objected-to hearsay, and the son’s preference and de facto change in custody during the school week are sufficiently related such that each bolsters the other as a showing of change of circumstances sufficient to warrant a hearing.[fn14]

Because Carmen made a showing sufficient to warrant a hearing based onPage 7
her allegations of a de facto change of custody and the son’s undisputed preference, we do not need to address Carmen’s hearsay-based allegations of domestic violence.[fn15] We note, however, that a threshold showing of domestic violence would demonstrate a substantial change of circumstances warranting a hearing.[fn16] We leave it to the trial court to address the domestic violence allegations at the hearing on remand.

V. CONCLUSION
We VACATE the denial of Carmen’s motion to modify custody and REMAND for evidentiary proceedings consistent with this opinion.

[fn*] Entered pursuant to Appellate Rule 214.

[fn1] Carmen and Ronald’s daughter was an adult and had completed high school by the time of the divorce.

[fn2] The change in circumstances must be significant or substantial and “must be demonstrated relative to the facts and circumstances that existed at the time of the prior custody order that the party seeks to modify.” J.L.P v. V.L.A., 30 P.3d 590, 595 (Alaska 2001) (quoting Jenkinsv. Handel, 10 P.3d 586, 589 (Alaska 2000)).

[fn3] Iverson v. Griffith, 180 P.3d 943, 946 (Alaska 2008) (quotingMaxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001) (quoting Lee v. Cox,790 P.2d 1359, 1361 (Alaska 1990))); 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.”).

[fn4] Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008) (citingHarrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)).

[fn5] Iverson, 180 P.3d at 946 (citing Maxwell, 37 P.3d at 425-26).

[fn6] Id. (quoting Maxwell, 37 P.3d at 426).

[fn7] C.R.B. v. C.C., 959 P.2d 375, 382 (Alaska 1998), overruled on othergrounds by Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).

[fn8] Barile, 179 P.3d at 946 (citing Long v. Long, 816 P.2d 145, 150, 152 (Alaska 1991)).

[fn9] Morino v. Swayman, 970 P.2d 426, 429 (Alaska 1999) (“Custodial parents should have the flexibility to experiment with new visitation schedules without fearing that every temporary change could be the basis for modifying visitation.”).

[fn10] Id. (holding that a father was entitled to a hearing because modification of visitation might be warranted by the change in visitation lasting ten months and his informal agreement with the mother to modify the visitation schedule); see also Valentino v. Cote, 3 P.3d 337, 340-41
(Alaska 2000) (holding that a teenager’s move to his father’s house and refusal to live with his mother, together with the deterioration of his relationship with his mother, “clearly constituted a substantial change in circumstances that justified a review of the existing custody arrangement”); Long, 816 P.2d at 149, 151-52 (noting that teenager’s voluntary relocation to her father’s home “definitely represented a change in circumstances worthy of some consideration”).

[fn11] Morino, 970 P.2d at 429.

[fn12] Id. at 432 (Fabe, J., dissenting).

[fn13] Naquin v. Naquin, 974 P.2d. 383, 385 (Alaska 1999).

[fn14] AS 25.24.150(c)(3) requires that a court consider a child’s preference if the child is of an age and capacity to form a preference about custody. We have noted that trial courts should give weight to an older child’s preferences. Valentino v. Cote, 3 P.3d at 340-41. InValentino we held that it was not an abuse of discretion to modify custody in reliance on the “well-reasoned” preference of a fourteen year old “of sufficient maturity to express a choice.” Id. at 341.

[fn15] Trial courts faced with such hearsay-based allegations have the option to order a child custody investigator to interview the child or children and to consider the investigator’s report in deciding whether to hold a hearing on the basis of those allegations.

[fn16] See Barile, 179 P.3d at 946-47 (stating that “an evidentiary hearing is required to provide [the moving party] an opportunity to prove her allegations” of abuse or domestic violence “[b]ecause a finding of domestic violence would establish changed circumstances” and holding, in a case in which the father did not refute the mother’s allegations that he “smack[ed]” their son with a rolled-up newspaper, “it was error to not address [the] allegations of abuse or domestic violence”).