CHOJNACKI v. CHOJNACKI, S-13140 (Alaska 9-16-2009)
Supreme Court No. S-13140.Supreme Court of Alaska.
September 16, 2009.
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, Third Judicial District, Anchorage, Sen K. Tan, Judge, Superior Court No. 3AN-01-04724 Civil.
Eugene B. Cyrus, Anchorage, for Appellant.
No appearance by Appellee.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, Winfree, and Christen, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*][fn*] Entered pursuant to Alaska Appellate Rule 214.
1. Anchorage residents Susan and Artur Chojnacki divorced in 2001. At the time they had one child, a son, born in February 1995. The court awarded Susan primary physical custody of the child, and ordered visitation by Artur including holidays and alternating weekends.Page 2
2. Later, Artur married a woman named Mara and fathered three daughters with her. In late 2006 or early 2007, Artur and Mara separated, and Artur moved to Poland. Artur was soon joined in Poland by his three daughters.
3. On February 5, 2008, Standing Master Jonathan Lack held a hearing on Artur’s motion to reduce child support payments to Susan due to his reduced income in Poland, and Susan’s motion to modify visitation due to Artur’s absence from the United States. Susan appeared pro se.
4. The court heard testimony from each party, with Artur appearing by phone. Regarding custody and visitation, the parents agreed that it was in the child’s best interests to remain in Susan’s primary physical custody. They also agreed that it would be good for Artur to have visitation if he visited or returned to the United States. Although Artur had not moved to modify visitation, he indicated at the hearing, in response to questioning from his attorney, that he would like to have his son visit him in Poland every summer. Susan opposed this, expressing worry about the legal consequences if Artur kept the child in Poland after he was supposed to return him, and expressed a desire to have counsel on such issues. When asked, she could not cite any specific reason to believe that Artur might not return his son from Poland.
5. On February 6, 2008, the day after the hearing, the master issued a report recommending a reduction in child support and approval of summer visits in Poland. The master concluded that there “did not appear to be a basis for any concern that Mr. Chojnacki might fail to return the child.”
6. On March 4, 2008, an attorney entered an appearance on behalf of Susan. That same day, Susan filed an objection to the master’s report and requested a new hearing because she said she had additional information and the court did not “get the whole story” in the hearing. She also requested a custody investigation to learn thePage 3
child’s preferences regarding visitation, and to look further into her allegations that Artur might hold the boy in Poland.
7. Susan set out her objections to the master’s report and detailed her alleged new facts in an affidavit. In the affidavit, she claimed that Artur, after separating from his current wife Mara, but before going to Poland, sent Mara and their three daughters to stay with her relatives in Samoa, and then stranded them there by cancelling their plane tickets so that Mara would not interfere with the sale of their house in the United States. Susan said she learned this from conversations with Artur and with Mara’s sister. Susan further claimed that in a conversation with Mara on February 18, Mara told her that Artur was holding Mara’s children in Poland without her consent, and was saying he would not return them until she signed their divorce papers. In a later filing, Susan elaborated further on this, saying Mara told her that “she has been warned by Mr. Chojnacki, that she may not see the children or may not even be able to talk with them over the phone until she agrees to sign the couple’s divorce papers providing Artur with full custody of their three children.”
8. Susan also claimed that at the hearing she was confused about the rules and laws governing foreign visitation, did not understand her rights and the procedures for litigating the issue, and was not able to capably represent herself on that issue.
9. On March 18, 2008, Superior Court Judge Sen K. Tan issued an order stating that Susan’s objections “go beyond the scope contained in the Master’s Report and in essence represent a motion for a new trial based on newly discovered evidence.”
10. On April 18 Judge Tan approved the master’s report, which granted Artur visitation in Poland, effectively denying Susan’s request for further proceedings. On May 5 Susan moved for reconsideration of Judge Tan’s order, and Judge Tan denied her motion on May 8.Page 4
11. Susan appeals the order granting out-of-country visitation and the denial of her motion for a new hearing.
12. An award of visitation may be modified only 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.[fn1] We conclude that the trial court abused its discretion in awarding out-of-country visitation because the procedures followed did not give Susan adequate notice and opportunity to prepare her case with assistance of counsel. Moreover, even in the limited time available to her, Susan presented evidence that, if believed, established that visitation might not have been in the best interests of the child. It was an abuse of discretion to change the visitation order without an evidentiary hearing.
13. The record indicates that Susan did not have notice prior to the hearing that Artur would ask the court to order out-of-country visitation. The hearing was scheduled to hear Susan’s motion to modify visitation, and Artur’s motion to modify support payments. As soon as Artur requested out-of-country visitation at the hearing, Susan voiced opposition, expressed uncertainty about the law in this area, and expressed a desire to consult counsel because of her uncertainty about her legal rights and the difficulties she might encounter if Artur kept their child in Poland in violation of such an order. Even in the absence of specific reasons to believe that Artur might keep the child in Poland, her concerns were reasonable, given that disputes over custody and visitation orders are not uncommon, and out-of-country visitation raises questions about the legal and financial obstacles that might arise should Susan need to seek enforcement of such an order in Poland.Page 5
14. In Cushing v. Painter, [fn2] we held that a parent was denied “basic fairness” when a hearing “initially contemplated to be one that would determine the question of . . . custody for the impending school year [was] transformed . . . into one that decided the question of permanent custody.”[fn3] The record shows that Susan sought the assistance of counsel to prepare her case as soon as she was given notice that Artur was going to move for an award of out-of-country visitation. But the court completed its hearing on this issue without Susan having the benefit of counsel, and then denied her request for further proceedings or opportunity to present arguments or evidence after she retained counsel.
15. Events after the hearing bear out the view that it was error to proceed in the absence of advance notice of the out-of-country visitation issue. Shortly after the hearing, Susan challenged the master’s report with serious new allegations: that Artur kept his other children in Poland without his current, estranged wife’s consent. Susan also alleged that Artur had earlier stranded his current wife and children in Samoa in order to obtain an advantage concerning the disposition of marital property after they separated. If true, these allegations would undermine one of the court’s main factual findings in support of awarding out-of-country visitation: that there was no factual basis for doubting Artur could be relied upon to return the child from Poland.
16. Before approving the master’s report, the superior court retained broad discretion to order the master to conduct additional proceedings to receive furtherPage 6
evidence.[fn4] At the time of these proceedings, Alaska Civil Rule 53(d) provided that a judge was required to accept the findings in the master’s report unless clearly erroneous.[fn5]
17. Susan’s new allegations, combined with her lack of notice and pro se status at the hearing, signaled that the factual record might be insufficiently developed to make a best interests determination on Artur’s visitation request. The superior court should therefore have exercised its discretion to direct the master to conduct further proceedings or conduct additional proceedings itself.[fn6] Moreover, we have held that under former Civil Rule 53(d), the exercise of judicial discretion upon the facts found by the master was vested in the superior court, and “[w]ith respect to the proper course of action to be taken in light of all the facts,” the superior court was “free to disregard” the master’s recommendations.[fn7] The superior court could adopt the master’s report, modify or reject it in whole or in part, receive further evidence, or recommit the matter to the master with instructions.[fn8] Thus, it was not necessary to treat Susan’s request for further proceedings as a request for a new trial, and doing so set the legal bar for granting her request needlessly high.[fn9]Page 7
18. For these reasons, we conclude that the superior court abused its discretion in denying Susan’s request for further evidentiary proceedings. Accordingly, we VACATE the court’s order of April 18, 2008 approving the master’s report with respect to visitation in Poland, and REMAND for further proceedings to consider whether such visitation is the child’s best interests. Susan should be given the opportunity at those proceedings to present, with the assistance of counsel, her legal arguments about the enforceability of such an order, as well as any admissible, relevant evidence supporting her allegations that Artur might not comply with the requirement to return the child.
[fn1] AS 25.20.110(a). [fn2] 666 P.2d 1044 (Alaska 1983). [fn3] Id. at 1046. [fn4] Id. [fn5] Id. On December 19, 2008, this rule was changed by SCO 1685, so that superior court judges now review objections to the master’s reportde novo. [fn6] See Alaska R. Civ. P. 53(d)(2). [fn7] Headlough v. Headlough, 639 P.2d 1010, 1012 (Alaska, 1982) (discussing Alaska Civil Rule 53(d)(2) as it existed prior to SCO 1685 of December 19, 2008). [fn8] Alaska R. Civ. P. 53(d)(2). [fn9] The standard for granting a new trial under Alaska Civil Rule 59 is more strict than the standards just described for reviewing objections to a master’s report. Alaska Civil Rule 59 allows a judge to grant a new trial “if required in the interest of justice.” Under Rule 59(c), if the ground of such a motion is newly discovered evidence, it must be supported by an affidavit “showing that the evidence was in fact newly discovered and why it could not with reasonable diligence have been produced at the trial.” Under Rule 59(d), if that new evidence consists of oral testimony, the motion must be supported by an affidavit of the witness to the effect that the witness “would give the testimony proposed.” In addition, we have held that the newly discovered evidence (1) must be such as would probably change the result on a new trial; (2) must have been discovered since the trial; (3) must be of such a nature that it could not have been discovered before trial by due diligence; (4) must be material; and (5) must not be merely cumulative or impeaching.Montgomery Ward v. Thomas, 394 P.2d 774, 776 (Alaska 1964).