Opinion
Supreme Court No. S-13837.
June 1, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Superior Court No. 3AN-03-13699CI.
Darryl L. Jones, Attorney at Law, Anchorage, for Appellant. Richard L. Nevitt, pro se, Anchorage, Appellee.
Before: Carpeneti, Chief Justice, Fabe, and Winfree, Justices. [Christen and Stowers, Justices, not participating.].
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Alaska Appellate Rule 214.
1. A mother who had been awarded custody of her daughter lost custody when it became apparent part way through a custody modification hearing that she had changed her daughter's school and misled the father and the court about the change in schools for several months. Within moments of the mother confirming that she had deceived the father and the court, and before the mother put on her case, the court stated its intent to change custody. We conclude that the superior court's decision to modify custody prior to the mother's presentation of her case-in-chief violated her due process rights. We thus reverse and remand for a full hearing.
2. Richard Nevitt and Diane Provost married in 1998, and their daughter Hannah was born in 1999. Since 2003, Nevitt and Provost have been engaged in a highly litigious dispute concerning their divorce, allegations of domestic violence, and custody of their daughter.
Nevitt v. Provost ( Nevitt I), Mem. Op. J. No. 1201, 2005 WL 327219, at *1 (Alaska, Feb. 9, 2005).
See Nevitt v. Provost ( Nevitt II), Mem. Op. J. No. 1309, 2008 WL 2853627, at *1 (Alaska, July 23, 2008).
3. In 2007 and 2008, Superior Court Judge Morgan Christen issued orders that granted Provost sole legal and primary physical custody over Hannah. Nevitt received unsupervised visitation. The court also noted that in the custody context, "domestic violence includes actions to interfere with the other parent's visitation."
4. According to the order currently on appeal, Nevitt has continued to file for and receive domestic violence restraining orders against Provost, primarily for custodial interference. Nevitt has also continued to file numerous pro se motions related to the divorce and custody dispute.
5. In the fall of 2009, Superior Court Judge Mark Rindner took over the case. Judge Rindner scheduled an evidentiary hearing in part to consider "what, if any, sanctions are appropriate for alleged failure to follow court orders." This hearing extended over three sessions: December 23, 2009; February 18, 2010; and March 25, 2010. At the beginning of the hearing, Nevitt reiterated his position that he should be granted custody over Hannah based on the statutory presumption against granting custody to a person with a history of perpetrating domestic violence. Provost's attorney, Steven Priddle, argued that the domestic violence presumption did not apply to Provost.
6. During the first two sessions, Nevitt's presentations occupied virtually all of the available time. Near the end of the second session, the court noted to Nevitt: "I've heard a lot . . . from you and I haven't heard anything from Ms. Provost."
7. Before the third session, Nevitt discovered that Provost had transferred Hannah to a different school at the start of the school year, several months earlier. He filed motions claiming that Provost told Hannah to lie about this in order to frustrate Nevitt's spring break visitation rights. At the beginning of the third hearing, Provost's counsel withdrew with Provost's consent. The court then directed Provost to take the stand and questioned her. She conceded that she had switched Hannah's schools at the beginning of the school year, and that she had deliberately not told Nevitt or the court.
8. After Provost's admission, the court announced that it would grant Nevitt custody over Hannah at the conclusion of the hearing. The court emphasized the legal importance of findings by multiple judges that Provost had committed domestic violence. Provost left the courtroom shortly after the court's decision.
9. Provost now appeals, arguing that the superior court's modification of custody before she had an opportunity to present her case-in-chief violated her procedural due process rights. She also argues that the superior court failed to conduct an adequate analysis of Hannah's best interests. Provost does not appeal the superior court's legal determination that custodial interference triggers the domestic violence presumption.
10. Provost's "constitutional arguments present questions of law, which we review de novo." Trial courts have broad discretion over child custody determinations. "We will set aside the superior court's custody determination only if the court abused its discretion or if its findings of fact are clearly erroneous."
VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999) (citing Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1241 (Alaska 1995)).
Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (citing Smith v. Weekley, 73 P.3d 1219, 1222 (Alaska 2003)).
Id. (citing Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)).
11. We conclude that the superior court's decision to modify custody before Provost had an opportunity to present her case violated Provost's procedural due process rights. "The crux of due process is opportunity to be heard and the right to adequately represent one's interests." In the context of child custody modification, a "hearing is required in order to give the parties an opportunity to present the quantum of evidence needed [for the court] to make an informed and principled determination."
Matanuska Maid, Inc. v. State, 620 P.2d 182, 192-93 (Alaska 1980) (citing among others Hansberry v. Lee, 311 U.S. 32, 42 (1940)). For the three-part balancing test underlying our procedural due process determinations, see generally Smith v. Groleske, 196 P.3d 1102, 1106 (Alaska 2008) (quoting Alyssa B. v. State, Dep't of Health Soc. Servs., 123 P.3d 646, 649 (Alaska 2005)).
Elliott v. Elliott, 129 P.3d 449, 450-51 (Alaska 2006) (alteration in original) (quoting Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998) (internal quotation marks omitted)).
12. Provost never had an opportunity to take the stand and testify as her own witness, as Nevitt did. At numerous times throughout the first two hearings, including after the testimony of the sole witness Provost succeeded in calling, the court assured Provost that she would have an opportunity to present her case. But between the final assurances near the end of the second hearing and the superior court's oral ruling shortly into the third hearing, the only additional opportunity to be heard that Provost received was during the few minutes in which she answered the superior court's pointed questions about where Hannah was attending school. Provost also had no opportunity to cross-examine Nevitt and no specific opportunity to rebut the domestic violence presumption invoked by the court in its ruling.
13. Because Provost did not have a constitutionally-adequate opportunity to be heard, we REVERSE the superior court's custody modification and REMAND for a full hearing.
14. In light of our remand, we decline to reach Provost's claim that the superior court failed to conduct a best interests analysis. Such an analysis, of course, must accompany any change in custody.
See, e.g., Yvonne S. v. Wesley H., 245 P.3d 430, 432 n. 6 (Alaska 2011) ("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." (quoting AS 25.20.110(a))).
15. Because the matter was not raised on appeal, we decline to reach the question whether the domestic violence presumption in AS 25.24.150(g)-(j) applies to parents with a history of custodial interference.
We note, however, that the statute's requirement that a parent with a history of perpetrating domestic violence must "successfully complete[] an intervention program for batterers" in order to overcome the presumption, does not appear to bear any relationship to parents found to have committed custodial interference. AS 25.24.150(h) (emphasis added).
16. Hannah's interim custody shall be determined by the superior court on remand.