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Peterson v. Swarthout

Supreme Court of Alaska

August 14, 2009

Chesah PETERSON, Appellant,
Chad SWARTHOUT, Appellee.

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[Copyrighted Material Omitted]

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Chesah Peterson, pro se, Wasilla.

Chad Swarthout, pro se, Wasilla.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.


CHRISTEN, Justice.


Chesah Peterson appeals from an order modifying legal custody of the parties' child. Chesah argues that the modification was improper and should be reversed. She also argues that the superior court judge should have recused herself, wrongly denied a new motion to modify custody, wrongly granted a motion to compel, and improperly issued two sets of findings of fact and conclusions of law after the parties' evidentiary hearing. We affirm the superior court's rulings.


Chesah Peterson, formerly Swarthout, and Chad Swarthout were married in 1999. The

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couple's child was born in 2000. In 2002 the couple dissolved their marriage, and an order establishing child custody and support was issued. Both parties later remarried.

Chad filed a motion to modify custody on March 17, 2006. To assist in the custody decision, and in response to allegations that the child was not safe in the care of Chesah's new husband, Devin Peterson, the superior court ordered a custody investigation.

Chesah retained attorney Larry Wiggins to represent her. On May 25, 2007, four days Before the custody modification hearing began, this court issued an order suspending attorney Wiggins from the practice of law for 180 days, with 90 days suspended. The suspension was to begin on June 25, 2007. It appears that Chesah was unaware of Wiggins's impending suspension at the time of the modification hearing.

An evidentiary hearing was held May 29, 30, and 31, 2007, on Chad's motion to modify custody. Wiggins represented Chesah at the hearing. Chad represented himself. Superior Court Judge Beverly W. Cutler presided.

Judge Cutler made oral findings of fact and conclusions of law at the conclusion of the hearing. She found that there had been a substantial change in circumstances, determined that equally shared physical custody was in the child's best interests, and found that Chad and Chesah were not able to share legal custody. Judge Cutler awarded sole legal custody to Chad. Physical custody was divided equally between the parents, on the condition that Chesah and Devin remain free from illegal drugs, and demonstrate this by monthly random drug testing for a year.

On June 11, 2007, Chesah attempted to file a motion to set aside Judge Cutler's decision, signing the pleading herself and stating that she was no longer represented by counsel. On July 9, 2007, the court system issued a " Civil Deficiency Memo" to Chesah, explaining that a party represented by counsel cannot file pleadings pro se, that Chesah was represented by counsel as of June 11, 2007, and that her June 11, 2007 pro se motion was not properly filed.

Wiggins moved for permission to withdraw as Chesah's counsel, with her consent, on June 27, 2007. He also lodged a set of proposed " findings of fact and conclusions of law," a proposed order modifying child support, and a proposed order modifying custody. It appears that Judge Cutler signed the proposed orders and the findings and conclusions on July 23, 2007, but they were not distributed to the parties until August 24, 2007.

Concerned that the documents Wiggins submitted could not be accepted for filing, Judge Cutler sent a letter to attorney Josh Fannon on August 10, 2007. Judge Cutler understood that Fannon was handling Wiggins's cases during Wiggins's suspension from the Bar, and expressed concern that Wiggins had " perhaps improperly lodged" the proposed findings and conclusions with the court two days after his suspension began. Apparently overlooking that she had already signed the documents, the letter stated that the court would " not sign these filings until they are resubmitted." Judge Cutler later realized that she made a mistake, and on August 24, 2007, she sent Fannon and the parties a second letter. It informed them that the first letter to Fannon " was issued in error," and that the proposed findings of fact and conclusions of law were signed July 23, 2007. The signed documents were sent to the parties with Judge Cutler's second letter.

On August 23, 2007, Chesah filed a motion for modification of legal custody, a motion for expedited consideration of the motion to modify, and an " expedited motion" requesting that Judge Cutler recuse herself from the case.

On August 27, 2007, Chad filed a motion to compel Chesah and Devin to place Chad on the " access list" at Alaska Monitoring Services, the organization providing Chesah and Devin random drug testing.[1] Judge Cutler's May 31, 2007 order required Chesah and Devin to place Chad on this list.

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Chesah filed a response to Chad's motion to compel on September 11, 2007. She enclosed copies of " consent to release information" forms that she and Devin had signed on June 18, 2007. The releases authorized disclosure of the random drug test results to Chad. Though the forms were executed in June, there is no record that they were served on Chad Before he received them with the opposition to the motion to compel.

Judge Cutler denied the motion seeking her recusal on August 31, 2007. Pursuant to AS 22.20.020(c), superior court Judge Eric Smith was assigned to review Judge Cutler's denial of the motion. On September 14, after independent review, Judge Smith issued an order affirming Judge Cutler's decision not to recuse herself.

Judge Cutler then ruled on all outstanding motions. On September 26, 2007, she denied Chesah's August 23, 2007 motion for modification and Chesah's June 11, 2007 motion to set aside the judgment. She also signed a new copy of the order modifying custody and a slightly revised written set of the findings of fact and conclusions of law. It is not clear who prepared the second written set of findings of fact and conclusions of law, but Judge ...

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