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Hunter v. Conwell

Supreme Court of Alaska

November 13, 2009

Bobbie Ann HUNTER, Appellant,
v.
Shaun T. CONWELL, Appellee.

Page 192

Bobbie A. Hunter, pro se, Fairbanks, Appellant.

Margaret O'Toole Rogers, Foster & Rogers, LLC, Fairbanks, for Appellee.

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

OPINION

CHRISTEN, Justice.

I. INTRODUCTION

Bobbie Ann Hunter and Shaun Conwell are the parents of two boys. After their relationship ended, Conwell filed a complaint for custody. Hunter received the complaint but did not respond. Conwell filed an application for entry of default and requested default judgment. After a hearing at which Conwell was present and Hunter was not, the superior court granted Conwell sole legal and primary physical custody of the boys. Almost two years later, Hunter filed a pro se motion to modify custody. The superior court denied the motion without holding a hearing because it found Hunter's allegations insufficient to constitute a substantial change in circumstances. Hunter filed a motion for reconsideration, which the superior court also denied, although it entered an order requiring Conwell to comply with a telephonic visitation schedule. Hunter appeals. We reject her arguments regarding the initial custody determination as time-barred, reverse the superior court's denial of her motion for modification, and remand for a hearing on that issue.

II. FACTS AND PROCEEDINGS

Bobbie Ann Hunter and Shaun Conwell have two sons together. The couple never married but they lived together for approximately six years. Their relationship ended in early 2006 and at that point the parties began living in different communities; Conwell lived in Kotzebue, Hunter lived in Fairbanks, and the boys moved between the two homes.

On June 19, 2006, Conwell filed a complaint requesting sole legal and primary physical custody of the boys. A state trooper served a summons, the custody complaint and an " answer packet for answering a complaint," on Hunter on June 20, 2006. Hunter did not respond. On August 18, 2006, Conwell

Page 193

filed an application for the entry of default and default judgment pursuant to Alaska Civil Rule 55. The clerk entered default that day and scheduled a hearing on the request for default judgment.

A default custody hearing took place in the superior court on August 24, 2006. Conwell was present; Hunter was not. The court asked Conwell why he was seeking sole legal custody, and Conwell responded that his concern was " the safety of my kids." While staying with Hunter, he said, one of the boys suffered a dog bite and was injured on a ride at a fair. Conwell expressed concern that Hunter " can't really handle" the boys in public. Conwell further testified that since the couple stopped living together, Conwell had custody of the boys during the school year and Hunter had custody over the summer. When the court asked Conwell why Hunter did not respond to his complaint, Conwell testified that Hunter did not make time for paperwork because she worked at night and cared for the children, or slept, during the day. Conwell proposed making official the arrangement that he would have physical custody of the boys during the school year. The court said " there needs to be a child support order entered" and asked Conwell what Hunter's income was; Conwell did not know but guessed approximately $4,500 per month based on his knowledge of her income while the two were living together. Conwell said that he believed he and Hunter could work out a visitation schedule and that he expected the boys would live with Hunter during the summer. The court asked if Conwell believed this arrangement was in the best interests of the children, and Conwell replied affirmatively. The court then stated on the record:

Mr. Conwell has filed a complaint for custody. Ms. Hunter was served and has not filed an answer. Legal custody of the children is awarded to the plaintiff, Mr. Conwell. Primary physical custody is awarded to Shaun T. Conwell. The visitation schedule for these children will be as follows: reasonable visitation, but Ms. Hunter shall have the ...

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