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Debra P. v. Laurence S.

Supreme Court of Alaska

September 27, 2013

DEBRA P., Appellant,
v.
LAURENCE S., Appellee.

Page 1259

Debra P., pro se, Anchorage, Appellant.

No appearance by Appellee.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

OPINION

BOLGER, Justice.

I. INTRODUCTION

At the trial call for this child custody case, the superior court suggested that the parties could introduce evidence regarding an interim custody order at the next hearing, so that they would have more time to reach a final settlement. Then, during the next hearing, both parties expressed some uncertainty about the purpose of the hearing. However, at the conclusion of the hearing, the court made findings to support a final custody judgment. We conclude that this procedure violated the mother's right to due process of law. We therefore reverse and remand for a new custody trial.

II. FACTS AND PROCEEDINGS

Debra P. and Laurence S. are the parents of Dennis S., who was born in 2002. [1] Dennis lived with both parties in Alaska from the time of his birth until sometime in 2008 when the parties' relationship ended. In December 2008 Debra took Dennis to California, where he resided with her until August 2009. In August 2009 Debra asked Laurence to assume physical custody of Dennis. Laurence traveled to California to collect Dennis, and Dennis resided with Laurence for the next 12 months.

Dennis continued to reside with Laurence in Alaska until Debra returned to the state in August 2010. Shortly after her return, Debra resumed physical custody of Dennis by refusing to return Dennis to Laurence following a visit. Laurence filed a complaint to regain custody of Dennis and a motion for interim custody. He requested primary physical and legal custody of Dennis, allowing for weekend visitation with Debra. Following an evidentiary hearing on October 1, 2010, the superior court issued an interim order. The order granted Laurence primary physical custody of Dennis, but allowed Debra visitation with Dennis every weekend except for the first weekend of each month.

At a hearing on May 23, 2011, the superior court scheduled a trial call for September 7 and trial for the week of September 19. At the trial call, the parties stated that they were working toward a settlement. At the beginning of the trial call, the judge announced that trial would occur in two weeks if the parties could not reach a settlement. But by the end of the hearing, the judge indicated that the next hearing would be for an interim order to allow the parties more

Page 1260

time to reach a complete settlement. The judge explained:

Everybody comes back here on [September 21] and ready to present evidence at a minimum on ... a new interim order and I can take testimony on the issue of the counselor and what a more long term custody order will be. It may not be final, but at least it would be a better long term order in terms of an interim order and what it would look like. The purpose of that would be, one, it will give you two time between now and Wednesday the 21st because if you're gonna come to an agreement you probably can do it by that time or come pretty close to it. And if you can't we can use that time to take evidence on the interim order and we can also schedule time to take additional evidence if we need to for a final ...

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