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Heber v. Heber

Supreme Court of Alaska

August 1, 2014

TODD HEBER, Appellant,
v.
TAMARA HEBER, Appellee

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock and Andrew Guidi, Judges. Superior Court No. 3AN-11-10347 CI.

Richard W. Postma, Jr., Law Offices of Mitchell K. Wyatt, Anchorage, for Appellant.

Jean W. Sato, Sato & Sato, LLC, Anchorage, for Appellee.

Before: Winfree, Stowers, Maassen, and Bolger, Justices. [Fabe, Chief Justice, not participating.].

OPINION

Page 927

BOLGER, Justice.

I. INTRODUCTION

In a custody modification proceeding, the superior court found that Todd Heber had a

Page 928

history of domestic violence and awarded Tamara Heber primary physical custody and sole legal custody of the parties' son. Todd filed a motion arguing that this award was void because the assigned judge had received email communications from Tamara and subsequently disqualified himself. On appeal, we conclude that there was no risk of injustice that required a second judge to set aside the custody award.

Todd also argues that Tamara engaged in fraud because their original dissolution petition stated that there was no domestic violence between them. But the record of the motion proceedings shows that Todd had adequate notice of this issue and that, regardless of the accuracy of the dissolution petition, Tamara's motion to modify custody did not clearly involve fraud.

Todd also argues that the second judge should have been disqualified because he had once reported that Todd's lawyer had a disagreement with another staff member. We conclude that these circumstances do not suggest any disqualifying bias.

II. FACTS AND PROCEEDINGS

Todd and Tamara Heber petitioned to dissolve their marriage on August 29, 2011. In their petition, they agreed to joint physical and legal custody of their two minor children and chose not to have the court order a specific visitation schedule.[1] They also indicated that no domestic violence occurred during their marriage. Superior Court Judge John Suddock entered a decree of dissolution incorporating the parties' agreement on December 5, 2011.

On July 27, 2012, Tamara sought an order requiring that their son remain at his current elementary school. She alleged that Todd had decided to enroll their son at a new school without her consent.

At a hearing before the superior court on August 7, the parties testified to their disagreement about their son's education. But the judge noted that their disagreement went deeper than education and suggested that Tamara might want to move to modify the custody arrangement concerning the parties' son. She did so on August 9, requesting sole legal custody and primary physical custody with a weekly visitation schedule.

A custody modification hearing was held on August 15 and August 21. During the hearing, Tamara testified that Todd had committed several acts of domestic violence while they were married. She also testified that Todd raped her " at least twice" while the couple was " working to repair [their] marriage." During his own testimony, Todd did not deny that these incidents of abuse and assault occurred. Nor did Todd confront Tamara with the 2011 dissolution agreement, which indicated that no domestic violence had occurred during the marriage.

On August 23, the judge entered a custody modification order. The court awarded Tamara sole legal custody of the parties' son. Because the court found that Todd had committed " more than two acts of domestic violence against" Tamara, it gave Tamara sole physical custody as well.[2] But the court suggested that it would modify the physical custody order once Todd completed a " domestic violence intervention course." Although the court ordered the parties to implement an " alternating week" visitation schedule, it permitted Todd supervised visitation only, until he completed the domestic violence course.

Because Todd was permitted supervised visitation only, the parties and the court had to approve supervisors. The parties communicated with the court by email during this process.

On August 24, the person acting as Todd's visitation supervisor informed the court by email that Todd had violated several provisions of the August 23 custody modification order. After a hearing on August 27, the superior court found that Todd had violated its order and therefore altered the visitation schedule again, limiting Todd to visits on two out of every three weekends. The court did

Page 929

not put its oral order into writing at that time.

On September 5, Todd, now represented by counsel, moved for reconsideration and a new custody modification hearing. He argued that he did not receive adequate notice that Tamara would raise allegations of domestic violence at the custody hearing. The superior court denied the motion, noting that " [i]t is not uncommon that domestic violence surfaces unexpectedly in a custody hearing."

On October 29, Todd moved for relief from the existing custody orders and the parties' dissolution agreement under Alaska Civil Rule 60(b)(3). Although he maintained that Tamara's allegations of domestic violence were false, he argued that, since the court had found Tamara's testimony credible, " the logical conclusion is that Tamara misrepresented material facts in the [petition for dissolution]." Therefore, he argued, the dissolution and custody orders were " void for ...


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