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del Rosario v. Clare

Supreme Court of Alaska

August 26, 2016

JOYCE A. del ROSARIO, f/k/a JOYCE A. CLARE, Appellant,
v.
KENNETH A. CLARE, Appellee.

         Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, No. 3AN-09-07066 CI Eric A. Aarseth, Judge.

          Joyce A. del Rosario, pro se, Beaverton, Oregon, Appellant.

          Vikram N. Chaobal, Law Offices of Vikram N. Chaobal, LLC, Anchorage, for Appellee.

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

          OPINION

          BOLGER, Justice.

         I. INTRODUCTION

         The superior court modified a child custody decree, granting sole legal custody and primary physical custody to the child's father and setting a visitation schedule. The mother picked the child up for summer visitation but did not share her travel plans with the father and did not answer the phone or otherwise respond when the father called for telephonic visitation with the child. After five days with no word from the mother or the child, the father filed a motion to show cause. The court ordered the mother to place the child on the phone at the scheduled telephonic visitation times, to keep the father informed of the child's address and travel dates, and to give the child a telephone provided by the father to facilitate their telephonic visitation. The mother appeals, arguing that the custody decree did not give the father any telephonic visitation rights and that the court impermissibly modified the decree. She also argues that she did not receive adequate notice of the father's motion. We conclude that the court's orders were within its inherent power to interpret and enforce the custody decree and that the mother received adequate notice of the father's motion.

         II. FACTS AND PROCEEDINGS

         Joyce del Rosario and Kenneth Clare were married in 2005 and have one child together, Kevin.[1] They divorced in 2010, and after a custody trial, the court gave both parents shared physical custody of Kevin but awarded sole legal custody of Kevin to Kenneth for one year, after which legal custody would revert to shared legal custody.

         In March 2014 Joyce informed Kenneth that she planned to move out of Alaska. In response Kenneth moved to modify the custody decree, requesting primary physical and legal custody of Kevin and "ample visitation during the summer months and for holidays" for Joyce.

         The court held a trial on Kenneth's motion over three days in January and February 2015 and made oral findings on the record after the close of trial. It weighed the custodial factors under AS 25.24.150[2] and determined that most of the factors weighed in Kenneth's favor. It found that Kenneth's household was "a healthy and satisfactory environment, " and it found that Joyce had unjustifiably prevented Kevin from talking with Kenneth while in her custody. Based on these findings, it awarded Kenneth primary physical custody and sole legal custody of Kevin.

         The court issued its written findings of fact and conclusions of law, along with a modified custody decree, on May 8, 2015. The decree awarded Kenneth primary physical and sole legal custody and set out a visitation schedule. The schedule provided for Joyce to have visitation with Kevin during his summer vacation and provided that Kevin "shall be allowed to contact the non-custodial parent freely and without interference of the custodial parent at every Tuesday, Thursday, and Sunday at 7:30 pm Alaska Time." It also required Joyce to "provide address and phone number contact information to [Kenneth] 10 days prior to . . . [Kevin]'s . . . travel."

         On May 21 Joyce emailed Kenneth informing him that she planned to pick up Kevin for her summer visitation on May 24, a Sunday. Kenneth asked her for more information: dates of visitation, "[g]ood contact numbers, the address [Kevin] will be at, etc." Joyce responded only that she planned to have custody of Kevin until two weeks before school began and that "[l]ocation varies." When pressed she provided her Alaska and Oregon addresses but did not specify when she planned to be at those addresses with Kevin.

         Joyce picked up Kevin on May 24. Kenneth called her that evening for his scheduled visitation with Kevin, but she did not answer the phone. After calling three times, he left a voicemail stating he was trying to reach Kevin. The same thing happened when Kenneth called for visitation on Tuesday, May 26, and Thursday, May 28.

         On May 29 Kenneth filed a motion to show cause and a motion for expedited consideration. Joyce was served with the motions by email and by mail sent to the two addresses she had provided. Kenneth stated that "[Kevin] ha[d] not been heard from since" being picked up by Joyce on May 24 and that Joyce had denied him three scheduled telephonic visitations. He requested an order that Joyce appear at a hearing to "show cause for her conduct, and to formally declare where this child is going to be, and to allow telephonic visitation."

         The court granted the motion for expedited consideration on June 1 and held a hearing on the motion to show cause on June 2. Kenneth attended telephonically, but Joyce did not appear. The court observed that Joyce appeared to be violating the custody decree by not permitting telephonic visitation with Kevin. It stated that "[i]t was the intention of the court, and if I misspoke then I need to correct it, . . . that the minor child shall be placed on the phone" at the specified times "and in addition to that, any time [Kevin] wants to get on the phone, that he be allowed free access without interference." It also emphasized that "disclosure of the physical address and the actual address where the child will be at all times is something that is required by the court."

         The court issued an order following the hearing that it characterized as "Clarifying Telephonic Visitation with Father and Child." The order provided:

Telephonic visitation with the father is not at the discretion of the child. Telephonic visitation will be on Tuesdays, Thursdays[, ] and Sundays. The child, if he chooses, can contact his father at any time and shall be allowed to do so.
Ms. del Rosario[] will provide Mr. Clare the physical location and dates that the child will be residing in Alaska or Oregon. Mr. Clare must also provide the same to Ms. [d]el Rosario.

         Both parties appeared at a status hearing on June 18. Kenneth reported that he had been speaking regularly with Kevin and that he "ha[d] an idea" where Kevin was living because Joyce's husband had informed him that they were in Oregon. At Kenneth's request the court orally ordered Joyce to give Kevin a telephone provided by Kenneth's attorney, to "give [Kevin] the ability to keep it charged, and [to] allow [Kevin] to have it for purposes of contacting his father."

         Joyce appeals the clarifying order and the order issued at the status hearing.

         III. STANDARD OF REVIEW

         We determine de novo whether a superior court order modifies a final decree or merely enforces it.[3] If the order enforces rather than modifies, we review the order for abuse of discretion.[4] "A decision constitutes abuse of discretion if it is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper motive.' "[5] We review de novo whether a party received due process, [6] "adopting 'the rule of law that is most persuasive in light of precedent, reason, and policy.' "[7]

         This case also involves the superior court's interpretation of its own order. Although we have not specifically articulated a standard of review for this situation, [8]enforcement of an order - reviewed for abuse of discretion - necessarily involves interpretation of that order, [9] and we have previously explained the abuse-of-discretion standard for enforcement by pointing out that the court that entered the original order is in the best position to interpret its ...


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