JOYCE A. del ROSARIO, f/k/a JOYCE A. CLARE, Appellant,
KENNETH A. CLARE, Appellee.
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, No. 3AN-09-07066 CI Eric A.
A. del Rosario, pro se, Beaverton, Oregon, Appellant.
N. Chaobal, Law Offices of Vikram N. Chaobal, LLC, Anchorage,
Before: Winfree, Maassen, and Bolger, Justices. [Stowers,
Chief Justice, not participating.]
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
FACTS AND PROCEEDINGS
del Rosario and Kenneth Clare were married in 2005 and have
one child together, Kevin. 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.
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.
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 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.
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."
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.
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.
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
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."
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
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."
appeals the clarifying order and the order issued at the
STANDARD OF REVIEW
determine de novo whether a superior court order modifies a
final decree or merely enforces it. If the order enforces rather
than modifies, we review the order for abuse of
discretion. "A decision constitutes abuse of
discretion if it is 'arbitrary, capricious, manifestly
unreasonable, or . . . stems from an improper motive.'
" We review de novo whether a party received
due process,  "adopting 'the rule of law that
is most persuasive in light of precedent, reason, and
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, enforcement of an
order - reviewed for abuse of discretion - necessarily
involves interpretation of that order,  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 ...