Fredrickson v. Hackett

         Appeal from the Superior Court of the State of Alaska, First Judicial District, Sitka, David V. George, Judge. Superior Court No. 1SI-12-00009 CI

          Appearances: Jack W. Fredrickson, pro se, Sitka, Appellant.

          James W. McGowan, Sitka, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          STOWERS, CHIEF JUSTICE.

         I. INTRODUCTION

         A married couple with the assistance of an attorney-mediator reached a settlement agreement and filed for divorce in January 2012. Under the agreement the marital home and primary physical custody of the couple's three children were awarded to the mother.

         After the divorce the father moved into a cabin and expanded it to the point that it was able to adequately house the children. The father moved to modify custody on the grounds that there had been a substantial change in circumstances since the original custody order. The superior court denied the motion without a hearing, and the father appeals. We hold that the father presented evidence of a substantial change in circumstances and that the court should have conducted an evidentiary hearing. We therefore reverse and remand for further proceedings.

         II. FACTS AND PROCEEDINGS

         Jack W. Fredrickson and Allison O. Hackett married in February 1996. Three children were born during the marriage, all of whom are still minors. An attorney-mediator assisted Fredrickson and Hackett in settling property and custody issues and in jointly filing their divorce petition in January 2012. The superior court issued a divorce decree in March 2012 adopting the parties' "Child Custody, Child Support, and Property Settlement Agreement."

         Under their property agreement, Fredrickson received a cabin that was rented to a tenant at the time, and Hackett received the family home. Their child custody agreement provided that Fredrickson and Hackett would have shared legal custody and that Hackett would have primary physical custody. It set forth a detailed schedule of when the children would be with Fredrickson. Under this schedule Hackett would have physical custody of the children approximately 75% of the time and Fredrickson would have physical custody of the children approximately 25% of the time.

         In August 2015 Fredrickson, representing himself, filed a motion and affidavit to modify custody, visitation, and child support. Fredrickson requested shared physical custody, seeking approximately 40% custody of the children instead of 25%. Hackett, represented by counsel, partially opposed the motion to modify, opposing modification of custody and visitation but agreeing that modification of child support was needed.

         In his motion and affidavit Fredrickson stated that the agreement to give Hackett the family home left him without suitable housing for the children. While Hackett and the children lived in the family home, Fredrickson initially lived with family and friends and, briefly, at his church. Later, the tenant of the cabin that Fredrickson received in the divorce moved out, and Fredrickson moved into the cabin. He then built an approximately 1, 300-square-foot addition, so the cabin had "a large kitchen/living area with two and a half bathrooms" and separate bedrooms for each child.

         The superior court denied Fredrickson's motion to modify custody and visitation without a hearing and requested more information with respect to the motion to modify child support. The court's order explained that Fredrickson's remodeling of the cabin constituted "merely an improvement insufficient to establish a significant change in circumstances."

         Fredrickson appeals the denial of his motion to modify custody and visitation without a hearing. The child support modification is not at issue on appeal.

         III. ...