from the Superior Court of the State of Alaska No.
1JU-08-00802 CI, First Judicial District, Juneau, Louis J.
L. Thompson, Darryl L. Thompson, P.C., Anchorage, for
of nonparticipation filed by Paul H. Grant, Juneau, for
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
divorced mother and father shared joint legal custody of
their son. The mother moved for a modification of legal
custody, alleging that the father was failing to cooperate on
important issues such as counseling, the selection of a
middle school, and medical care; she also moved for a
declaratory judgment that the parents did not have to mediate
their custody disputes before filing a modification motion,
as required by their custody agreement. The superior court
denied the request for declaratory relief and denied the
motion for modification of custody without a hearing.
mother appeals. We agree with the superior court that the
motion for declaratory relief was properly denied, as neither
party was seeking to enforce the mediation provision and it
presented no actual controversy. But we conclude that the
mother's allegations in her motion to modify legal
custody made a prima facie showing that the parents' lack
of cooperation was serious enough to negatively affect the
child's well-being, and that the mother was therefore
entitled to an evidentiary hearing on modification. We
reverse and remand the denial of the modification motion.
FACTS AND PROCEEDINGS
Background Facts And Early Proceedings
A. and Edith W. were married in 2006 and have a son. Jonah
filed for divorce in 2008, and the parties eventually reached
an agreement for joint legal custody and alternating weeks of
physical custody. The agreement required that the parties
mediate any custody disputes.
April 2015 Edith filed a motion in superior court to modify
custody, seeking sole legal and primary physical custody. The
superior court denied the motion in June after a six-day
hearing involving 14 witnesses and more than 30 hours of
testimony. In a written order the court found that the
parties were "remarkably unkind, if not hateful, to each
other," and that they "do not trust each other and
their anger toward the other was almost palpable during their
testimony." The court found that the parents'
behavior "is bad for [the child] and only causes further
emotional and psychological injury." Though not
modifying legal or physical custody, the court required Edith
and Jonah to "minimize contact with each other" and
to communicate only by email except in emergencies. The court
also ordered that the child continue sessions with a
particular therapist "for so long as [the therapist]
April 2017 Edith filed a motion for contempt, alleging that
Jonah had failed to bring the child to therapy as required by
prior court orders. The court found that Jonah had not
complied and held him in contempt. In July Edith filed a
second contempt motion, alleging that Jonah was still failing
to bring the child to therapy.
Motions Underlying This Appeal
July 2017, Edith filed a motion that made two requests.
First, complaining that Jonah was abusing the mediation
requirements contained in the original custody order, the
motion sought a declaration from the superior court that
"mediation is not [a] condition precedent to moving to
modify legal custody." Second, the motion sought a
modification of custody whereby Edith would have sole legal
custody and authority to make important decisions about the
child's health and schooling. Edith cited four areas of
conflict demonstrating that continued joint legal custody was
unworkable: (1) Jonah's "continued contempt"of
the court order requiring the parties to continue the
child's therapy; (2) Jonah's "[b]ad faith
negotiations ... in selection of [the child's] middle
school"; (3) Jonah's "[l]ack of meaningful and
timely engagement with" a psychiatrist the therapist had
referred them to for the child's evaluation and
treatment; and (4) Jonah's "[l]ack of deference to
recommendations of and follow through with [other] health
care providers." Edith supported the motion with an
extensive affidavit and a number of exhibits, including
copies of the email exchanges pertinent to each area of
filed an opposition in which he characterized shared legal
custody as "stumbl[ing] along" but argued that any
change was unnecessary.
August the superior court held oral argument on the contempt
motion, denied the motion on the record, and denied the
request for an evidentiary hearing on the modification
motion. Later that month the court issued a written order
denying Edith's motion for declaratory relief and denying
her motion for modification of custody.
STANDARD OF REVIEW
review the refusal to grant declaratory relief for an abuse
of discretion.We review de novo the denial of the motion
to modify custody without a hearing. In this review "we take
the moving party's allegations as
true." We affirm denial of the motion without a
hearing if "the facts alleged, even if proved, cannot
warrant modification, or if the allegations are so general or
conclusory, and so convincingly refuted by competent
evidence, as to create no genuine issue of material fact
requiring a hearing."
The Superior Court Did Not Abuse Its Discretion By Denying
The Request For Declaratory Relief.
parties' original agreement on custody, they stipulated
that "should any disagreement arise concerning the
interpretation or application of this agreement" they
would "first attempt to informally resolve it,"
then, "before going back to court," they would
"participate in at least two sessions with a qualified
neutral third-party mediator," asking the court to
resolve the issue "[o]nly after mediation fails to
produce agreement." Edith's motion requested a
ruling that this provision did not preclude her motion to
modify custody; she conceded that she was raising the issue
"as a preemptive measure," anticipating that Jonah
would "attempt to stay [the] motion to modify legal
custody [by] claiming [that Edith] must first mediate."
fact, however, Jonah agreed with Edith that the merits of
modification should be addressed by the court. The court
accordingly denied declaratory relief as unnecessary
"[b]ased on ...