REGINA C, n/k/a REGINA S. Appellant,
v.
MICHAEL C. Appellee.
Appeal
from the Superior Court No. 3AN-14-10036 CI of the State of
Alaska, Third Judicial District, Anchorage, Frank A.
Pfiffner, Judge.
Appearances: Deborah K. Burlinski, Burlinski Law Office, LLC,
Anchorage, for Appellant.
Roberta C. Erwin, Palmier Erwin, LLC, Anchorage, for
Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
A
mother and father divorced, and the superior court awarded
"sole legal and primary physical custody of the
children" to the mother. The court did so with
"reluctance," finding that the mother had
"engaged in... egregious parental alienation," but
also finding that the children had become "adjusted...
to life" in the mother's care. The court awarded
substantial periods of visitation to the father. It explained
that if the mother interfered with visitation, it
"w[ould] likely change its custody determination to
award... custody" to the father. Visitation subsequently
failed to occur, and the court ordered the mother to show
cause. Following a hearing, the court held the mother in
contempt and modified the custody decree to give custody to
the father.
The
mother appeals the modification of custody. She claims she
had inadequate notice that custody would be determined at the
show-cause hearing and contends that the superior court
should have continued the hearing when her counsel withdrew
several days earlier. She also claims the court's
modification of custody was based on the court's mistaken
conclusion that she committed custodial interference, a crime
of domestic violence.[1] We conclude that the mother had adequate
notice of the hearing and that the trial court did not err
when it found that her conduct constituted custodial
interference. Accordingly we affirm the superior court's
judgment.
II.
FACTS AND PROCEEDINGS
A.
Background
Regina
S. and Michael C. married in 2000, and have two children,
both boys, from the marriage.[2] Regina filed for divorce in late
2014. Regina alleged, and the superior court found, that
Michael had engaged in domestic violence against her. The
court thus awarded temporary physical and legal custody of
the children to Regina pending a divorce trial and permanent
custody award. The court restricted Michael to supervised
visitation. Michael never actually had any supervised visits
with the children, however, because in May 201 5 - when the
visits were to begin - Regina left Alaska and took the boys
with her.
B.
The Custody Investigation
The
superior court appointed a custody investigator to make
recommendations concerning a permanent award of custody. The
investigator prepared a report and later testified at trial.
Based
on interviews with the parties and the children,
psychological evaluations of both parties, references from
individuals who were familiar with the family, and the
parties' family histories, the custody investigator
concluded that both parties had "a diminished ability to
parent." The investigator believed the children had
already been "psychologically scarred" and that the
parties' continuing "actions . . . [were] likely to
cause lifelong emotional damage to" them.
In
particular the investigator found that Regina had taken
"steps" - such as removing the two boys from the
state - that "ensure[d]" that contact between the
children and Michael "would be very difficult." As
a result, the children had not been in contact with Michael
for over 17 months, and neither child wanted any contact with
him. The investigator believed that Regina had
"facilitate[d] the boys' change in attitude about
their father," and she characterized this case as
involving "severe parental alienation."
Finding
the case to be "very complex[, ] . . . with no easy
answers," the custody investigator
recommended-"[w]ith great difficulty"-that Regina
"continue to have custody of the children. The
investigator ruled out a shared custody arrangement because
"[t]he parents [were] unable to communicate and [were]
unlikely to be able to do so in the near future." And
because the boys were attending school in Arizona, where
Regina was living, the investigator thought it better for
them to remain with Regina. The investigator further
indicated that this option was preferable because
transferring custody of the boys from Regina to Michael would
cause them further trauma.
The
investigator believed it was important for the children's
development that they reestablish a relationship with their
father. She recommended that Michael "have visitation
during the summers and alternate holidays." She further
stated that "if there are not monumental efforts to
facilitate contact between the boys and their father, [she]
would likely recommend a change of custody." The
investigator said any such change of custody should "be
done before the start of the school year[3] ... to avoid
further disruption in the [children's] education."
C.
The Custody Award
The
superior court decreed the parties divorced in March 2016,
and it issued a final custody award in June 2016 following
trial. In reaching its custody determination the court
considered the testimony of the parties and other witnesses,
the recommendations of the custody investigator, and
psychological evaluations of the parties.
The
court addressed each of the statutory factors concerning the
best interests of the children[4] in a written order. The court
explicitly "discounted]" one of the best-interests
factors-"the child[ren]' s
preference"[5]-because the court found that the boys'
preference that they not have contact with their father was
the "result of.. . [Regina's] parental
alienation." Indeed, the court stated Regina had
"engaged in the most egregious parental alienation that
the ... court ha[d] ever seen." The court agreed with
the custody investigator "that contact between [Michael]
and the children is . . . important to the children's
development."
The
court adopted the custody investigator's recommendation
and "reluctan[tly]" awarded Regina "sole legal
and primary physical custody of the children." The court
gave Michael substantial periods of visitation, including the
children's summer vacations. The court explained that
"[t]here [were] limits to the ... custody award":
If Regina fails to cooperate with [Michael] to ensure that
the children have court-ordered visitation ..., the court
will likely change its custody determination to award sole
legal and primary physical custody of the children to
[Michael]. Such a change under those circumstances would be
consistent with the custody investigator's recommendation
to the court.
D.
The Order To Show Cause
The
superior court ordered the first period of visitation to
begin on July 6, 2016. Regina was required to put the
children on a flight so that they could travel from her home
to Michael's home in Alaska to spend one month with
Michael. She did not do so.
Michael
subsequently moved "for an order that Regina...
appear... and show cause as to why she should not be held in
contempt of court for failing to have [the parties']
children in Alaska for visitation." Michael pointed out
that "[t]he court stated that it would entertain a
change of custody if Regina... did not make visitation
between the boys and [Michael] happen." Regina filed a
response in which she claimed that she had "act[ed] in
good faith to try to make th[e] travel happen" but that
the boys had refused to cooperate. She accused Michael of
"leverag[ing] [an] impossible situation into an effort
to reverse custody."
On July
19 the court issued an order for Regina to "show
cause" at an August 1 hearing "why [she] should not
be held in contempt of court for willfully violating the
[custody] order." The show-cause order further stated
that Regina "should be prepared to advise the court why
it should not change custody of the minor children" to
Michael.
E.
The Withdrawal Of Regina's Counsel
Regina's
counsel moved to withdraw before the August 1 show-cause
hearing.[6] On July 28 Superior Court Judge William F.
Morse, who was not the judge assigned to the divorce and
custody case, presided over a hearing on the withdrawal
motion. At the hearing, Regina asserted that she did not want
her attorney to withdraw but "underst[ood]" that he
needed to do so. Judge Morse asked Regina whether she would
be attending the show-cause hearing "on [her] own."
Regina responded, "I suppose, if I can't get an
extension of time." Judge Morse said it was "not
really [his] call" whether to continue the show-cause
hearing, but he permitted Regina's counsel to withdraw.
F.
The Show-Cause Hearing And Custody
Modification
The
show-cause hearing was held as planned on August 1. At the
beginning of the hearing, the superior court remarked-without
comment or opposition by Regina - that Regina was "now
representing herself." The court explained that the
hearing's purpose was to decide whether Regina should be
held in contempt and "whether [the court] should order
what some experts call a parentectomy, that is, a permanent
transfer of custody."
Regina
testified first. She asserted that she had done
"everything [she] possibly could" to get the boys
to board the flight to Alaska, including contacting the
police, but that they had been unwilling to do so. She
further testified that she had tried to get her children to
speak to Michael on the phone but that they had
"absolutely refuse[d]." Regina claimed the children
were "reasonably]" afraid of their father and had
witnessed "[d]omestic abuse their entire lives."
The
custody investigator and Michael also testified. The
investigator recommended, based on various factors that she
explained to the court, that there be "a change of
custody" and "that the children have intensive
counseling." Michael expressed his concern that if the
court allowed Regina to retain custody, she would be unlikely
to cooperate with visitation and "[they'll] be right
back in court wherever it is [they] are."
After
the parties presented evidence and arguments, the superior
court found that "there [was] no legitimate explanation
for why the visitation didn't occur" and that
Regina's testimony about the children witnessing
extensive domestic violence was "fantasy." The
court held Regina in contempt.
The
court also found that Regina had committed the crime of
first-degree custodial interference: she had intentionally
"h[eld] the children for a protracted period of
time" out of the state, and Michael "was the legal
custodian" under the June 2016 custody
award.[7] The court moreover reasoned that Regina
committed two crimes - since there were two children - and
that she thus had a history of perpetrating domestic
violence.[8] Thus the court considered its "hands
. . . tied" by the domestic violence
presumption[9] and concluded that it had "to take
custody away from her immediately." The court also found
that Regina posed a "danger of mental harm to the
children" and reaffirmed its earlier best-interests
analysis.
The
court "order[ed] an immediate transfer of custody so
that [Michael] [would] have sole legal custody . . . and
primary physical custody and" Regina would have
"supervised visitation." The court stated that it
was "essentially following [the custody
investigator's] recommendations."
Regina
moved for reconsideration and to stay the order, but the
court denied the motions. She now appeals.
III.
DISCUSSION
A.
Regina Received Adequate Notice That Custody Would Be
Addressed At The Show-Cause Hearing, And Her Right To Due
Process Was Not Violated.
Regina
claims that "the superior court erred... in considering
a change in custody" at the show-cause hearing
"upon only ten [days'] notice with no prior motion
to modify custody having been filed." "Procedural
due process under the Alaska Constitution requires notice and
opportunity for hearing appropriate to the nature of the
case."[10] The "adequacy of the notice and
hearing afforded a litigant" is a question of
constitutional law "to which we apply our independent
judgment."[11]
We
conclude that under the circumstances Regina had timely and
adequate notice that the superior court would consider
modifying the custody award at the August 1 show-cause
hearing. Most significantly, the July 19 order to show cause
stated that Regina "should be prepared to advise the
court why it should not change custody of the minor
children" to Michael. The order thus provided express
notice 13 days before the show-cause hearing that permanent
custody would be addressed at the hearing.
Even
before July 19, Regina should have been aware - and the
record reflects she was in fact aware - that the court would
reevaluate custody as a result of the children's failure
to visit their father. The court stated in its June 2016
custody order that it "w[ould] likely change its custody
determination" if Regina failed to comply with the
order's visitation terms, and Michael raised the
possibility of custody modification in his motion for an
order to show cause. Regina ...