Regina v. Michael C.

          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 ...