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Edith A. v. Jonah A.

Supreme Court of Alaska

December 7, 2018

EDITH A., n/k/a EDITH W., Appellant,
JONAH A., Appellee.

          Appeal from the Superior Court of the State of Alaska No. 1JU-08-00802 CI, First Judicial District, Juneau, Louis J. Menendez, Judge.

          Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, for Appellant.

          Notice of nonparticipation filed by Paul H. Grant, Juneau, for Appellee.

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



         A 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.

         The 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.


         A. Background Facts And Early Proceedings

         Jonah A. and Edith W.[1] 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.

         In 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] deems necessary."

         In 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.

         B. Motions Underlying This Appeal

         Also in 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 controversy.

         Jonah filed an opposition in which he characterized shared legal custody as "stumbl[ing] along" but argued that any change was unnecessary.

         In 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.

         Edith now appeals.


         We review the refusal to grant declaratory relief for an abuse of discretion.[2]We review de novo the denial of the motion to modify custody without a hearing.[3] In this review "we take the moving party's allegations as true."[4] 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."[5]


         A. The Superior Court Did Not Abuse Its Discretion By Denying The Request For Declaratory Relief.

         In the 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."

         In 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 ...

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