Justia.com Opinion Summary: Bobbie Ann Hunter and Shaun Conwell had two sons before separating. Conwell filed a complaint for custody in 2006 but Hunter did not respond. The superior court granted Conwell sole legal and primary physical custody of the boys in a 2006 default judgment. Nearly two years later Hunter, acting pro se, sought modification of custody. The superior court denied Hunter’s motion without a hearing because it concluded that Hunter’s allegations were insufficient to constitute a substantial change in circumstances. Hunter appealed, and in a 2009 opinion the Supreme Court rejected as time-barred her arguments regarding the initial custody determination, but reversed the superior court’s denial of her motion for modification. The Court remanded for an evidentiary hearing on Hunter’s allegations of: (1) potential verbal abuse of the boys; (2) a change in Conwell’s employment requiring significant time away from the boys; (3) signs that the boys were developing mental health problems; and (4) Conwell’s interference with court-ordered telephonic visitation. An evidentiary hearing on remand was held and the superior court found that Hunter had not demonstrated a substantial change in circumstances warranting modification of custody. The court noted, however, that Conwell’s continued interference with telephonic visitation would alone amount to a substantial change if not remedied going forward. Hunter moved for reconsideration; her motion was deemed denied after 30 days. Hunter then appealed. Upon review, the Supreme Court affirmed the superior court’s finding of no substantial change in circumstances.
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NOTICE
Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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corrections@appellate.courts.state.ak.us
THE SUPREME COURT OF THE STATE OF ALASKA
BOBBIE ANN HUNTER,
Appellant,
v.
SHAUN T. CONWELL,
Appellee.
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Supreme Court No. S-13915
Superior Court No. 2KB-06-00085 CI
OPINION
No. 6663 – April 13, 2012
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Kotzebue, Ethan L. Windahl.
Appearances: Bobbie A. Hunter, pro se, Fairbanks,
Appellant. Margaret O’Toole Rogers, Foster & Rogers,
LLC, Fairbanks, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
STOWERS, Justice.
I.
INTRODUCTION
Bobbie Ann Hunter and Shaun T. Conwell had two sons before separating,
S.C. and A.C.1 Conwell filed a complaint for custody in 2006 but Hunter did not
respond. The superior court granted Conwell sole legal and primary physical custody
of the boys in a 2006 default judgment. Nearly two years later Hunter, acting pro se,
sought modification of custody. The superior court denied Hunter’s motion without a
hearing because it concluded that Hunter’s allegations were insufficient to constitute a
substantial change in circumstances. Hunter appealed, and in a 2009 opinion we rejected
as time-barred her arguments regarding the initial custody determination, but reversed
the superior court’s denial of her motion for modification. We remanded for an
evidentiary hearing on Hunter’s allegations of (1) potential verbal abuse of the boys, (2)
a change in Conwell’s employment requiring significant time away from the boys, (3)
signs that the boys were developing mental health problems, and (4) Conwell’s
interference with court-ordered telephonic visitation.2
An evidentiary hearing on remand was held and the superior court found
that Hunter had not demonstrated a substantial change in circumstances warranting
modification of custody.
The court noted, however, that Conwell’s continued
interference with telephonic visitation would alone amount to a substantial change if not
remedied going forward. Hunter moved for reconsideration; her motion was deemed
denied after 30 days. Hunter appeals. We affirm the superior court’s finding of no
substantial change in circumstances.
1
We use initials to identify the children.
2
Hunter v. Conwell, 219 P.3d 191, 198 (Alaska 2009) (Hunter I).
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II.
FACTS AND PROCEEDINGS
A.
Proceedings Prior To Remand
Bobbie Ann Hunter and Shaun T. Conwell have two young sons, S.C. and
A.C. The couple never married but lived together for approximately six years.3 Their
relationship ended in early 2006 and the parties began living in different communities:
Conwell in Kotzebue and Hunter in Fairbanks.4 Conwell has been in a “committed
relationship” with his current girlfriend, Kristen Walker, since 2005, and she lives with
Conwell in Kotzebue.
In June 2006, Conwell filed a complaint for sole legal custody and primary
physical custody of the boys. Hunter filed no answer, so Conwell moved for default
judgment. Hunter did not appear at the August 24, 2006 default custody hearing, at
which time the superior court awarded legal and physical custody to Conwell, with
summer visitation to Hunter.
Nearly two years passed, during which time Hunter exercised her 2007 and
2008 summer visitation periods. On July 3, 2008 Hunter, acting pro se, filed a motion
to modify custody. Hunter argued that modification was appropriate because it “is in the
best interest of the children, and a substantial change in circumstances has occurred.”
Hunter alleged that: (1) while talking on the telephone with S.C., she heard Walker
“screaming” and “shouting” at A.C. in the background and was sufficiently “concerned
for her children’s safety” to call Kotzebue police and request that they “conduct a
welfare check”; (2) Conwell often did not answer the telephone when Hunter called,
changed his number twice, and was “attempting to alienate [the] children against their
mother”; (3) S.C. asked Hunter whether Walker was his mother; (4) Conwell’s job
3
Id. at 192.
4
Id.
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caused him to “live away from the children for several weeks at a time”; and (5) Hunter
believed Conwell was “neglecting proper parental guidance.” Hunter requested sole
legal and primary physical custody.
On July 28, 2008, Conwell filed his opposition to Hunter’s motion to
modify custody. Conwell argued that “many of [Hunter’s] statements are not accurate,
and even if they were, the allegations do not amount to a significant change in
circumstances” since the default custody order was entered.
On September 3, 2008, Superior Court Judge Richard Erlich denied
Hunter’s motion to modify custody without a hearing. The court noted that custody
modification is a two-step process: “[f]irst, AS § 25.20.110[] requires the parent seeking
the modification [to] show that a substantial change in circumstances has occurred,” and
if this burden is met, “the court will proceed to examine whether modification is in the
best interests of the child.” The court construed Hunter’s arguments as “a) the alienation
of the child’s affection,” which implicated AS 25.24.150(c)(6), and “b) a failure to meet
the child’s needs,” which implicated AS 25.24.150(c)(1) and (2). The court found no
substantial change in circumstances and therefore declined to modify the custody order.
The court did, however, impose a regular telephone visitation schedule with calls to be
made between 7:30 and 8:00 p.m. on Tuesdays, Thursdays, and Sundays “unless the
parties come to some other written mutual agreement,” and stated that “[b]oth parties
shall ensure that this contact is made.”
Hunter filed a motion for reconsideration on September 16, 2008,
presenting new evidence of Conwell’s alleged failure to comply with telephonic
visitation, as well as two telephone log printouts showing 22 calls Hunter alleged she
made to Conwell prior to the default hearing.
Hunter requested that a custody
investigator be appointed, and separately filed a motion requesting enforcement of the
telephonic visitation order.
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Conwell opposed Hunter’s motion to enforce telephonic visitation,
explaining that he was making an effort to spend time outdoors with the boys in the fall
months so they were sometimes unavailable when Hunter called. Conwell requested that
the court modify the times for calls from between 7:30 and 8:00 p.m. to between 7:00
and 7:30 p.m.
On October 16, 2008, the superior court denied Hunter’s motion for
reconsideration, again finding no substantial change in circumstances, and it denied
Hunter’s request for a child custody investigation. The court separately ordered the
parties to abide by its telephone visitation schedule and declined to adjust the time for
court-ordered visitation, which remained between 7:30 and 8:00 p.m. on Tuesdays,
Thursdays, and Sundays.
Hunter appealed the denial of her motion to modify custody.
We
“reject[ed] her arguments regarding the initial custody determination as time-barred,” but
“reverse[d] the superior court’s denial of her motion for modification, and remand[ed]
for a hearing on that issue.”5
In doing so, we examined “whether Hunter alleged facts that, if true,
demonstrate[d] that a change in circumstances ha[d] occurred,”6 and concluded that she
had done so:
If established at an evidentiary hearing, the allegation of
verbal abuse, the allegation that the boys may still be left in
the care of Conwell’s girlfriend, and the allegation that the
boys have exhibited significant anger and behavioral issues
after returning from Conwell’s home, could warrant
5
Id.
6
Id. at 196.
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modification of custody. Therefore, Hunter is entitled to a
hearing on her motion.[7 ]
We also noted “other allegations that could justify modification of custody or visitation
if proven at an evidentiary hearing,” including (1) “that work-related travel requires
Conwell to leave the children in the care of third-party custodians several weeks each
year,” and (2) “that Conwell failed to foster [Hunter’s] relationship with the boys,”
including interfering with telephonic visitation, which we characterized as “extremely
serious.”8
We remanded the case to the superior court for an evidentiary hearing on
these issues.
B.
Proceedings On Remand
An initial evidentiary hearing took place on March 24, 2010 in Kotzebue
before Superior Court Judge Ethan L. Windahl, who was sitting pro tem. Hunter’s
witness was unavailable, so the court rescheduled the hearing for April 1, 2010.
At the April hearing, after Hunter’s witness testified that both Hunter and
Conwell were good parents, Hunter then testified on her own behalf by reading from a
prepared statement. She stated that while she was more than willing to work with
Conwell, “he does not appear to have any desire to work with me.” Regarding Walker’s
alleged verbal abuse of the boys, Hunter described the original incident that prompted
the welfare check, but conceded that she “[didn’t] know if the verbal abuse is still going
on.”
Hunter also testified that she “continue[s] to have problems with the
telephone visitation,” and then spent several minutes reading from a log of dates and
7
Id. at 197 (footnote omitted).
8
Id.
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times when she called Conwell’s house but was unable to visit satisfactorily with the
boys. Hunter testified that there was a three-week period between March 3 and
March 21, 2010 when Conwell took the children on vacation to Hawaii and Hunter had
no contact information and was unable to reach the boys. Hunter also testified that
generally when she does reach the boys they are distracted by television or video games.
She also stated “[t]he supreme court was extremely strong about letting [Conwell] know
that [it was] concerned with the contact, with me having contact with the kids, and I
believe that the denial of contact causes the children to be alienated.” Hunter testified
that telephonic visits “either . . . don’t happen, or when I do get them . . . my kids are
always watching TV or playing video games and it distracts them,” a situation Hunter
believed was “intentional to alienate them from me or break our mother and child bond.”
Regarding who watches the boys while Conwell is out of town, Hunter
testified that she “was never told actually who watches them when he is out of town, I
just asked that, why can’t it be me?” When asked whether she had “any idea about”
Conwell’s “work schedule or where he is,” Hunter replied,“I actually do not.”
Hunter testified that in the summer of 2009 she saved up “all her money”
to take the boys on a trip to Anchorage and had planned various activities to do with
them, but Conwell’s sister asked to take the boys to a film, and Hunter “let them go.”
Hunter also testified that during her summer custody of the boys, Conwell’s mother often
“show[ed] up unannounced” and asked the boys to go with her; Hunter agreed to let
them go and “[doesn’t] mind letting [Conwell’s mother] take [the boys], but frequently
it’s hard to get them back.”
Finally Hunter testified that she has to pay for all tickets for the boys’
travel, although she is “pretty sure” that Conwell should pay for some of the tickets:
“Like, the holidays [in 2009-2010], I had to buy all the tickets, and if I didn’t [Conwell]
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told me that he wasn’t going to send me the kids. . . . I just feel like he’s trying to keep
them away from me.”9
On cross-examination by Conwell’s attorney, Hunter conceded that she has
had all of her physical visitation with the boys, though Hunter again noted that she had
paid for the boys’ travel herself, and she also emphasized that telephonic visitation has
not been consistent. But Hunter admitted that she “didn’t keep track of the days” that she
did speak to the boys, only those days on which she encountered problems.
Hunter also conceded that she had no knowledge that anyone was abusing
the boys “because I’m not there,” and confirmed that she willingly let the boys go with
Conwell’s family members on the various occasions she had described when this
occurred. Hunter also acknowledged that the boys exhibit “difficult behaviors” when
they visit her, “[i]n the first few days, like the transition time”; Hunter acknowledged it
was possible that the boys’ acting out could be a result of the transition between
households.
Conwell testified on his own behalf, and called no other witnesses. He
stated that he has been employed by OTZ Telephone for three to four years, and that
although the “vast majority of [his] work is taken care of in Kotzebue,” “every once in
a great while” he is “called out for a day trip” which tends to be within 90 miles of
Kotzebue. Conwell testified that since this job started he has been out of town for no
more than three days at a time, that his employer knows he has children, and that he has
kept records of his occasional day trips to the villages. Conwell explained that his
normal work schedule is 8 to 5 Monday through Friday, he is on call at other times but
has not been called once since he started work, and he is usually home for dinner with
9
Although it appears Hunter has had the boys over Christmas holidays, this
arrangement seemingly was not provided for by the custody order.
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the boys, who have a “very structured time schedule.” Conwell testified that on the rare
occasions he is out of town, his girlfriend Walker cares for the boys: Walker lives in his
home and has been in a relationship with Conwell since 2005, and the boys are familiar
with her. He stated that there is “no confrontation” between Walker and the boys, and
that there is no truth to the allegation that Walker verbally abuses them.
With regard to telephonic visitation, Conwell testified that Hunter does
have her telephonic visitation with the boys, that “on top of the scheduled days I do get
called every day,” and “when it is the day [Hunter] calls, Tuesday[s] Thursday[s] and
Sunday[s], when she calls those days . . . and [the boys] do not speak with her, I do call
her back.” Conwell stated that he did not call Hunter while he and the boys were in
Hawaii because his cellular phone SIM card did not function there, and because he did
not want to use the telephone at the condominium in which they were staying because
he tries to “shy away from phones when [he is] working in the telephone community.”
He also conceded that when Hunter calls outside of her court-ordered time, he does not
“have a tendency of calling back.”
Finally, Conwell testified that the boys have a structured life and are doing
well at school and that their best interests are served by being in his custody.
On cross-examination by Hunter, Conwell denied having stated that he
noticed that Walker “mistreated” the boys, but admitted that he did not use a calling card
to call Hunter while on vacation with the boys in Hawaii. When asked by Hunter why
he did not “turn the TV off during [her] visitation,” Conwell replied that “only one child
can talk at a time,” and if one boy is on the phone the other should not be “punish[ed]”
if he’s “really into that show.”
The superior court, ruling on the record, stated that it was satisfied that the
issues on remand had been answered, and found specifically that (1) “[t]he verbal abuse
allegation . . . is not substantiated for anything that’s going on these days,” (2) “the
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children are being cared for adequately and properly whether Mr. Conwell is there or
whether his girlfriend is there,” (3) no “significant anger management and behavioral
issues” affect the boys, “other than perhaps during a transitional period,” and that (4)
“Mr. Conwell’s testimony is pretty clear that he does not travel out of town for
significant periods of time.” The court concluded that these issues “do not create a
significant change in circumstances.”
The court stated that it was “concerned” about the telephone contact, and
that “that’s the only thing really that seems to me to have some substance.” The court
elaborated:
I don’t think that the telephone contact issue creates a change
in circumstances, but I do believe that Ms. Hunter has a
legitimate concern about contact with the boys. And I am of
the opinion that if there is a scheduled time, and it is, there is,
in the custody order as I recall, it seems to me that maybe the
television needs to get turned off, and when mother calls,
then you deal with it, and I don’t care if that’s inconvenient
or if it upsets one of the kids or not. This is a significant
issue, you [Conwell] have the kids more than nine months of
the year, mother’s entitled to talk to them when it’s time to
talk to them. Now clearly if she doesn’t call at the appointed
times, then it’s her problem. But if she does, then she’s
entitled to have the kids talk to her.
Hunter requested written findings and the court issued its supplemental
written order on April 5, 2010. In it, the superior court stated that although Conwell’s
“less than satisfactory performance . . . when it comes to telephonic visitation” did not
amount to a change in circumstances warranting custody modification, “if over the
course of the next year Ms. Hunter feels that the situation has not improved,” “[t]hat
issue alone, if established by reliable evidence, will constitute a substantial change of
circumstances sufficient to appoint a child custody investigator and revisit the issues of
custody and the best interests of the children under AS 25.24.150.”
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Hunter filed a motion for reconsideration on April 12, 2010, which was
deemed denied after 30 days pursuant to Alaska Civil Rule 77(k)(3). Hunter appeals.
III.
STANDARD OF REVIEW
The superior court “has broad discretion in deciding child custody
issues.”10 We will “review a trial court’s child custody decision for abuse of discretion
and review underlying factual findings for clear error.”11 A trial court’s decision
whether there has been a prima facie showing of a substantial change in circumstances
sufficient to trigger an evidentiary hearing regarding custody modification is reviewed
for abuse of discretion.12 Abuse of discretion occurs when the superior court “considers
improper factors or improperly weighs factors in its decisional process.”13 Clear error
exists when, after a review of the entire record, we are “left with a definite and firm
conviction” that a mistake occurred.14 We grant “particular deference to the trial court’s
factual findings when they are based primarily on oral testimony, because the trial court,
10
Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (citing Millette v.
Millette, 177 P.3d 258, 261 (Alaska 2008)).
11
Id. (citing Jaymot v. Skillings-Donat, 216 P.3d 534, 538 (Alaska 2009));
see also Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006) (quoting Hamilton v.
Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)) (“A trial court’s determination of custody
will be set aside only if the entire record demonstrates that the controlling findings of fact
are clearly erroneous or that the trial court abused its discretion.”).
12
McLane v. Paul, 189 P.3d 1039, 1042 (Alaska 2008) (citing Barrett v.
Alquire, 35 P.3d 1, 5 (Alaska 2001)).
13
Id. (citing Jaymot, 216 P.3d at 538-39).
14
Id. (citing Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993)).
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not this court, performs the function of judging the credibility of witnesses and weighing
conflicting evidence.”15
IV.
DISCUSSION
Under AS 25.20.110(a), “[a]n award of custody of a child or visitation with
the child may be modified if the court determines that a change in circumstances requires
the modification of the award and the modification is in the best interests of the child.”
Modification of a custody determination is a two-step process: first, “the parent seeking
modification must establish a significant change in circumstances affecting the children’s
best interests”; only then is a best interests analysis performed.16
In Hunter I we remanded this case and specified several allegations that,
if established at the evidentiary hearing on remand, could warrant modification of
custody: (1) verbal abuse, (2) the boys being left in Walker’s care,17 (3) signs that “the
boys have exhibited significant anger and behavioral issues after returning from
Conwell’s home,” (4) that “Conwell’s employment required that he ‘live away from the
children for several weeks at a time,’ ” and (5) interference with telephonic visitation.18
The superior court found that there had not been a substantial change of circumstances
with respect to any of these allegations, and therefore denied Hunter’s request for
15
Millette, 177 P.3d at 261 (quoting Ebertz v. Ebertz, 113 P.3d 643, 646
(Alaska 2005)) (internal quotation marks omitted).
16
Hunter v. Conwell, 219 P.3d 191, 196 (Alaska 2009) (Hunter I) (citing
Ebertz, 113 P.3d at 647).
17
This issue was related to the allegation that Walker verbally abused the
boys. See Hunter I, 219 P.3d at 196-97. On remand, the superior court appeared to
merge issues (1) and (2).
18
Id.
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custody modification. Our review of the record leads us to conclude that this decision
was not an abuse of discretion, and we affirm.
A.
The Superior Court Did Not Abuse Its Discretion In Concluding That
There Had Not Been A Substantial Change Of Circumstances With
Reference To Abuse, Behavioral Problems, And Travel By Conwell.
1.
Alleged verbal abuse by Walker
Hunter testified that in 2006 she “overheard [Walker] . . . in the
background, and she was . . . yelling at [the boys], and . . . I didn’t know who she was
at the time so I called the troopers on a welfare check.” Kotzebue police followed up by
telephone and no other evidence of abuse was recorded. When the superior court asked
if Hunter had any other evidence of verbal abuse by Walker, Hunter replied “I don’t
know if the verbal abuse is still going on.”19 Hunter’s witness offered no evidence of
abuse by Conwell or Walker. Conwell testified that if Walker yelled at the boys, it was
only to get their attention and was not an aggressive yell. Conwell also testified that
there was “no confrontation” between Walker and the boys at all, and denied having
stated that he noticed that Walker “mistreated” the boys. Conwell stated that “there has
never been an incident towards [the children] ever, the allegations on [Walker] yelling
or verbally or physically abusing is completely false . . . there’s nothing to show. . . . I’ve
never, ever, ever had a problem with [Walker] and the boys.”
Having heard this testimony, the superior court concluded that there had not
been a change of circumstances with respect to the issue of abuse, stating that “[t]he
19
With regard to the related issue of the boys being left in Walker’s care, the
superior court asked Hunter whether she had any specific information concerning who
provides care for the boys when Conwell is away; Hunter replied that she “was never
told actually who watches them when he is out of town, I just asked that, why can’t it be
me?” Hunter also conceded that she willingly let the boys go with Conwell’s family
members on various occasions.
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verbal abuse allegation I believe is not substantiated for anything that’s going on these
days.”20 This finding is amply supported by the record.
2.
The boys’ alleged behavioral problems
Hunter testified that the boys exhibit “difficult behaviors” when they visit
Hunter, “[i]n the first few days, like the transition time,” although she acknowledged that
the boys might be acting out as a result of the transition between households. Conwell
testified that when the boys return to his custody the only behavior he sees is “over
excitement,” and suggested that “[m]aybe [Hunter is] not used to their personalities,
they’re aggressive young boys, they like to wrestle, they’re hands-on boys. Maybe she’s
not used to that.” He also testified that the boys are among the top in their classes at
school.
Having heard this testimony, the superior court was “not convinced that
there are significant anger management and behavioral issues, other than perhaps during
a transitional period.” This finding is supported by the record.
3.
Conwell’s work and travel schedule
Conwell testified that he had been employed by OTZ Telephone for “three
to four” years, and that although the “vast majority of [his] work is taken care of in
Kotzebue,” every “once in a great while” he is “called out for a day trip” which tends to
be within 90 miles of Kotzebue. Conwell testified that since this job started he has been
out of town for no more than three days at a time; his employer knows he has children,
and he has kept records of his occasional day trips to the villages. Conwell also testified
that his normal work schedule is 8 to 5 Monday through Friday, and that he is on call at
other times but has not been called once since he started work; he is usually home for
20
The superior court also found that “the children are being cared for
adequately and properly whether Mr. Conwell is there or whether his girlfriend is there.”
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dinner with the boys, who have a “very structured time schedule.” Hunter submitted no
evidence or testimony challenging any of Conwell’s testimony on this issue.
Furthermore, the superior court asked Hunter whether she had “any idea about”
Conwell’s “work schedule or where he is,” and she replied “I actually do not.”
Having heard this testimony, the superior court stated that “Mr. Conwell’s
testimony is pretty clear that he does not travel out of town for significant periods of
time.” This finding is supported by the record.
B.
The Superior Court Did Not Abuse Its Discretion In Concluding That
There Had Not Been A Substantial Change Of Circumstances With
Reference To Telephonic Visitation.
In our 2009 opinion remanding this case to the superior court for an
evidentiary hearing, we stated with regard to the issue of telephonic visitation:
In her motion for reconsideration, Hunter alleged that
Conwell continued to interfere with her telephonic visitation
even after the court ordered a specific schedule for the calls.
This allegation was not part of the record at the time the court
denied the motion to modify custody, but because this case is
remanded for a hearing, we note that Conwell did not refute
this allegation. He essentially responded by explaining that
he considered it more important to allow the boys to play
outside than making them available for Hunter’s telephone
calls, and he implied that he would not return Hunter’s calls
unless she provided him with a calling card. The court’s
order did not require that Hunter provide a calling card.
Where geographic separation makes frequent in-person
visitation impossible, telephonic visitation is crucial. On
remand, both parties will have an opportunity to address
whether Hunter has had continued difficulty contacting the
boys by telephone and if so, whether any interference by
Conwell constitutes a substantial change of circumstances.[21 ]
21
Hunter I, 219 P.3d at 197-98 (footnote omitted, emphasis added).
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On appeal following remand, Hunter argues that “the most important
issue . . . is the continued interference by Mr. Conwell in regard to contact with her
children,” highlighting her “ongoing” problems contacting the boys during her visitation
periods between 7:30 and 8:00 p.m. on Tuesdays, Thursdays, and Sundays. In essence,
Hunter argues that the superior court abused its discretion in finding that the lapses in
telephone visitation did not constitute a substantial change in circumstances. Conwell,
in turn, argues that the superior court did not abuse its discretion in so finding.
Telephonic visitation between these parties has proved problematic for
some time. In her reply brief, Hunter points to two September 2008 affidavits detailing
her difficulties communicating with the boys, a circumstance she described as “the rule,
rather than [the] exception.” For instance, she noted that between early August and midSeptember 2008 she “was able to make contact and speak with [S.C.] once and [A.C.]
twice, on all other occasions the telephone was not answered, nor was any attempt made
to return my calls.” The record also contains a third 2008 affidavit by Hunter in which
she stated that Conwell claimed that he “does not have to allow the children to speak
with her” and that “he has all the power,” and that he had “acted upon his threats” by
changing his telephone number, failing to answer the telephone, and failing to return her
telephone messages.
The superior court heard detailed testimony from Hunter recounting dates
and times when she was unable to reach the boys in early 2010. Hunter also testified that
when she does reach the boys they often are distracted by television or video games.
Conwell concedes that Hunter missed seven scheduled telephone calls
during the months of January and February 2010, as well as having no contact at all for
several weeks in March 2010 when Conwell took the boys to Hawaii and did not provide
Hunter with contact information or otherwise contact Hunter. But Conwell points out
that many of these missed calls occurred outside court-ordered times, and that Hunter
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testified that occasionally she was able to speak with the children outside of her courtordered times.
It is clear that telephonic communication between Hunter and the boys
continues to be problematic, and, as the superior court observed: if “over the course of
the next year . . . the situation [does] not improve[],” then “[t]hat issue alone . . . will
constitute a substantial change of circumstances.”
The superior court found, however, that the problems with telephonic
communication did not rise to the level of a substantial change of circumstances. While
the issue is a close one, the court’s decision is neither clearly erroneous nor an abuse of
discretion. In Kelly v. Joseph, for example, we upheld the superior court’s finding of
changed circumstances after the court found the telephone communication to be
“woefully inadequate” and an “affirmative [demonstration]” of “unwillingness to . . .
allow [the children] to share.”22
We reiterate, though, that this is a serious issue. As the superior court
explained:
Ms. Hunter has a legitimate concern about contact with the
boys. And I am of the opinion that if there is a scheduled
time, and it is, there is, in the . . . custody order as I recall, it
seems to me that maybe the television needs to get turned off,
and when mother calls, then you deal with it, and I don’t care
if that’s inconvenient or if it upsets one of the kids or not.
This is a significant issue, you [Conwell] have the kids more
than nine months of the year, mother’s entitled to talk to them
22
46 P.3d 1014, 1017-18 (Alaska 2002) (“Actions by a custodial parent
which substantially interfere with the noncustodial parent’s visitation rights are sufficient
to constitute a change in circumstances. These actions include a detrimental and well
established pattern of behavior on the part of the custodial parent to erode the bonds of
love and affection between the other parent and the children.”) (Internal cites and
quotations omitted).
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when it’s time to talk to them. Now clearly if she doesn’t call
at the appointed times, then that’s her problem. But if she
does, she’s entitled to have the kids talk to her. (Emphasis
added.)
The superior court’s decision was based almost entirely on the oral
testimony of Hunter, Conwell, and Hunter’s witness, so its weighing of this testimony
must be given deference.23 When reviewing whether the superior court is justified in
finding a change of circumstances, we do not parse each alleged factual assertion of
change, but instead look to see whether the circumstances in the aggregate establish a
change of circumstances.24 On the record as a whole, we hold that the superior court did
not abuse its discretion in finding no change of circumstances sufficient to modify
custody.25 We cannot, however, overemphasize what we said in Hunter I: “Where
geographic separation makes frequent in-person visitation impossible, telephonic
visitation is crucial.”26 If Hunter feels that the telephonic visitation is not occurring as
ordered by the court, she may ask the superior court to revisit the issue.
V.
CONCLUSION
We AFFIRM the superior court’s order denying Hunter’s motion to modify
custody.
23
See Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008) (quoting Ebertz
v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)).
24
See Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990) (concluding
that “in the aggregate, [several indicia of a mother’s ‘overall maturation’] constitute a
substantial change in circumstances”).
25
Because the superior court concluded that no substantial change in
circumstances had occurred in this case, no best interests analysis was necessary. See
Hunter I, 219 P.3d at 196 (citing Ebertz, 113 P.3d at 647) (describing the two-step
process for custody modification).
26
Id. at 198 (citing Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005)).
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