del Rosario v. Clare
378 P.3d 380
Alaska2016Background
- Parents divorced; after custody trial the court awarded Kenneth sole legal custody for one year (then revert to shared) and both parents shared physical custody; decree set visitation and required the traveling parent to provide address/phone 10 days before travel.
- Joyce planned summer visitation starting May 24 and failed to give Kenneth specific travel dates and reliable contact information beyond two possible addresses; Kenneth requested more details but received only vague answers.
- During Joyce’s summer custody period, Kenneth’s scheduled telephonic visits (Tues/Thurs/Sun at 7:30 p.m. AKT) were missed; Joyce did not answer calls and Kevin was unreachable for several days.
- Kenneth filed an expedited motion to show cause and for telephonic visitation; Joyce was served by mail and email but did not appear at the initial hearing; the court issued a clarifying order enforcing telephonic visitation and requiring disclosure of child’s location/dates.
- At a status hearing the court orally ordered Joyce to provide Kevin with a phone supplied by Kenneth’s attorney and to ensure it remained charged so Kenneth could contact Kevin.
- Joyce appealed, arguing the court impermissibly modified the custody decree and that she lacked adequate notice of the motions.
Issues
| Issue | Plaintiff's Argument (del Rosario) | Defendant's Argument (Clare) | Held |
|---|---|---|---|
| Whether the clarifying order impermissibly modified the custody decree by granting telephonic visitation to Kenneth | The decree did not give Kenneth telephonic visitation rights while Kevin was with Joyce; the court added new rights | The decree’s language allowing the child to contact the non-custodial parent at set times included Kenneth; the order merely enforced that right | Court: Decree reasonably read to grant telephonic visitation to whichever parent was non-custodial at the time; no improper modification |
| Whether the court required real-time location updates beyond the decree’s address-notice requirement | The June 18 comments improperly imposed a duty to give constant, real-time location updates (including while in transit) | The court’s statements were clarificatory: Joyce must provide dates/physical locations when Kevin will be at given addresses as required by the decree | Court: Statements construed as requiring timely location/dates, not continuous real-time tracking; no modification |
| Whether ordering telephonic visitation to be non-discretionary and requiring Joyce to place Kevin on the phone exceeded the court’s power | Making visitation non-discretionary and forcing child to take calls alters substantive rights | Court has inherent authority to enforce decrees; specific measures may be imposed when necessary to prevent evasion | Court: Enforcement measures (ordering placement on phone at set times) were within inherent authority and consistent with decree |
| Whether ordering Joyce to provide Kevin a telephone violated the decree or due process | Requiring a specific phone was a new substantive obligation not in the decree; also claims insufficient notice of motions | The phone was a reasonable enforcement tool given past interference; service was proper by mail/email and expedited consideration gave reasonable opportunity to respond | Court: Phone requirement was a permissible enforcement mechanism; service complied with rules and notice was adequate |
Key Cases Cited
- Horchover v. Field, 964 P.2d 1278 (Alaska 1998) (superior court has inherent power to order relief necessary to determine compliance with decree)
- Deleon v. State, Dep’t of Revenue, Child Support Enforcement Div., 103 P.3d 897 (Alaska 2004) (courts may use inherent powers to enforce child-support decrees to preserve children’s rights)
- Gunn v. Gunn, 367 P.3d 1146 (Alaska 2016) (abuse-of-discretion standard and standards for appellate review)
- Riggs v. Coonradt, 335 P.3d 1103 (Alaska 2014) (ambiguous orders may require remand or clarification to discern intent)
- Johnson v. Johnson, 544 P.2d 65 (Alaska 1975) (a court has a duty to make its decrees effective and prevent evasion)