Husby v. Monegan, S-18023

CourtSupreme Court of Alaska (US)
Writing for the CourtBORGHESAN, JUSTICE.
Docket NumberS-18023
Decision Date16 September 2022



No. S-18023

Supreme Court of Alaska

September 16, 2022

Appeal from the Superior Court No. 3 AN-19-09729 CI of the State of Alaska, Third Judicial District, Anchorage, Thomas A. Matthews, Judge.

Herbert M. Pearce, Law Office of Herbert M. Pearce, Anchorage, for Appellants.

Notice of nonparticipation filed by Michael Gershel, Law Office of Michael Gershel, Anchorage, for Appellees.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.




This appeal presents two related questions of law arising out of a motion to modify an order giving visitation rights to grandparents.

First, which statute governs a motion to modify grandparents' visitation: AS 25.20.065(a), which permits grandparents to petition for visitation but does not


mention modification of visitation orders; or AS 25.20.110(a), which authorizes modification of visitation orders but does not expressly mention grandparents? We conclude that AS 25.20.110(a) applies, requiring a movant to show a substantial change in circumstances before the court may modify the existing order.

Second, when a grandparent seeks visitation over a parent's objection, the grandparent must show clear and convincing evidence that the parent is unfit or that denying visitation will be detrimental to the child.[1] If the court awards visitation rights to a grandparent, and the parent later moves to modify the grandparent's visitation rights, must the court apply this "parental preference rule" in deciding whether to modify visitation? We hold that so long as the parents were protected by the parental preference rule in the proceedings resulting in the grandparent's visitation rights, the rule does not apply in later proceedings to modify those visitation rights.

Having clarified the applicable legal standards, we reverse and remand the superior court's order in this case because it was error to decide the motions to modify the grandparents' visitation rights without first holding a hearing on disputed issues of fact.



A. Facts

Jennifer Monegan is the birth mother of a child born in 2011, and Scout Monegan is the child's adoptive father.[2] Gregory and Julie Husby are the child's maternal grandparents and live in Oregon. Jennifer and her child lived with the Husbys for a time after the child's birth; the Husbys provided childcare and were significantly involved in the child's life until he was two and a half years old. However, Jennifer's relationship with the Husbys began to deteriorate after she started dating Scout.

After Jennifer and Scout married in 2013, the Husbys petitioned for visitation in Oregon, where all of the parties lived at the time. Jennifer and the Husbys came to a mediated agreement providing, among other things, that the Husbys would have visitation with the child one weekend per month for 32 hours, as well as unlimited written and telephonic contact. The agreement also gave the parties an ongoing responsibility to update their contact information. An Oregon court approved the agreement and entered a stipulated order in March 2014.

The Monegans moved to Alaska in March 2018. In-person visits occurred less frequently after the relocation: Between March 2018 and August 2019 the Husbys visited the child seven times. The Husbys tried to maintain their relationship with the child through letters, gifts, and weekly phone calls, and claim they were able to do so through the summer of 2019.

B. Proceedings

In September 2019 the Monegans filed a complaint in the superior court to terminate the Husbys' visitation rights, alleging it was not in the child's best interests to


continue visitation. The Husbys counterclaimed for modification of the stipulated order to allow "reasonable visitation" with the child.

1. Cross-motions to modify visitation

The Husbys then filed a motion to enforce the stipulated visitation order. The Husbys alleged that Jennifer and Scout were failing to abide by the stipulated order in several ways, including by limiting the frequency and duration of their phone calls with the child. The Husbys also alleged that Jennifer and Scout had cancelled three visits. In addition to seeking the Monegans' compliance with the stipulated order, the Husbys reiterated their request for an order modifying the visitation schedule.

The Monegans opposed the Husbys' motion and filed a cross-motion to deny the Husbys visitation rights. The Monegans submitted an affidavit from Jennifer and unsworn declarations from the child's birth father, the birth father's wife, and Jennifer's sister. Relying on these documents, the Monegans alleged that Gregory had secretly contacted the child's birth father in 2019 to obtain a sample of his DNA for a paternity test. Although the child did not know at the time that he was adopted, Gregory allegedly told the birth father that the child had been asking who his birth father was. The Monegans alleged that once the paternity test came back, Gregory threatened to sue them to vacate the adoption. The Monegans added that Gregory had threatened to read the child a lengthy and derogatory "book" Gregory wrote about the Monegans if they did not comply with his requests. The Monegans also alleged that Gregory had become "belligerent and bullying" in his interactions with them, and attached transcripts of phone conversations between the parties corroborating their account.

Jennifer's sister alleged that Gregory had been physically violent with his children when they were younger. Among other things she alleged that Gregory had once drunkenly waved a gun and threatened to kill himself and told the sister "he could kill [her] and no one would know." Jennifer's sister also stated that she had recently


obtained a restraining order against Gregory because he had screamed at her husband and used "foul language" and "derogatory names" after she rejected the Husbys' request to visit with her daughter.

In response the Husbys submitted an affidavit from Gregory. Gregory denied many of the Monegans' allegations, denying that he had harassed any of his children or their spouses, engaged in belligerent or bullying behavior, been physically violent with his children when they were younger, or pulled a gun on Jennifer's sister. The Husbys also submitted an affidavit from Jennifer's brother, which suggested that an incident involving Gregory that the sister's declaration portrayed as inappropriate was in fact reasonable and caused him no harm.

2. Superior court's order terminating visitation rights

The superior court issued an order denying the Husbys' motion to enforce the stipulated order and granting the Monegans' cross-motion to deny the Husbys visitation rights.

In deciding the Monegans' motion to modify the Husbys' visitation, the superior court applied AS 25.20.065(a), as modified by our decision in Ross v. Bauman[3] This statute authorizes a grandparent to petition the superior court for an order establishing reasonable rights of visitation between the grandparent and child if: "(1) the grandparent has established or attempted to establish ongoing personal contact with the child; and (2) visitation by the grandparent is in the child's best interest." Ross held that, to protect parents' fundamental constitutional right to raise their children, a grandparent who seeks visitation over a parent's objection must also "prove by clear and convincing evidence that it is detrimental to the child to limit visitation with the [grandparent] to


what the child's otherwise fit parents have determined to be reasonable."[4] The superior court determined that AS 25.20.110(a), which requires a showing of substantial change in circumstances before an existing visitation order may be modified, did not apply to this case. Nevertheless, the court found that the Monegans' move from Oregon to Alaska qualified as a substantial change in circumstances.

Applying the standards in AS 25.20.065(a), the superior court first found that the Husbys had established ongoing personal contact with the child, citing the regular childcare they provided until he was two-and-a-half, and their regular visitation with him until he moved to Alaska. In its best interests analysis the court found that the child's "physical, emotional, and mental needs are not benefitted by being subjected to Gregory's forceful and, many times, inappropriate meddling into decisions that should be reserved for [the child's] parents." Referencing Gregory's investigation into the child's paternity, his threats to share derogatory information about the Monegans with the child, and his threats to overturn Scout's adoption of the child, the court found that although the Husbys "clear[ly].. . love their grandchild," Gregory's manipulation and aggression in pursuit of his goals were detrimental to the child. The court also noted the alleged history of abuse in the Husby household, citing two incidents: the one when Gregory allegedly handcuffed his son to a bed, and the one when Gregory drunkenly waved a gun around and threatened to kill himself and Jennifer's sister.

Finally the court found that the Husbys had not shown by clear and convincing evidence that a lack of visitation would be detrimental to the child. The court therefore denied the Husbys' request for visitation against the Monegans' wishes.

The Husbys moved for reconsideration, arguing that the superior court applied the incorrect standard in determining whether to modify the stipulated visitation


order. The Husbys also claimed that the court was required to hold an evidentiary hearing before modifying the stipulated order. The court denied the Husbys' motion for reconsideration, disagreeing with the Husbys' argument that AS...

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