In re Dissolution of Marriage of Alaback
| Decision Date | 10 March 2000 |
| Docket Number | No. S-8336.,S-8336. |
| Citation | 997 P.2d 1181 |
| Parties | In the Matter of the DISSOLUTION OF the MARRIAGE OF Paul Bernard ALABACK and Judith Kathryn Hall, Husband and Wife. |
| Court | Alaska Supreme Court |
Mary Alice McKeen, pro se, Juneau.
Barbara T. Walker, pro se, Juneau.
Before MATTHEWS, Chief Justice, and EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
This case presents a rather odd alignment of parties and interests. Perhaps oddest of all, in a case styled "In re Alaback and Hall," is the absence of the father, Paul Alaback; the child, S.A.; and the mother, Judith Hall,1 as litigants in the instant action. Instead, the only litigants here are Hall's former attorney, Mary Alice McKeen, and S.A.'s former guardian ad litem (GAL), Barbara Walker.
The case began as a child custody dispute between Hall and Alaback over S.A. McKeen now appeals the superior court's denial of her motion to unseal part of the record from that proceeding and to lift a "gag" order on that same material. Because we find no impropriety in the superior court's action, we affirm that decision.
A decree of dissolution ended Hall and Alaback's marriage in 1991. Pursuant to the agreement of the parties, the court entered a child custody and support order granting joint custody. Almost a year later, Hall filed a motion to modify the custody arrangement. Alaback opposed the motion and moved for appointment of a GAL. The court appointed Walker to fill this role, charging her with "represent[ing] the best interests of the parties' minor child, [S.A.], in this action."
In the course of her duties as GAL, Walker met with S.A. several times. Walker brought a cassette recorder to the second of these meetings, which took place on March 23, 1993. At S.A.'s request, at least part of their conversation during that meeting was taped. That tape and its contents form the bone of contention between McKeen and Walker here.
S.A. told Hall about the tape, and Hall (through her counsel, McKeen) requested a copy of it from Walker. McKeen made this request first informally and then formally, via a request for production. Walker (then herself represented by a court-appointed attorney, Patricia Collins) indicated her willingness to provide McKeen with the tape, but only after she was assured that McKeen would not turn over the tape to Hall.
McKeen listened to the tape the same day she (as Hall's attorney) signed the stipulation, and she took notes on the tape's contents. Despite the provisions of the stipulation, however, McKeen allowed Hall access to these materials during the ensuing trial—in her own words, she "inadvertently violated the Stipulation and let [my] client read the GAL's notes of that meeting." Moreover, McKeen provided Hall a typed copy of these notes after the trial had ended. McKeen stated that she "believed that the tape and her notes had become part of the public record of the trial."
After the five-day trial, the court awarded legal and physical custody to Alaback, with "liberal visitation" rights to Hall. This decision was not appealed, pursuant to the parties' stipulation that Alaback would pay half of Hall's attorney's fees if Hall would agree not to appeal. Alaback's portion amounted to just over $9,000.
The current dispute arose when, anticipating Walker's request for payment of her GAL fees, Hall moved for an order that she be relieved of her duty to pay her portion of the fees.2 In an affidavit attached to that motion, Hall referred to and quoted from the tape of Walker's conversation with S.A. She also appended a copy of McKeen's typed notes to her affidavit.
After this motion was filed, Collins sent a letter to McKeen stating that Collins viewed the fact that Hall had a copy of the notes as a violation of the stipulation. Hall then filed a motion for "clarification of her obligations" under the stipulation. In her supporting memorandum, Hall argued that "the court made the tape and counsel's handwritten notes of the tape part of the public record and hence available to Ms. Hall or any other interested member of the public." Therefore, Hall asserted, it was not a violation of the stipulation for McKeen to put the notes "in a readable form for her client" by typing them up.
Hall then filed another motion, which the superior court treated as a motion for clarification and partial reconsideration. In that motion, Hall stated that, shortly after the trial, she requested the tape from the courthouse clerk. Hall claimed that she was allowed to listen to the tape at that time and that she and the public at large should have access to the tape. She argued that, far from being sealed, "the tape should be reviewed to determine if ethical, reasonable, and objective interviewing techniques were employed by the GAL." Judge Jahnke denied this motion as well, ordering that "[t]he tape and notes shall be retained in the court file and sealed unless Mr. Alaback and Ms. Walker consent in writing to their release and publication."
Three years later (and nearly four years after the meeting between S.A. and Walker), McKeen, who had withdrawn as Hall's attorney, filed a motion to unseal the material and to allow disclosure of it. This motion apparently was prompted by an ongoing dispute between McKeen (and others) and Walker that manifested itself in other cases. Walker opposed the motion. Judge Jahnke denied the motion, stating that he could not McKeen appeals.
McKeen argues that the superior court's denial of her motion to unseal and to allow disclosure of the notes was improper. She asserts that Alaska's "open records" law and the freedom of expression clauses of the United States and Alaska Constitutions give her the right to access and disclose the contents of the materials at issue.3
In response, Walker argues that McKeen lacked standing to file the motion to unseal the records and lift the gag order; and, further, that McKeen lacks standing to prosecute this appeal. Walker also argues that McKeen's appeal is time-barred, because Appellate Rule 204(a)(1) requires all appeals to be brought within thirty days of the judgment. Finally, Walker argues that the stipulation in the original child custody dispute, which restricted McKeen's ability to disclose the contents of the tapes, bars McKeen from now seeking to disclose this material in a broader manner.4
Walker argues that McKeen lacks standing to seek to open the records and lift the gag order. This is so, Walker claims, because McKeen was not a party to the original action. While this argument has superficial appeal, it is unavailing.
Alaska grants standing to any person who can show an "injury-in-fact."5 The degree of injury need not be great—it must only amount to an "identifiable trifle."6
Here, McKeen asserts that the continued sealing of the records and the gag order violates her constitutional rights. Both of the orders are specifically directed at McKeen—she may neither discuss the contents of the notes with anyone (besides experts in the now-concluded child custody case) nor show the notes in her file to anyone without the court's permission.
As we have formulated the standing requirement elsewhere, this assertion shows McKeen's "interest in the ultimate resolution of [her] claims."7 McKeen's freedom of expression rights were "adversely impacted" by the orders, because the orders barred her from disseminating the contents of S.A.'s interview with Walker.8 Thus, McKeen had— and has—standing under Alaska law.
Walker is correct that Appellate Rule 204(a)(1) requires appeals to be filed "within 30 days from the date ... of distribution." However, McKeen is not appealing the 1993 judgment of the superior court regarding the child custody dispute, but rather the court's denial of her motion to unseal the tape of Walker's interviews and to allow the disclosure of its contents. That motion was initially denied on April 28, 1997. McKeen filed a motion for reconsideration on May 8, 1997. The court apparently did not rule on that motion; thus, as McKeen asserts, under Civil Rule 77(k)(4), the motion is to be taken as denied as of June 9, 1997. McKeen filed her notice of appeal on July 9, 1997, within the...
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In re Marriage of Evarts
... ... FEARING, J ... Hope ... Evarts appeals from numerous rulings of the trial court in a ... marital dissolution action. In addition to challenging the ... substance of the dissolution court's rulings, Hope claims ... error in the trial judge's refusal to ... appeal, even if developed in the reply brief. In re ... Dissolution of Marriage of Alaback, 997 P.2d 1181, 1184 ... n.3 (Alaska 2000). Thus, we decline to address this ... assignment of error ... Attorney ... Fees before ... ...
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In re Marriage of Evarts
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