In re Dissolution of Marriage of Alaback, No. S-8336.

• Court: Supreme Court of Alaska (US)
• Writing for the Court: CARPENETI, Justice.
• Citation: 997 P.2d 1181
• Decision Date: 10 March 2000
• Docket Number: No. S-8336.
• Parties: In the Matter of the DISSOLUTION OF the MARRIAGE OF Paul Bernard ALABACK and Judith Kathryn Hall, Husband and Wife.

997 P.2d 1181

In the Matter of the DISSOLUTION OF the MARRIAGE OF Paul Bernard ALABACK and Judith Kathryn Hall, Husband and Wife

No. S-8336.

Supreme Court of Alaska.

March 10, 2000.

997 P.2d 1182

Mary Alice McKeen, pro se, Juneau

Barbara T. Walker, pro se, Juneau.

Before MATTHEWS, Chief Justice, and EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

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.

II. FACTS AND PROCEEDINGS

A. The Child Custody Proceeding

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

997 P.2d 1183

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

Hall and Walker agreed on a stipulation to that effect. It provided, among other things, that Walker would provide the tape to Collins, who would then redact irrelevant portions before making the tape available to McKeen. The stipulation further provided that

(2) [McKeen] will not disclose to Ms. Hall the contents of the tape or the contents of notes concerning Ms. Walker's discussions with [S.A.]. [McKeen] may discuss with Ms. Hall [McKeen's] evaluation of these materials in so far as they affect this case. The only disclosure that may be made of the contents of the tape ... [is] to experts consulted in connection with this case or if ... the court permits or the parties agree to disclosure different from [that specified above].

(3) This stipulation is made without prejudice to either the mother or the Guardian's [GAL] right to ask the court to order or permit disclosure different from [that specified above].

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.

B. The Sealing and Disclosure Dispute

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.

Superior Court Judge Thomas M. Jahnke disagreed with Hall's assessment of the status of the notes. The court ordered that the tape and all notes based on the tape

shall remain sealed in [McKeen's] files and not shared with any other person, including a party. Unless they have previously been released by the clerk, the above-mentioned items shall remain sealed in the court file and may not be released to or viewed by a party or counsel.

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

997 P.2d 1184

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 "determine the potential significance of the notes in a case assigned to another judge.... That significance, if any, is best judged by the judicial officer presiding in the new case." McKeen appeals.

III. DISCUSSION

McKeen argues that the superior court's denial of her motion to unseal and to allow...