Kristine S. v. David I., S-18176

CourtSupreme Court of Alaska (US)
PartiesKRISTINE S., Appellant, v. DAVID I., Appellee.
Docket NumberS-18176
Decision Date14 September 2022

KRISTINE S., Appellant,
v.

DAVID I., Appellee.

No. S-18176

Supreme Court of Alaska

September 14, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court No. 3KN-15-00370 CI of the State of Alaska, Third Judicial District, Kenai, Jennifer K. Wells, Judge.

Kristine S., f/k/a Kristine I., pro se, Kenai, Appellant.

Lynda A. Limon, Limon Law Firm, Anchorage, and Randi R. Vickers, Anchorage, for Appellee.

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

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

Divorcing parents of four children participated in mediation and agreed to a parenting plan, which was approved by the superior court. Because of the mother's history of substance abuse, the parenting plan required her visitation with the children to be supervised. The plan allowed increased visitation if she complied with specific treatment and testing requirements designed to address her substance abuse. The mother moved to modify custody and visitation even though she had not complied with the requirements. The superior court denied the motions because she did not demonstrate

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a substantial change in circumstances. The mother appeals. Because the court did not err by denying her motions or limiting the scope of the evidentiary hearing, we affirm its decision.

II. FACTS AND PROCEEDINGS

A. Facts

David I. and Kristine S. married in 2005 and have four children. David filed for divorce in 2015, and the superior court entered a decree of divorce in 2017. The proceedings over the course of those two years largely focused on custody of the children. Kristine has a significant history of drug and alcohol abuse. During the marriage, Kristine completed a variety of substance abuse treatment programs but always relapsed. Her substance abuse at times endangered the children: Kristine drove her car with the children inside into the side of a garage, and she repeatedly threatened to kill herself in their presence, once firing a gun inside the house.

The court appointed a custody investigator; the investigator concluded that Kristine needed to "address her treatment in a meaningful way and demonstrate a long term, verifiable, period of sobriety" before shared custody could be recommended. A psychologist appointed to evaluate both parents wrote that Kristine had "proved repeatedly that she will be dishonest in her attempts to continue using drugs and behaving in the fashion she wants to." The psychologist also noted that it was "difficult to monitor" Kristine's drug abuse because she abused so many drugs, including prescription medications and over-the-counter medication such as Ny-Quil.

Kristine and David reached a settlement agreement and a parenting plan after four days of mediation followed by two days of negotiation. The superior court approved the agreement and entered a Parenting Plan Order (PPO) based on the agreement. The PPO awarded David primary physical and sole legal custody. Kristine was awarded supervised visitation three days a week but was prohibited from driving her

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children.

The PPO laid out a schedule for Kristine to obtain additional visitation. The first step required her to attend a "[90-]day inpatient treatment program at Hazelden Betty Ford, or another agreed upon or court approved [inpatient] treatment program" and submit to urinalysis (UA) three times a week for six months after completing the inpatient program. If Kristine had no missed, dilute, or positive UAs for 90 days, she would receive an additional visit with all of her children each week and a few additional hours with her youngest child. The PPO then also allowed Kristine to ask the court to remove the requirement that her visits be supervised as well as the restriction prohibiting her from driving her children. Six months after her return from the 90-day inpatient treatment program, the UA requirement would decrease from three to two random drug tests a week if Kristine had not had any positive, dilute, or missed tests.

The order also provided that if Kristine went 270 days after completing inpatient treatment without any positive or missed UAs, she would be allowed an overnight visit once a week with her children. And if, after inpatient treatment, she went a year without missing UA appointments or testing positive for drugs or alcohol, the UA requirement would be removed entirely and she would be allowed an additional overnight visit. Finally, if Kristine documented two years of sobriety after attending the inpatient program, participated in outpatient treatment and mental health counseling, and expanded her visitation with the children to include overnights, then the PPO allowed her to move for modified custody.

B. Motions To Modify Visitation And Custody

In March 2018 Kristine filed several motions to modify the visitation requirements. The court denied the motions, noting that the PPO was "very detailed" and allowed Kristine to "gradually increase [her visitation] if she met certain requirements." The court observed that Kristine had not met the first requirement of

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completing a 90-day inpatient substance abuse treatment program. The court found that the PPO provided a schedule that was in the children's best interests and "took into consideration" Kristine's complicated substance abuse and mental health issues. Despite Kristine's "representations that she [was] doing fine," the court explicitly rejected the idea of setting the PPO aside, noting Kristine's well-documented history of dishonesty with the court. The court required Kristine to "follow the steps outlined in the [PPO] if she wants more time and freedom with her children."

In April 2019 Kristine again moved to modify custody "to equally share physical and legal custody of the children." She conceded that she had not completed the 90-day inpatient program but argued that her circumstances had changed because she had been sober since 2017 and had completed several outpatient treatment programs. Kristine claimed that it was no longer possible for her to enter inpatient treatment as a result. And she alleged that David had undermined her relationship with her children and had recently committed acts of domestic violence against her. Kristine also argued that the PPO was an invalid contract because it was impracticable. David opposed, arguing that Kristine had not demonstrated a substantial change in circumstances, and he cross-moved to enforce the PPO because Kristine had failed to attend the required 90-day inpatient program.

The superior court scheduled an evidentiary hearing after issuing an order limiting the scope of the evidence it would allow and consider. Based on the parties' filings, the court concluded that even if it were true that Kristine had been sober since 2017, her sobriety did not amount to a change in circumstances under the terms of the parenting plan. The court advised the parties that "[g]iven the extensive litigation, . . . the fact that both parties had skilled counsel, and the serious nature of [Kristine's] lengthy addiction," it would "not lightly choose to vary from the comprehensive PPO." The superior court also allowed Kristine to present evidence regarding domestic violence

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she alleged David had committed that could show a change in circumstances and whether the PPO's limitation on potential supervisors was reasonable.

The evidentiary hearing was held in June 2020 and largely focused on whether it was impossible for Kristine to attend a 90-day inpatient treatment program. Kristine's psychiatrist testified that she had been sober for "at least two years," that he did not think it would be "particularly productive for her to go to a residential treatment facility," and that there would be a "variety of down[]sides" to attending one. David called the director of a substance abuse treatment facility as a witness; the director testified that the...

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