Timothy W. v. Julia M. ( 2017 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TIMOTHY W., )
) Supreme Court No. S-16222
Appellant, )
) Superior Court No. 3AN-12-06387 CI
v. )
) OPINION
JULIA M., )
) No. 7196 – August 25, 2017
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Meredith A. Ahearn, Law Office of Meredith
Ahearn, Anchorage, for Appellant. Notice of
nonparticipation filed by Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Carney, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
The father in a custody, support, and visitation dispute maintains that the
trial court was biased against him. The father challenges the court’s: (1) denial of his
judicial recusal motion; (2) decision to keep certain hearings open to the public; (3) sua
sponte admission of evidence during its oral decision on the record; and (4) findings that
the father had a history of domestic violence against a “domestic living partner”
requiring the court to impose limitations on his visitation. We affirm the trial court as
to the first three matters, but we vacate the visitation order and remand for further
proceedings, specifically, for findings on whether the acts of domestic violence occurred
while a domestic living partnership was in effect.
II. FACTS AND PROCEEDINGS
Julia M. and Timothy W.,1 both attorneys, married in 2005 and have three
children, born in 2006, 2008, and 2010. The couple separated in 2011 and in April 2012
Julia filed for divorce.
Julia and Timothy initially appeared before Superior Court Judge Frank A.
Pfiffner in May 2012, and in July entered into an agreement concerning custody,
visitation, and support for their children. The agreement lasted through the fall; in
December Timothy requested that Julia’s sole legal custody and primary physical
custody be modified.2 The trial court denied that request because there had been no
material change in circumstances. Timothy also sought to have his child support reduced
or eliminated.3 Julia in turn requested that the court impute income to Timothy and
increase his child support.4 Both parties requested changes to Timothy’s visitation
1
We abbreviate the parties’ names to protect their children’s privacy.
2
See AS 25.20.110(a) (“An award of custody of a child or visitation with the
child may be modified if the court determines that a change in circumstances requires the
modification of the award and the modification is in the best interests of the child.”).
3
See Alaska R. Civ. P. 90.3(c)(1) (“The court may vary the child support
award . . . upon proof by clear and convincing evidence that manifest injustice would
result if the support award were not varied.”).
4
See Alaska R. Civ. P. 90.3(a)(4) (“The court may calculate child support
based on a determination of the potential income of a parent who voluntarily and
unreasonably is unemployed or underemployed. . . . Potential income will be based upon
(continued...)
-2- 7196
schedule. The court held evidentiary hearings to resolve these and other motions in early
2013.
The trial court decided the visitation and child support issues in a March
2013 order. The court ruled that the previously established unsupervised visitation
schedule would remain in effect, but instituted logistical guidelines to minimize conflict.
Timothy’s request for a hardship reduction in his child support was denied, and his
payments were slightly increased based on a change in his net income. The court denied
Julia’s request to impute income to Timothy, finding he was not voluntarily and
unreasonably underemployed. In reaching that determination the court made a number
of harsh observations about Timothy’s legal and parenting skills, business acumen, and
mental health.
The initial 2012 divorce and custody proceedings had been, at the parties’
request, confidential and closed to the public. After the March 2013 order — containing
the trial court’s harsh observations about Timothy’s abilities and mental health —
Timothy again moved to keep the proceedings confidential. Julia had not opposed
keeping the earlier proceedings confidential, but she opposed this request. The court
denied Timothy’s motion and his subsequent motion for reconsideration.
In June 2014 Timothy filed a motion to disqualify Judge Pfiffner from
further proceedings in the case. The disqualification motion “precede[d] a contemplated”
motion to modify custody, visitation, and support. Timothy filed the disqualification
motion because he believed “that a fair and impartial hearing cannot occur in respect of
the contemplated [modification] motion.” Timothy requested Judge Pfiffner’s recusal
in this case and “from any other matter where [Timothy is] participating as an attorney
4
(...continued)
the parent’s work history, qualifications, and job opportunities.”).
-3- 7196
. . . (so as to avoid duplicative filings [in those other matters] that have the same or
similar information).” Timothy argued that the March 2013 order demonstrated an
impermissible bias against him, or that it at a minimum created the appearance of bias.
Timothy also argued that by commenting on his abilities as an attorney the court was
effectively acting “as a witness in the trial” requiring recusal on that basis as well.
Timothy’s recusal motion was denied and referred for assignment to
another superior court judge for review pursuant to AS 22.20.020(c).5 Because Timothy
was at that time participating in another case before Judge Pfiffner, requiring recusal
from that case if Timothy’s motion were granted, the order denying Timothy’s recusal
motion was served on counsel in that other case as well. The reviewing judge affirmed
the order denying Timothy’s request for recusal.
In September 2015 Julia filed a visitation modification motion. Alleging
that Timothy’s “mental health and personal circumstances and stability [had]
deteriorated,” she requested that Timothy be limited to supervised visitation with the
children. The trial court held evidentiary hearings in January and February 2016. Both
parties were self-represented at the first hearing; at the second Timothy was represented
by counsel. At the first hearing Timothy again requested that the matter be confidential;
Julia opposed the request. The court again ruled that the matter would remain open.
During these hearings one of Timothy’s clients played a prominent role.
Jackie6 had been referred to him in November 2014 for assistance with ongoing legal
issues. By early 2015 their attorney-client relationship had “evolved into a romantic,
sexual relationship.” At the second evidentiary hearing Julia called Jackie to testify
5
See AS 22.20.020(c) (“If a judicial officer denies disqualification the
question shall be heard and determined by another judge assigned for the purpose by the
presiding judge of the next higher level of courts . . . .”).
6
A pseudonym is used to protect the client’s privacy.
-4- 7196
about her relationship with Timothy; Jackie’s testimony was corroborated by text
messages she and Julia had exchanged. Jackie testified to actions by Timothy that the
trial court later determined constituted domestic violence.7 As the trial court
summarized: in one incident “[Timothy] ended up in [Jackie’s] . . . locked house,
uninvited, after he had swiped a credit card to jimmy the lock so that he could get in with
his children . . . and [Jackie] came home and found him there and asked him what he was
doing”; in a second incident when Timothy was at Jackie’s home and she found text
messages he had sent another woman, Jackie “became infuriated and ordered [Timothy]
to leave . . . . [Timothy] initially . . . declined to do so and [Timothy] did not leave . . .
until [Jackie] threatened [Timothy] with pepper spray and by calling the police.” Finally,
the court summarized Jackie’s testimony concerning how Timothy “demanded sex” from
her on numerous occasions in exchange for “continu[ing to do] a good job” on her legal
work, and how she “allowed the sex to occur, even though she didn’t always want it.”
Several days after the second evidentiary hearing the trial court entered an
oral decision with both Timothy’s counsel and Julia in attendance. The court sua sponte
entered into evidence the text messages Julia and Jackie had exchanged, noting that Julia
had established a foundation for them during the evidentiary hearings. The court found
that Timothy and Jackie were both “household members” and “domestic living
partner[s]” for purposes of relevant domestic violence and visitation statutes. The court
then found that Timothy had committed three acts of domestic violence against Jackie
— two counts of criminal trespass and one of coercion. Because the court determined
7
See AS 25.20.110(c) (“[A] finding that a crime involving domestic violence
has occurred since the last custody or visitation determination is a finding of change of
circumstances under (a) of this section.”); see also AS 25.20.110(a) (“An award of
custody of a child or visitation with the child may be modified if the court determines
that a change in circumstances requires the modification of the award and the
modification is in the best interests of the child.”).
-5- 7196
that Timothy had committed three acts of domestic violence against a domestic living
partner, the court applied the AS 25.24.150(j) presumption against unsupervised
visitation and ordered Timothy to complete a parenting class and a batterer intervention
program before he could resume unsupervised visitation.8 Timothy appeals; Julia filed
a notice of nonparticipation.
III. STANDARD OF REVIEW
We “review[] the decision on a motion to recuse for an abuse of
discretion.”9 “[We] will not overturn a trial judge’s recusal decision unless it is plain that
a fair-minded person could not rationally come to that conclusion on the basis of the
known facts.”10
In determining whether to limit access to a case file under Alaska
Administrative Rule 37.6, trial courts must weigh the public interest in disclosure against
any legitimate interest in confidentiality.11 We generally review such decisions for abuse
of discretion.12 “We will find an abuse of discretion when the decision on review is
8
See AS 25.24.150(j) (“If the court finds that a parent has a history of
perpetrating domestic violence . . . the court shall allow only supervised visitation . . .
conditioned on that parent’s participating in and successfully completing an intervention
program for batterers, and a parenting education program . . . .”).
9
Hanson v. Hanson, 36 P.3d 1181, 1183 (Alaska 2001) (citing Capital Info.
Grp. v. Office of the Governor, 923 P.2d 29, 41 (Alaska 1996)).
10
Id. (quoting R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997)).
11
See Alaska Admin. R. 37.6(b).
12
See Luther v. Lander, 373 P.3d 495, 506 (Alaska 2016) (indicating an
Administrative Rule 37.6 balancing test decision is reviewed for abuse of discretion); cf.
Cooper v. Thompson, 353 P.3d 782, 786 (Alaska 2015) (reviewing an Alaska Evidence
Rule 403 balancing test decision for abuse of discretion).
-6- 7196
manifestly unreasonable.”13 Additionally, “[a]n abuse of discretion exists where the
superior court ‘considered improper factors in making its . . . determination, failed to
consider statutorily mandated factors, or assigned disproportionate weight to particular
factors while ignoring others.’ ”14
“We review evidentiary rulings for abuse of discretion, although whether
the trial court applied the correct legal standard presents a question of law that we review
de novo.”15
“We will reverse a superior court’s custody and visitation determination
‘only if the superior court has abused its discretion or if its controlling findings of fact
are clearly erroneous.’ ”16 “We will conclude that a trial court’s factual finding is
‘clearly erroneous’ when we are left with a ‘definite and firm conviction that the . . .
court has made a mistake.’ ”17 But “[w]e review de novo whether a superior court’s
findings satisfy the requirements” of statutes and rules.18
13
Fink v. Municipality of Anchorage, 379 P.3d 183, 188 (Alaska 2016)
(quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508
(Alaska 2015)).
14
Red Elk v. McBride, 344 P.3d 818, 822 (Alaska 2015) (quoting Siekawitch
v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
15
State v. Carpenter, 171 P.3d 41, 63 (Alaska 2007) (citing Smithart v. State,
988 P.2d 583, 586 (Alaska 1999)).
16
Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010) (quoting R.I. v. C.C.,
9 P.3d 274, 277 (Alaska 2000)) (citing Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska
2008)).
17
Michele M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008) (alteration in
original) (quoting Siekawitch, 956 P.2d at 449).
18
Dale H. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
(continued...)
-7- 7196
IV. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion By Declining To Recuse.
Timothy first argues that the trial court erred when it failed to recuse “and
compounded this error by disseminating this information to opposition counsel in
another case before the same trial court judge.” Alaska Statute 22.20.020 lists nine
grounds for disqualification; relevant to this appeal are AS 22.20.020(a)(3), disqualifying
a judicial officer when “the judicial officer is a material witness,” and
AS 22.20.020(a)(9), requiring recusal when “the judicial officer feels that . . . a fair and
impartial decision cannot be given.”19 In addition to actual bias, we have stated that
under this statute “the appearance of partiality might be sufficient grounds for”
disqualification20 and that “[a] judicial officer must [recuse] in any proceeding in which
the judicial officer’s impartiality might reasonably be questioned.”21
18
(...continued)
235 P.3d 203, 210 (Alaska 2010) (citing Carl N. v. State, Dep’t of Health & Soc. Servs.,
Div. of Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)); see also Parks v.
Parks, 214 P.3d 295, 299-301 (Alaska 2009) (reviewing trial court finding of no “history
of perpetrating domestic violence” under AS 25.24.150(g) for clear error but questions
concerning proper application of underlying domestic violence statutes for legal error).
19
Timothy also raised arguments under the Alaska Code of Judicial Conduct
in his original disqualification motion, but he does not rely on the code on appeal. For
purposes of evaluating Timothy’s claim of bias and the appearance of partiality, no
separate analysis of the Code of Judicial Conduct seems necessary as we already have
incorporated relevant prescriptions from the code into our analysis under AS 22.20.020.
See, e.g., Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (crafting rule statement
under AS 22.20.020 employing language from Alaska Code of Judicial Conduct Canon
3(E)(1)(a)).
20
Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).
21
Hanson, 36 P.3d at 1184 (citing Amidon, 604 P.2d at 578; Perotti v. State,
(continued...)
-8- 7196
We have held that “[t]o succeed on a motion to disqualify a judge for bias,
the movant must show that the judge’s actions ‘were the result of personal bias
developed from a nonjudicial source.’ ”22 More specifically “a judge is not disqualified
if the judge’s ‘knowledge and the opinion it produced were properly and necessarily
acquired in the course of the proceedings.’ ”23 Finally, “[i]t should be kept in mind that
a judge has as great an obligation not to [recuse], when there is no occasion to do so, as
. . . to do so in the presence of valid reasons.”24
1. Timothy abandoned his claim that the trial court was a material
witness under AS 22.20.020(a)(3).
Timothy asserts that recusal was required because the trial court was “a
material witness.”25 Timothy raised and argued this ground for recusal in his 2014
disqualification motion, and it was addressed in the denial order. But Timothy’s appeal
brief does not discuss the material-witness question, including why AS 22.20.020(a)(3)
should apply in this case. A cursory point that is not further argued in the brief “will not
21
(...continued)
806 P.2d 325, 327 (Alaska App. 1991)).
22
Id. (quoting Nelson v. Jones, 781 P.2d 964, 972 (Alaska 1989)) (citing
Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999)).
23
Id. (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)).
24
Amidon, 604 P.2d at 577-78 (citing In re Union Leader Corp., 292 F.2d
381, 391 (1st Cir. 1961); Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968)).
25
See AS 22.20.020(a)(3).
-9- 7196
be considered on appeal.”26 We consider abandoned any claim that the trial court should
have been disqualified as a material witness against Timothy.
2. The trial court did not abuse its discretion in determining there
was no bias or appearance of bias under AS 22.20.020(a)(9).
Timothy more extensively develops his assertions of bias and appearance
of bias under AS 22.20.020(a)(9). Timothy points to a number of harsh and unflattering
findings the trial court made about Timothy’s legal abilities and mental health in its
March 2013 order. Timothy argues these cannot be considered “a measured finding and
order from an objective finder of fact,” and notes how damaging such statements are to
his career as an attorney. He ultimately asserts that “[a]ny reasonable person reading the
trial judge’s orders would conclude that the judge was biased, or harbored some
unknown animus toward [Timothy] not articulated in the order.”
a. Timothy does not establish that any alleged bias resulted
from a nonjudicial source.
Timothy fails to address whether the court’s “actions ‘were the result of
personal bias developed from a nonjudicial source,’ ”27 or whether instead the court’s
“knowledge and the opinion it produced were properly and necessarily acquired in the
course of the proceedings.”28
26
Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) (citing
State v. O’Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Fairview Dev.,
Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970)); see also Sykes v. Melba Creek
Mining, Inc., 952 P.2d 1164, 1171 (Alaska 1998) (“[C]onclusory briefing of [a] point
would warrant a finding of abandonment.” (citing Hitt v. J.B. Coghill, Inc., 641 P.2d 211,
213 n.4 (Alaska 1982); Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994))).
27
Hanson, 36 P.3d at 1184 (quoting Nelson, 781 P.2d at 972) (citing Lacher,
993 P.2d at 421).
28
Id. (quoting Liteky, 510 U.S. at 551).
-10- 7196
Timothy perhaps chose not to address this restriction on findings under
AS 22.20.020(a)(9) because the trial court explicitly documented that its findings were
rooted in testimony presented in the case and Timothy’s own performance before the
court. The court also explained that its findings “were not gratuitous statements intended
to humiliate [Timothy]” but were instead “necessary findings to explain [the] decision.”
The findings were necessary because Julia “made a very strong argument that [Timothy]
was unreasonably underemployed” for purposes of Rule 90.3(a)(4). Julia had
demonstrated that Timothy “is highly intelligent and has an impressive academic resume.
In the past [Timothy] has held jobs of significant difficulty, responsibility, and pay. . . .
Yet, his income was only $11,135. . . . [Timothy’s] woeful employment situation
appeared unreasonable considering his intellect and education.” The trial court amply
demonstrated that its opinions “were properly and necessarily acquired in the course of
the proceedings,”29 and Timothy provides no argument on appeal to rebut this showing.
b. Timothy does not demonstrate that the trial court’s
statements displayed an inability to render fair judgment.
Despite failing to address basic elements of the improper bias analysis,
Timothy’s appeal might nonetheless have merit were he to demonstrate that the trial
court’s statements were “so extreme as to display clear inability to render fair
judgment.”30 He does not. Although the language may have been intemperate, the
court’s findings overall demonstrate a thorough and impartial consideration of the
relevant facts.
Timothy asserts that “[a]ny reasonable person reading the trial judge’s
orders would conclude that the judge was biased, or harbored some unknown animus,”
29
Id. (quoting Liteky, 510 U.S. at 551).
30
Id. (quoting Liteky, 510 U.S. at 551).
-11­ 7196
asking rhetorically how any person “considering hiring him . . . [could] not be influenced
by the judge’s excessive comments about [Timothy’s] legal ability, his character, or his
mental stability.” But that concern is properly considered under Alaska Administrative
Rule 37.6 when determining whether to limit public access to the case file and hearings,31
and Timothy raises this same interest in the confidentiality portion of his brief. The trial
court considered Timothy’s privacy interests when ruling on multiple requests to make
the file and hearings confidential. Timothy offers no reason the impact on his privacy
interests is relevant in the context of determining whether the court was impermissibly
biased against him. As discussed above, the findings were “necessary . . . to explain
[the] court’s decision,” and because they were necessary their inclusion provides no
grounds to impute bias to the court — much less demonstrate the inability to render fair
judgment — regardless of any detrimental impact on Timothy.
Timothy next faults the trial court for “liberally c[oming] to conclusions not
in evidence,” presumably referring to the unemployability finding. This argument is not
further developed in his brief. But the court explained why it reached this conclusion:
“[T]his court routinely helps pro se litigants by considering legal arguments that are
warranted by the evidence even when those arguments are not presented by the litigants
themselves.” As noted above, Julia “made a very strong argument that [Timothy] was
unreasonably underemployed,” an outcome Timothy sought to avoid. Had the court not
found that Timothy was unemployable as an attorney then “the court might well have
determined that [Timothy] was voluntarily underemployed.” Contrary to any suggestion
that this finding demonstrates an inability to render fair judgment, the trial court
31
See Alaska Admin. R. 37.6(b) (“The court may limit public access . . . if the
court finds that the public interest in disclosure is outweighed by a legitimate interest in
confidentiality . . . .”).
-12- 7196
plausibly explained a desire to fully protect Timothy’s legal interests and entered the
finding in the course of ruling in Timothy’s favor.
Timothy’s arguments are notably undeveloped. Other than citing three
cases for unobjectionable rule statements,32 Timothy makes no attempt to provide
authority for his claims of impermissible bias or to demonstrate any error that might have
resulted from that alleged bias.33 Timothy’s argument under AS 22.20.020(a)(9)
amounts to little more than an assertion that his own interpretation of the trial court’s
motives should be ascribed to all reasonable persons. We find this unpersuasive.
3. The trial court did not abuse its discretion by serving its order
on opposing counsel in another case.
Timothy asserts that the bias he alleges above was “compounded . . . by
disseminating th[e] information to opposition counsel in another case before the same
trial judge.” Timothy fails to substantially develop this argument in his brief, but when
Timothy submitted his 2014 disqualification motion he was counsel of record in one
other case before the same judge. The trial court noted that if it were to grant the motion
it “would have to ‘sua sponte’ recuse [itself] from participating in” the other case and
served the denial order on opposing counsel in that case as well.
32
See Patterson v. Cox, 323 P.3d 1118, 1123 (Alaska 2014) (“[E]ven an
incorrect ruling[] is not evidence of judicial bias.” (quoting Peterson v. Swarthout, 214
P.3d 332, 339 (Alaska 2009))); Vaska v. State, 955 P.2d 943, 945 (Alaska App. 1998)
(“[J]udicial officers must . . . conduct themselves so as to avoid engendering reasonable
suspicions of bias.” (citing Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991)));
Perotti, 806 P.2d at 327 (noting “the need to consider the appearance of impartiality”).
33
See Grace L. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 329 P.3d 980, 989 (Alaska 2014) (rejecting bias claim in part because litigant
“fail[ed] to show any way that the consideration of her requests . . . by the assigned judge
affected the ultimate decision” or resulted in reversible error (citing Alaska R. Civ. P.
61)).
-13- 7196
Although Timothy argues that this prejudiced him in the other case because
opposing counsel “would likely determine its chances were better when litigating against
[Timothy] before the court versus some other counsel,” he fails to appreciate that his
recusal request constituted an ex parte communication in the other case. Timothy hoped
for “sua sponte” recusal from the other case so that Timothy could “avoid duplicative
filings that have the same or similar information”; opposing counsel in that other case
would not have considered a motion to disqualify the judge a duplicative filing and had
a right to respond.
Alaska Rule of Professional Conduct 3.5(b) and Alaska Code of Judicial
Conduct Canon 3(B)(7) forbid attorneys and judges from communicating ex parte unless
authorized by law or exception. No such exception applies in this case.34 By filing his
request without notifying counsel in the other case Timothy might have “gain[ed] a
procedural or tactical advantage,” making the communication impermissible.35 And even
if an exception did permit the trial court to consider Timothy’s recusal request ex parte,
the court was still required to “take[] reasonable steps to notify all [opposing counsel]
promptly of the substance of the ex parte communication and . . . allow[] them an
opportunity to respond.”36 The court was obligated to notify all parties in the other case
of Timothy’s request.
34
See Alaska R. Prof. Conduct Canon 3.5(b); Alaska Code Jud. Conduct
Canon 3(B)(7).
35
Alaska Code Jud. Conduct Canon 3(B)(7)(b)(ii).
36
Alaska Code Jud. Conduct Canon 3(B)(7)(b)(iii).
-14- 7196
B. The Trial Court Did Not Abuse Its Discretion By Declining To Close
The Hearings.
Timothy next argues that the trial court erred by “fail[ing] to close the
hearings.” Whether to keep the case file confidential and the hearings closed arose
several times during the proceedings. Timothy challenges only the court’s decision to
make the January and February 2016 modification hearings public, and he raises this
claim only under Administrative Rule 37.6(b), which allows a court to limit public access
if it “finds that the public interest in disclosure is outweighed by a legitimate interest in
confidentiality, including but not limited to (1) risk of injury to individuals; [and]
(2) individual privacy rights and interests.”
Timothy sought to close the hearings because he believed “the trial judge’s
comments . . . would damage his ability to practice law in this community, and impact
his ability to earn a living.” He provides little argument in support of his claim that the
trial court erred. Timothy notes that the court acknowledged “that family cases are often
ugly with a fair amount of mudslinging going on and that this case was worse than
most,” and he argues that “if in the future any of his children chose to go into the court
record, it would be detrimental to his relationship with [them].”
But Timothy provides no reason for us to reweigh the trial court’s balancing
of the competing interests in this case. And the court thoroughly explained its reasoning.
The court believed that its initial decision to close the record had “been a license for bad
behavior by both [parties].” As the court noted, Administrative Rule 37.5 creates a
general rule that courts should provide for public access and “[t]here is a strong public
policy in favor of public access to court records.” The court emphasized that its foremost
concern was whether the children would be hurt by making the record public, and it
noted that neither party had been able to explain how that might occur. It observed that
“mudslinging happens all the time in custody disputes” and that if it closed the record
-15- 7196
every time it heard arguments along those lines then courts “wouldn’t have any open
proceedings.”
The trial court considered the mandated factors and did not consider any
improper factors.37 Timothy simply disputes the outcome of the trial court’s balancing
test, providing no basis to conclude that the decision was manifestly unreasonable.38 We
hold that the trial court did not abuse its discretion by electing not to close the 2016
hearings.
C. The Trial Court Did Not Err By Sua Sponte Admitting Into Evidence
The Messages Between Julia And Jackie.
Timothy next argues that the trial court erred by sua sponte admitting into
evidence email and text messages between Julia and her witness, Jackie. He claims
“[t]here was no opportunity to test the validity or completeness of the messages . . . as
they were admitted during the recitation of [the] trial court’s order in the case.” Timothy
makes no claim that the messages were invalid or incomplete; he merely asserts they
show only Julia’s “blatant effort to manipulate and befriend the third party for [her] own
agenda.” He argues that the court’s sua sponte admission of the communications into
evidence during its decision on record infringed his due process rights to notice and
opportunity to be heard, as well as his right of cross-examination.
Timothy’s arguments have no merit, either procedurally or substantively.
The messages were properly marked and included on the exhibit list prior to trial as
37
Cf. Red Elk v. McBride, 344 P.3d 818, 822 (Alaska 2015) (quoting
Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)) (noting when we will find
an abuse of discretion).
38
See Fink v. Municipality of Anchorage, 379 P.3d 183, 188 (Alaska 2016)
(“We will find an abuse of discretion when the decision on review is manifestly
unreasonable.” (quoting Ranes &Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d
503, 508 (Alaska 2015))).
-16- 7196
required by Alaska Civil Rule 43.1(a); such exhibits “may be admitted into evidence
upon . . . the court’s own motion,”39 which is precisely what occurred here. And
Timothy did not timely object to admission of the messages.40 This failure might
reasonably be excused because, as Timothy points out, the messages were admitted
during recitation of the court’s order. But Timothy’s counsel was present for the oral
order, and the court provided Timothy’s counsel an opportunity to ask questions and
lodge objections; Timothy’s counsel made no objection to admission of the evidence at
that time. And Timothy fails even now to state any specific ground of objection to
admission of the messages into evidence. As the court noted, the messages were relevant
to Julia’s case and a foundation was established when both Julia and Jackie “testified to
the texting relationship and to the authenticity of the texts.”
Beyond the procedural defects in his claim, Timothy’s argument fails on
the merits as well. Alaska Evidence Rule 103 requires that “a substantial right of the
party” be affected before error can be found.41 Timothy alleges infringements of his
rights to notice, opportunity to be heard, and cross-examination. But Julia included the
messages on her exhibit list, providing notice that she intended to introduce them. And
although she failed to move for their admission into evidence, Julia relied heavily on the
messages during her questioning of Jackie. Timothy’s counsel questioned Jackie
extensively about the messages on cross-examination, and during Julia’s direct
examination Timothy’s attorney unsuccessfully challenged the foundation provided for
the messages. There is no merit to Timothy’s claim that he had “no opportunity to test
the validity or completeness of the messages.” We therefore reject his claim of error.
39
Alaska R. Civ. P. 43.1(c).
40
See Alaska R. Evid. 103(a)(1) (requiring a timely objection).
41
Alaska R. Evid. 103(a).
-17- 7196
D. The Trial Court Made Insufficient Findings To Demonstrate Jackie
Was A Domestic Living Partner When The Acts Of Domestic Violence
Occurred.
Timothy finally argues the trial court erred in concluding that he had “a
history of perpetrating domestic violence against . . . a domestic living partner” under
AS 25.24.150(g), and therefore erred in applying AS 25.24.150(j)42 and limiting him to
supervised visitation with his children until he completed a parenting class and a batterer
intervention program. “A parent has a history of perpetrating domestic violence under
[AS 25.24.150(g)] if the court finds that, during one incident of domestic violence, the
parent caused serious physical injury or the court finds that the parent has engaged in
more than one incident of domestic violence.”43
Because there was no allegation that Timothy had caused anyone serious
physical injury, to conclude that AS 25.24.150(j) applied the trial court had to find that
Timothy had engaged in “more than one incident of domestic violence” against a
“domestic living partner.”44 The term “domestic violence” is defined in AS 18.66.990,45
and it includes both coercion and criminal trespass in the second degree (or an attempt
to commit either offense) “by a household member against another household
42
See AS 25.24.150(j) (“If the court finds that a parent has a history of
perpetrating domestic violence under (g) of this section, the court shall allow only
supervised visitation . . . conditioned on that parent’s participating in and successfully
completing an intervention program for batterers, and a parenting education program
. . . .”).
43
AS 25.24.150(h).
44
See AS 25.24.150(g)-(h).
45
See AS 25.90.010 (referring to definition in AS 18.66.990(3)).
-18- 7196
member.”46 “Household member” is defined broadly under AS 18.66.990(5) and
includes anyone who could be considered a “domestic living partner” under
AS 25.24.150(g). The term “domestic living partner” is not defined in statute.47
Accordingly, for purposes of this appeal, to find that AS 25.24.150(j)
applied — limiting Timothy to supervised visitation until he completed parenting and
batterer intervention classes — the trial court had to find that on more than one occasion
Timothy committed, or attempted to commit, criminal trespass in the second degree
and/or coercion against a “domestic living partner.”48 The court found by a
preponderance of the evidence that during the relevant period Timothy and Jackie were
“domestic living partner[s]” under AS 25.24.150(g) and that Timothy had committed two
counts of criminal trespass in the second degree and one count of coercion against her.
Timothy disputes all three domestic violence findings and contends they “should not
determine his custody and visitation.” We first address Timothy’s arguments that the
court erred in finding he committed three acts of domestic violence. We next address his
argument that the court erred in concluding those acts were committed against a
“domestic living partner” within the meaning of AS 25.24.150(g).
46
AS 18.66.990(3); see AS 11.41.530 (coercion); AS 11.46.330 (criminal
trespass).
47
See AS 25.24.150; AS 25.90.010.
48
See AS 25.24.150(g)-(h), (j); see also AS 18.66.990; AS 25.90.010.
-19- 7196
1. The trial court did not err in determining Timothy had
committed three acts of domestic violence.
a. A “household member” can commit trespass against
another “household member.”
“A person commits the crime of criminal trespass in the second degree if
the person enters or remains unlawfully . . . in or upon [a] premises . . . .”49 A person
commits “domestic violence” by criminally trespassing “against another household
member.”50 Household members include people “who live together or who have lived
together . . . who are dating or who have dated . . . [or] who are engaged in or who have
engaged in a sexual relationship.”51
Timothy’s sole challenge to the trial court’s two trespass findings is his
argument that “household members” cannot commit criminal trespass against each other;
if he “were a residen[t] of the household, as defined, then he could not commit trespass.”
This argument is flawed. The legislature defined domestic violence as an offense
committed “by a household member against another household member” and in the same
section included criminal trespass as a listed offense.52 “Household members” is a
broadly defined term of art including people who may, but need not, reside in the same
home.53
49
AS 11.46.330(a).
50
AS 18.66.990(3).
51
AS 18.66.990(5).
52
AS 18.66.990(3).
53
See AS 18.66.990(5) (including, for example, people “who have engaged
in a sexual relationship” and people “who are related to each other up to the fourth
degree of consanguinity”).
-20- 7196
“Household members” under AS 18.66.990(5) can thus commit trespass
against one another. And under the facts of this case, the trial court’s finding that
Timothy committed trespass against Jackie was not clearly erroneous even with the
“household member” finding. There is ambiguity in the record concerning Timothy’s
and Jackie’s living arrangements and whether he may at times have had a privilege to
enter her home without her express permission.54 Jackie testified that around the time
Timothy used a credit card to enter her home, “[h]e would stay over quite often, so it’s
basically like he was living there.” And Timothy notes Jackie’s testimony that they both
at times “carded the door” when Jackie would forget her keys inside the house. But
Jackie also testified that Timothy “wasn’t staying at my house” when he broke in. The
court found Jackie was credible and accepted her testimony that Timothy was not invited
or authorized to enter her house at that time without permission, notwithstanding his
defense that “this was common practice between the two of them.” Despite any
ambiguity in the record, given Jackie’s explicit testimony that Timothy broke into her
home without her permission, we are not “left with a ‘definite and firm conviction’ ”55
that the court made a mistake in finding Timothy committed criminal trespass.
Nor is there any conflict between Timothy’s “household member” status
and the second criminal trespass finding, when Timothy refused to leave Jackie’s home
despite being ordered to do so. A person can commit criminal trespass despite being
initially privileged to enter a premises by “fail[ing] to leave . . . after being lawfully
54
See AS 11.46.350 (defining “enter or remain unlawfully” for purposes of
criminal trespass to include situations where a person “enter[s] or remain[s] in or upon
premises . . . when . . . not otherwise privileged to do so”).
55
Michele M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008) (quoting
Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
-21- 7196
directed to do so.”56 The court did not err by concluding Timothy had committed two
counts of criminal trespass against a “household member” for purposes of the statutory
domestic violence provisions. We note here, however, and discuss at length below, that
the extent of Timothy’s privilege to enter Jackie’s home — or, relative to the second
criminal trespass determination, to stay in Jackie’s home in the face of an argument
between them — does have implications for the trial court’s “domestic living
partnership” finding.
b. The trial court’s coercion finding was not clearly
erroneous.
The trial court found by a preponderance of the evidence that Timothy
committed the crime of coercion or attempted coercion under AS 11.41.530(a)(6):
A person commits the crime of coercion if the person
compels another to engage in conduct from which there is a
legal right to abstain . . . by means of instilling in the person
who is compelled a fear that, if the demand is not complied
with, the person who makes the demand or another may
....
(6) testify or provide information or withhold
testimony or information with respect to a person’s
legal claim or defense.
Timothy begins his coercion challenge by noting “[t]here was no testimony
that [he] threat[ened] physical violence,” and there was likewise no testimony that Jackie
“was actually coerced.” We presume Timothy intends these to be claims of error. But
AS 11.41.530(a)(6) does not require the threat of physical violence. And as the trial
court noted, “[a]ttempts under Alaska law are the same as the act itself for purposes of
56
AS 11.46.350(a)(2).
-22- 7196
domestic violence.”57 Any suggestion that the trial court erred by entering a coercion
finding in the absence of testimony on these points has no merit.
Timothy’s more substantial argument against the coercion finding is that
“[t]here was absolutely no evidence of intent.” The trial court did not explicitly address
the issue of intent; failing to enter an express finding on a critical issue requires a remand
in some circumstances.58 But the court did describe the conduct it concluded was
coercion and cited Jackie’s testimony and text messages as the evidence upon which it
relied. The court found that when Timothy was working on Jackie’s cases he “demanded
sex” from Jackie for his work and “to continue doing a good job” and that she “allowed
the sex to occur, even though she didn’t always want it” so he would not carry through
on his threats to stop working on her cases. The court explained that Timothy’s conduct
was coercion under subsection (a)(6) “because by saying to [Jackie] have sex with me
or I won’t work on your case or I won’t work it well, [Timothy] threatened to withhold
information from the [c]ourt to support [Jackie’s] legal claims in her defense in her
custody cases. That’s coercion.”
Other than the presumed claims of error dismissed above, Timothy does not
challenge the trial court’s conclusion that his conduct satisfied the elements of
AS 11.41.530(a), and so we do not address those elements here. We address only
Timothy’s argument that there was no evidence he had the requisite intent. The coercion
57
See AS 18.66.990(3) (“ ‘[D]omestic violence’ . . . mean[s] one or more of
the following offenses . . . or an attempt to commit the offense . . . .”).
58
See Mapco Express, Inc. v. Faulk, 24 P.3d 531, 537-38 (Alaska 2001)
(noting that Alaska Civil Rule 52(a) requires “remand for more detailed findings only
if” a trial court’s findings do not “(i) allow for meaningful appellate review and (ii)
resolve all critical issues and disputes” (citing Sullivan v. Subramanian, 2 P.3d 66, 69-72
(Alaska 2000); Beaulieu v. Elliot, 434 P.2d 665, 670 (Alaska 1967))).
-23- 7196
statute does not explicitly prescribe a culpable mental state.59 But AS 11.81.610(b)
provides: “if a provision of law defining an offense does not prescribe a culpable mental
state, the culpable mental state that must be proved with respect to . . . conduct is
‘knowingly.’ ” Under this default mental state the questions presented for our review
become, in statutory terms, whether the trial court properly found that Timothy knew he
was “compel[ling] [Jackie] to engage in conduct from which there [wa]s a legal right to
abstain,” and whether he knew he was accomplishing this “by means of instilling in
[Jackie] a fear that, if the demand [were] not complied with,” he might somehow
sabotage her court cases.60
Alaska Civil Rule 52 generally requires a court to “find the facts specially
and state separately its conclusions of law thereon.”61 But Rule 52 “does not ‘invariably
require that the findings and conclusions be properly labeled, or even that express
findings be made on all questions, so long as the record clearly indicates that the court
considered the matter and resolved each critical factual dispute.’ ”62 Here ample
evidence in Jackie’s testimony and texting history supports a finding that Timothy knew
he was compelling Jackie to engage in conduct — sexual activity — from which she had
a legal right to abstain. To compel is defined as “[t]o cause or bring about by force,
threats, or overwhelming pressure.”63 Jackie texted, and later affirmed in testimony, that
Timothy demanded sexual favors, saying “after all I’ve done working your cases for free
59
See AS 11.41.530.
60
AS 11.41.530(a).
61
Alaska R. Civ. P. 52(a).
62
Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001) (quoting Urban Dev. Co.
v. Dekreon, 526 P.2d 325, 328 (Alaska 1974)).
63
Compel, BLACK’S LAW DICTIONARY (10th ed. 2014).
-24- 7196
that’s the least you can do.” Text messages and testimony described how Timothy had
spent “over 20 minutes . . . ranting as [Jackie] cried,” complaining that Jackie refused sex
despite the risk their relationship put him in. We conclude the trial court did not need
to make an express finding that Timothy knew he was compelling Jackie; merely citing
the relevant evidence and finding that Timothy had “demanded” sex allows for
meaningful appellate review, provides “a clear understanding of the grounds upon which
[the court] reached its decision,”64 and “clearly indicates that the court considered the
matter.”65 The grounds upon which the court reached its decision on this issue are clear;
it felt Timothy had knowingly applied either threats or overwhelming pressure to coerce
Jackie to engage in sex she transparently did not desire.
Under the trial court’s unchallenged application of Timothy’s conduct to
the elements of the coercion statute,66 to establish the requisite intent the court also had
to find that Timothy knowingly compelled Jackie to engage in unwanted sex “by means
of instilling in [her] a fear that, if the demand [were] not complied with,”67 he might
sabotage her cases.68 The court found that Timothy communicated to Jackie: “have sex
64
Price v. Eastham, 128 P.3d 725, 727 (Alaska 2006) (citing Ilardi v. Parker,
914 P.2d 888, 892 (Alaska 1996)).
65
Crittell, 36 P.3d at 639 (quoting Urban Dev. Co., 526 P.2d at 328).
66
The court’s coercion finding rested on the conclusion that withdrawing
legal services or sabotaging a client’s case when the attorney knows the client cannot
afford new counsel satisfies the coercion statute element of “withhold[ing] testimony or
information with respect to a person’s legal claim or defense.” AS 11.41.530(a)(6).
67
AS 11.41.530(a).
68
Timothy would also have to know that Jackie was in some way dependent
on him. There is no ambiguity in the record that Timothy knew Jackie was dependent
on him because she could not afford a new attorney.
-25- 7196
with me or I won’t work on your case or I won’t work it well.” Jackie did not testify that
Timothy had explicitly threatened to stop serving as her attorney; she testified he would
demand sex for work he had done on her cases, evidently implying she should be
grateful for that work and reciprocate by granting sexual favors. Although the court did
not enter an explicit intent finding, there is only one plausible basis upon which it could
have concluded Timothy coerced Jackie: it interpreted Jackie’s testimony to indicate that
Timothy was knowingly making an implicit threat to stop serving as her attorney if she
did not comply with his demands. If there is only one plausible basis for a court’s
holding, we generally will not remand for failure to enter an explicit finding.69
Although the trial court did not enter an explicit intent finding, the evidence
upon which it relied is more than sufficient to support an inference that Timothy
knowingly coerced Jackie. And because there was only one plausible basis upon which
the court could have determined Timothy’s actions constituted coercion, the court’s
findings are “sufficient to give a clear understanding of the grounds upon which it
reached its decision”;70 they “allow for meaningful appellate review” and “resolve all
critical issues and disputes between the parties”;71 and the court discussed the conduct
69
See Mapco Express, Inc. v. Faulk, 24 P.3d 531, 538 (Alaska 2001) (electing
not to remand for an explicit finding because “it [was] obvious how the trial court
resolved [the] conflict” between testimony and purportedly contradictory evidence,
accepting the former as credible despite the conflict); Frontier Saloon, Inc. v. Short, 557
P.2d 779, 781 (Alaska 1976) (holding that remand for explicit findings was not necessary
where it was “readily apparent that the trial court accepted” one party’s testimony and
rejected the other party’s).
70
Price v. Eastham, 128 P.3d 725, 727 (Alaska 2006) (citing Ilardi v. Parker,
914 P.2d 888, 892 (Alaska 1996)).
71
Mapco Express, 24 P.3d at 537-38 (citing Sullivan v. Subramanian, 2 P.3d
66, 69-72 (Alaska 2000); Beaulieu v. Elliot, 434 P.2d 665, 670 (Alaska 1967)).
-26- 7196
in question and the credibility of the witnesses in detail, demonstrating that it “exercised
care in ascertaining the facts.”72 No remand is necessary for an explicit finding of intent,
and the court’s coercion finding was not clearly erroneous. But — as with the criminal
trespass determinations — the court’s coercion finding has some implications for the
court’s “domestic living partnership” findings, as discussed below.
2. The trial court did not clearly err by finding that Timothy and
Jackie were “domestic living partners,” but further findings are
necessary to determine whether their partnership was in effect
when the acts of domestic violence occurred.
The presumption against unsupervised visitation contained in
AS 25.24.150(j) applies when “a parent . . . has a history of perpetrating domestic
violence against the other parent, a child, or a domestic living partner.”73 Because we
affirm the trial court’s findings that Jackie and Timothy were “household members”
under AS 18.66.990(5) and that Timothy committed two counts of criminal trespass and
one count of coercion against Jackie, Timothy had “a history of perpetrating domestic
violence” for committing “more than one incident of domestic violence.”74 The
dispositive question then becomes whether Timothy’s history of domestic violence was
“against . . . a domestic living partner,” or whether the conduct was instead committed
in the context of a relationship that the legislature did not intend courts to consider when
applying the presumptions against custody and visitation found in AS 25.24.150(g) and
(h).
72
Sarah D. v. John D., 352 P.3d 419, 429 (Alaska 2015) (quoting Merrill v.
Merrill, 368 P.2d 546, 548 (Alaska 1962)) (citing Alaska R. Civ. P. 52(a); John N. v.
Desiree N., No. 1460, 2013 WL 1933133, at *5 (Alaska May 8, 2013)).
73
AS 25.24.150(g); see AS 25.24.150(j).
74
AS 25.24.150(h).
-27- 7196
Timothy raises three arguments relevant to this question: (1) the crimes
alleged were not committed against his family or his children and should have no bearing
on his visitation rights; (2) the court impermissibly defined “domestic living partner”
under AS 25.24.150(g) by importing the broad definition of “household member” from
AS 18.66.990; and (3) alternatively, the court misinterpreted precedent and applied an
overly broad definition of “domestic living partner” under AS 25.24.150(g).
a. Criminal trespass and coercion are qualifying offenses
under AS 25.24.150(g).
Timothy’s first argument, that the crimes alleged “were completely
irrelevant and not applicable to his family, especially his children,” has no merit. He
asserts that the coercion finding “did not constitute domestic violence in the sense that
it did not have any relevance to his family or any pattern of behavior.” He also notes that
“[t]here was no evidence of any type of abuse by [Timothy] to his children or any person
ever within his family circle.”
When considering acts of domestic violence under AS 25.24.150(g) the
only limitation is that the crimes be committed “against the other parent, a child, or a
domestic living partner.” We address below whether the trial court correctly determined
that Jackie was a “domestic living partner.” The other limitations Timothy attempts to
import into the custody and visitation provisions are baseless. There is no special carve-
out for crimes that do not include physical abuse; “domestic violence” in the custody and
visitation provisions has the same definition as in the domestic violence and sexual
assault provisions.75 That definition includes criminal trespass and coercion, as well as
other crimes that do not require showings of physical abuse, such as harassment and
75
See AS 25.90.010 (referring to definition in AS 18.66.990(3)).
-28- 7196
violating a protective order.76 Nor did the legislature limit the presumptions created in
AS 25.24.150 to domestic violence directed against family members; as discussed
above, in addition to another parent and children the legislature called for the
presumption to apply when the violence is directed at a “domestic living partner.”77 If
Jackie was a “domestic living partner” when Timothy committed the acts of trespass and
coercion, then those acts must be considered in applying the presumptions against
custody and visitation contained in AS 25.24.150(g) and (j). Timothy provides no basis
for his assertion that he should be exempted from the otherwise clear statutory scheme.
b. The trial court did not impermissibly conflate “domestic
living partner” with “household member.”
Timothy’s second claim against the application of AS 25.24.150(j)’s
presumption against unsupervised visitation is that the trial court impermissibly imported
the AS 18.66.990(5) definition of “household member” to serve as the definition of
“domestic living partner” under AS 25.24.150(g). This claim is incorrect. As noted
above, no definition for “domestic living partner” is provided in Alaska’s relevant
statutes.78 Nor have we defined the term.79 Timothy is correct that the terms “domestic
living partner” and “household member” were not intended to be coextensive — as we
discuss further below80 — and conflating the two terms would indeed be legal error. But
76
See AS 18.66.990(3).
77
AS 25.24.150(g).
78
See AS 25.24.150; AS 25.90.010.
79
See Lisa Bolotin, Note, When Parents Fight: Alaska’s Presumption Against
Awarding Custody to Perpetrators of Domestic Violence, 25 ALASKA L. REV. 263, 281­
84 (2008).
80
See discussion infra Section IV.D.2.c.
-29- 7196
the trial court did not commit that error. The court properly employed the definition of
“household member” provided by AS 18.66.990(5) when determining Timothy had
committed crimes of domestic violence as defined by AS 18.66.990(3). When it came
time to determine whether Timothy had committed those domestic violence crimes
against a “domestic living partner” under AS 25.24.150(g), the court instead defined that
term by reference to our holding in Michele M. v. Richard R. that acts of domestic
violence against an ex-spouse can be considered.81 The court did not treat “domestic
living partner” and “household member” interchangeably; Timothy’s assertion to the
contrary fails.
c. The trial court made insufficient findings to demonstrate
Jackie was a domestic living partner at the time the acts
of domestic violence were committed.
Timothy’s final claim is that the trial court erred by misinterpreting
precedent and applying an overly broad definition of “domestic living partner.” We have
not yet ruled whether “domestic living partner” under AS 25.24.150(g) should extend
beyond spouses and ex-spouses and also include relationships such as cohabitation.82
i. The trial court did not clearly err by finding that
Timothy and Jackie were “domestic living
partners” for some unknown period.
A helpful discussion of the presumptions against custody and visitation
created by AS 25.24.150 can be found in Lisa Bolotin’s law review note When Parents
Fight: Alaska’s Presumption Against Awarding Custody to Perpetrators of Domestic
81
177 P.3d 830, 836-38 (Alaska 2008) (holding in custody dispute that
father’s alleged domestic violence in an earlier marriage must be considered for purposes
of AS 25.24.150(g)-(i)).
82
See Bolotin, supra note 79, at 283-84.
-30- 7196
Violence.83 Bolotin presents two “possible interpretation[s] of ‘domestic living
partner’ ”: a broad interpretation with “ ‘domestic living partner’ having the same
meaning as ‘household member’ ” under AS 18.66.990(5), and a narrower interpretation
not clearly defined but requiring that the victim actually live with the perpetrator.84
In support of the argument that “domestic living partner” might plausibly
have the same meaning as “household member” under AS 18.66.990(5), Bolotin points
to legislative history indicating that the sponsor of House Bill 385, creating the
AS 25.24.150 presumptions against custody and visitation, “intended to adopt the
approach of the Model Code of the Family Violence Project of the National Council of
Juvenile and Family Court Judges.”85 Bolotin correctly notes that “[t]he Model Code is
written to raise the presumption wherever ‘domestic or family violence’ has occurred.”86
But despite any legislative history to the contrary, the language of the
statute and the context in which it is employed leave little room for such an
interpretation.87 If the legislature intended that all acts of domestic violence be
considered when applying the AS 25.24.150 presumptions then it could simply have left
out the requirement that the domestic violence be perpetrated “against the other parent,
83
See generally id.
84
Id. at 281-84.
85
Id. at 282 (citing Hearing on H.B. 385 Before the H. Judiciary Comm., 23d
Leg., 2d Sess. 0622 (Mar. 1, 2004) (statement of Rep. Lesil McGuire, Sponsor of H.B.
385)).
86
Id. (citing MODEL CODE ON DOMESTIC & FAMILY VIOLENCE § 401 (1994)).
87
See City of Dillingham v. CH2M Hill Nw., Inc., 873 P.2d 1271, 1276
(Alaska 1994) (“The plainer the meaning of the statute, the more persuasive any
legislative history to the contrary must be.” (citing Peninsula Mktg. Ass’n v. State, 817
P.2d 917, 922 (Alaska 1991))).
-31- 7196
a child, or a domestic living partner.”88 Indeed, the model code that H.B. 385’s sponsor
referred to in committee took such an approach, applying the presumption in every
proceeding where the court makes a determination that “domestic or family violence has
occurred.”89 But our legislature limited what instances of domestic violence could be
considered.90 Ruling that “domestic living partner” under AS 25.24.150 and “household
member” under AS 18.66.990(5) have the same meaning would render the legislature’s
modifying language superfluous, as “the other parent, a child, [and] a domestic living
partner” are already included under any plausible interpretation of “household
member.”91 And although the bill’s sponsor indicated an intent for Alaska to adopt the
above-referenced model code, that comment was made when introducing the entirety of
the bill, not during any discussion of the particular language, or even subsection, at issue
here.92 We therefore conclude that “domestic living partner” must have a narrower
definition than “household member” and that any legislative history supporting an
interpretation to the contrary is insufficient to overcome the statute’s clear meaning.93
88
AS 25.24.150(g).
89
Bolotin, supra note 79, at 273 (citing MODEL CODE ON DOMESTIC &
FAMILY VIOLENCE § 401 (1994)).
90
See AS 25.24.150(g).
91
See AS 18.66.990(5); AS 25.24.150(g).
92
See Hearing on H.B. 385 Before the H. Judiciary Comm., 23d Leg., 2d
Sess. 0622 (Mar. 1, 2004) (statement of Rep. Lesil McGuire, Sponsor of H.B. 385).
93
Our analysis here follows only the clear statutory language and structure,
but we observe the legislature may have had good policy reasons to set some limitations
on what acts of domestic violence should be considered for purposes of the
AS 25.24.150 custody and visitation presumptions. See Cooper v. District Court, 133
P.3d 692, 707-08 (Alaska App. 2006) (discussing how, “[b]ecause the definition of
(continued...)
-32- 7196
Because “domestic living partner” must be a narrower term than “household
member,” the questions then become how narrow that definition should be and whether
Jackie should qualify. Bolotin notes that prior to 2008 “all appellate cases that applied
[AS] 25.24.150(g) . . . concerned violence between parents of the child whose custody
was in dispute,” but that our 2008 Michele M. case “clarifies that a spouse who is not the
parent of the child also qualifies as a ‘domestic living partner.’ ”94 In Michele M.,
however, it was unclear whether the ex-wife qualified “merely because she had been
married to [the father], or because she had lived with him after” the child at issue in the
custody dispute was born.95
An accurate assessment of the state of the law after Michele M. and at the
publication of Bolotin’s note in 2008, therefore, would conclude there was no indication
that “domestic living partner” must have the same meaning as “household member”
under AS 18.66.990(5), but it must include ex-spouses with whom the perpetrator has
resided. Subsequent to publication of Bolotin’s article all appellate cases applying
AS 25.24.150(g) have continued to concern “violence between parents of the child
whose custody was in dispute,”96 with one exception where we provided relevant dictum.
93
(...continued)
‘crime involving domestic violence’ is so expansive[,] . . . there will be many cases in
which, even though the defendant’s crime may qualify as a ‘crime involving domestic
violence’, it makes no sense” to require a batterer intervention program).
94
Bolotin, supra note 79, at 282-83 (citing Michele M. v. Richard R., 177
P.3d 830, 837-38 (Alaska 2008)).
95
Id. at 283; see Michele M., 177 P.3d at 837-38.
96
Bolotin, supra note 79, at 282-83 (citing Puddicombe v. Dreka, 167 P.3d
73 (Alaska 2007); O’Dell v. O’Dell, No. S-12097, 2007 WL 1378153 (Alaska May 9,
2007)).
-33- 7196
In Harris v. Governale97 we considered whether domestic violence between
a father and an ex-girlfriend should be factored in to a custody determination —
involving the father and the mother of another child — under either the general best
interests analysis98 or when applying the presumption against custody in
AS 25.24.150(g). In that case the father and the ex-girlfriend were not living together
at the time of the custody trial, but they “had lived together for four years, had a child
together, and continued to share major expenses while living apart.”99 We held that the
trial court should have considered a domestic violence incident between them when
conducting the best interests analysis but that the presumption in subsection .150(g) was
not triggered because it was unclear whether the father or the ex-girlfriend had been the
perpetrator.100 Although the presumption could apply only when the parent seeking
custody was the perpetrator, we accepted that it would have been triggered had the trial
court found that the ex-girlfriend was the victim of assault by the father.101 The
conclusion that subsection .150(g) would have applied was only dictum, but the
reasoning augments the holding in Michele M. and indicates that the term “domestic
living partner” includes not only ex-spouses, but also other persons with whom the
parent seeking custody had resided and had a child.
In this case the trial court interpreted Michele M. to mean that “a domestic
living partner includes a former girlfriend,” but made no reference to Harris. Timothy
97
311 P.3d 1052, 1057-59 (Alaska 2013).
98
See AS 25.24.150(c)(7).
99
Harris, 311 P.3d at 1057.
100
Id. at 1058.
101
Id.
-34- 7196
correctly points out that the court’s interpretation of Michele M. is overbroad, as the
victim in that case was an ex-wife, not merely an ex-girlfriend.102 But Timothy does not
address Harris either, nor explicitly argue that “domestic living partner” should include
only spouses and ex-spouses; he does suggest that the definition should require that the
victim and perpetrator be “partners in the sense of family with children” and “reside
together.”
We are therefore presented with three questions in determining how
“domestic living partner” should be interpreted and applied in this case: (1) should the
term include only spouses and ex-spouses? (2) should the term require that the
perpetrator and victim have a child together? and (3) should the term require that the
perpetrator and victim reside together?
The answer to the first question is no. The plain meaning of the term
“domestic living partner” supports this conclusion.103 Had the legislature wished courts
to consider only spouses and ex-spouses then it easily could have employed that more
familiar language, rather than the term of art “domestic living partner.”104 Additionally,
as noted above, our precedent does not foreclose an interpretation extending beyond ex-
spouses, and the dictum in Harris suggests that we have been prepared to include ex-
girlfriends (or ex-boyfriends) in the definition in the past.105
The answer to the second question is likewise no — there is no requirement
that the perpetrator and the victim have a child together as Timothy seems to suggest.
102
Michele M. v. Richard R., 177 P.3d 830, 831, 837-38 (Alaska 2008).
103
AS 25.24.150(g).
104
See AS 25.24.150(g).
105
See Harris, 311 P.3d at 1058.
-35- 7196
Nothing either in the statute or in our precedent indicates that such a condition is
necessary.106
The answer to the third question is yes; there is a requirement that the
perpetrator and victim lived in the same household, but “lived together” must be given
a fairly relaxed meaning. This requirement is suggested by a plain reading of the term
“domestic living partner,” relying on common public definitions in place at the time
AS 25.24.150(g) was enacted:107 “domestic” refers to “the family or the household”;108
“living” appears to be a gerund formed from the verb “live” that here employs the
meaning “to occupy a home” or “cohabit”;109 and the meaning of “partner” here seems
to be either “persons who are married or who live together” or people “who share[] . . .
in a venture with shared benefits and shared risks.”110 “Domestic partnership” is defined
as “[a] nonmarital relationship between two persons . . . who live together as a couple for
a significant period of time.”111 In combination these words strongly suggest a
requirement that the relationship between the perpetrator and the victim not be casual,
and that they reside in the same household on a basis that entails some commitment.
106
See AS 25.24.150; Harris, 311 P.3d at 1057-58; Michele M., 177 P.3d at
831, 837-38; Bolotin, supra note 79, at 281-84.
107
See Ch. 111, § 5, SLA 2004 (adding subsections .150(g)-(k) to
AS 25.24.150).
108
Domestic, BLACK’S LAW DICTIONARY (8th ed. 2004).
109
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1323 (Philip
Babcock Gove et al. eds., 2002).
110
Partner, BLACK’S LAW DICTIONARY (8th ed. 2004).
111
Domestic Partnership, BLACK’S LAW DICTIONARY (8th ed. 2004).
-36- 7196
An argument against such an interpretation is that although a plain reading
of the term “household member” suggests that the perpetrator and victim reside together,
the definition provided in AS 18.66.990(5) extends well beyond any such constraint.
However, as noted above, “household member” and “domestic living partner” should not
be given the same meaning; if the legislature did not intend to place additional
constraints on the presumptions found in AS 25.24.150(g) and (j), then it would not have
added language requiring that the domestic violence be perpetrated against “the other
parent, a child, or a domestic living partner.”112 And whereas the legislature provided
a statutory definition of “household member” that explicitly expanded the term beyond
its plain meaning, the legislature provided no such definition for “domestic living
partner,” suggesting that the term should be interpreted more in accordance with its plain
meaning.113
Although the plain meaning of “domestic living partner” suggests some
requirement that the perpetrator and victim did in fact live together, we do not believe
that requirement can be construed too strictly. As Bolotin highlights, legislatures
enacting presumptions against custody and unsupervised visitation for perpetrators of
domestic violence were generally motivated by social science findings indicating that
“[c]hildren who witness domestic abuse” are more likely to experience a variety of
mental and physical health problems.114 Within the context of serious and committed
relationships, if courts were to interpret the term “domestic living partners” as
exclusively requiring a traditional household where the partners share one home on a
more or less permanent basis, then cases of domestic violence where the partners have
112
AS 25.24.150(g).
113
See AS 18.66.990(5); AS 25.24.150(g).
114
Bolotin, supra note 79, at 270-73.
-37- 7196
unorthodox housing arrangements — for example, retaining their own homes and taking
turns staying at each or living in different cities and regularly visiting each other —
might slip through the cracks. The sponsor of H.B. 385 was concerned that “[w]hen
children witness violence in the home, they have been found to suffer many of the
symptoms that are experienced by children who are directly abused.”115 We conclude
that in adopting the term “domestic living partner” to address the broad problem of
children witnessing domestic abuse, the legislature intended to capture violence that took
place within the context of relationships where partners spend a significant amount of
their time in a shared domestic environment.
It was not clearly erroneous to find Timothy and Jackie’s relationship fell
within this definition. Jackie testified that although Timothy “had his own place[ h]e
would stay over quite often, so it’s basically like he was living” at her home for the better
part of a year. Timothy “talk[ed] about marriage,” “spent time with [Jackie’s] children,
and when he had visitation with his own children . . . those children also spent time at
[Jackie’s] home and with [Jackie’s] children.” Jackie responded affirmatively when
asked whether Timothy had “been essentially living with” her from the time they began
dating, and she testified that one of her children “referred to [Timothy] as Daddy.”
Jackie’s and Timothy’s children spent a significant amount of time together during the
period the adults were dating. In short, although Timothy and Jackie maintained separate
residences, their lives were clearly very intertwined during some part of their
relationship, when they generally lived and slept in the same home and incorporated their
children into their shared lives. Jackie and Timothy spent a significant amount of their
time in a shared, marriage-like, domestic environment; we thus affirm as not clearly
115
Rep. Lesil McGuire, Sponsor Statement for H.B. 385 (Mar. 15, 2004),
http://www.akrepublicans.org/mcguire/23/spst/mcgu_hb385.php.
-38- 7196
erroneous the trial court’s general finding that Jackie was Timothy’s “domestic living
partner” for purposes of AS 25.24.150(g).
ii. Additional findings are necessary to determine
whether Timothy and Jackie were “domestic living
partners” when the crimes of domestic violence
occurred.
Our inquiry, however, does not end there. The trial court did not enter
findings on when Jackie’s status as a “domestic living partner” with Timothy began and
ended. As discussed earlier, given the extremely broad definition of “household
member” provided in AS 18.66.990(5), Timothy’s argument that “household members”
cannot commit trespass against each other is incorrect. But there is considerable tension
between findings that two people are “domestic living partners” and that one committed
trespass against the other during that relationship. Alaska Statute 11.46.330 prohibits a
person from “enter[ing] or remain[ing] unlawfully in or upon premises”;
AS 11.46.350(a)(1) defines “enter or remain unlawfully” to include situations where a
person “enter[s] or remain[s] in or upon premises . . . when the defendant is not
otherwise privileged to do so.” (Emphasis added.) People considered “domestic living
partners” under AS 25.24.150(g) generally would be expected to share privileges to enter
each other’s premises; conversely, if they do not share those privileges, then perhaps
they should not be considered “domestic living partners” under AS 25.24.150(g). The
term “domestic living partner” is descriptive, not prescriptive, and we do not suggest that
status confers a privilege to enter a partner’s home, nor a privilege to remain there “after
being lawfully directed to” leave.116 We instead question whether an individual who
116
AS 11.46.250(a)(2). Cf. State v. Lilly, 717 N.E.2d 322, 327 (Ohio 1999)
(“A majority of other jurisdictions that have addressed th[e] issue have found that the
entry of an estranged spouse upon the property of the other spouse constitutes an
(continued...)
-39- 7196
does not enjoy such a privilege or whose privilege has terminated — equivalent to an
“estranged spouse” — appropriately can be considered a “domestic living partner.”
Every case turns on its own facts, but we question whether that designation can be
applied if the unwelcome “partner” has no privilege to enter.
The context of this case raises at least two scenarios where this tension
presents itself. The trial court’s first trespass finding involved Timothy, with his children
present, using a credit card to enter Jackie’s home without her permission. Although
Jackie testified that it was “basically like [Timothy] was living” at her home during that
period, she also testified that she considered his entry unauthorized because “he wasn’t
staying at my house at that point in time.” The court made no explicit findings on when
their status as “domestic living partners” began or ended; it is therefore not clear whether
the court felt they were active “domestic living partners” when the trespass occurred, or
whether they had achieved “domestic living partner” status and it had not terminated
simply because Timothy was no longer authorized to enter Jackie’s home (assuming he
ever had been granted that privilege). But more importantly the court’s lack of findings
leaves unexplained how Timothy and Jackie could be domestic living partners at a time
Timothy was not privileged to enter Jackie’s home.
The trial court’s findings concerning the second trespass likewise fail to
resolve this tension. In that instance Timothy was at Jackie’s residence when she became
infuriated and ordered him to leave; Timothy “declined to do so . . . until [Jackie]
threatened [him] with pepper spray and by calling the police.” Certainly there may be
factual scenarios where courts will find both that two people are “domestic living
partners” and that one of them committed trespass by refusing to leave the other’s
116
(...continued)
unauthorized entry to support charges of trespass and burglary.”); State v. Parvilus, 332
P.3d 281, 286 (N.M. 2014) (also collecting cases).
-40- 7196
premises after being directed to do so. But the trial court’s limited findings do not
demonstrate whether those circumstances apply here.
Because it is unclear whether Timothy and Jackie were “domestic living
partners” when the trespasses occurred, we must also question whether they were
“domestic living partners” when the other act of domestic violence occurred. We
conclude it is necessary to remand so the court can determine: (1) the specific timing of
Timothy and Jackie’s domestic living partnership; (2) the specific arrangements they had
during that domestic living partnership regarding movement between houses —
including any express, implied, or apparent authority each had to enter the other’s house
during the domestic living partnership; and (3) how the timing and nature of these
arrangements relate to the criminal trespass and coercion findings.
In remanding we decline to establish any precise delineations on when a
domestic living partnership must be found to begin and end. We have established that
the status of “domestic living partner” is achieved whenever partners spend a significant
amount of their time with each other — and when applicable, with their children — in
a shared, marriage-like, domestic living environment. There will be cases when
domestic living partnerships — like marriages — disintegrate, although cohabitive living
arrangements may stay the same for some period of time. Trial courts need to be
attentive to the facts of each case to determine when couples no longer are domestic
living partners but rather are merely household members. We defer any decisions on the
temporal limitations of domestic living partnerships to future cases where the issue is
more squarely presented.
V. CONCLUSION
We VACATE the trial court’s decision applying AS 25.24.150(j) and
REMAND for further proceedings consistent with this opinion. We AFFIRM all other
aspects of the trial court’s decision.
-41- 7196