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McComas v. Kirn (01/28/2005) sp-5865
McComas v. Kirn (01/28/2005) sp-5865
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MICAH McCOMAS, )
) Supreme Court No. S-11089
Appellant, )
) Superior Court No. 3AN-02-1700
CI
v. )
) O P I N I O N
HEATHER KIRN, )
) [No. 5865 - January 28, 2005]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Micah E. McComas, pro se,
Greenville, South Carolina. Heather McCoy,
pro se, Anchorage.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Heather Kirn petitioned for a long-term domestic
violence protective order against her ex-husband, Micah McComas.
The superior court granted Kirns request on September 10, 2002.
McComas now appeals the order, arguing that the superior courts
findings of fact and conclusions of law were erroneous. We
affirm, because we conclude that the superior court did not
clearly err in finding that McComas had committed a crime
involving domestic violence against Kirn, that the actions that
supported the order were not too remote in time, and that the
order was not barred by denial of an earlier request for a
protective order.
II. FACTS AND PROCEEDINGS
Heather Kirn and Micah McComas married in 1998. Their
son was born three months later. In 1999 McComas was arrested
and incarcerated on theft-related charges. The parties separated
soon after the arrest, and in September 2000 Kirn filed for
divorce.
McComas was paroled to the Akeela House (a substance
abuse treatment center) on October 1, 2000. A few days later,
McComas left the Akeela House against court orders. On October 9
he went to Kirns workplace to discuss the divorce. The police
were summoned and McComas fled to their sons day care. When the
childs caretaker informed him that Kirns mother had his son,
McComas drove to his mother-in-laws home and demanded to see his
child. After his mother-in-law denied his request, he broke two
windows in her vehicle. Kirn petitioned for ex parte and long-
term protective orders that day. The district court granted
Kirns request for an ex parte protective order and consolidated
the domestic violence case with the parties pending divorce case.
That same night, October 9, McComas was arrested and incarcerated
for having left the Akeela House and for criminal mischief.
The divorce hearing was held on October 25, 2000.
Superior Court Judge Stephanie Joannides entered a decree of
divorce on December 15, 2000, nunc pro tunc to October 25, 2000.
The divorce decree dissolved the protective order but ordered
McComas not to telephone or otherwise contact Kirn directly. The
decree awarded primary physical custody and sole legal custody of
the parties son to Kirn. McComas was still incarcerated when the
decree was entered.
On July 23, 2002, one week before McComas was to be
released from custody, Kirn again petitioned the court for ex
parte and long-term protective orders against McComas. Superior
Court Judge Sharon Gleason issued an ex parte protective order
that day and scheduled a hearing on Kirns request for a long-term
protective order for August 7. McComas was released on July 31,
but was rearrested the next day for violating the conditions of
his parole by failing a drug test. Because McComas could not
attend the August 7 hearing, the superior court rescheduled the
hearing for September 10. It also issued an order extending the
ex parte protective order and denying McComas visitation with his
son. McComas attended the September 10, 2002 hearing. Superior
Court Judge William F. Morse conducted the hearing, granted Kirns
request for a long-term protective order, and reinstated
supervised visitation per the existing order issued in the
divorce proceeding. McComas appeals.1
III. DISCUSSION
A. Standard of Review
We review the factual findings supporting issuance of
the protective order for clear error.2 A finding of fact is
clearly erroneous when the reviewing court is left with a
definite and firm conviction that the trial court has made a
mistake.3 We review the superior courts interpretation of a
statute de novo.4 We apply our independent judgment to issues of
res judicata and collateral estoppel.5
B. McComass Appeal Is Not Moot.
We first consider whether the appeal is moot. McComas
asks us to vacate the September 2002 long-term protective order.
Most of the protective orders provisions expired in March 2003.6
But the provision prohibiting McComas from threatening to commit
or committing domestic violence, stalking, or harassment7 remains
in effect indefinitely.8 The protective order is permanently
filed in a central registry of protective orders.9 If McComas
violates the quoted prohibition, he will be in violation of AS
11.56.740(a)(1), and subject to mandatory arrest under AS
18.65.530(a)(2).10 McComass appeal is therefore not moot.11
C. The Superior Court Did Not Clearly Err in Finding that
McComas Had Committed a Crime Involving Domestic
Violence.
Alaska Statute 18.66.100(b) gives the superior court
authority to issue a protective order if it finds by a
preponderance of the evidence that the respondent has committed a
crime involving domestic violence against the petitioner. On
September 10, 2002 the superior court found by a preponderance of
the evidence that McComas had committed two crimes of domestic
violence against Kirn: criminal mischief and threats of harm.
McComas challenges those findings.
McComas argues that the superior court erred in finding
that his destruction of the windows in Kirns mothers vehicle was
a crime involving domestic violence against Kirn. Alaska Statute
18.66.990(3) defines a crime involving domestic violence as one
or more specified offenses committed by a household member
against another household member. The definition of household
member includes adults or minors who are current or former
spouses and adults or minors who are related or formerly related
by marriage.12
McComas was convicted of criminal mischief in the third
degree for breaking Kirns mothers vehicle windows.13 Alaska
Statute 18.66.990(3) lists the offenses that are crimes involving
domestic violence when committed against household members.
Criminal mischief is one of the listed offenses.14 Because Kirns
mother formerly had been related to him by marriage, McComass
conduct in damaging the vehicle would qualify as a crime
involving domestic violence. But there was no evidence before
the superior court on September 10 that Kirn owned or shared the
use of the vehicle. Reliance on the criminal mischief charge is
therefore problematic: the superior court may issue a protective
order only when the respondent has committed a crime involving
domestic violence against the petitioner.15
Nonetheless, the alternative ground relied upon by the
superior court threats of harm justifies entry of the September
10 order. A crime involving domestic violence includes any crime
against the person under AS 11.41 committed by one household
member against another.16 Under AS 11.41.270(a), [a] person
commits the crime of stalking in the second degree if the person
knowingly engages in a course of conduct that recklessly places
another person in fear of death or physical injury, or in fear of
the death or physical injury of a family member. Course of
conduct means repeated acts of nonconsensual contact involving
the victim or a family member.17 Nonconsensual contact includes
sending mail or electronic communications to that person without
that persons consent.18 Thus, sending threatening mail can be
stalking in the second degree.
On July 9, 2000, McComas sent Kirn a card that stated
in part:
Maybe if [Kirns son] is lucky his mother will
recieve her punishment from God and get aids;
then shrivel up and die, while hes still
young. . . .
For being selfish and not doing whats best
for [Kirns son], for lying to God and
breaking your vows, you will recieve one or
more of the following: herpes, aids,
syphilix, goneria, genital warts, cancer,
clymidia, heart attack, brain tumor, or
severe depression to the point of suicide.
Kirn received a second card on July 13, 2001 after Judge
Joannides entered the no-contact order that stated:
HEATHER, Today marks the one year anniversary
of your adulterous relationship with scott.
YOU KNOW THE CONSEQUENCES FOR THIS ACTION.
JUDGEMENT DAY IS COMING! JESUS.
The back of the card read, IT MUST SUCK TO BE YOU!
On May 5, 2002 McComas wrote on Kirns copy of a court
document entitled Mr. McComas[s] Response to the Plaintiff[]s
Reply to Mr. McComas[s] Pleading Dated April 30, 2002: P.S.
Theres no lower form of life on this planet than a dirty whore.
I hope you are enjoying your worldly pleasures while you can
because your judgment is coming. At the September 2002 hearing,
Judge Morse asked Kirn to describe what she thought McComass
statements meant. She responded: For him to cause me harm in
some way. In fact, death.
On appeal, McComas argues that his statements simply
stated his religious belief that [Kirn] would go to hell for her
actions. Based on the parties testimony and his observations of
McComass demeanor at the September hearing, Judge Morse
determined that McComass written comments in the cards were
intended as threats and that the anger behind them had not
subsided. Judge Morse told the parties:
I frankly am very troubled by [McComass]
conduct here today and his recent writings,
and I dont see any reason to believe that he
isnt going to explode next week or a month
from now when he starts thinking about his
wife and how he thinks hes been wronged. He
clearly cannot deal with the fact that shes
not married to him anymore, despite what he
says. Hes obsessed. There isnt a question
in my mind that thats the case.
. . . .
I think that his written comments regarding
her [adulterous] conduct and his belief that
some sort of biblical judgment day is coming,
are threats. Not merely of some biblical
phenomenon, but of his response to her
conduct if he thinks she continues to wrong
him.
I find Mr. McComas demeanor on the stand to
be very troubling. He is clearly pressured
and angry and extremely emotional and very
obsessed over his wifes conduct.
The superior court did not clearly err in finding that
McComass statements were threats. McComass words can fairly be
read to express a desire that Kirn suffer harm and a belief that
she would. His hearing testimony indicated that his anger for
Kirn had not diminished. He testified:
Im sitting in jail for just years thinking,
you know, my wifes out there with some other
guy and theres nothing I can do about it.
And she just wants me -- she wants me to get
angry, you know, and just sit there and build
up hatred for her. And shes going to use
that against me. And she created, you know -
- I -- I have a lot of anger for her but --
you know, for what she did to my family.
Furthermore, damaging the vehicle windows could fairly be taken
to reveal a willingness to act violently on his anger.
McComas argues on appeal that his statements, even if
they were threats, were constitutionally protected speech. This
argument has no merit; the United States Supreme Court has held
that threats through which the speaker means to communicate a
serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals are
not constitutionally protected speech.19
Because McComass threats could amount to stalking in
the second degree,20 the superior court did not commit legal error
in relying on them as justification for the September 2002
protective order.21
D. The Actions that Supported Issuance of the Protective
Order Were Not Too Remote in Time To Justify the Order.
McComas argues that the actions for which the superior
court granted Kirns request for the protective order were too
remote in time to justify the order. We disagree. Although
McComas destroyed the vehicle windows in October 2000, he made
subsequent threats to Kirn in July 2001 and May 2002. Kirn
petitioned for an ex parte protective order on July 23, 2002,
just before McComas was scheduled to be released from prison.
Only three months elapsed between McComass last threat and Kirns
petition. Kirn points out that McComas was unable to cause harm
or execute upon any of his threats during those three months
because he was still incarcerated. Moreover, AS 18.66.100(e)
provides: A court may not deny a petition for a protective order
under this section solely because of a lapse of time between an
act of domestic violence and the filing of the petition.
McComass actions were not too remote in time.
E. The 2002 Protective Order Was Not Barred by the Courts
Prior Denial of the Requested Order.
McComas argues that Kirn was already denied a
restraining order and cannot without further adverse action by
[McComas] rec[ei]ve a new order on the same evidence already
consider[e]d and denied. Kirn petitioned for both an ex parte
and a long-term protective order on October 9, 2000. She cited
McComass abusive phone calls, unsolicited appearances at her
workplace, and threats to take away her son as the reasons for
her petition. The court issued an ex parte protective order that
day and consolidated the domestic violence case with the parties
divorce case. It found probable cause to believe that McComas
had committed a crime involving domestic violence malicious
destruction of property against Kirn.
The superior court conducting the October 25, 2000
divorce hearing directed McComas to arrange visitation through
someone else and not to call Kirn. That court saw no need,
however, to extend the protective order; the court explained that
it would address the issue in the divorce decree. The December
2000 divorce decree included a no-contact order that stated:
The defendant [McComas] shall not take the
child out of Anchorage. The defendant shall
not telephone or otherwise contact the
plaintiff directly. All visitation plans
shall be coordinated through the visitation
supervisor designated by the plaintiff. The
court hereby dissolves the domestic violence
order that had been in place and substitutes
this custody and visitation order in its
place.
(Emphasis added.) McComas argues that by dissolving Kirns
existing protective order and substituting a no-contact order,
the divorce decree barred Kirn from petitioning for a long-term
protective order in 2002. He claims that nothing new transpired
between October of 2000 . . . and the issuance of the long term
protective order by Judge Morse. He also asserts that the divorce
decree was sufficient in curtailing Mr. McComas contact with his
wife.
Although he never identifies the legal principles
potentially underlying this argument, McComas essentially
contends that res judicata barred Kirns petition for the 2002
order. Res judicata consists of claim preclusion and issue
preclusion.22 McComass argument amounts to an argument for claim
preclusion, which prevents a party from suing on a claim which
has been previously litigated to a final judgment by that party
. . . and precludes the assertion by such parties of any legal
theory, cause of action, or defense which could have been
asserted in that action. 23 A final judgment in a prior action
bars a subsequent action if the prior judgment was (1) a final
judgment on the merits, (2) from a court of competent
jurisdiction, (3) in a dispute between the same parties (or their
privies) about the same cause of action.24
We agree with Kirn that a change in circumstance
justified the 2002 protective order. As Kirn argues, [t]he
previous order was not required and the divorce decree covering
McComas behavior was not appealed, as McComas was incarcerated
and did not constitute a threat. When the superior court entered
the divorce decree in 2000, McComas was incarcerated. Kirns
attorney told the court at the divorce hearing that McComas would
probably be imprisoned for two more years. It was therefore
unnecessary to issue a protective order or maintain the existing
protective order; the decrees no-contact order effectively
resolved Kirns concerns. Moreover, the no-contact provisions of
a long-term protective order would have expired after six months.25
The no-contact order contained in the divorce decree was
therefore the best way to prevent McComas from contacting Kirn
beyond that six-month period.
When Kirn petitioned on July 23, 2002 for the ex parte
and long-term protective orders, she wrote on the petition that
McComas was due to be released in eight days. McComas was indeed
released on July 31, although he was reincarcerated a day later
for violating the conditions of his parole. The superior court
granted Kirns request for the ex parte order at the August 7
domestic violence hearing, but noted: If it turns out that, you
know, the parole board says go back to jail for another year . .
. you really dont need this protective order because hes not
coming out. Between the August 7 and September 10 hearings,
McComas was transferred to a correctional community residential
center. McComas testified at the September 10 hearing that he
could be released as soon as October 2002. Explaining that he
did not believe McComas when he testified that he would stay away
from Kirn, Judge Morse then issued the challenged long-term
protective order, which not only prohibited McComas from
contacting Kirn, but also ordered him to stay away from her home,
workplace, childs daycare, and vehicle. The 2002 protective
order therefore accommodated Kirns need for additional protection
following McComass anticipated release. These changed
circumstances justified the additional protections afforded by
the September 2002 protective order.26
The protective order was also justified by the
additional security it provided. The 2000 no-contact order was
apparently insufficient to deter McComas from contacting Kirn.
He repeatedly violated the order by contacting Kirn directly by
mail or telephone. Although no contact was also a condition of
McComass parole, the superior court in September 2002 was
justified in concluding that additional protections were
warranted given McComass history of parole violations and his
disregard for the divorce decrees no-contact order. Under the
circumstances, the courts decision to issue the protective order
was reasonable.
IV. CONCLUSION
We therefore AFFIRM the September 10, 2002 protective
order.
_______________________________
1 McComass appellate brief also asks us to vacate a
protective order issued in August 2003. Because the August 2003
protective order was issued after McComas filed this appeal, it
is not properly before us and we do not address it here.
2 Harris v. Westfall, 90 P.3d 167, 172 (Alaska 2004).
3 Adams v. Adams, 89 P.3d 743, 749 (Alaska 2004).
4 J.M.R. v. S.T.R., 15 P.3d 253, 256 (Alaska 2001).
5 Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).
6 At times pertinent here, AS 18.66.100(b)(2) provided
that orders entered under (c)(2) (16) of this section are
effective for six months unless earlier dissolved by court order.
Following amendment of AS 18.66.100(b)(2) in 2004, such orders
remain effective for one year.
7 AS 18.66.100(c)(1).
8 AS 18.66.100(b)(1).
9 AS 18.65.540(a).
10 AS 11.56.740(a)(1) provides in pertinent part: A person
commits the crime of violating a protective order if the person
is subject to a protective order . . . and knowingly commits or
attempts to commit an act with reckless disregard that the act
violates or would violate a provision of the protective order . .
. . AS 18.65.530(a)(2) provides: (a) [A] peace officer, with or
without a warrant, shall arrest a person if the officer has
probable cause to believe the person has . . . (2) committed the
crime of violating a protective order.
11 Smith v. Smith, 549 S.E.2d 912, 914 (N.C. App. 2001)
(holding appeal of expired domestic violence order not moot).
12 AS 18.66.990(5)(A), (F).
13 Under AS 11.46.482(a)(1), [a] person commits the crime
of criminal mischief in the third degree if, having no right to
do so or any reasonable ground to believe the person has such a
right, with intent to damage property of another, the person
damages property of another in an amount of $500 or more.
14 AS 18.66.990(3)(E).
15 AS 18.66.100(b) (emphasis added).
16 AS 18.66.990(3)(A).
17 AS 11.41.270(b)(1).
18 AS 11.41.270(b)(3)(F).
19 Virginia v. Black, 538 U.S. 343, 359 (2003); see also
Powell v. State, 12 P.3d 1187, 1190 (Alaska App. 2000).
20 See AS 11.41.270(a).
21 Kirn argues on appeal that McComas also committed
assault in the fourth degree when he sent her the cards. Assault
in the fourth degree involves words or other conduct that
recklessly place another person in fear of imminent physical
injury. AS 11.41.230(a)(3) (emphasis added). The threats were
made by mail while McComas was still incarcerated and was not
then scheduled for imminent release, and could not be read to
contain a threat of imminent physical injury. There was
consequently no assault in the fourth degree.
22 McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).
23 Id. (quoting Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska
1999)).
24 Id. at 906-907 (internal quotes omitted).
25 AS 18.66.100(b)(2). See supra note 6.
26 Fardig v. Fardig, 56 P.3d 9, 12 (Alaska 2002) (holding
res judicata and collateral estoppel inapplicable because of
material change of circumstances).
