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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morris v. Horn (11/13/2009) sp-6431
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
| DEWEY MORRIS, III, | ) |
| ) Supreme Court No. S- 12514 | |
| Appellant, | ) |
| ) Superior Court No. 3PA-02- 719 CI | |
| v. | ) |
| ) O P I N I O N | |
| SANDRA J. HORN, | ) |
| ) No. 6431 - November 13, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge, and Vanessa White, Judge.
Appearances: Dewey Morris, III, pro se,
Anchorage, Appellant. William Grant Stewart,
Wasilla, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Dewey Morris, III appeals superior court orders
enforcing a property settlement agreement, modifying child
support, and limiting visitation based on a finding of domestic
violence under AS 25.24.150. Because the superior court did not
address Morriss claim that he conveyed his one-half interest in
the marital residence to his former spouse in exchange for her
promise to assume the corresponding obligations, we reverse the
order enforcing the parties property settlement agreement and
remand for a determination of whether this conveyance occurred.
Because the modified child support order and record are silent on
how child support was calculated, we reverse that order and
remand. Finally, because it was inappropriate to give issue-
preclusive effect to a prior domestic violence order entered
without actual litigation of the domestic violence allegation, we
reverse the visitation order and remand for rehearing on that
issue.
II. FACTS AND PROCEEDINGS
Sandra Horn, formerly Sandra Morris, and Dewey Morris,
III married in 1976 in Michigan. They later moved with six of
their ten children to Willow and began building a house. Morris
is a carpenter. Horn works as a home health-care provider.
In April 2002 Horn and Morris filed a petition for
dissolution without the benefit of counsel. The petition
proposed the award of the Willow home to Horn and Morris jointly.
The parties estimated the value of the Willow home to be $80,000.
The petition stated that Morris would pay monthly spousal support
and $1,545.76 in monthly child support under Alaska Civil Rule
90.3 for the five children living at home. The petition did not
address child custody or define visitation.
In August 2002 Horn and Morris filed an amendment to
the dissolution agreement and participated in a dissolution
hearing before Superior Court Judge Beverly W. Cutler without the
benefit of counsel. They agreed on the record that both would
continue living in and jointly owning the Willow house, and that
Morris would pay the property taxes and loan payments on the
construction loan he obtained and secured with a deed of trust on
the house.1 The court approved these agreements in its oral
decision on the record.2
The dissolution decree, entered August 27, 2002: (1)
granted Horn legal and primary physical custody with free and
open visitation to Morris, including overnight, unsupervised
visitation; (2) ordered Morris to pay $500 in monthly spousal
support with no end date; and (3) ordered Morris to pay $1,545.76
in monthly child support under Civil Rule 90.3 until and while
each child is twenty-one if unmarried, in high school or an
equivalent technical or vocational program, and dependent.3
By June 2003 Morris was in arrears on his child support
obligation and Child Support Enforcement Division (CSED) began
withholding payments from his income. In September 2003 CSED
calculated Morriss arrears as totaling $12,772.24. By this time,
Horn was apparently paying the property taxes on the Willow home.
In October 2003 Horn filed a petition for a twenty-day
protective order and a long-term protective order against Morris;
she was represented by counsel in filing this petition and going
forward.4 Horn cited two incidents that occurred that month to
support the domestic violence petition: (1) Morris allegedly had
a fight with a baby-sitter in front of the children resulting in
a call to state troopers;5 and (2) Morris allegedly followed Horn
to or from the Anchorage airport and threatened her. On October
30, 2003, a magistrate issued an ex parte twenty-day protective
order, which was later extended by the parties stipulation.
In February 2004 Horn requested that CSED waive Morriss
spousal support obligation to help him meet his child support,
tax, and loan obligations; CSED granted this request. But by
November 2004, Morris had apparently stopped making payments on
the construction loan secured by the house. Horn made payments
on the loan to avoid foreclosure in 2004, 2005, and 2006.
In June 2006 Morris filed pro se a motion to modify
custody, support, and visitation.6 Morris claimed in his motion
that Horn was blocking his efforts to visit their children. He
requested a hearing on visitation and custody, weekly visitation
and unlimited phone contact, and full or fifty-percent custody.
Morris also sought a decrease in child support based on decreased
income.7
Horn opposed Morriss motion and filed a cross-motion to
modify custody and correct or amend judgment. She argued for,
among other things, full legal and physical custody under AS
25.24.150, claiming Morris had physically abused her and that
this required denying him custody and unsupervised visitation.8
Horn also requested that the court: (1) issue a
permanent restraining order; (2) reduce to writing the oral order
that Morris pay the property taxes and require compliance with
that order;9 (3) order Morris to pay past due child support; and
(4) require Morris to pay the construction loan, repay Horn for
$9,849.83 in payments she had made on it, meet a deadline for
paying off the loan, and grant Horn access to the loan
information. Horn filed her own affidavit, as well as affidavits
of two of the parties children and several friends, to support
her allegations of domestic violence, substance abuse, and
Morriss failure to pay the property taxes and loan payments.10
Morris responded by filing an affidavit in August 2006
in which he claimed, among other things, that he had transferred
his one-half interest in the Willow property to Horn by quitclaim
deed and was not responsible for the property taxes or loan
payments, and that he did not have substance abuse problems or
need parenting or other counseling.
Superior Court Judge Eric Smith, to whom the case had
been reassigned, issued an order denying Morriss request for a
hearing on modification of custody for failure to show a
significant or substantial change of circumstances.11 But the
court found the breakdown in communications between the parties
showed a change of circumstances for purposes of visitation and
granted Morriss request for a hearing on that issue. The court
reserved Morriss motion to modify child support for the
visitation hearing and ordered the parties to file child support
guideline affidavits.
Without making a finding as to whether Morris had
conveyed his one-half interest in the marital residence to Horn
in exchange for her agreement to assume the tax and loan
obligations, the court granted Horns request to enforce the
parties original property agreement and to require Morris to pay
the taxes and loan payments. The court did so because it found
that Morris agreed to assume those obligations at the 2002
dissolution hearing. It ordered Morris to reimburse Horn for the
tax and loan payments she made, to prospectively pay those
obligations, and to grant Horn access to the loan information.
In December 2006 Horn moved for both interim and long-
term protective orders under AS 25.24.14012 and AS 18.66.100,
submitting another affidavit alleging that Morris physically,
verbally, and sexually assaulted and threatened her. The court
did not hold a hearing before granting the order on January 18,
2007.
On February 27, 2007, Superior Court Judge Vanessa
White, to whom the case had been reassigned, held a hearing on
child support and visitation. The hearing did not address the
property tax and loan payment issues, and the court did not
permit Morris to challenge the order requiring him to pay these
obligations. At the hearing Morris presented for the first time
some pay stubs and tax returns, dated from 2001 through 2007.13
Because of Morriss untimely production of these documents, the
court reserved the question of child support.14 Horn stipulated
that she should not receive child support for A.M., one of the
parties daughters, after December 31, 2006.
On the issue of visitation, the court heard Horn
testify that Morris physically, verbally, and sexually assaulted
and abused her, and that Morris has a substance abuse problem.
Two witnesses testified that they observed Morris act verbally or
physically aggressive toward Horn or the children; one witness
testified she heard Morris verbally threaten Horn and that Morris
told her he had sexually assaulted Horn. The court also held a
confidential interview with two of the children. Morris denied
any domestic violence, alleged Horn was verbally abusive toward
him, and denied substance abuse. He testified that, after he
left the marital residence around October 2002, he tried to
contact the children still living in the home but Horn blocked
these efforts by, among other tactics, obtaining restraining
orders against him. Horn denied these allegations and testified
that Morris failed to show up to four scheduled visits and to
events to which he had been invited.
Based on this testimony, the court made an oral finding
that at least two instances of domestic violence had occurred:
one in October 2003 that led to a domestic violence restraining
order, and one based on Morriss threats of bodily harm to Horn.
The court concluded that finding two instances of domestic
violence created an unrebutted presumption of a history of
domestic violence, requiring limited or supervised visitation
under AS 25.24.150.15 In an oral decision on the record, the
court ordered that unsupervised visits could occur only after
Morris completed an intervention program for batterers at his own
expense. The court also ordered Morris to participate in
therapeutic visits with the children at his expense.16
Morris filed his child support guideline affidavit in
March 2007. This document reported his total gross income as
$37,823.50, and his net income as $20,984.72. In April 2007 the
court signed a written order modifying child support to $921.83
per month for three children, ending December 31, 2006, and
$754.22 for two children, starting January 1, 2007.
Morris appeals.
III. STANDARD OF REVIEW
We determine de novo whether relief requested by a
former spouse constitutes enforcement or modification of a
property settlement agreement.17 But we review a superior court
order enforcing a property settlement agreement that was
incorporated into a dissolution decree for abuse of discretion.18
Likewise, we review child support awards and visitation orders
for abuse of discretion.19 A superior court abuses its discretion
by making a decision that is arbitrary, capricious, manifestly
unreasonable, or . . . stem[s] from an improper motive.20 We
review the superior courts analysis of legal questions de novo.21
IV. DISCUSSION
A. The Superior Court Must Decide Whether Morris Conveyed
His One- Half Interest in the Marital Residence to Horn in
Exchange for Her Promise To Assume the Property
Obligations.
Morris argues that the court abused its discretion by
requiring him to pay property taxes on the Willow home and loan
payments on the construction loan per the parties dissolution
decree. He claims that when the parties realized they could no
longer live together, he transferred his interest in the marital
home to Horn and they agreed she would assume the property tax
and loan payment obligations. Horn replies that because Morris
never filed a Civil Rule 60(b) motion to modify the property
agreement, he cannot seek relief now.22
The court ordered Morris to pay the obligations
associated with the Willow residence without addressing his
allegation that a subsequent conveyance occurred. Instead, the
court found that Morris agreed to pay the taxes and the loan
amounts at the dissolution hearing, and that this verbal property
agreement merged into the dissolution decree and was enforceable.
Because the superior court failed to address the question whether
the parties entered into a subsequent contract that superseded
their earlier agreement, we remand for a determination of whether
Morris conveyed his interest in the home to Horn after the decree
was entered.
Generally, if a party to a property settlement seeks
relief from a dissolution decree into which the settlement is
incorporated, the party must request relief under Civil Rule
60(b).23 Although the court may adjudicate property rights,24 it
does not have statutory authority to modify the terms of a
property settlement.25
Here, it is undisputed that Morris neither filed a
Civil Rule 60(b) motion nor requested modification of the
property agreement. But he repeatedly alleged a subsequent
transaction occurred in which he transferred his interest in the
marital residence to Horn in return for her promise to assume the
tax and loan obligations. When he made this allegation in the
child support and visitation hearing, the court refused to
address it because property issues were not within the scope of
the hearing. On appeal, Morris again claims he conveyed his
interest in the marital residence to Horn and that she agreed to
undertake the tax and loan obligations.
At no point has a court addressed Morriss allegation
that a subsequent transaction occurred. Notably, Horn does not
directly refute the assertion: she claims Morris makes false
statements regarding the transfer of the property, but she also
argued in the trial court that the marital home had been awarded
to her, contrary to the dissolution decree granting the parties
joint ownership. Indeed, before the trial court Horn repeatedly
referred to the marital residence as solely hers.
Whether this subsequent transaction occurred matters.
We have explained:
A subsequent contract completely covering the
same subject-matter, and made by the same
parties, as an earlier agreement, but
containing terms inconsistent with the former
contract, so that the two cannot stand
together, rescinds, substitutes, and is
substituted for the earlier contract and
becomes the only agreement of the parties on
the subject.[26]
If Morris conveyed his one-half interest in the marital residence
to Horn, and if the parties agreed Horn would accept the property
in exchange for her promise to assume the tax and loan
obligations, then this subsequent contract supersedes the
earlier, conflicting property settlement agreement. Under such a
scenario, Civil Rule 60(b) would not apply because Morris would
be seeking to enforce the subsequent contract, not to modify or
obtain relief from the dissolution decree. We therefore remand
for the superior court to make a finding about whether the second
transaction occurred.27
B. The Superior Court Must Show How It Calculated the
Child Support Obligation in the Child Support Order.
Morris complains the superior court incorrectly
calculated the amount of child support he owes under Civil Rule
90.328 for four reasons. Although we reject most of Morriss
claims, we reverse and remand the child support order for
clarification. We first address our reasons for reversing the
order and then discuss Morriss other, unavailing claims.
1. The superior court must show how it calculated the
child support obligation.
Morris argues the court should have calculated his
child support based on an income of $30,000, not $40,000. At the
2007 hearing the court admitted into evidence pay stubs from 2001
to 2007, giving little weight to those from 2001 and 2002 because
they preceded the original 2002 child support order. The court
explained that the older pay stubs were of limited relevance
because the court is not allowed to retroactively
modify . . . child support. The court ordered Morris to fill out
a DR-305 form using his 2006 and 2007 pay stubs to determine his
average net monthly income, on which the award would be based.
Morriss 2007 DR-305 form indicated his gross income amounted to
$37,823.50 and his net income to $20,984.72. It did not indicate
whether Morris received a permanent fund dividend (PFD) for that
year. His June 2006 DR-305 indicated his gross income, including
a PFD, was $36,118.45, and his net income was $33,833.40. But
neither the order modifying child support nor the record
specifies which income figures were used to calculate Morriss
obligations.
We are unable to determine what income the court used
for its calculation. Our attempts to recreate the child support
calculation working backwards from the obligations in the
order were unsuccessful. We used Morriss 2006 and 2007 incomes,
both with and without a PFD. But none of our calculations
yielded the amounts listed in the modified child support order.
We have held that trial courts must make specific findings under
Rule 90.3.29 Because we cannot determine how the court calculated
this child support obligation, we must reverse and remand for
clarification.30
2. The superior court did not abuse its discretion
under any of Morriss other theories challenging the
support order.
a. The superior court did not abuse its
discretion by not calculating Morriss income
based on his average income over several years.
Morris claims that because his income has been
inconsistent, the court should have averaged his income over
several years.31 We disagree. Under Civil Rule 90.3(a), the
court must calculate the non-custodial parents child support
based on the parents adjusted annual income, which means the
parents total income from all sources, minus specified
deductions.32 The commentary to Civil Rule 90.3 states: The
determination of future income may be especially difficult when
the obligor has had very erratic income in the past. In such a
situation, the court may choose to average the obligors past
income over several years.33
The record contains testimony indicating Morriss income
was inconsistent. Horn testified in the August 2002 hearing that
because Morris is a carpenter, some months or years he might make
really good money and when that jobs over . . . it could be a
very different amount. In the February 2007 hearing Morris
testified his wages went up and down depending on the job and
overtime. He stated in his motion to modify child support and in
his accompanying affidavit that his income had decreased. Based
on this record the court could have found his income erratic and
could have averaged his past income from 2003 to 2007. But the
court has discretion to determine the best indicator of future
earnings. Here, the court appears to have focused on Morriss
earnings in the most recent fourteen months.34 This decision was
reasonable and not an abuse of discretion.35
b. The superior court properly included A.M. in
the child support order until her date of
emancipation.
Morris complains the court erred by including A.M., one
of the parties daughters, in the child support order, claiming
she was legally emancipated when he filed his motion in June
2006. Horn replies that Morris knew that A.M. was not legally
emancipated until December 2006 and that he waived any objection
by not raising this issue below.
Horn has the better of these arguments. She filed a
notice of ineligibility in January 2007, before the child support
hearing, stating that A.M. was ineligible for child support
effective December 31, 2006. During the hearing, Horn stipulated
that she should not receive child support for A.M. as of end of
December. Morris did not object to ending the child support
obligation for A.M. after December 2006. On appeal, Morris
provides no support for his claim that A.M. was legally
emancipated before January 1, 2007. The superior court did not
err by including A.M. in the child support order, with Morriss
obligation for her to extend until December 31, 2006.
c. The superior court did not abuse its
discretion by not permitting Morris to pay child
support under the seasonal income provision,
Civil Rule 90.3(c)(5).
Morris contends that [d]espite the fact [he] testified
he was employed on a seasonal basis as a carpenter, the court did
not calculate his child support under Civil Rule 90.3(c)(5).
Horn responds that Morris never requested seasonal payments and
has waived the issue. We agree with Horn.
Under Civil Rule 90.3(c)(5), if a court finds a non-
custodial parents income is seasonal, the court may order that
the annual support amount be paid in unequal monthly payments,
with higher payments during the months the parent expects to
receive higher income and lower payments in other months. A
court should not make such an order unless (a) it finds that the
burden of budgeting for periods of unequal income should be
placed on the obligee rather than the obligor and (b) the obligee
agrees.36
Morris did not request seasonal payments or
characterize his employment as seasonal in his motion, affidavit,
DR-305s, or testimony below. The closest he came to raising this
issue was his June 2006 motion requesting a decrease in child
support. There, Morris stated that his work hours were sporadic,
that he had just obtained full-time employment, and that he did
not make the income he had made in 2002. But he did not fill out
the seasonal income section on either his June 2006 or March 2007
DR-305 forms, and his August 2006 affidavit stated only that he
was not making the income he had made in 2002. Further, Morris
did not characterize his work as seasonal at the child support
and visitation hearing. At that hearing the following exchange
occurred between the court and Morris:
Q: And . . . given that youre
a . . . carpenter, can I assume that unlike
other construction workers, ironworkers,
masons, people like that, you can work year-
round if theres work available?
A: If theres work available and and you can
take the job on.
The record and testimony show Morris did not claim or
testify his work was seasonal in the trial court; thus, he waived
this issue.37
C. It Was Error To Conclude the 2003 Domestic Violence
Restraining Order Established that Morris Has a History
of Domestic Violence for Purposes of AS 25.24.150.
Morris claims the court erred in limiting visitation
under AS 25.24.150 based on a prior protective order. He appears
to believe that the court relied on the January 2007 domestic
violence order to find that he has a history of domestic
violence. Horn argues that the court properly limited Morriss
visitation under AS 25.24.150, claiming the court relied not only
on the January 2007 order, but also on other evidence of domestic
violence in the record.
The court did not reduce its visitation order to
writing, but the court did make oral findings on the record. It
found there was an incident of domestic violence in October of
2003 which led to a long-term domestic violence order being
entered . . . that has res judicata effect in this proceeding in
that that that required a finding by a preponderance of the
evidence that domestic violence has occurred. The court also
found the testimony of Ms. Horn, corroborated by more than one
witness here today, that Mr. Morris made threats of bodily harm
to her, was sufficient to make a preponderance finding that there
is at least a second act of domestic violence because of those
corroborated threats of bodily harm to Ms. Horn.
Although the court heard a significant amount of
testimony about Morriss alleged abuse of Horn, the court
refrained from finding other instances of domestic violence: Im
not saying the other incidents of alleged domestic violence
occurred or did not occur, but these are the two that I feel I
can, that I must find by a preponderance of the evidence did
exist and thats all the statute requires me to find. The court
concluded these two domestic violence findings satisfied
AS 25.24.150(h), raising an unrebutted presumption of domestic
violence under AS 25.24.150(g) and triggering limits on
visitation per AS 25.24.150(j). The court orally ordered Morris
to complete a batterers intervention program and to undergo
therapeutic visitation with the children.
Alaska Statute 25.24.150(g) states that if the court
finds that a parent has a history of perpetrating domestic
violence against the other parent, the perpetrator may not be
awarded sole or joint legal or physical custody. Subsection
.150(h) provides that a parent has a history of perpetrating
domestic violence under (g) of this section if the court finds
that, during one incident of domestic violence, the parent caused
serious physical injury or the court finds that the parent
engaged in more than one incident of domestic violence.38 Once a
court finds a history of perpetrating domestic violence under
(g), subsection .150(j) requires the court to limit the parents
visitation:
[T]he court shall allow only supervised
visitation by that parent with the child,
conditioned on the parents participating in
and successfully completing an intervention
program for batterers, and a parenting
education program, where reasonably
available, except that the court may allow
unsupervised visitation if it is shown by a
preponderance of the evidence that the
violent parent . . . does not pose a danger
of mental or physical harm to the child, and
unsupervised visitation is in the childs best
interests.
From the audio recording of the oral findings, it is
clear the court relied on the 2003 domestic violence order to
find one of the two instances of domestic violence; the court did
not rely on the 2007 order. Specifically, the court stated that
the 2003 domestic violence order had res judicata effect on the
courts custody and visitation determination under AS 25.24.150,
requiring the court to find that an incident of domestic violence
had occurred for purposes of AS 25.24.150(g) and (h). But
because the doctrine of res judicata bars . . . relitigation of
the same cause of action,39 and because domestic violence and
visitation modification proceedings are different causes of
action,40 we believe the court must have meant to invoke the
doctrine of issue preclusion, or collateral estoppel. Under that
doctrine, an issue of fact which is actually litigated in a
former action may, under certain circumstances, be regarded as
conclusive in a subsequent case.41
Although we have not decided whether, as a general
matter, domestic violence orders issued under AS 18.66.100 may
have issue-preclusive effect in a subsequent child custody or
visitation proceeding, we addressed a similar issue in F.T. v.
State.42 There, we held that the trial court erred in taking
judicial notice of [prior] restraining orders for the purpose of
establishing that [the father] had committed acts of violence in
the past in a subsequent child-in-need-of-aid proceeding.43 We
stated:
The superior court may have meant to invoke
the doctrine of issue preclusion; that
doctrine is also not applicable to this
case. . . . Whether domestic violence orders
issued under [former] AS 25.35.010 or AS
25.35.020 [renumbered as AS 18.66.100 et
seq.] can cause issue preclusion in a
subsequent child in need of aid proceeding is
a topic of some complexity. It is sufficient
for our purposes in this opinion to state
that issue preclusion in such cases would by
no means be inevitable. The issue as to
whether the individual in question had
committed acts of domestic violence must have
actually been litigated; a judgment entered
by default does not qualify as actual
litigation. Further, various exceptions to
the rule of issue preclusion may apply in
this case. None of these matters were
explored in the trial court and therefore
issue preclusion by reason of the domestic
violence orders would have been plainly
inappropriate.[44]
We believe this reasoning applies here and leads to the
conclusion that the superior courts use of issue preclusion was
inappropriate because the issue of domestic violence was not
actually litigated in the prior protective order proceedings.
The issue was not actually litigated in the 2003 restraining
order proceedings because the twenty-day order was issued ex
parte, without Morriss presence,45 and the parties stipulated to
extend it. Although a stipulation may be binding in that
particular proceeding, it is generally accepted that issue
preclusion ordinarily does not attach [to a stipulation] unless
it is clearly shown that the parties intended that the issue be
foreclosed in other litigation.46 There is no indication in the
record that Morris intended his stipulation to establish the fact
of domestic violence for use in a later custody or visitation
proceeding. Therefore, the doctrine of issue preclusion cannot be
invoked to establish an act of domestic violence in this case.
Horn claims the court did not err because it did not
rely on just the domestic violence order to find domestic
violence for purposes of limiting visitation under AS 25.24.150.
Horn is partly right the court did rely on Horns testimony and
the testimony of her witnesses to find one of the incidents of
domestic violence. But unless the court finds that a single act
of domestic violence caused serious physical injury, AS
25.24.150(h) requires the court to find that at least two
instances of domestic violence occurred before the presumption
arises in favor of supervised visitation. Here, the court
independently made findings on only one instance of domestic
violence; it found the second instance because it believed the
2003 domestic violence order had issue-preclusive effect.
On these facts and this record, it was error to apply
the doctrine of issue preclusion to find a prior instance of
domestic violence. Therefore, we reverse the visitation ruling.
On remand, the court must determine whether it can make a finding
that a second incident of domestic violence occurred based on the
testimony and evidence presented. If the evidence does not
justify such a finding, the court must reassess the restrictions
placed on Morriss visitation with the parties children.47
V. CONCLUSION
For the above reasons, we REVERSE the superior courts
order enforcing the original property decree, the courts child
support order, and the courts visitation order. We REMAND for
further proceedings consistent with this opinion.
_______________________________
1 The parties also agreed that any decision to sell the
property would be made jointly and that there was no mortgage on
the property.
2 The court asked the parties if each agreed this was a
complete and fair agreement and both responded yes. The court
concluded this appeared to be a complete and fair agreement,
though it was confusing, but not impermissible, to have a
dissolution decree if the parties were still living together.
Both parties agreed to this. Morris later testified he lived in
the Willow home until a couple of months after the dissolution
hearing.
3 In June 2003 Morriss child support obligation was
reduced to $1,426.89 per month because one of the children was no
longer living at home.
4 AS 18.66.110(a) states, in pertinent part:
A person who is a victim of a crime involving
domestic violence may file a petition under
AS 18.66.100(a) and request an ex parte
protective order. If the court finds that
the petition establishes probable cause that
a crime involving domestic violence has
occurred, it is necessary to protect the
petitioner from domestic violence, and if the
petitioner has certified to the court in
writing the efforts, if any, that have been
made to provide notice to the respondent, the
court shall ex parte and without notice to
the respondent issue a protective
order. . . . An ex parte protective order
expires 20 days after it is issued . . . .
AS 18.66.100 provides, in relevant part:
(a) A person who is or has been a victim of a
crime involving domestic violence may file a
petition in the district or superior court
for a protective order against a household
member. . . .
(b) When a petition for a protective order is
filed, the court shall schedule a hearing and
provide at least 10 days notice to the
respondent of the hearing and of the
respondents right to appear and be heard,
either in person or by an attorney. . . .
5 Horn was out of town during this incident, but her baby-
sitter called the state troopers after Morris allegedly yelled at
her on the phone.
6 By this time he owed a total of $38,833.01 in child and
spousal support.
7 The dissolution petition reported that Morriss total
gross income was $55,744 and his net income was $47,562. The DR-
305 form he filed with his motion to modify child support listed
his total gross income as $36,118.45 and his net income as
$33,833.40.
8 AS 25.24.150 provides, in pertinent part:
(g) There is a rebuttable presumption that a
parent who has a history of perpetrating
domestic violence against the other parent, a
child, or a domestic living partner may not
be awarded sole legal custody, sole physical
custody, joint legal custody, or joint
physical custody of a child.
(h) A parent has a history of perpetrating
domestic violence under (g) of this section
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. The
presumption may be overcome by a
preponderance of the evidence that the
perpetrating parent has successfully
completed an intervention program for
batterers, where reasonably available, that
the parent does not engage in substance
abuse, and that the best interests of the
child require that parents participation as a
custodial parent because the other parent is
absent . . . or because of other
circumstances that affect the best interests
of the child.
. . .
(j) If the court finds that a parent has a
history of perpetrating domestic violence
under (g) of this section, the court shall
allow supervised visitation by that parent
with the child, conditioned on that parents
participating in and successfully completing
an intervention program for batterers, and a
parenting education program, where reasonably
available, except that the court may allow
unsupervised visitation if it is shown by a
preponderance of the evidence that the
violent parent has completed a substance
abuse treatment program if the court
considers it appropriate, is not abusing
alcohol or psychoactive drugs, does not pose
a danger of mental or physical harm to the
child, and unsupervised visitation is in the
childs best interests.
9 Horn claimed she had paid around $24,000 in taxes.
10 Horns affidavit and those of her children, who were
eighteen and fifteen at the time, make serious allegations of
abuse. Horn stated Morris sexually assaulted her both during
and after the marriage, verbally and physically abused her
throughout the marriage, and used severe physical discipline on
the children. The younger child stated in her affidavit that she
had observed Morris throw, grab, and physically fight with Horn,
had seen injuries and scars on Horn because of his abuse, and had
heard him threaten to kill her.
11 AS 25.20.110(a) permits a court to modify a child
custody or visitation award 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.
12 AS 25.24.140(b) permits courts to issue necessary
protective orders during the pendency of a dissolution action.
13 The court admitted the pay stubs and tax returns as
exhibits but only one document, apparently concerning 2006 taxes,
is in the record.
14 The court ordered Morris to file a proposed DR-305
within five days of the hearing using his 2007 and 2006 pay stubs
(fourteen months of pay stubs) as the basis for calculating his
average income.
15 AS 25.24.150(g), (h), (j). The court found there was
insufficient evidence to make a finding on substance abuse.
16 We understand that the trial court used the phrase
therapeutic visits to mean visits with the children in the
presence of, or facilitated by, a counselor.
17 Krushensky v. Farinas, 189 P.3d 1056, 1060 (Alaska
2008) (citing Williams v. Crawford, 982 P.2d 250, 253 (Alaska
1999)).
18 Horchover v. Field, 964 P.2d 1278, 1281 (Alaska 1998)
(citing Meyeres v. Meyeres, 705 P.2d 921, 922-23 (Alaska 1985)).
19 Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002)
(citing Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000))
(child support); Faro v. Faro, 579 P.2d 1377, 1379 (Alaska 1978)
(citing Curgus v. Curgus, 514 P.2d 647, 649 (Alaska 1973))
(visitation).
20 Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska
1998) (citation omitted).
21 Hopper v. Hopper, 171 P.3d 124, 128-29 (Alaska 2007)
(citing McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999)).
22 Alaska Civil Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just,
the court may relieve a party or a partys
legal representative from a final judgment,
order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise or
excusable neglect;
(2) newly discovered evidence which by due
diligence could not have been discovered in
time to move for a new trial under Rule
59(b);
(3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied,
released, or discharged, or a prior judgment
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or
(6) any other reason justifying relief from
the operation of the judgment.
The motion shall be made within a reasonable
time, and for reasons (1), (2) and (3) not
more than one year after the date of notice
of the judgment or orders as defined in Civil
Rule 58.1(c).
23 See Stone v. Stone, 647 P.2d 582, 585-86 (Alaska 1982)
(holding that if a party fails to seek timely relief under Rule
60(b), the superior court lacks jurisdiction to grant relief from
the original decree).
Neither party disputes the courts finding that the
verbal tax and loan agreements constituted a property settlement
that merged into the dissolution decree.
24 AS 25.24.160(a)(4); see also Lowe v. Lowe, 817 P.2d
453, 456 (Alaska 1991).
25 Stone, 647 P.2d at 585 (citing former AS 09.55.220).
26 Bishop v. Clark, 54 P.3d 804, 809 (Alaska 2002)
(quoting 15 Walter H.E. Jaeger, Williston on Contracts 1826, at
485-86 n.9 (3d ed. 1972)).
27 Horn argues Morris waived his claims regarding the tax
obligation by failing to raise them in his points on appeal.
See Alaska R. App. P. 204(e). Morris filed his points on appeal
pro se. His list of points on appeal and the accompanying
affidavit reference the tax obligation; the latter requests an
order that Horn be required to pay the taxes. Because Morris
filed these documents pro se, and because he generally complied
with the requirements of Appellate Rule 204(e), we apply a more
relaxed procedural standard. Cf. Smith v. Sampson, 816 P.2d 902,
906 (Alaska 1991) (citing Bauman v. State, Div. of Family & Youth
Servs., 768 P.2d 1097, 1099 (Alaska 1989)). We also apply this
standard to the other claims that Horn argues Morris waived for
failure to include them in his points on appeal.
28 Civil Rule 90.3 provides the presumptive formula for
calculating a non-custodial parents child support obligation.
29 Terry v. Terry, 851 P.2d 837, 837-38 (Alaska 1993)
(citing Renfro v. Renfro, 848 P.2d 830 (Alaska 1993)).
30 Cf. Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998);
Terry, 851 P.2d at 838-39.
31 Morris did not waive this argument; he was
unrepresented in the hearing and he submitted pay stubs dating
back to 2001, impliedly requesting that the court consider his
income over several years.
32 Alaska R. Civ. P. 90.3(a) & (a)(1).
33 Alaska R. Civ. P. 90.3, cmt. III.E. The commentary to
Civil Rule 90.3 has not been officially adopted, but it can
provide useful guidance in applying the rule. Miller v. Clough,
165 P.3d 594, 600 n.10 (Alaska 2007) (citing Caldwell v. State,
105 P.3d 570, 573 n.6 (Alaska 2005)).
34 The court did not consider income from 2002 or earlier
in order to avoid retroactively modifying child support. See
Alaska R. Civ. P. 90.3(h)(2); see also Yerrington v. Yerrington,
933 P.2d 555, 558 (Alaska 1997). But it may be that Morris
offered earlier income information to buttress an argument that
his 2006 income was aberrational, and not a reliable indicator of
his future earnings. On remand, Morris will have the opportunity
to offer income information that pre-dates 2006, if he believes
it provides a better indication of his future income.
35 Renfro v. Renfro, 848 P.2d 830, 833 (Alaska 1993)
(citing Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)).
36 Alaska R. Civ. P. 90.3(c)(5).
37 Cf. Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280
(Alaska 2001).
38 The presumption may be overcome by a preponderance of
the evidence that the perpetrating parent has successfully
completed an intervention program for batterers . . . . AS
25.24.150(h).
39 Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997) (explaining the doctrine of res judicata provides
that 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, [and] (3) in a dispute
between the same parties (or their privies) about the same cause
of action (citing Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska
1985))).
40 Cf. Lashbrook v. Lashbrook, 957 P.2d 326, 329 (Alaska
1998) (Domestic violence proceedings and custody modification
proceedings are distinct proceedings.).
41 F.T. v. State, 862 P.2d 857, 864 n.13 (Alaska 1993)
(citing Restatement (Second) of Judgments 27 (1982)).
42 862 P.2d 857 (Alaska 1993).
43 Id. at 859, 863-64.
44 Id. at 864 n.13 (citing Restatement (Second) of
Judgments 27 cmt. e (1982) (judgment not conclusive because
issues not actually litigated) and Restatement (Second) of
Judgments 28(3), 28(5), 29(2), 29(5) (1982)). The exceptions we
cited were: (1) new determination of the issue is warranted by
differences in the quality or extensiveness of the procedures
followed; (2) clear and convincing need for a new determination
of the issue . . . because of the potential adverse impact of
the determination on . . . interests of persons not themselves
parties to the initial action, it was not sufficiently
foreseeable at the time of the initial action that the issue
would arise in the context of a subsequent action, lack of
adequate opportunity or incentive to obtain a full and fair
adjudication in the initial action; (3) forum in second action
affords . . . procedural opportunities in presentation and
determination of the issue that were not available in the first
action and could likely result in a different determination; and
(4) prior determination may have been affected by relationships
among the parties to the first action that are not present in the
subsequent action, or apparently was based on a compromise . . .
finding. See Restatement (Second) of Judgments 28(3), 28(5),
29(2), 29(5) (1982).
45 See AS 18.66.110(a) (permitting courts to issue twenty-
day protective orders ex parte and without notice under certain
circumstances).
46 18A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure 4443 (2d ed. 2009).
47 The court is free to continue the existing visitation
order until it reassesses the visitation restrictions.
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