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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lee-Magana v. Carpenter (7/1/2016) sp-7113

Lee-Magana v. Carpenter (7/1/2016) sp-7113

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

OLIVIA  LEE-MAGANA,                                              )  

                                                                 )          Supreme  Court  No.  S-15854  

                                Appellant,                       )  


                                                                            Superior Court Nos. 3AN-14-02776/  


                      v.                                                   3AN-14-02990 CI  



JACOB CARPENTER,                                                 )                              

                                                                           O P I N I O N  


                                Appellee.                        )                                         

                                                                           No. 7113 - July 1, 2016  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, Michael D. Corey, Judge.  


                      Appearances:              Olivia  Lee-Magana,  pro  se,  Anchorage,  


                      Appellant.  No appearance by Appellee Jacob Carpenter.  


                      Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  


                      Bolger, Justices.  


                      MAASSEN, Justice.  



                      This  appeal  involves  two  petitions  for  long-term  domestic  violence  


protective orders.  A woman prevailed both on a petition she brought against her ex- 


boyfriend and on a petition he brought against her. She moved for attorney's fees in both  

cases, but the trial court denied her motions at first and again on reconsideration.  The  


woman appeals, asserting that the trial court abused its discretion by not awarding her  


full attorney's fees on both petitions - on hers because she was the prevailing petitioner  

----------------------- Page 2-----------------------

in   a   domestic   violence   case   for   whom   fees   are   allowed   by   statute,   and   on   her  

ex-boyfriend's because she was the prevailing party and his petition was vexatious.                                                                                              

                                We affirm the superior court's denial of attorney's fees for the woman's                                                                                  

successful defense against her ex-boyfriend's petition.                                                                                   As for the court's denial of                                     

attorney's fees to the woman as the prevailing petitioner, we conclude there was no                                                                                                                       

adequate reason for denying fees and therefore reverse and remand for an award of fees                                                                                                                 

in an appropriate amount.                                       

II.             FACTS AND PROCEEDINGS               

                A.              Background  

                                Olivia Lee-Magana and Jacob Carpenter met as teenagers sometime in the                                                                                                   

                1     They were in a two-year romantic relationship beginning in 2012 and had a  


child together.   But their relationship was often tumultuous.   In late 2014 Carpenter  


attempted to evict Lee-Magana from his home, and there followed a dispute over child  


custody and allegations of domestic violence by each party against the other.  


                B.              Lee-Magana's Petition For A Domestic Violence Protective Order  


                                Lee-Magana filed a petition for a protective order against Carpenter on  


September 16, 2014.  At the close of an ex parte hearing, the magistrate judge granted  

her a twenty-day protective order.  The subsequent hearing on a long-term protective  


order was heard by the superior court judge assigned to the parties' custody dispute.  At  


the hearing, Carpenter stipulated to an act of domestic violence because of a finding  


recently made by another judge, in a different case, involving a different petitioner, and  


the judge entered a long-term protective order predicated on that stipulation.  Much of  


the rest of the hearing involved working out such details as no-contact provisions and the  


retrieval of personal property.  


                1               Lee-Magana was represented by counsel in the superior court but is acting  


pro se on appeal.  Carpenter did not file a brief on appeal or otherwise appear.  


                                                                                                     -2-                                                                                                     7113  

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                    After the hearing Lee-Magana filed a motion for an award of $1,000 in  


reasonable actual attorney's fees, "pursuant to [AS] 18.66.100(c)(14), based upon her  


status as the prevailing litigant in this case."  She filed the motion late and moved that  


it be accepted late; the superior court denied the fees motion without explanation. A few  


weeks later Lee-Maganamovedfor reconsideration,asking thecourt toexplain its ruling.  


          C.        Carpenter's Petition For A Domestic Violence Protective Order  


                    A few weeks after Lee-Magana filed her petition for a long-term domestic  


violence protective order against Carpenter, he filed a petition for both short-term and  


long-term orders against her.  Carpenter, unlike Lee-Magana, was denied a short-term  

order.   The hearing on Carpenter's request for a long-term order took place in late  


October, again before the judge in the custody case, two weeks after the judge had  


granted Lee-Magana a  long-term order.   On Carpenter's petition against Lee-Magana,  


the superior court found "that [the case] was close," but it declined to issue a long-term  


order on the ground that Carpenter had failed to prove he was the victim of domestic  



                    Lee-Magana moved for attorney's fees on this petition too, again seeking  


$1,000.   Carpenter opposed the motion and, as in the other case, the superior court  


denied the motion without explanation.  Lee-Magana moved for reconsideration and  


Carpenter again filed an opposition.  


          D.        The Superior Court's Orders On Reconsideration  


                    On  reconsideration,  the  superior  court  issued  orders  in  both  domestic  


violencematters explainingwhy it had denied Lee-Magana's motions for attorney's fees.  


The court explained that it did not award fees for Lee-Magana's successful defense  


against Carpenter's petition because it did not want to "cast a chilling effect on the  


pursuit of relief in the face of perceived entitlement to protection from alleged domestic  


violence." It further stated that it was "unwilling to characterize Mr. Carpenter's efforts  


[in pursuing his petition against Lee-Magana] as 'vexatious.' "  


                                                               -3-                                                        7113

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                                           As for Lee-Magana'spetitionagainstCarpenter -on                                                                                                                        which shesucceeded               

 in obtaining a long-term protective order - the superior court noted that "Carpenter                                                                                                                                                           

 stipulated to the entry of [the] Long-Term Domestic Violence Order" and that "[a]                                                                                                                                                                                    

 significant portion of that hearing (which was also set on in the custody matter . . .) was                                                                                                                                                                           

 spent with property and interim support issues which were to be included in[] the LTDV                                                                                                                                                                       

 Order."     The court ruled that "[t]o the extent that proceeding dealt                                                                                                                                                           with [domestic  

violence] issues, attorney fees are denied, with prejudice."                                                                                                                            However, "[t]o the extent the                                                     

proceedings   addressed   custody   and   support   issues,   the   request   for   attorney   fees  is  

 dismissed, without prejudice. Attendant attorney fees issues may be raised in connection                                                                                                                                                        

with any application for attorney fees in [the custody case]."                                                                                                             

                                           Lee-Magana filed this appeal.                                                                   It addresses only the denial of her requests                                                                  

 for attorney's fees in the two domestic violence cases.                                                                                                                        

III.                  STANDARDS OF REVIEW                                            


                                           We review attorney's fee awards for abuse of discretion.                                                                                                                                                   

                                                                                                                                                                                                                                          An award or  


 denial of attorney's fees is an abuse of discretion if it is "arbitrary, capricious, manifestly  



unreasonable, or improperly motivated."                                                                                                      Interpretation of statutes, including those  


 authorizing awards of attorney's fees in particular types of cases, is subject to de novo  



                      2                    Greene v. Tinker                                      , 332 P.3d 21, 41 (Alaska 2014);                                                                          Koller v. Reft                              , 71 P.3d     

 800, 808 (Alaska 2003).                                 

                      3                   Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008) (quoting Kellis v.  


 Crites, 20 P.3d 1112, 1113 (Alaska 2001)); see also Gold Dust Mines, Inc. v. Little  


Squaw Gold Mining Co., 299 P.3d 148, 157 (Alaska 2012) ("We will not reverse an  


 [attorney's fee] award unless it is 'manifestly unreasonable.' " (quoting  Welcome v.  


Jennings, 780 P.2d 1039, 1043 (Alaska 1989)).  


                      4                    See In re Vernon H., 332 P.3d 565, 572 (Alaska 2014) (construing statutory  


 authority for awards of attorney's fees in guardianship proceedings).  


                                                                                                                                      -4-                                                                                                                           7113

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IV.	        DISCUSSION  

                        The superior court's denials of attorney's fees in the two cases -  one in  


which  Lee-Magana  was  the  prevailing  respondent  and  one  in  which  she  was  the  


prevailing petitioner - are subject to different analyses. We reach different conclusions  


in the two cases.  


            A.	         The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  


                        Attorney's Fees To Lee-Magana For Her Successful Defense Against  


                        Carpenter's Petition.  


                        Lee-Magana contends  on  appeal that in  seeking fees for  the domestic  


violence proceeding brought by Carpenter, "she simply relied upon [Alaska] Civil Rule  


82 and her status as the prevailing party."5  


                                                                            But in fact her initial motion relied solely on  


the statute governing the allowable provisions of a domestic violence protective order,  


AS 18.66.100(c)(14); she did not cite Rule 82 until she moved for reconsideration, at  



which point the court was not obliged to consider a new basis for her fees request.                                                                   In  


any event, we have recently reiterated "as a general proposition that '[i]f a specific  


statutory scheme for attorney's fees exists, Civil Rule 82 does not apply,' " because Rule  


82(a) specifically excludes from its reach those cases in which fees are "otherwise  



provided by law."    


                        Alaska Statute 18.66.100(c)(14) provides that "[a] protective order under  


this section  may  . .  .  require the respondent to  pay  costs and  fees  incurred  by  the  

            5           Rule 82(a) provides:                  "Except as otherwise provided by law or agreed to                                        

by the parties, the prevailing party in a civil case shall be awarded attorney's fees                                                              

calculated under this rule."           

            6           See Donahue v. Ledgends, Inc., 331 P.3d 342, 356 (Alaska 2014) (holding  


that the superior court was not "obliged to consider the [Alaska Civil] Rule 68 argument  


when it was raised for the first time in motions for reconsideration").  


            7          In re Vernon H., 332 P.3d at 576 (alteration in the original) (quoting Enders  


v. Parker, 66 P.3d 11, 17 (Alaska 2003)).  


                                                                          -5-	                                                                   7113

----------------------- Page 6-----------------------

petitioner in bringing the action under this chapter."                                                                           The statute thus authorizes awards                                 

of costs and fees to "the petitioner," not to a respondent, regardless of whether the                                                                                                                        

                                                                                                                                   8  The superior court's explanation  

respondent successfully defended against the petition.                                                                                                                                   

for denying Lee-Magana's request for fees in Carpenter's case - that awarding fees  


against an unsuccessful petitioner could "cast a chilling effect on the pursuit of relief"  


from domestic violence - is consistent with the apparent purpose of this statutory  




                                 Lee-Magana also argues that she was entitled to attorney's fees because  


Carpenter's petition  was vexatious.                                                           Although  as with  Rule 82  she did  not raise a  


vexatiousness argument in her original motion, the superior court addressed the issue in  


its  order  on  reconsideration,  finding  expressly  that  Carpenter's  efforts  were  not  


vexatious.  This is consistent with the judge's earlier remarks at the close of the hearing  


on Carpenter's petition, when the judge said "there were many interactions between [the  


parties] that come very close to constituting domestic violence [in] the way Alaska has  


defined it" and that the case "was close in [his] mind."  We need not determine whether  


vexatiousness may provide a separate basis for an award of fees against an unsuccessful  


petitioner  in  a  domestic  violence  case,  as  we  defer  to  the  superior  court's  better  


perspective on the parties' motivations and its finding in this case that Carpenter did not  


act vexatiously.9  


                 8               See State, Office of Pub. Advocacy v. Estate of Jean R.                                                                           , __ P.3d __, Op. No.                     

7098, 2016 WL 1612829 (Alaska Apr. 22, 2016) (observing that "[i]n domestic violence                                                                                                             

proceedings, . . . the court may require the respondent to pay the petitioner's attorney's                                                                                                   

fees if a protective order                                         is granted; yet there is no parallel provision allowing the                                                                               

respondent   in   a   domestic   violence   proceeding   to   collect   attorney's   fees  from   the  

petitioner if the petitioner does not prevail").                                                                 

                 9               See Greene v. Tinker, 332 P.3d 21, 42 (Alaska 2014) (observing that in  



                                                                                                       -6-                                                                                               7113

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            B.	         The Superior Court On Remand Should Award Attorney's Fees  To   

                        Lee-Magana For Her                         Successful Petition.   

                        Lee-Magana also argues that she was entitled to full attorney's fees as the                                                   

prevailing petitioner on the domestic violence petition she brought against Carpenter.                                                                       

Though   she   again   makes   arguments   based   on   Rule   82   and   Carpenter's   alleged  


vexatiousness, we limit our discussion to her claim under the statute.                                                         


                        Alaska Statute 18.66.100(c)  provides that "[a] protective order under this  


section may" include various provisions, including one requiring the respondent to pay  



the petitioner's costs and fees.                          Lee-Magana concedes that the statute's plain language  


"does not expressly 'require' the trial court to award [her] her full costs and attorney's  


fees," but she argues that full reimbursement is the only way to effectuate the statute's  


purposes.  She contends that she was a victim of domestic violence and that she will be  


further victimized if she is required to pay for protection from future violence.   She  


argues that in the absence of full reimbursement of attorney's fees, petitioners like her  


may feel compelled to proceed pro se, and their lack of legal experience may deprive the  


court of the evidence it needs to make a correct decision.  



determining whether claims were brought in bad faith for purposes of a departure from  


the Rule 82 schedule for attorney's fees awards, "the superior court was in the best  


position to evaluate [the plaintiff's] motivations").  

            10          As explained above, Rule 82 is displaced by the statutory fees provision,  


and  an  argument  based  on  Carpenter's  alleged  vexatiousness  is  precluded  by  our  


deference to the superior court's finding that he was not vexatious.  We also note that  


when seeking fees related to her successful petition, Lee-Magana expressly disclaimed  


any reliance on Rule 82, noting in her motion for reconsideration "that she is not seeking  


Civil Rule 82 fees in this case but has, instead[,] requested the reimbursement of her fees  


pursuant to [AS] 18.66.100(c)(14)."  


            11          AS 18.66.100(c)(14) (emphasis added).  


                                                                           -7-	                                                                   7113

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                         We    recognize    the    strong    policy    arguments    for    encouraging    legal  

representation in domestic violence proceedings, as represented petitioners are more                                                                     

likely to succeed in obtaining a protective order and are less likely to suffer further                                                               

            12  Notwithstanding the discretionary nature of the award, it would seem to be the  


exceptional case in which the superior court declines to award attorney's fees to the  


prevailing petitioner. In Scully v. Scully we addressed a statutory amendment providing  


that a court "may" modify a child support judgment to provide "for the care, nurture, and  


education of unmarried 18-year-old children of the marriage while they are actively  


pursuing a high school diploma or an equivalent level of technical or vocational training  


and living as dependents with a parent."13                                       Citing the number of children to which the  


change likely applied, and notwithstanding the statute's grant of trial-court discretion,  


we concluded that "it should be the exceptional case in which a court declines to extend  


child support payments beyond the child's eighteenth birthday where [the] statutory  


             12          See   JENNIFER    S.    ROSENBERG   &   DENISE   A.   GRAB,   INST .   FOR   POLICY  






(2015), (reporting  


that "access to legal services is a determining factor in whether a woman chooses to  


exercise  her  right to  petition  for  a  protective  order  - and  whether  her  petition  is  


sucessful"); Jane C.                       Murphy, Engaging with the State:  The Growing Reliance  on  

                                                                                                     M. U. J. GENDER  SOC. POL'Y &L.   

Lawyers and Judges to Protect Battered Women, 11 A 


499, 511-12 (2003) (reporting that 83% of women seeking domestic violence protective  


orders who had an attorney succeeded in getting the order, while only 32% of women  


without an attorney succeeded); Amy Farmer & Jill Tiefenthaler, Explaining the Recent  

                                                                  ONTEMP. E            CON. P      OL'Y   158, 167 (2003) (concluding        

Decline in Domestic Violence, 21 C 

that "[m]ost services provided to help battered women do not impact the likelihood of                                 

abuse, but the provision of legal services significantly lowers the incidence of domestic                                                         


             13          987 P.2d 743, 745 (Alaska 1999) (quoting AS 25.24.170(a)).  


                                                                               -8-                                                                       7113

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requirements have been met."                                                                                                                                                                        Here, too, we conclude that it should be the exceptional                                                                                                                                                                                                                         

 case in which a court fails to grant what the statute allows.                                                                                                                                                                                                                                                                  

                                                                                    In the superior court's order on reconsideration, it explained that it denied                                                                                                                                                                                                                                                                                                                                         

 "with prejudice" Lee-Magana's request for fees related to her successful petition "to the                                                                                                                                                                                                                                                                                                                                                                                                                                                

 extent [the] proceeding dealt with [domestic violence] issues," but that "[t]o the extent                                                                                                                                                                                                                                                                                                                                                                                                                            

the proceedings addressed custody and support issues, the request for attorney fees [was]                                                                                                                                                                                                                                                                                                                                                                                                                                  

 dismissed, without prejudice."                                                                                                                                                                    The order contemplated that Lee-Magana would seek                                                                                                                                                                                                                                

 fees related to the custody and support issues "in connection with any application for                                                                                                                                                                                                                                                                                                                                                                                                                                                   

 attorney fees in [the ongoing custody case]."                                                                                                                                                                                                                                                    But our review of the hearing on Lee-                                                                                                                                                                                        

Magana's petition for a long-term order reveals that, despite Carpenter's stipulation to                                                                                                                                                                                                                                                                                                                                                                                  

the underlying act of domestic violence, almost all of the hearing was devoted to ironing                                                                                                                                                                                                                                                                                                                                                                                                                       

 out the details of the protective order; very little of it involved issues of custody or                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 support.   In the brief discussion of custody, the parties agreed to leave things as they                                                                                                                                                                                                                                                                                                                                                                                                                                       

were, and the only discussion of child support put off the issue for later, after the parties                                                                                                                                                                                                                                                                                                                                                                                                                      

had submitted their income forms.                                                                                                                                                                                       Because so little of the hearing involved custody, it                                                                                                                                                                                                                                                                       

 appears that the attorney's fees incurred in the domestic violence proceeding that Lee-                                                                                                                                                                                                                                                                                                                                                                                                                                       

Magana may recover in the related custody case may be minimal.                                                                                                                                                                                                                                                                                                    

                                                                                    To the extent the superior court's denial of attorney's fees relied on the fact                                                                                                                                                                                                                                                                                                                                                                   

that   Carpenter   stipulated   to   the   entry  of   the   long-term   order,   the   denial   is   also  

unwarranted. Carpenter's stipulation did not make the proceeding or the resulting order                                                                                                                                                                                                                                                                                                                                                                                                                                     

unnecessary;   at   best   it   helped   minimize   the   amount   of   attorney's   fees   for   which  

 Carpenter could be held responsible.                                                                                                                    

                                          14                                       Id.  at 747.   

                                                                                                                                                                                                                                                                       -9-                                                                                                                                                                                                                                                      7113

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                                                                           In   short,   neither  justification   given   for   the   superior   court's   denial   of  

 attorney's fees "[t]o the extent [the] proceeding dealt with DV issues" - neither the                                                                                                                                                                                                                                                                                                                                                                                          

possibility that Lee-Magana could recover some fees in the custody case nor the fact that                                                                                                                                                                                                                                                                                                                                                                                     

the proceedings commenced with Carpenter's stipulation to an act of domestic violence                                                                                                                                                                                                                                                                                                                                                              

-  demonstrates this to be the "exceptional case" in which a denial of fees is justified.                                                                                                                                                                                                                                                                                                                                                                                                               

We therefore reverse and remand for entry of an award of reasonable attorney's fees.                                                                                                                                                                                                                                                                                                                                                                                                                    

V.                                    CONCLUSION  

                                                                           We AFFIRM the superior court's order denying attorney's fees in the                                                                                                                                                                                                                                                                                                                                 

 domestic violence proceeding brought by Carpenter against Lee-Magana, case number                                                                                                                                                                                                                                                                                                                                                                     

 3AN-14-02990 CI. We REVERSE the denial of attorney's fees in the domestic violence                                                                                                                                                                                                                                                                                                                                                                

proceeding brought by Lee-Magana against Carpenter, case number 3AN-14-02776 CI.                                                                                                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                       -10-                                                                                                                                                                                                                             7113

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