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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
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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.
I. INTRODUCTION
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
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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
1990s.
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.
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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
violence.
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.' "
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----------------------- Page 4-----------------------
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
2
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
3
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
4
review.
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).
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----------------------- Page 5-----------------------
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
6
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
7
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
dichotomy.
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
(continued...)
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----------------------- Page 7-----------------------
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
10
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
11
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.
9(...continued)
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).
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----------------------- Page 8-----------------------
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
abuse.
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
INTEGRITY AT N.Y.U.SCH.OF LAW, SUPPORTING SURVIVORS : THE ECONOMIC BENEFITS
OF PROVIDING CIVIL LEGAL ASSISTANCE TO SURVIVORS OF DOMESTIC VIOLENCE 9
(2015), http://www.policyintegrity.org/documents/SupportingSurvivors.pdf (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
violence").
13 987 P.2d 743, 745 (Alaska 1999) (quoting AS 25.24.170(a)).
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----------------------- Page 9-----------------------
14
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.
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----------------------- Page 10-----------------------
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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