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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ruerup v. Ruerup (1/12/2018) sp-7216
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
CRYSTAL RUERUP, )
) Supreme Court No. S-16278
Appellant, )
)
Superior Court No. 4FA-15-01659 CI
v. )
)
O P I N I O N
)
CHARLES F. RUERUP III,
)
No. 7216 - January 12, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: TerynBird,IACNVLLegalServicesProgram,
Fairbanks, for Appellant. Notice of nonparticipation filed by
Charles F. Ruerup, III, pro se, Fairbanks, Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Carney, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A mother appeals the superior court's decision to modify a long-term
domestic violence protective order against her now ex-husband. The protective order
was issued by a magistrate judge, based on his findings that the father had committed
acts of domestic violence. But the superior court, during the parties' subsequent and
separatedivorce and custody case, concludedthatfindings ofdomesticviolencewerenot
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supported by the evidence. When modifying the protective order to accommodate a
change in the parties' living arrangements, the superior court also modified the order's
factual findings about domestic violence, noting its own conclusion that such findings
were not justified.
The mother argues that the superior court erred by modifying the factual
findings of domestic violence underlying an unappealed final order. We agree that the
court lacked the authority to modify the factual findings on which the order was based.
We therefore vacate that aspect of the protective order.
II. FACTS AND PROCEEDINGS
A. Facts
Crystal and Charles Ruerup met in Alaska in 2005, had their first child, G.,
1 They agreed on sharing G.'s custody in January 2009
in 2006, and separated in 2008.
but soon reconciled and never followed their agreement. By early 2010 they had moved
to Kentucky, where in 2012 they married without legal formalities. In February 2013
they had their second child. They then returned to Alaska, and in April 2014 they
officially married. In December they again separated when Crystal moved to a domestic
violence shelter with the children. Charles filed for divorce in April 2015.
B. Proceedings
1. 2008 custody and protective order
When the parties first separated in 2008, they sought the court's assistance
in setting up a custody arrangement for G. They reached settlement at mediation before
there was any substantive litigation, and in early 2009 the court approved their parenting
agreement. Around this time Crystal also raised allegations of domestic violence; a
1 We identify the child by an initial for reasons of privacy.
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magistrate judge heard evidence on the allegations in July 2008 and denied a long-term
protective order.
2. 2015 protective order
Crystal sought another protective order in January 2015, soon after the
parties separated for good; her complaint was given a new case number. Crystal alleged
that there had been numerous incidents of domestic violence between 2007 and 2015.
A different magistrate judge held a hearing in March 2015 and considered only the post-
2008 allegations. A number of witnesses testified, including Crystal and Charles, a
friend of Crystal's, Crystal's sister-in-law, and Charles's mother, brother, and nephew.
The magistrate judge found by a preponderance of the evidence that Charles had
committed three acts of domestic violence against Crystal, two in 2009 and one in 2011.
Based on these findings, the magistrate judge issued a long-term protective order.
Among other things, the order limited the parties to certain modes of communication and
barred Charles from coming within 500 feet of Crystal's home. The order did not
purport to decide any custody issues. Neither party appealed it.
3. 2015 divorce and custody modification
Charles's complaint for divorce, filed in April 2015, was consolidated with
the 2008 case involving the custody of G. On motions for interim custody, Crystal
sought to use against Charles the statutory presumption disfavoring a parent with a
history of committing acts of domestic violence, relying on the findings underlying the
2
March 2015 protective order as well as other allegations.
The superior court determined
2 See AS 25.24.150(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.").
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that it was not bound by the magistrate's findings on domestic violence and should
independently hear and consider the evidence before reaching a decision on custody.
The court accordingly heard testimony from Charles, Crystal, a friend of
Crystal's, and Charles's mother. The court found - contrary to the magistrate judge's
findings underlying the March 2015 protective order -that the evidence did not support
findings of domestic violence. It expressly rejected all of Crystal's allegations, noting
its concerns with delays in her reporting, the timing of her allegations in relation to the
parties' disputes over custody, and her overall credibility. The court ordered that the
parties continue to share custody of G. on a week on, week off schedule.
The court nonetheless reissued the March 2015 protective order, but in
amended form. First, the court uncontroversially narrowed the 500-foot restriction on
Charles's proximity to Crystal's home in order to allow Charles to take G. to school.
Second, although the court checked the box on the form order stating that it found crimes
of domestic violence, specifically "assault or reckless endangerment," the court added
the following note under "Other findings":
The Court finds that no incident of Domestic Violence has
been established through 7/24/2015. However, the Court
leaves this Domestic Violence Restraining Order in place
because the Master made a finding and the court finds it in
the best interest of both parties and their children that the
DVRO remain in place for the time being.
Crystal objected to this amendment and asked that the order be reissued in its original
form except for the amendment to the 500-foot proximity restriction; the superior court
denied this request.
In March 2016, following a partially contested trial, the court granted the
parties' divorce and decided issues of custody and property. For purposes of the custody
determination, Crystal accepted the court's finding that there was no domestic violence;
this allowed the parties to continue their interimarrangement of shared physical custody.
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As for legal custody, the court determined that the evidence supported a finding that
Crystal was better positioned to meet the children's educational and emotional needs and
awarded final decision-making authority to her.
The court's post-trial decision also gave a fuller explanation of its rationale
for modifying the domestic violence findings in the long-term protective order. The
court rejected, as unsupported by any evidence, Crystal's argument that the police would
refuse to enforce a protective order that disclaimed any findings of domestic violence.
The court concluded that the parties' request to modify the order's proximity restriction
gave it jurisdiction to modify other aspects of the order. The court noted that Crystal had
accepted its findings on domestic violence for purposes of the award of shared custody,
and if the protective order were not amended there would be inconsistent orders on the
same issue. The court also concluded that the magistrate judge's factual findings were
not binding, because res judicata does not apply to custody modifications and there were
compelling reasons not to apply collateral estoppel based on the differences in the nature
and stakes of domestic violence and custody proceedings.
Crystal appeals the superior court's modification of the factual findings in
the long-term protective order. Charles did not participate on appeal.
III. STANDARD OF REVIEW
The extent of a superior court's statutory authority presents a question of
3 4
We review a court's interpretation of statutes de novo and
law that we review de novo.
3 Dodge v. Sturdevant, 335 P.3d 510, 511 (Alaska 2014).
4 Anderson v. Anderson , 736 P.2d 320, 321 (Alaska 1987).
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"apply our independent judgment, adopting the rule of law that is most persuasive in
light of precedent, reason, and policy." 5
IV. DISCUSSION
T n
he Superior Court Lacked Authority To Modify The Factual Findings O
W .
hich The Long-Term Protective Order Was Based
Crystal's challenge in this appeal is limited to the superior court's
modification of the protective order to note its own contrary finding that "no incident of
6
DomesticViolencehas beenestablished through 7/24/2015." Crystalexplicitlydeclined
to challenge the superior court's authority to rely on its own independent findings on
domestic violence in the separate context of the divorce and custody case, where they
7
were relevant to whether the statutory presumption should apply against Charles.
Crystal agreed to share custody with Charles, an outcome that could be precluded if the
superior court followed the magistrate's lead in finding a history of domestic violence.
Recognizing the inconsistency in Crystal's position, we nonetheless agree with her that
it was error to modify the factual findings that provided the basis for the protective order.
5 Stephanie F. v. George C. , 270 P.3d 737, 746 (Alaska 2012).
6 The court's added language could be read not as a modification but rather
as an explanation of why the court was signing a protective order that appeared to
contradict its own findings in the custody case. But when it placed its oral decision of
the custody issues on the record in March 2016, the court explained that its intent was
to modify and not "reinstate" the protective order's domestic violence findings. We
therefore review it as a substantive modification rather than an explanatory comment.
7 Crystal writes in her brief that she "does not challenge th[e] trial court's
jurisdiction and ability to independently decide whether she established by a
preponderance of the evidence that Charles committed two or more crimes of domestic
violence against her for custody purposes." See Morris v. Horn, 219 P.3d 198, 208
(Alaska 2009) (holding that previous domestic violence finding did not have res judicata
effect in proceeding to modify visitation because "domestic violence and visitation
modification proceedings are different causes of action").
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8
The March 2015 protective order was a final, appealable order. Neither
9
party appealed it,
and the domestic violence proceeding was not consolidated with the
10 Neither party sought relief from the order under Alaska Civil Rule
later-filed divorce.
11
60(b).
This is not to say that the order could not be modified. Alaska Statute
12
18.66.120(a) allows the court to modify a protective order upon either party's request.
Crystal argues that "neither party moved the court for modification" and that she did not
agree to it. But the superior court concluded that the parties sought to modify the
protective order to allow Charles to take G. to school notwithstanding the school's
proximity to Crystal's new apartment, and this conclusion has support in the record.
Addressing this issue at the interim motions hearing, Crystal said, "I believe [the school]
probably is over 500 feet [from the apartment;] if not I'm willing to make an exception
8 See AS 22.15.100(9)(A) (giving magistrates power "to issue a protective
order in cases involving" domestic violence); 28 C.J.S. Domestic Abuse and Violence
§ 34 ("Although an appeal from the initial ex parte domestic violence order generally i s
interlocutory, a domestic violence restraining order is an appealable final judgment."
(citations omitted)).
9 See AS 22.15.240(a) ("Either party may appeal a judgment of the district
court in a civil action to the superior court.").
10 Crystal did move to consolidate the 2008 custody case involving G. with
the divorce case; this motion was granted in April 2015.
11 Rule 60(b) allows a court to revisit a prior judgment under certain
circumstances, including when "it is no longer equitable that the judgment should have
prospective application" among others. Alaska R. Civ. P. 60(b)(5). See also Jackson v.
Sey, 315 P.3d 674, 678 (Alaska 2013) (discussing appeal and Rule 60(b) challenge as
alternate ways to attack a "final and appealable order").
12 AS 18.66.120(a) ("Either the petitioner or the respondent may request
modification of a protective order.").
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so that [Charles] can pick up and drop off [G.] from school." The court responded that
"the protective order will be modified" to allow that accommodation. Based on this
exchange, the court could reasonably conclude that the parties had requested
modification.
The legislative history of AS 18.66.120, though sparse, supports an intent
to make modifications and dissolutions of protective orders relatively easy to obtain.
The Chair of the Senate Judiciary Committee raised a concern about criminal
prosecutions based on violations of protective orders after the victim of domestic
13 The parties here did not
violence and the subject of a protective order have reconciled.
reconcile, but they both wanted Charles to have access to G.'s new school without
running afoul of the protective order's 500-foot proximity limitation. For the same
reason that the parties should be able to dissolve a protective order following
reconciliation, they should have a straightforward process for modifying an order to
reflect their changed circumstances. But requests to modify the provisions regarding the
order's implementation (changing addresses or expanding or contracting the proximity
restrictions, for example) should not carry with them the risk that the underlying factual
findings of domestic violence - the entire justification for the order - will be again
placed at issue.
By statute, the court may issue a long-term protective order only if it "finds
by a preponderance of evidence that the respondent has committed a crime involving
domestic violence against the petitioner."14 An order without such a finding is invalid.
In its amended long-term order in this case, the superior court checked the box indicating
13 Minutes, Sen. Judiciary Comm. Hearing on H.B. 314, 19th Leg., 2d Sess.
(Apr. 15, 1996) (comments of Senator Robin Taylor, Chair).
14 AS 18.66.100(b).
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that it had found "by a preponderance of the evidence that respondent committed, or
attempted to commit," the domestic violence crime of "assault or reckless
endangerment," but it thennegated thisfinding bystating moreexplicitly its finding "that
no incident of Domestic Violence has been established through 7/24/2015," the date of
the amended order. The disclaimer of any finding of domestic violence eliminated the
factual basis for the order.
We recognize that AS 18.66.120(a) sets no explicit limits on the court's
authority to modify protective orders; it states only that either party "may request
modification of a protective order." But we read modification and dissolution as means
to accommodate the parties' evolving circumstances, not an invitation "to relitigate 'in
15 This conclusion is reinforced by
the hope of gaining a more favorable position.' "
AS 18.66.100, which sets out the provisions a long-term protective order may contain.
One provision - "prohibit[ing] the respondent from threatening to commit or
committing domestic violence, stalking, or harassment" - is "effective until further
16 The remaining provisions - covering such things as limitations
order of the court."
on contact, proximity restrictions, surrender of firearms, temporary custody, drug use,
and rehabilitation programs - "are effective for one year unless earlier dissolved by
court order."17 All these provisions - relevant to the protective order's implementation
- are thus specifically made subject to modification by later court order. But
modification of these implementation provisions will not undercut the order's factual
15 See McAlpine v. Pacarro , 262 P.3d 622, 626 (Alaska 2011) (quoting Bunn
v. House, 934 P.2d 753, 757 n.12 (Alaska 1997)).
16 AS 18.66.100(b)(1) (emphasis added).
17 AS 18.66.100(b)(2) (emphasis added).
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basis, as did the modification at issue here. Claims of factual error in a final order are
subject to appeal; they are not ordinarily subject to relitigation.
In sum, a court's authority to modify or dissolve a final and unappealed
long-termprotectiveorder to reflect changesin circumstance doesnotauthorizethecourt
to change or eliminate the factual findings on which the order was predicated. We
therefore vacate the superior court's added language in this case explaining its different
view of the evidence of domestic violence on which the magistrate judge based the order.
V. CONCLUSION
We VACATE the court's addition to paragraph C.6 of the long-term
protective order.
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