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Ruerup v. Ruerup (1/12/2018) sp-7216

           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                                       



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  


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

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.  



                                                                                                                         -2-                                                                                                                           7216  


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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.").                                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                                -3-                                                                                                                                                                                                                                             7216
  


----------------------- Page 4-----------------------

                                                                                                                         

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.  



                                                               -4-                                                         7216
  


----------------------- Page 5-----------------------

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).  



                                                                                                                                                                                                                                                                  -5-                                                                                                                                                                                                                                                 7216  


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

"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").  

                                                                                                           



                                                                           -6-                                                                   7216
  


----------------------- Page 7-----------------------

                                                                                                                                               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.").  

                                                      



                                                                              -7-                                                                       7216
  


----------------------- Page 8-----------------------

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).  

                                            



                                                                                                           -8-                                                                                                   7216
  


----------------------- Page 9-----------------------

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).  

                                                                                                                                             



                                                                                                                                     -9-                                                                                                                          7216
  


----------------------- Page 10-----------------------

                                                                                                                           

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.  



                                                             -10-                                                       7216
  

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