| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stephan P. v. Cecilia A. (5/29/2020) sp-7453
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STEPHAN P., )
) Supreme Court No. S-17076
Appellant, )
) Superior Court No. 3PA-18-00049 CI
v. )
) O P I N I O N
CECILIA A., )
) No. 7453 - May 29, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Vanessa White, Judge.
Appearances: Stephan P., pro se, Palmer, Appellant. Notice
of Non-Participation filed by Brooke Browning Alowa, Law
Offices of Kenneth J. Goldman, P.C., Palmer, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
AlaskaStatute18.66.100 provides that avictimofdomesticviolence, or the
parent of a victim who is a minor, may petition for a protective order against a household
member. Before granting this order, the court must hold a hearing and make findings
that the household member committed a "crime involving domestic violence against the
[victim]."
----------------------- Page 2-----------------------
The mother of an autistic child filed a petition for a protective order against
the child's father, alleging that the father kicked the child during an altercation that took
place at the Extreme Fun Center in Wasilla. At the hearing on the long-term protective
order, the court admitted the mother's recording of statements the son made to her
approximately 30-35 minutes after the incident. The son stated that the father kicked him
in the buttocks; the only disinterested witness with personal knowledge of the incident
testified that the father did not kick his son.
Relying on the recording and testimony from the child's mother and
therapist, the superior court found that the father committed assault; relying on the
mother's testimony, the court found that the father committed criminal trespass and
granted the mother's petition. The court also required the father to undergo a
psychological evaluation and pay the mother's attorney's fees. We vacate and remand
the superior court's assault finding and reverse the court's trespass finding. We vacate
the court's protective order, its order that the father undergo a psychological evaluation,
and its award of attorney's fees.
II. FACTS AND PROCEEDINGS
A. Facts
Stephan P. and Cecilia A. were married in 2002 and had a son, S.P., in
1 S.P. hasbeendiagnosed with several health conditions including autismspectrum
2006.
disorder and attention-deficit/hyperactivity disorder. Because of his developmental
disorders, S.P. exhibits inattention, impulsiveness, and repetitive and rigid thinking
patterns.
Stephan and Cecilia divorced in July 2015. Cecilia was awarded sole
physical and legal custody of S.P., and Stephan was granted two professionally
1 We use initials in lieu of the parties' names to protect their privacy.
-2- 7453
----------------------- Page 3-----------------------
supervised visits and three telephone calls with S.P. per week. Following their divorce
Cecilia and Stephan strictly adhered to the visitation schedule and terms, but over time
Cecilia permitted Stephan to have more contact with S.P.
Their visits evolved into unsupervised visitation from late 2016 through
2017. When S.P. was home-schooled for a period of several months, he went to
Stephan's house nearly every day. Eventually Stephan and S.P. began spending time
together without any fixed schedule.
In January 2018 Stephan took S.P. to the Extreme Fun Center, an arcade
in Wasilla. At some point during their time at the Fun Center, S.P. ran away from
Stephan. Stephan tried to stop S.P. before he ran outside. Stephan and the Fun Center
manager cornered S.P. inside, and S.P. dropped to the ground. According to a witness,
Stephan told him to get up and that they were leaving, and S.P. responded, "I am not
going anywhere with you, you son of a bitch." The witness testified that Stephan pulled
S.P. up by the wrist and jacket collar and walked him out of the Fun Center.
Stephan called Cecilia to let her know he was bringing S.P. back to her, and
she agreed to meet him at a restaurant. When she arrived Stephan was parked in his
truck, and S.P. was waiting inside the restaurant entryway. She went inside and found
S.P.wringing his clothing and repeating,"Mama,Papa, Mama,Papa"; sheassociated this
conduct with S.P. preparing to tell her "something that's happened." Cecilia used her
phone to record S.P. as he explained what happened at the Fun Center:
Cecilia: What happened?
S.P.: He, he called me an asshole, and he called me a
little motherfucker. And he, he also kicked me
in the butt.
Cecilia: Where were you?
S.P.: At the Extreme Fun Center. And I was trying
to get up by myself when he, when he, mmh
-3- 7453
----------------------- Page 4-----------------------
(whimpers). I was just trying to get up by
myself when he told me to get up. But I kept
trying to get up, but he kept forcing me to get
up. And, and, and he got me by my hand
really, really hard.
Cecilia: And then he kicked you?
S.P.: No. Uh, when I was, when I was, when I was
trying to get up then he kicked me, when I was
trying to get up. And he was kicking me in my
butt, in my, in my butt, and I kept -
Cecilia: Were there other people there?
S.P.: Yeah, the, the manager was watching. And -
Cecilia: Do you know the name of the manager?
S.P.: No. And then, and then, the, and then the, uh,
and Papa, and then Papa kicked me in my butt
when I was trying to get up. And [it] kept
making me fall to the ground.
Cecilia testified that she recorded S.P. 30-35 minutes after Stephan called her.
B. Proceedings
1. Pre-hearing proceedings
The day after the Fun Center incident Cecilia filed a petition in Anchorage
2 The district
district court for a domestic violence protective order under AS 18.66.100.
2 AS 18.66.100(a) allows a parent whose minor child is a victim of domestic
violence to petition for an order protecting the child against a household member. Before
granting such an order, the court must hold a hearing and make findings that the
household member committed a "crime involving domestic violence against the
[victim]." AS 18.66.100(b). AS 18.66.990(3) defines "crime involving domestic
violence." Relevant to this case, criminal assault and criminal trespass are "crime[s]
involving domestic violence" when committed by one household member against
another household member. See AS 18.66.990(3)(A), (C); AS 11.41.230 (defining the
(continued...)
-4- 7453
----------------------- Page 5-----------------------
court held an ex parte hearing and denied Cecilia's request for a 20-day protective order.
The court then transferred venue to Palmer. The Palmer superior court scheduled a
hearing on the petition for a long-term protective order for February 2018 that was later
continued to April.
2. Protective order hearing
Lori Houston, a licensed clinical social worker and S.P.'s therapist since
2012, testified at the hearing as an expert on behalf of Cecilia. Houston described
Stephan as a loving father, but she said that when Stephan loses control over S.P.'s
behavior he enters an "aggressive, bully state" that causes him to discipline S.P. in
harmful ways. She testified that S.P. had begun expressing reluctance about spending
time with Stephan after the Fun Center incident.
Houston also described an altercation she had with Stephan at her
workplace sometime in 2014 or 2015. According to Houston, Stephan was upset that she
would not testify at a prior court hearing between Cecilia and Stephan. Stephan raised
his voice and demanded that she testify. Ultimately, other staff were required to
intervene and de-escalate the situation, and Houston barred Stephan from returning to
her office. At the protective order hearing, she recommended that Stephan undergo a
psychological evaluation, reconnect with S.P. in a therapeutic setting, and attend a class
on parenting children with special needs.
Cecilia testified regarding the recording she made after the incident at the
Fun Center. She stated that she had several subsequent phone conversations with the
2 (...continued)
elements of criminal assault in the fourth degree); AS 11.46.330 (defining the elements
of criminal trespass in the second degree). As written, the petition was to protect Cecilia,
but the Anchorage district court converted it to a petition on behalf of S.P.
-5- 7453
----------------------- Page 6-----------------------
Fun Center manager, who was also present and who observed the incident, but she did
3
not subpoena him, and he did not testify at the hearing.
After describing what S.P. told her following the incident, Cecilia pivoted
to discuss her desired terms for the long-term protective order. She expressed a desire
to return to the terms of the 2015 divorce decree, which limited Stephan to supervised
visitation with S.P. and three phone calls per week. To support her request, Cecilia
asserted that Stephan did not respect her rules and boundaries, and she described two
separate incidents when Stephan came to her home uninvited.
In the first, Stephan wanted to borrow Cecilia's blender. When Stephan
could not reach Cecilia at work, he went to her house and knocked on the windows.
Cecilia stated, "I can't remember whether it is that [S.P.] saw and opened the door or
whether the front gate was locked . . . . I can't remember that part, but I know that the
babysitter was wondering what to do . . . . I told [Stephan], 'You just can't do that.' "
In the second incident, Cecilia and S.P. were doing yard work in her
backyard when they began arguing over how much Cecilia would pay S.P. for doing his
chores. While they were arguing, Stephan arrived unexpectedly and offered to help.
Cecilia told Stephan to go; when he did not leave, she threatened to call the police. As
she went back inside her home to fetch her phone, Stephan backed his truck out of her
driveway into the street. When the police arrived, they explained to Cecilia the
mechanics of enforcing a trespass order.4 After understanding this, Cecilia asked the
police to "put a trespass again because of what had happened."
Following Cecilia's testimony, the court questioned her regarding these
incidents:
3 Stephan also did not subpoena the manager.
4 The record does not include any trespass order.
-6- 7453
----------------------- Page 7-----------------------
Judge: I was attempting to multi-task and I missed part
of your testimony. Were you saying that you
received a trespass order so that [Stephan]
could not come on your property?
Cecilia: I did. Per the Palmer police officer's
information that he gave me, I told him I might
have to go to the, to get, file for a restraining
order again, and I told him what had happened.
And I think, I don't know if you want to know
what had happened that particular time -
Judge: Well, I want to know how [Stephan] became
aware that he was not to come on your
property.
Cecilia: I believe the Palmer police officer called him.
I think they told me they were going to notify
him about that.
AmandaJones was theonly disinterested witness totheFunCenter incident
who testified. She was at the Fun Center planning a party when she saw Stephan chase
and restrain S.P. After a chance encounter with Stephan several weeks later, Jones
agreed to testify as to her observations that day. She described S.P. as "pretty out of
control" during the incident, throwing himself to the ground and swearing at Stephan.
She testified that Stephan did not kick or swear at S.P. and that Stephan did what "any
parent wouldhavedone." On cross-examinationJones statedthat Stephan was frustrated
with S.P. but had not raised his voice at him.
After all the witnesses testified, Cecilia played the recording she made of
S.P.'s account of the incident. Stephan did not expressly object to the use of the
recording, though he did challenge the recording's trustworthiness during his closing
argument when he engaged in a dialogue with the court regarding the relative weight the
-7- 7453
----------------------- Page 8-----------------------
5
court should give to the recording. The court asked Stephan, "So you think I should
give more weight to . . . Jones's testimony than to [S.P.]'s recorded statement?" Stephan
responded, "Yes, I do. I think that . . . I don't know what an autistic mind is like and the,
the blowing things out of proportion, the imaginations, the -" At that point the court
interjected, "All right. Your time is up." Later, the court ruled sua sponte that the
recording was admissible under the excited utterance exception to the hearsay rule
because it was taken about 30 minutes after the incident and because S.P.'s manner of
6
speech was "excited and agitated."
The court found that Jones testified honestly, but it also discredited her
testimony, finding that Jones was not confident she had fully observed everything that
happened at the Fun Center. The court also relied on S.P.'s recorded statements and
Houston's testimony that S.P. had become reluctant to spend time with Stephan since the
Fun Center incident. The court found by "a preponderance, but a bare preponderance"
of the evidence that Stephan kicked S.P. and therefore committed assault in the fourth
7 The court also found that Stephan committed criminal trespass in the second
degree.
5 Stephan raised similar arguments challenging the trustworthiness of the
recording in his motion to reconsider.
6 Alaska Evidence Rule 803(2) provides an exception to the rule against
hearsay for statements "relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition." See generally
Alaska R. Evid. 801 (defining hearsay); Alaska R. Evid. 802 (stating hearsay is
inadmissible unless an exception applies).
7 See AS 11.41.230 (defining the elements of criminal assault in the fourth
degree).
-8- 7453
----------------------- Page 9-----------------------
8
degree "because[Stephan]went to [Cecilia's]homewithout invitation after having been
instructed not to do so."
9 the
Because these are both domestic violence offenses that affect S.P.,
court granted the domestic violence protective order. The court limited Stephan to
communication with Cecilia through email and text messages, and it ordered that
Stephan's contact with S.P. be limited to the terms of the 2015 divorce decree. The
court's protective order also required Stephan to undergo a psychological evaluation.
The court distributed a written order to the parties in open court.
3. Post-hearing motions
Stephan filed a motion for reconsideration. With respect to the court's
10
assault finding, he argued that (1) the court gave too little weight to Jones's testimony;
(2) Houston's testimony about a 2015 altercation with him was improper character
evidence; (3) the court wrongly denied his motion to have S.P. testify; and (4) the court
wrongly allowed Cecilia to play the recording. Stephan submitted an accompanying
affidavit from Jones where she summarized her prior testimony and clarified that she
"saw this entire incident and there was nothing that got between [Stephan] and the boy
and my view of any of it at any time." Regarding the court's trespass finding, Stephan
asserted that (1) the court was confused and that he never violated a trespass order; and
(2) he did not receive proper notice of the trespass allegations.
8 See AS 11.46.330 (defining the elements of criminal trespass in the second
degree).
9 See AS 18.66.990(3)(A), (C); AS 11.41.230; AS 11.46.330.
10 We give Stephan's argument the benefit of pro se lenience. See, e.g., Tobar
v. Remington Holdings LP, 447 P.3d 747, 753 (Alaska 2019); Gilbert v. Nina Plaza
Condo Ass'n , 64 P.3d 126, 129 (Alaska 2003).
-9- 7453
----------------------- Page 10-----------------------
The superior court denied Stephan's motion, and Cecilia filed a motion for
11
her attorney's fees and costs. Stephan argued that Cecilia waived her right to pursue
attorney's fees when she filed her motion more than ten days after the court distributed
12
its judgment. The court awarded Cecilia 20% of her actual attorney's fees and costs.
Stephan appeals the superior court's long-term domestic violence protective
order, its requirement that he undergo a psychological evaluation, and its award of
attorney's fees to Cecilia. Cecilia filed a Notice of Non-Participation in this appeal.
III. STANDARDS OF REVIEW
"The question of competency of a particular witness to testify is . . . left in
the sound discretion of the trial judge" and is reviewed for abuse of discretion.13 "We
14
review a trial court's 'decision to admit or exclude evidence for abuse of discretion.' "
Whether the trial court correctly interpreted and applied an evidentiary rule is reviewed
de novo.15
11 See AS 18.66.100(c)(14) ("A protective order under this section may . . .
require the respondent to pay costs and fees incurred by the petitioner in bringing the
action under this chapter.").
12 See Alaska R. Civ. P. 82(c) ("The motion must be filed within 10 days after
the date shown in the clerk's certificate of distribution on the judgment as defined by
Civil Rule 58.1. Failure to move for attorney's fees within 10 days, or such additional
time as the court may allow, shall be construed as a waiver of the party's right to recover
attorney's fees."). Stephan also argued that AS 09.60.010(e) permitted the court to deny
an award of attorney's fees if it "would inflict a substantial and undue hardship" on him.
Stephan does not renew this second argument on appeal.
13 McMaster v. State, 512 P.2d 879, 881 (Alaska 1973).
14 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) (quoting Liimatta v. Vest,
45 P.3d 310, 313 (Alaska 2002)).
15 See Sanders v. State, 364 P.3d 412, 419-20 (Alaska 2015) ("When the
(continued...)
-10- 7453
----------------------- Page 11-----------------------
"We review a trial court's factual findings for clear error. We will reverse
only when left with a 'definite and firm conviction . . . that a mistake has been made.'
We apply our independent judgment to questions of law." 16
A trial court's decision to grant or deny a motion for reconsideration lies
17 "We shall reverse only in the event there has been an abuse of
within its discretion.
discretion."18
IV. DISCUSSION
A. We Vacate The Superior Court's Domestic Violence Protective Order.
The superior court found that (1) Stephan assaulted S.P. when he kicked
him at the Fun Center and (2) Stephan criminally trespassed by going to Cecilia's house
without invitation when he had been "instructed not to do so." We vacate and remand
the court's assault finding, and we reverse the court's trespass finding. Without these
two findings, the domestic violence protective order cannot stand. We therefore vacate
the order.
1. We vacate and remand the superior court's assault finding.
The only direct evidence that Stephan assaulted S.P. came from S.P.'s out-
of-court recorded statement. And Jones squarely contradicted S.P. when she stated that
15 (...continued)
admissibility of evidence 'turns on a question of law, such as the "correct scope or
interpretation of a rule of evidence," we apply our "independent judgment . . . ." ' "
(quoting Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012))).
16 McGraw v. Cox, 285 P.3d 276, 279 (Alaska 2012) (alteration in original)
(footnotes omitted) (quoting In re Protective Proceedings of W.A., 193 P.3d 743, 748
(Alaska 2008)).
17 See Brown v. State, 563 P.2d 275, 279 (Alaska 1977).
18 Id.
-11- 7453
----------------------- Page 12-----------------------
Stephan did not kick or swear at him. Because the superior court found by "a bare
preponderance" that Stephan kicked S.P., any error related to its treatment of this
19 We hold that errors related to the recording and
evidence was likely prejudicial.
Jones's testimony require us to vacate the superior court's assault finding. On remand
the court must reexamine whether an assault occurred after reevaluating Jones's
testimony and after making findings as to S.P.'s competency to testify and the
trustworthiness of the recording.
a. It was an abuse of discretion for the superior court to
admittherecording without making thresholdfindings as
to S.P.'scompetency andtherecording's trustworthiness.
Stephan contends that the superior court "listen[ed] to my son who was not
present, on a recording presented by Cecilia . . . . It could not be determined when and
under what circumstances or coercion this recording was made." We construe Stephan's
argument as a challenge to the admission of the recording under the hearsay rules.20
These rules provide that statements made by out-of-court declarants and
21
The
offered for their truth are ordinarily inadmissible unless an exception applies.
19 See Graham R. v. Jane S. , 334 P.3d 688, 692 (Alaska 2014) ("[W]e will
reverse an evidentiary ruling only if [the] error prejudicially affected aparty's substantial
rights." (second alteration in original) (quoting Lum v. Koles , 314 P.3d 546, 552 (Alaska
2013))).
20 Stephan did not object to the admission of the recording on express hearsay
grounds. But before the hearing, he objected to Cecilia testifying about the Fun Center
incident: "The mother was not present and can only report misinterpreted facts from
hearsay." He also asked the court to require S.P. to testify personally. And the superior
court sua sponte dealt with the hearsay aspect of the recording when it ruled that the
recording was admissible as an excited utterance. Given this posture, the hearsay
objection is preserved for our review.
21 Alaska R. Evid. 801(c) ("Hearsay is a statement, other than one made by
(continued...)
-12- 7453
----------------------- Page 13-----------------------
hearsay exceptions rely on the theory that some hearsay statements "possess
circumstantial guarantees of trustworthiness sufficient to justify non-production of the
declarant."22
The excited utterance exception derives from the declarant's condition of
excitement that "temporarily stills the capacity of reflection and produces utterances free
23 Thus, we generally view out-of-court statements pertaining
of conscious fabrication."
to and made under conditions of stress sufficiently reliable in their own right that we
have jettisoned the usual requirement for the declarant to testify in court and be subject
to cross-examination.24 But while the court may admit statements that qualify under the
excited utterance exception, it still maintains discretion whether to do so.25 The premise
underlying the excited utterance exception is the presumption that the "excitement"
creates a circumstantial guarantee that the utterance is trustworthy. But if there is other
evidence that undermines trustworthiness -for example, that the declarant suffers from
21 (...continued)
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted."); Alaska R. Evid. 802 ("Hearsay is not admissible except as
provided by these rules, by other rules prescribed by the Alaska Supreme Court, or by
enactment of the Alaska Legislature.").
22 Alaska R. Evid. 803 cmt.
23 Alaska R. Evid. 803(1), (2) cmt. (citing 6 JOHN HENRY WIGMORE, A
TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW
§ 1747, at 135 (1940)).
24
See Alaska R. Evid. 803(2); State v. Agoney, 608 P.2d 762, 764 (Alaska
1980) ("It is only the suspension of [the normal powers of reflection and conscious
deliberation] which lends a special trustworthiness to the utterance, and thus justifies
exempting it from the ordinary scrutiny of cross-examination on the witness stand.").
25 See Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) .
-13- 7453
----------------------- Page 14-----------------------
a mental or intellectual disability characterized by inattention and impulsiveness - then
the court must take this evidence into consideration.
The trustworthiness of the recording was an issue before the court in
Stephan's pre-trial motion to have S.P. testify. Rather than relying on Cecilia's
recording of S.P., Stephan moved the court to allow S.P. to "explain to the court how and
why he was restrained" and to "tell [the] court what he wants." And he suggested means
by which the court could hear from S.P. directly by receiving S.P.'s testimony in camera.
But Cecilia opposed this motion, stating that her son "fail[ed] to meet the minimum
26 She highlighted his
standards of witness competency" under Evidence Rule 601.
autism, intellectual disability, and "negative reactions to stress" as reasons he should not
testify. The superior court denied Stephan's motion without analysis; it later explained
that allowing S.P. to testify would be "problematic" and "potentially stressful" given his
autism.
We acknowledge cases from other jurisdictions holding that a declarant's
27 But the
competency need not factor into the decision to admit a hearsay statement.
26 EvidenceRule601establishesapresumption that all persons arecompetent
to testify. Crawford v. State , 337 P.3d 4, 30 (Alaska App. 2014). "What is important
under the general test . . . is that the witness be capable of expressing himself so as to be
understood by the court . . . , and recognize the duty to tell the truth." Sevier v. State , 614
P.2d 791, 794 (Alaska 1980).
27 See, e.g., Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir. 1988) ("We
agree with the majority of courts that have studied this issue and have reached the
conclusion that 'although a child is incompetent to testify, testimony as to his
spontaneous declarations or res gestae statements is nevertheless admissible.' " (quoting
Jay M. Zitter, Annotation, Admissibility of Testimony Regarding Spontaneous
Declarations Made by One Incompetent to Testify at Trial, 15 A.L.R. 4th 1043 (1982)));
People v. Smith, 604 N.E.2d 858, 871 (Ill. 1992) (holding that trustworthiness of
declarant's statement "stems not from . . . competency, but rather from the unique
(continued...)
-14- 7453
----------------------- Page 15-----------------------
unique circumstances in this case require us to distinguish this case from the cases in
other jurisdictions. Here, the parties do not dispute that S.P. is autistic and has other
mental health issues; these issues raise questions as to whether he could faithfully report
what happened at the Fun Center under any circumstances, not just in court. We also
find it troubling that Cecilia recorded S.P.'s statement to use as evidence in the protective
order proceedings and had S.P. actually testify at the ex parte hearing on her petition for
a short-term protective order, but then vociferously objected to allowing Stephan to call
S.P. as a witness at the long-term hearing, specifically citing Evidence Rule 601 and
arguing S.P. was not a competent witness due in part to his autism and intellectual
disability. She has used S.P. as both sword and shield, which we believe to be
fundamentally inconsistent and unfair. The superior court should consider these unique
facts and circumstances on remand.
A court enjoys "considerable discretion" in deciding whether to admit a
28 But because the issue of
hearsay statement under the excited utterance exception.
S.P.'s competency placed the recording's trustworthiness squarely before the court, it
was an abuse of discretion to admit the recording absent a threshold finding on S.P.'s
competency and a determination of the extent to which his autism, youth, and other
mental health issues affected the recording's trustworthiness. Without the recording,
which provided the only direct evidence of assault that the court found by "a bare
preponderance" to have occurred, the assault finding has no evidentiary support. We
therefore vacate it and remand for the court to make findings consistent with this opinion.
27 (...continued)
circumstances in which . . . statements were made" and therefore that competency is "not
relevant to the admission of excited utterances").
28 Agoney , 608 P.2d at 764.
-15- 7453
----------------------- Page 16-----------------------
b. The superior court clearly erred in finding that Jones was
not confident she had a clear view of the incident.
We have repeatedly stated, "It is the job of the trial court, not the appellate
court, to judge the credibility of the witnesses and to weigh conflicting evidence." 29
Stephan asserts that the superior court "had an impartial witness before [it] who testified
that [Cecilia's] claim was not in fact what had actually happened and [the court]
discounted [Jones's] testimony . . . and instead accepted and ruled upon hearsay." While
we decline to give new or different weight to Jones's testimony than that given by the
superior court, we do take issue with the court's underlying findings with respect to her
testimony. The superior court found that Jones testified honestly but that Jones was not
confident she had witnessed the entire incident. Based on this finding, the court gave
less weight to Jones's testimony than to the recording. But we find nothing in Jones's
hearing testimony to indicate that she did not have a clear view of what happened at the
Fun Center or that she lacked confidence in her observations. It was therefore clear error
for the court to so find and to discount Jones's testimony based on that finding.
c. The superior court abused its discretion by declining to
consider Jones's subsequent attempt to clarify the record
in Stephan's motion to reconsider.
Alaska Civil Rule 77(k) outlines several grounds on which a party may
move for reconsideration of a decision. A litigant may not introduce new evidence or
29 See e.g., Brett M. v. Amanda M., 445 P.3d 1005, 1011 n.21 (Alaska 2019)
(quoting Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005)).
-16- 7453
----------------------- Page 17-----------------------
30
arguments in the motion, but he may move for reconsideration if "[t]he court has
overlooked or misconceived some material fact." 31
In her testimony, Jones did not expressly state that she had an unobstructed
view of the incident at the Fun Center. But she described the location from which she
viewed what happened, and she chronicled the incident from the time she saw S.P.
running through the arcade until the time Stephan ultimately apprehended him.
According to Jones's testimony, from her vantage point she could hear the words and
tone that Stephan used when speaking to S.P.; she could describe how Stephan
apprehended S.P.; and she could observe that Stephan did not kick S.P. The superior
court found that Jones was honest in her testimony and made no negative credibility
findings.
In ruling on Stephan's motion for reconsideration, the court may have
impliedly determined Jones's statement in her affidavit - that she "saw th[e] entire
incident" and that "nothing" blocked her view - to be new evidence not introduced
during the protective order hearing. But we do not arrive at the same conclusion. In her
testimony at the long-term hearing, Jones could not have described the incident from
beginning to end as she did unless she had a clear view of what happened. We view
Jones's statements in her affidavit as clarifications ofthe record, made necessary because
of the superior court's misconception of her hearing testimony. Where, as here, the
superior court discounted her testimony for reasons not evident in the record, it was
manifestly unreasonable and an abuse of discretion for the court not to consider Jones's
subsequent attempt to clarify the record through her affidavit.
30 Katz v. Murphy, 165 P.3d 649, 661 (Alaska 2007).
31 Alaska R. Civ. Proc. 77(k)(1)(ii).
-17- 7453
----------------------- Page 18-----------------------
Given that the superior court made its assault finding by a "bare
preponderance" of the evidence, had the superior court given Jones's testimony different
weight, it is possible the court would have found that Stephan did not assault S.P.
Because the court based the weight it gave to Jones's testimony on an erroneous factual
finding and because it improperly rejected Jones's subsequent attempt to clarify the
record, the court must reconsider this testimony on remand.
2. We reverse the court's trespass finding.
Cecilia's petition for a protective order did not include criminal trespass as
grounds for protection. Indeed, it is unclear from the record whether in her testimony
Cecilia meant to raise any allegations of actionable trespass. Cecilia discussed Stephan's
unauthorized visit to her property and his refusal to leave toward the end of her
testimony and in the context the relief she was requesting. As justification for her
request to enforce the visitation provisions of the superior court's 2015 divorce decree,
she sought to persuade the court that Stephan did not "follow rules" or "respect [her]
boundaries."
The superior court appears to have focused on Stephan's possible violation
of a trespass order. When the police arrived, they discussed the mechanics of a trespass
order with Cecilia. Cecilia then asked them to "put a trespass again because of what had
happened." The court asked Cecilia whether Stephan had notice of a possible trespass
order. Cecilia responded, "I believe the Palmer police officers called him. I think they
told me they were going to notify him about that." The record contains no trespass order.
On this evidence the court, on its own initiative, added criminal trespass as a separate
basis for finding Stephan committed an act of domestic violence.
The court's finding of criminal trespass is lacking for multiple reasons. At
most, Cecilia's testimony suggests the police may have contacted Stephan about not
trespassing after the incident occurred; Cecilia's language and the context of her
-18- 7453
----------------------- Page 19-----------------------
testimony seem to indicate she wanted the police to warn Stephan not to trespass in the
future. There was no competent evidence of a pre-existing "trespass order" or any other
protective order prohibiting Stephan from entering Cecilia's property. The tenuous
nature of this testimony is insufficient to support a finding that Stephan committed
trespass. It was therefore clear error for the court to so find, and we reverse. 32
B. We Vacate The Superior Court's Order Requiring Stephan To
Undergo A Psychological Evaluation.
After finding that Stephan committed domestic violence, the court ordered
Stephan to undergo a psychological evaluation. The court included this directive along
with its restrictions on Stephan's contact with Cecilia in the long-term protective order.
As explained above, we vacate and remand the assault finding, reverse the trespass
finding, and vacate the domestic violence protective order. Since the validity of the
psychological evaluation order is predicated on the validity of the protective order, we
also vacate the court's order for a psychological evaluation.
C. We Vacate The Award Of Attorney's Fees.
Alaska Statute 18.66.100(c)(14) permits a court to "require the respondent
32 Thecourt'sfinding that Stephan committed trespassmay also haveviolated
his due process rights. "To comply with due process, notice must be given sufficiently
in advance of scheduled court proceedings so that the parties have a reasonable
opportunity to prepare." Geldermann v. Geldermann , 428 P.3d 477, 483 (Alaska 2018)
(quoting Childs v. Childs , 310 P.3d 955, 960 (Alaska 2013)). Cecilia's petition for a
protective order did not include criminal trespass as grounds for protection, nor did it
include any allegations of criminal trespass. Yet the superior court sua sponte found
Stephan committed criminal trespass without giving him notice that he may have to
defend against these allegations. We decline to hold that the court violated Stephan's
due process rights because the court's trespass finding is clearly erroneous. See Alaska
Trademark Shellfish, LLC v. State , 91 P.3d 953, 957 (Alaska 2004) ("[W]e have often
recognized that appeals should ordinarily not be decided on constitutional grounds when
narrower grounds are available.").
-19- 7453
----------------------- Page 20-----------------------
to pay costs and fees incurred by the petitioner" in seeking a domestic violence
protective order. Citing this provision, Cecilia moved for an award of $4,152.36 in costs
and fees. The superior court granted this motion, ordering Stephan to pay Cecilia 20%
33 As with the order for a psychological evaluation, there is no
of the requested amount.
basis to award attorney's fees absent a finding that Stephan committed an act of domestic
violence. Because we vacate the assault finding and reverse the trespass finding, we also
vacate the award of attorney's fees.
V. CONCLUSION
WeVACATEthesuperiorcourt'sassaultfinding and REMANDfor further
proceedings consistent with this opinion. We REVERSE the court's criminal trespass
finding. We VACATE the court's long-term protective order, its order requiring
Stephan to undergo a psychological evaluation, and its award of attorney's fees to
Cecilia.
33 The superior court's award of 20% of Cecilia's requested attorney's fees
suggests that the court may have applied Alaska Civil Rule 82(b)(2) in calculating the
award. We note, however, that any fee award in domestic violence petitions are to be
awarded under AS 18.66.100(c)(14).
-20- 7453
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
