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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edna K. v. Jeb S. (7/17/2020) sp-7467
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
EDNA K., )
) Supreme Court No. S-17380
Appellant, )
) Superior Court No. 4FA-14-02794 CI
v. )
) O P I N I O N
JEB S., )
) No. 7467 - July 17, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Christine M. Pate, ANDVSA Legal Program,
Sitka, for Appellant. Eric J. Brown, Law Office of Eric J.
Brown, P.C., Homer, for Appellee.
Before: Winfree, Stowers, and Maassen, Justices. [Bolger,
Chief Justice, and Carney, Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
1 appeals a child custody modification decision declining to find a
Edna K.
change of circumstance even though both parties sought to modify their joint custody
agreement. The superior court ruled that Edna was collaterally estopped frompresenting
1 Pseudonyms are used to protect the parties' privacy.
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evidence of Jeb S.'s history of domestic violence because the issue had been "adequately
addressed"inthe parties' stipulated custody agreement. The superior court's application
of collateral estoppel was legal error. We reverse the court's application of collateral
estoppel, vacate the court's findings on changed circumstances, and remand for an
evidentiary hearing on issues of domestic violence.
II. FACTS AND PROCEEDINGS
A. 2017 Stipulated Agreement
Edna and Jeb never married but had one child together, G.S., in February
2012. The two had a "rocky" relationship and they separated permanently two and a half
years after their son's birth. Edna filed a complaint for primary physical custody with
shared legal custody in October 2014. Edna was initially self-represented, although the
court granted her motion for attorney's fees to level the playing field. In May 2015 Edna
filed a motion for interimcustody and visitation again, seeking primary physical custody
but with shared custody when Jeb was in town. Her motion listed each of the best
interests factors in AS 25.24.150(c) and stated that "[t]here is no evidence of domestic
violence, child abuse, or child neglect in either parent['s] household." Temporary orders
were issued in August 2015, awarding shared legal custody and prescribing an
alternating schedule for physical custody taking into account Jeb's work schedule on the
North Slope. In September 2015 Edna moved for a custody investigation to address her
concerns of "domestic violence" and "control issues," among others. The court granted
that motion and ordered Jeb to procure a private custody investigator. The parties
continued to quarrel in the period leading up to the custody investigation, with Jeb
seeking a long-term protective order against Edna in March 2016.
The private custody investigator met with the parties several times from
June through August 2016. The investigator noted that the parties proposed nearly
identical custodial arrangements. Rather than attempt to "substantiate or invalidate" the
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allegations of domestic violence raised by the parties, the custody investigator's report
stated that "50/50 custody . . . is what this investigator tried to reach." The report briefly
summarized Jeb's criminal record and past reports of domestic violence, including a
2005 conviction for sexual abuse of a minor. The report contained only a half-page
discussion on domestic violence, noting that although Jeb was the subject of a number
of restraining orders, Edna's 2015 motion stated that no domestic violence existed. The
custody investigator also minimized the severity of Jeb's conviction for sexual abuse of
a minor because Jeb later obtained custody of the son born out of that relationship, so the
2
investigator reasoned that "the court [did] not deem him a risk to his own children."
The report recommended shared legal custody and varying degrees of shared physical
custody, depending on Jeb's work schedule and location.
Theparties negotiated asettlement in September 2016largelyincorporating
the "50/50 custody" arrangement proposed by both sides. The superior court approved
the parties' proposed custody agreement in January 2017. The custody arrangement
provided alternating two-week periods of custody when both parents were living in the
same area. G.S. was to alternate three weeks with Jeb and two weeks with Edna during
summers after he began kindergarten. The agreement also contained provisions for child
support and for splitting G.S.'s permanent fund dividend.
2 Raising a similar argument in his written closing argument before the
superior court, Jeb appended what he claimed was a 2017 custody modification order
"grant[ing] primary physical and sole legal custody of [his other son]." But Jeb's history
of domestic violence was never mentioned in the attached exhibit, which in actuality was
the magistrate's proposed order and contained no indication whether it had been adopted
by the court. Moreover, the primary concern in the magistrate's report was "the
significant emotional distress" the son suffered due to domestic violence between his
mother and her husband at the time.
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B. 2018 Custodial Disputes
Despite the stipulated custody order the parties' communication continued
to deteriorate, and in January 2018 Jeb asked the superior court to hold Edna in contempt
for violating the order. Jeb claimed that Edna relocated to Soldotna without consulting
him, refused to pay for airfare to facilitate visitation, prevented Jeb from picking up G.S.
in Soldotna for visitation, and then moved again to Nenana. Jeb argued that Edna's life
was "chaotic and lack[ed] any kind of stability," implying that her successive moves
were detrimental to G.S.'s interests. Edna countered that there was no scheduled
visitation for the week Jeb claimed he was entitled to visitation, Jeb refused visitation on
other dates that she offered, and she could not afford to pay for transportation. Edna
submitted text messages specifically refuting Jeb's allegations of non-cooperation, and
she additionally alleged that Jeb had dropped G.S. from his insurance plan prior to a
medical appointment in January 2018. Edna claimed that it was Jeb who lacked stability
as he "has changed live-in partners at least three times since [they] were last in court."
The superior court refused to consider Jeb's arguments on G.S.'s best interests and
denied his motion in April 2018, because Edna had "at least adequately performed under
the custody agreement."
According to Edna, in May 2018 after she dropped off G.S. and his dog
with Jeb for a weekend, Jeb subsequently refused to let the dog go back with Edna when
she returned to pick up G.S. Jeb kept the dog locked in his trailer each time after that
when Edna came to pick up G.S. On June 20, when Edna came to pick up G.S. to attend
a family funeral, Jeb was not home and the dog was not locked inside, so Edna took it.
This instigated what Edna described as a "ransom" situation where Jeb's girlfriend at the
time kept G.S. in the trailer and demanded that Edna return the dog, although she
eventually let G.S. go with Edna. The next day, Jeb filed for a short-term protective
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order, allegedly "claiming [Edna] had stolen his dog"; the petition was denied, and the
petition for a long-term order was later dismissed.
A week later Jeb refused to return G.S. at the end of his three-week
visitation period. On June 29 Jeb petitioned for a protective order in G.S.'s name
alleging that G.S. was sexually abused by one of the teenage sons of Edna's partner at
the time. Although the magistrate judge initially granted an ex parte order, the long-term
protective order was later denied as just "another in the parties' long-running battle over
[G.S.]" The magistrate judge ordered the parties to return to the prior custody agreement
on July 16. Jeb refused and allegedly told Edna that "you can file whatever you want;
but [G.S.] is not going back to you."
Edna sought a writ of assistance to enlist the aid of police officers in
returning G.S. to her custody. Jeb still refused, and when Edna attended one of G.S.'s
counseling appointments, she attempted to leave with G.S. Ednawas carrying G.S. when
Jeb caught up to them; according to Edna, Jeb initiated a "tug-of-war" in the parking lot,
grabbing G.S. "around his stomach" and dragging them both approximately "two car
lengths." Edna's mother observed that G.S. had his arms around Edna's neck,
"[h]anging on for dear life to his mom." The incident reportedly left G.S. with "a painful
effect on his leg." At the August 16 hearing for Edna's writ of assistance, the
caseworker assigned to investigate Jeb's allegations noted that G.S. "did not make any
disclosures about being a victim of sexual abuse." The court issued a writ of assistance
and G.S. was returned to Edna after the hearing, a full month after the magistrate judge
ordered his return.
C. Motion To Modify Custody And The Superior Court's Findings
On July 30, in response to Edna's motion for a writ of assistance, Jeb
moved to modify the custody agreement to grant him primary physical custody of G.S.
Jeb again alleged that G.S. was sexually abused while in Edna's custody, although he
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claimed "the long-term protective order was denied for reasons [he did not] quite
understand." Jeb nonetheless acknowledged that he refused to return G.S. and abide by
their prior agreement because Jeb "honestly believe[d]" that G.S. was "not safe with
her." Jeb also alleged that Edna had "lied to the court" on several occasions, and that
"because she moves around so much . . . [G.S.] has no stability in his life when he's with
his mother." In response, Edna stated she "does not oppose modification of custody,"
but instead proposed that "it is in [G.S.]'s best interests that his mother, not his father be
awarded legal and primary physical custody." Edna focused on the parties' "inability to
cooperate and share legal custody" as well as Jeb's "pattern of controlling and
manipulating behavior." EdnaalsoiteratedJeb's"long and well-documented history [of]
domestic violence," which by statute would establish "a presumption against awarding
3 Because both parties agreed that "a substantial change in
him sole or joint custody."
circumstances" existed, the court decided that the next step was to "just set a best interest
hearing."
The court held an evidentiary hearing to determine G.S.'s best interests on
September 13. Jeb's arguments and his witnesses focused on the alleged sexual abuse
as well as Edna's housing stability and credibility. Edna sought to refute those
allegations while additionally introducing evidence of Jeb's history of perpetrating
domestic violence. The superior court recognized that "there is no look-back time on
instances of domestic violence," meaning past incidents could be introduced regardless
of how long ago they occurred. But rather than permit Edna's counsel to question Jeb
about those instances, the court asked which specific past incidents of domestic violence
Edna wanted to introduce evidence on. The parties were then ordered to submit written
closing arguments to explain the legal reasons why the court should or should not look
3
See AS 25.24.150(g).
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at those incidents. Edna also testified about several instances of more recent domestic
violence, including two incidents prior to the 2017 custody agreement, as well as Jeb's
recent refusal to return G.S. to Edna for a month and the "ransom" and "tug-of-war"
episodes. When her counsel then attempted to question Edna's mother to confirm that
allegations ofdomestic violence were"notarecentfabrication,"thecourt sustained Jeb's
objection for hearsay. Aside from domestic violence, Edna testified that G.S. told her
he was "afraid" and that he "didn't want to go back to his dad" because Jeb "spanks him
all the time." She also testified that G.S. said Jeb's older son "would be abusive to him"
and had "hit him in the face . . . [and] broke his toys."
The superior court issued findings denying both parties' motions to modify
custody on December 17, 2018. The court relied on the parties' supplemental briefing
that discussed whether any authority "authorize[d] consideration of acts of domestic
violence alleged to have occurred prior to the entry of a stipulated custody decree in a
subsequent modification hearing." Although Edna identified two cases that "suggest[]
the court may be required to consider such evidence," the court held those cases
"inapposite" because "domestic violence issues have informed [this] case and decisions
throughout its entire history." The court then noted that both parties were represented
from the first hearing on and that Edna's counsel represented in 2015 that "domestic
violence . . . in either parent['s] household" was not a concern. (Emphasis in original.)
The court noted that the custody investigator's report "documented the various DV
issues for both parties" and "specifically addressed" many of the incidents Edna raised
at the hearing. Because the stipulated agreement was "essentially a shared custody
schedule consistent with [Jeb]'s work schedule," the court reasoned that Edna "clearly
agreed with the [custody investigator's report]." But the court ultimately refused to
consider Edna's domestic violence arguments:
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In the present case, the parties reached their custody
agreement fully informed on all issues and with the help of
counsel. The issue of domestic violence was fully disclosed
by the [custody investigator's] report and certainly
"adequatelyaddressed"by theorder requestedbyrepresented
parties and accepted by the court. In this posture of full
disclosure to represented parties, and the ability to litigate
these issues prior to entering in the now controlling Decree,
the court finds [Edna] cannot now attempt to use issues which
she knowingly, voluntarily, and intelligently abandoned in
her decision for an agreed upon resolution. . . . [T]he court
finds that acts of domestic violence now raised by [Edna] are
barred and estopped from being raised at this junction, and
the request to make such findings denied.
Having disposed of the domestic violence allegations, the court then found that Jeb had
"failed to prove by a preponderance of the evidence that [G.S.] was sexually
abused . . . or that [Edna] cannot keep him safe." Jeb also "failed to prove . . . that
household moves by [Edna] constitute instability such as to adversely impact [G.S.]."
The court noted - incorrectly - that Edna "contends no substantial change of
circumstances exist" and made no mention of her other claims of recent domestic
violence. The court's final ruling was that "neither party has established a substantial
change of circumstance" because "the parties were [sic] contested most terms of custody
in the past. They continue to do so now." The court denied Edna's motion to reconsider,
and she now appeals.
III. STANDARD OF REVIEW
In the child custody context, we will reverse a decision "only if findings of
fact are clearly erroneous or if the superior court abused its discretion." 4 The superior
court's decision to apply collateral estoppel is likewise reviewed for abuse of discretion
4 Geldermann v. Geldermann, 428 P.3d 477, 481 (Alaska 2018) (quoting
Riggs v. Coonradt, 335 P.3d 1103, 1106 (Alaska 2014)), reh'g denied (Oct. 31, 2018).
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5
"when its technical requirements areotherwisesatisfied." On theother hand,"[w]hether
the superior court applied the correct legal standard is a question of law that we review
6 This includes "[t]he applicability of collateral estoppel to a particular set of
de novo."
facts."7
IV. DISCUSSION
Edna argues that the superior court incorrectly applied the doctrine of
collateral estoppel to the issue of domestic violence because the court "never had an
opportunity to adjudicate it" in the first place. The superior court based its decision
largely on the custody investigator's report rather than any prior judicial findings of fact
regarding domestic violence. We agree that the superior court committed legal error in
applying collateral estoppel to the situation at hand.
Allegations of domestic violence are not to be taken lightly in the child
custody context. Alaska Statute 25.20.110(a) provides that "[a]n award of custody of a
child . . . may be modified if the court determines that a change in circumstances requires
the modification of the award and the modification is in the best interests of the child."
That same statute states that a recent occurrence of domestic violence is itself a per se
finding of changed circumstances.8 Alaska Statute 25.24.150(g) further provides "a
rebuttable presumption that a parent who has a history of perpetrating domestic violence
5 Andrea C. v. Marcus K., 355 P.3d 521, 526 (Alaska 2015) (footnote
omitted).
6 Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011).
7 Andrea C., 355 P.3d at 526 (quoting State v. United Cook Inlet Drift Ass'n ,
895 P.2d 947, 950 (Alaska 1995)).
8 AS 25.20.110(c) ("[A] finding that a crime involving domestic violence has
occurred since the last custody or visitation determination is a finding of change of
circumstances . . . ."); accord Hanson v. Hanson, 36 P.3d 1181, 1187 (Alaska 2001).
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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." One of the best interests factors that courts must consider likewise concerns the
presence of "any evidence of domestic violence, child abuse, or child neglect in the
proposed custodial household or a history of violence between the parents." 9
In Williams v. Barbee we held "that where a superior court finds that
domestic violence occurred, it must make express findings regarding whether the
incident or incidents of domestic violence constitute a 'history of perpetrating domestic
violence.' "10 Failing to make those findings is "plain error."11 Apropos to the case now
before us, we further noted that such findings are "especially necessary" in situations
"where the presumption was not addressed at the initial custody determination because
12 Such stipulated
the custody award was made pursuant to an agreement of the parties."
custody agreements do not constitute "findings of fact" and are not entitled to
13 Further acknowledging the legislature's important statutory goal of
deference.
14 wehaverepeatedly
protectingchildren fromthelong-termeffects ofdomesticviolence,
emphasized that these commands apply equally to any alleged acts, whether arising
9 AS 25.24.150(c)(7).
10 243 P.3d 995, 1004 (Alaska 2010) (quoting AS 25.24.150(h)).
11 Id. (quoting Michele M. v. Richard R., 177 P.3d 830, 837 (Alaska 2008)).
12 Id. at 1003.
13 Id. at 1003 n.34 (quoting Hamilton v. Hamilton, 42 P.3d 1107, 1115
(Alaska 2002)); accord Heber v. Heber, 330 P.3d 926, 932 (Alaska 2014) (noting that
to effectuate child's best interests, courts "must disregard [any contrary] stipulation in
the dissolution petition even if that result is unfair to one of the parents").
14 See Williams, 243 P.3d at 1001-02 & nn.25-27 (discussing legislative
history behind domestic violence provisions in AS 25.24.150).
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15
before or after the initial custody agreement. In other words, where there is smoke, the
superior court is obligated to proactively search out any potential fires.
We addressed the application of collateral estoppel to child custody
16 There we held that "res judicata does not apply to
decisions in McAlpine v. Pacarro .
custody modification motions, although the principle of finality does."17 While "parties
should not be allowed to relitigate 'in the hope of gaining a more favorable position,' "18
we recognized that the rules are "relaxed . . . in custody matters involving domestic
violence," and the superior court must "look back to events that occurred before the
initial custody order if not adequately addressed at the initial custody determination or
subsequent proceedings."19 Nonetheless, we noted that certain issues could be barred by
the doctrine of collateral estoppel, or issue preclusion, when: "(1) the party against
whom preclusion is sought was a party . . . to the first action; (2) the issue is identical to
the issue previously decided; (3) a final judgment on the merits was issued; and (4) the
15 Id. at 997, 1007 (remanding for superior court to make express findings on
alleged acts of domestic violence occurring more than a year before initial custody
agreement); see also Heber , 330 P.3d at 932; McAlpine v. Pacarro , 262 P.3d 622, 626
(Alaska 2011).
16 262 P.3d at 625-27.
17 Id. at 626. There are three elements in res judicata, otherwise known as
claim preclusion: "(1) a final judgment on the merits, (2) from a court of competent
jurisdiction, (3) in a dispute between the same parties . . . about the same cause of
action." Id. at 625 (quoting Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010)).
18 Id. at 626 (unnoted alteration in original) (quoting Bunn v. House, 934 P.2d
753, 758 (Alaska 1997)).
19 Id. (emphasis added).
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20
determination of the issue was essential to the final judgment." Even then, this
principle is to be employed sparingly - it requires careful discretion "tempered by
21 and
principles of fairness in light of the circumstances of each particular case,"
therefore may not be warranted if the parties were not previously provided an
opportunity to "fully and fairly contest[] the issue."22 We thus concluded that those
"domestic violence allegations that were actually raised" in previous hearings may be
subject to preclusion, and we remanded for the superior court to consider "the fairness
of applying collateral estoppel."23
In subsequent cases we have attempted to further clarify when collateral
estoppel may be available in the context of domestic violence allegations in custody
proceedings. In Heather W. v. Rudy R. we held that collateral estoppel was improper
when there was no indication that any evidence of "domestic violence ha[d] ever been
heard in a custody proceeding."24 That case was remanded specifically "because the
25 We also noted that, although
issue of domestic violence ha[d] never been adjudicated."
the mother in McAlpine did not have counsel, "this does not mean that the rule from
McAlpine applies only when one or both parties are pro se."26 In another case, we upheld
20 Id. at 627 (citing Latham v. Palin , 251 P.3d 341, 344 (Alaska 2011)).
21 Id. (quoting Misyura v. Misyura , 242 P.3d 1037, 1040 (Alaska 2010)).
22 Id.
23 Id. (emphasis added).
24 274 P.3d 478, 486 (Alaska 2012) (emphasis added).
25 Id. at 480 (emphasis added).
26 Id. at 486 n.30.
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the superior court's refusal to apply collateral estoppel to a protective order due in part
to the fact that the order contained only "cursory findings." 27
Although we have employed different language over the years to describe
the level of inquiry necessary for the application of collateral estoppel, the actual
requirements have never changed. As for the finality requirement, we have stated that
"the test is whether the issue has been 'fully litigated.' "28 In other words, unless some
court oversaw "a full and vigorous contest of the issue,"29 collateral estoppel is improper.
The superior court here noted correctly that "there is no look-back time on
instances of domestic violence," but it subsequently found that domestic violence had
been "fully disclosed" in the custody investigator's report and "adequately addressed"
in the initial custody agreement, which was "requested by represented parties and
accepted by the court." And even though the court had never explicitly made any
findings of fact on domestic violence, it reasoned that "domestic violence issues have
informed the case and decisions throughout its entire history." This misstated the correct
legal standard. First, although the court pointed out numerous times that Edna was
represented by counsel, Heather W. plainly states that whether parties are represented is
27 Harris v. Governale, 311 P.3d 1052, 1057 (Alaska 2013); see also
Andrea C. v. Marcus K. , 355 P.3d 521, 527-28 (Alaska 2015) (holding that superior
court did not abuse its discretion by declining to apply collateral estoppel where father
believed separate protective order would have "no impact" on his custody case).
28 Borg-Warner Corp. v. Avco Corp. (Lycoming Div.), 850 P.2d 628, 635
(Alaska 1993).
29 McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (citing Sengupta
v. Univ. of Alaska, 21 P.3d 1240, 1250 n.29 (Alaska 2001)); see also RESTATEMENT
(SECOND) OF JUDGMENTS § 28(5) (A M. L AW INST . 1982).
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30
irrelevant. Second, the custody investigator's report is not an adequate substitute for
judicial fact-finding - its review of the allegations was cursory, barely spanning half a
page, and ultimately the report relied heavily on language from Edna's 2015 motion.
While the court believed Edna "clearly agreed with" and had thus adopted the report's
statements when the court incorporated the parties' proposed findings of fact into its
"controlling" custody decree, the 2017 findings were silent on domestic violence.
Regardless, we have repeatedly admonished against deferring to negotiated custody
31 Finally, the court's finding that prior
agreements when domestic violence is involved.
instances of domestic violence were "fully disclosed" and had "informed the case and
decisions throughout" is not a finding that the issue has been "adequately addressed,"
much less "fully litigated" as our case law requires.32 Because no court ever made
findings of fact in regard to Edna's domestic violence allegations, it was error for the
30 274 P.3d at 486 n.30.
31 See Heber v. Heber , 330 P.3d 926, 932 (Alaska 2014); Williams v. Barbee ,
243 P.3d 995, 1002-03 (Alaska 2010).
32 Paradoxically, the superior court found that Edna "knowingly, voluntarily,
and intelligently abandoned" those issues by refusing to litigate them earlier. But having
never been litigated cannot possibly mean "fully litigated" for the purposes of collateral
estoppel. The court appears to have misapplied the test for waiver or equitable estoppel
instead of the test for collateral estoppel. See Carr-Gottstein Foods Co. v. Wasilla, LLC,
182 P.3d 1131, 1136 (Alaska 2008) ("To prove an implied waiver of a legal right, there
must be direct, unequivocal conduct indicating a purpose to abandon or waive the legal
right, or acts amounting to an estoppel by the party whose conduct is to be construed as
a waiver." (quoting Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978))); cf. Chilkoot
Lumber Co. v. Rainbow Glacier Seafoods, Inc., 252 P.3d 1011, 1016 n.13 (Alaska 2011)
(noting that "collateral estoppel and equitable estoppel are quite distinct doctrines," and
raising one does not preserve appeal on the other). Where res judicata is unavailable,
McAlpine, 262 P.3d at 626, Jeb cannot avail himself of arguments under a theory of
waiver or equitable estoppel to reach the same result.
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----------------------- Page 15-----------------------
superior court to apply collateral estoppel to bar her from submitting evidence on that
issue. We reverse the court's decision to apply collateral estoppel, vacate its findings on
no change of circumstances, and remand for an evidentiary hearing on the domestic
violence allegations regarding alleged incidents before and after the parties' stipulated
custody agreement.
We note also that the court never actually discussed Edna's arguments for
changed circumstances due to recent acts of domestic violence, including Jeb's alleged
33 These allegations also must be addressed on remand.
custodial interference.
V. CONCLUSION
We REVERSE the superior court's decision to apply collateral estoppel,
VACATE its determination on changed circumstances, and REMAND the case for
further proceedings.34
33 Custodial interference in the second degree occurs when a minor child's
relative "keeps that child . . . from a lawful custodian with intent to hold the child . . . for
a protracted period" when that relative knows they have "no legal right to do so."
AS 11.41.330(a)(1); see also AS 18.66.990(3)(A) (defining "domestic violence" to
include custodial interference); Regina C. v. Michael C. , 440 P.3d 199, 206-07 (Alaska
2019) (acknowledging that custodial interference is relevant to determining history of
domestic violence).
34 Edna also moved for attorney's fees incurred as a result of Jeb's motion to
modify. Although the court had not resolved this motion as of Edna's appeal, any award
or denial of attorney's fees is also VACATED.
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