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Timothy W. v. Julia M.

Supreme Court of Alaska

August 25, 2017

TIMOTHY W., Appellant,
v.
JULIA M., Appellee.

         Appeal from the Superior Court of the State of Alaska, No. 3AN-12-06387 CI, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge.

          Meredith A. Ahearn, Law Office of Meredith Ahearn, Anchorage, for Appellant.

          Notice of nonparticipation filed by Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Carney, Justice, not participating.]

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         The father in a custody, support, and visitation dispute maintains that the trial court was biased against him. The father challenges the court's: (1) denial of his judicial recusal motion; (2) decision to keep certain hearings open to the public; (3) sua sponte admission of evidence during its oral decision on the record; and (4) findings that the father had a history of domestic violence against a "domestic living partner" requiring the court to impose limitations on his visitation. We affirm the trial court as to the first three matters, but we vacate the visitation order and remand for further proceedings, specifically, for findings on whether the acts of domestic violence occurred while a domestic living partnership was in effect.

         II. FACTS AND PROCEEDINGS

         Julia M. and Timothy W., [1] both attorneys, married in 2005 and have three children, born in 2006, 2008, and 2010. The couple separated in 2011 and in April 2012 Julia filed for divorce.

         Julia and Timothy initially appeared before Superior Court Judge Frank A. Pfiffner in May 2012, and in July entered into an agreement concerning custody, visitation, and support for their children. The agreement lasted through the fall; in December Timothy requested that Julia's sole legal custody and primary physical custody be modified.[2] The trial court denied that request because there had been no material change in circumstances. Timothy also sought to have his child support reduced or eliminated.[3] Julia in turn requested that the court impute income to Timothy and increase his child support.[4] Both parties requested changes to Timothy's visitation schedule. The court held evidentiary hearings to resolve these and other motions in early 2013.

         The trial court decided the visitation and child support issues in a March 2013 order. The court ruled that the previously established unsupervised visitation schedule would remain in effect, but instituted logistical guidelines to minimize conflict. Timothy's request for a hardship reduction in his child support was denied, and his payments were slightly increased based on a change in his net income. The court denied Julia's request to impute income to Timothy, finding he was not voluntarily and unreasonably underemployed. In reaching that determination the court made a number of harsh observations about Timothy's legal and parenting skills, business acumen, and mental health.

         The initial 2012 divorce and custody proceedings had been, at the parties' request, confidential and closed to the public. After the March 2013 order-containing the trial court's harsh observations about Timothy's abilities and mental health - Timothy again moved to keep the proceedings confidential. Julia had not opposed keeping the earlier proceedings confidential, but she opposed this request. The court denied Timothy's motion and his subsequent motion for reconsideration.

         In June 2014 Timothy filed a motion to disqualify Judge Pfiffner from further proceedings in the case. The disqualification motion "precede[d] a contemplated" motion to modify custody, visitation, and support. Timothy filed the disqualification motion because he believed "that a fair and impartial hearing cannot occur in respect of the contemplated [modification] motion." Timothy requested Judge Pfiffner's recusal in this case and "from any other matter where [Timothy is] participating as an attorney ... (so as to avoid duplicative filings [in those other matters] that have the same or similar information)." Timothy argued that the March 2013 order demonstrated an impermissible bias against him, or that it at a minimum created the appearance of bias. Timothy also argued that by commenting on his abilities as an attorney the court was effectively acting "as a witness in the trial" requiring recusal on that basis as well.

         Timothy's recusal motion was denied and referred for assignment to another superior court judge for review pursuant to AS 22.20.020(c).[5] Because Timothy was at that time participating in another case before Judge Pfiffner, requiring recusal from that case if Timothy's motion were granted, the order denying Timothy's recusal motion was served on counsel in that other case as well. The reviewing judge affirmed the order denying Timothy's request for recusal.

         In September 2015 Julia filed a visitation modification motion. Alleging that Timothy's "mental health and personal circumstances and stability [had] deteriorated, " she requested that Timothy be limited to supervised visitation with the children. The trial court held evidentiary hearings in January and February 2016. Both parties were self-represented at the first hearing; at the second Timothy was represented by counsel. At the first hearing Timothy again requested that the matter be confidential; Julia opposed the request. The court again ruled that the matter would remain open.

         During these hearings one of Timothy's clients played a prominent role. Jackie[6] had been referred to him in November 2014 for assistance with ongoing legal issues. By early 2015 their attorney-client relationship had "evolved into a romantic, sexual relationship." At the second evidentiary hearing Julia called Jackie to testify about her relationship with Timothy; Jackie's testimony was corroborated by text messages she and Julia had exchanged. Jackie testified to actions by Timothy that the trial court later determined constituted domestic violence.[7] As the trial court summarized: in one incident "[Timothy] ended up in [Jackie's] . . . locked house, uninvited, after he had swiped a credit card to jimmy the lock so that he could get in with his children... and [Jackie] came home and found him there and asked him what he was doing"; in a second incident when Timothy was at Jackie's home and she found text messages he had sent another woman, Jackie "became infuriated and ordered [Timothy] to leave .... [Timothy] initially . . . declined to do so and [Timothy] did not leave . . . until [Jackie] threatened [Timothy] with pepper spray and by calling the police." Finally, the court summarized Jackie's testimony concerning how Timothy "demanded sex" from her on numerous occasions in exchange for "continu[ing to do] a good job" on her legal work, and how she "allowed the sex to occur, even though she didn't always want it."

         Several days after the second evidentiary hearing the trial court entered an oral decision with both Timothy's counsel and Julia in attendance. The court sua sponte entered into evidence the text messages Julia and Jackie had exchanged, noting that Julia had established a foundation for them during the evidentiary hearings. The court found that Timothy and Jackie were both "household members" and "domestic living partner[s]" for purposes of relevant domestic violence and visitation statutes. The court then found that Timothy had committed three acts of domestic violence against Jackie - two counts of criminal trespass and one of coercion. Because the court determined that Timothy had committed three acts of domestic violence against a domestic living partner, the court applied the AS 25.24.150(j) presumption against supervised visitation and ordered Timothy to complete a parenting class and a batterer intervention program before he could resume unsupervised visitation.[8] Timothy appeals; Julia filed a notice of nonparticipation.

         III. STANDARD OF REVIEW

         We "review[] the decision on a motion to recuse for an abuse of discretion."[9] "[We] will not overturn a trial judge's recusal decision unless it is plain that a fair-minded person could not rationally come to that conclusion on the basis of the known facts."[10]

         In determining whether to limit access to a case file under Alaska Administrative Rule 37.6, trial courts must weigh the public interest in disclosure against any legitimate interest in confidentiality.[11] We generally review such decisions for abuse of discretion.[12] "We will find an abuse of discretion when the decision on review is manifestly unreasonable."[13] Additionally, "[a]n abuse of discretion exists where the superior court 'considered improper factors in making its . . . determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others.' "[14]

         "We review evidentiary rulings for abuse of discretion, although whether the trial court applied the correct legal standard presents a question of law that we review de novo."[15]

         "We will reverse a superior court's custody and visitation determination 'only if the superior court has abused its discretion or if its controlling findings of fact are clearly erroneous.' "[16] "We will conclude that a trial court's factual finding is 'clearly erroneous' when we are left with a 'definite and firm conviction that the . . . court has made a mistake.' "[17] But "[w]e review de novo whether a superior court's findings satisfy the requirements" of statutes and rules.[18]

         IV. DISCUSSION

         A. The Trial Court Did Not Abuse Its Discretion By Declining To Recuse.

         Timothy first argues that the trial court erred when it failed to recuse "and compounded this error by disseminating this information to opposition counsel in another case before the same trial court judge." Alaska Statute 22.20.020 lists nine grounds for disqualification; relevant to this appeal are AS 22.20.020(a)(3), disqualifying a judicial officer when "the judicial officer is a material witness, " and AS 22.20.020(a)(9), requiring recusal when "the judicial officer feels that... a fair and impartial decision cannot be given."[19] In addition to actual bias, we have stated that under this statute "the appearance of partiality might be sufficient grounds for" disqualification[20] and that "[a] judicial officer must [recuse] in any proceeding in which the judicial officer's impartiality might reasonably be questioned."[21]

         We have held that "[t]o succeed on a motion to disqualify a judge for bias, the movant must show that the judge's actions 'were the result of personal bias developed from a nonjudicial source.' "[22] More specifically "a judge is not disqualified if the judge's 'knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings.' "[23] Finally, "[i]t should be kept in mind that a judge has as great an obligation not to [recuse], when there is no occasion to do so, as ... to do so in the presence of valid reasons."[24]

         1. Timothy abandoned his claim that the trial court was a material witness under AS 22.20.020(a)(3).

         Timothy asserts that recusal was required because the trial court was "a material witness."[25] Timothy raised and argued this ground for recusal in his 2014 disqualification motion, and it was addressed in the denial order. But Timothy's appeal brief does not discuss the material-witness question, including why AS 22.20.020(a)(3) should apply in this case. A cursory point that is not further argued in the brief "will not be considered on appeal."[26] We consider abandoned any claim that the trial court should have been disqualified as a material witness against Timothy.

         2. The trial court did not abuse its discretion in determining there was no bias or appearance of bias under AS 22.20.020(a)(9).

         Timothy more extensively develops his assertions of bias and appearance of bias under AS 22.20.020(a)(9). Timothy points to a number of harsh and unflattering findings the trial court made about Timothy's legal abilities and mental health in its March 2013 order. Timothy argues these cannot be considered "a measured finding and order from an objective finder of fact, " and notes how damaging such statements are to his career as an attorney. He ultimately asserts that "[a]ny reasonable person reading the trial judge's orders would conclude that the judge was biased, or harbored some unknown animus toward [Timothy] not articulated in the order."

         a. Timothy does not establish that any alleged bias resulted from a n on judicial source.

         Timothy fails to address whether the court's "actions 'were the result of personal bias developed from a nonjudicial source, ' "[27] or whether instead the court's "knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings."[28]

         Timothy perhaps chose not to address this restriction on findings under AS 22.20.020(a)(9) because the trial court explicitly documented that its findings were rooted in testimony presented in the case and Timothy's own performance before the court. The court also explained that its findings "were not gratuitous statements intended to humiliate [Timothy]" but were instead "necessary findings to explain [the] decision." The findings were necessary because Julia "made a very strong argument that [Timothy] was unreasonably underemployed" for purposes of Rule 90.3(a)(4). Julia had demonstrated that Timothy "is highly intelligent and has an impressive academic resume. In the past [Timothy] has held jobs of significant difficulty, responsibility, and pay.... Yet, his income was only $11, 135. . . . [Timothy's] woeful employment situation appeared unreasonable considering his intellect and education." The trial court amply demonstrated that its opinions "were properly and necessarily acquired in the course of the proceedings, "[29] and Timothy provides no argument on appeal to rebut this showing.

         b. Timothy does not demonstrate that the trial court's statements displayed an inability to render fair judgment.

         Despite failing to address basic elements of the improper bias analysis, Timothy's appeal might nonetheless have merit were he to demonstrate that the trial court's statements were "so extreme as to display clear inability to render fair judgment."[30] He does not. Although the language may have been intemperate, the court's findings overall demonstrate a thorough and impartial consideration of the relevant facts.

         Timothy asserts that "[a]ny reasonable person reading the trial judge's orders would conclude that the judge was biased, or harbored some unknown animus, " asking rhetorically how any person "considering hiring him... [could] not be influenced by the judge's excessive comments about [Timothy's] legal ability, his character, or his mental stability." But that concern is properly considered under Alaska Administrative Rule 37.6 when determining whether to limit public access to the case file and hearings, [31]and Timothy raises this same interest in the confidentiality portion of his brief. The trial court considered Timothy's privacy interests when ruling on multiple requests to make the file and hearings confidential. Timothy offers no reason the impact on his privacy interests is relevant in the context of determining whether the court was impermissibly biased against him. As discussed above, the findings were "necessary ... to explain [the] court's decision, " and because they were necessary their inclusion provides no grounds to impute bias to the court-much less demonstrate the inability to render fair judgment - regardless of any detrimental impact on Timothy.

         Timothy next faults the trial court for "liberally c[oming] to conclusions not in evidence, " presumably referring to the unemployability finding. This argument is not further developed in his brief. But the court explained why it reached this conclusion: "[T]his court routinely helps pro se litigants by considering legal arguments that are warranted by the evidence even when those arguments are not presented by the litigants themselves." As noted above, Julia "made a very strong argument that [Timothy] was unreasonably underemployed, " an outcome Timothy sought to avoid. Had the court not found that Timothy was unemployable as an attorney then "the court might well have determined that [Timothy] was voluntarily underemployed." Contrary to any suggestion that this finding demonstrates an inability to render fair judgment, the trial court plausibly explained a desire to fully protect Timothy's legal interests and entered the finding in the course of ruling in Timothy's favor.

         Timothy's arguments are notably undeveloped. Other than citing three cases for unobjectionable rule statements, [32] Timothy makes no attempt to provide authority for his claims of impermissible bias or to demonstrate any error that might have resulted from that alleged bias.[33] Timothy's argument under AS 22.20.020(a)(9) amounts to little more than an assertion that his own interpretation of the trial court's motives should be ascribed to all reasonable persons. We find this unpersuasive.

         3. The trial court did not abuse its discretion by serving its order on opposing counsel in another case.

         Timothy asserts that the bias he alleges above was "compounded ... by disseminating th[e] information to opposition counsel in another case before the same trial judge." Timothy fails to substantially develop this argument in his brief, but when Timothy submitted his 2014 disqualification motion he was counsel of record in one other case before the same judge. The trial court noted that if it were to grant the motion it "would have to 'sua sponte' recuse [itself] from participating in" the other case and served the denial order on opposing counsel in that case as well.

         Although Timothy argues that this prejudiced him in the other case because opposing counsel "would likely determine its chances were better when litigating against [Timothy] before the court versus some other counsel, " he fails to appreciate that his recusal request constituted an ex parte communication in the other case. Timothy hoped for "sua sponte" recusal from the other case so that Timothy could "avoid duplicative filings that have the same or similar information"; opposing counsel in that other case would not have considered a motion to disqualify the judge a duplicative filing and had a right to respond.

         Alaska Rule of Professional Conduct 3.5(b) and Alaska Code of Judicial Conduct Canon 3(B)(7) forbid attorneys and judges from communicating ex parte unless authorized by law or exception. No such exception applies in this case.[34] By filing his request without notifying counsel in the other case Timothy might have "gain[ed] a procedural or tactical advantage, " making the communication impermissible.[35] And even if an exception did permit the trial court to consider Timothy's recusal request ex parte, the court was still required to "take[] reasonable steps to notify all [opposing counsel] promptly of the substance of the ex parte communication and . . . allow[] them an opportunity to respond."[36] The court was obligated to notify all parties in the other case of Timothy's request.

         B. The Trial Court Did Not Abuse Its Discretion By Declining To Close The Hearings.

         Timothy next argues that the trial court erred by "fail[ing] to close the hearings." Whether to keep the case file confidential and the hearings closed arose several times during the proceedings. Timothy challenges only the court's decision to make the January and February 2016 modification hearings public, and he raises this claim only under Administrative Rule 3 7.6(b), which allows a court to limit public access if it "finds that the public interest in disclosure is outweighed by a legitimate interest in confidentiality, including but not limited to (1) risk of injury to individuals; [and] (2) individual privacy rights and interests."

         Timothy sought to close the hearings because he believed "the trial judge's comments . . . would damage his ability to practice law in this community, and impact his ability to earn a living." He provides little argument in support of his claim that the trial court erred. Timothy notes that the court acknowledged "that family cases are often ugly with a fair amount of mudslinging going on and that this case was worse than most, " and he argues that "if in the future any of his children chose to go into the court record, it would be detrimental to his relationship with [them]."

         But Timothy provides no reason for us to reweigh the trial court's balancing of the competing interests in this case. And the court thoroughly explained its reasoning. The court believed that its initial decision to close the record had "been a license for bad behavior by both [parties]." As the court noted, Administrative Rule 37.5 creates a general rule that courts should provide for public access and "[t]here is a strong public policy in favor of public access to court records." The court emphasized that its foremost concern was whether the children would be hurt by making the record public, and it noted that neither party had been able to explain how that might occur. It observed that "mudslinging happens all the time in custody disputes" and that if it closed the record every time it heard arguments along those lines then courts "wouldn't have any open proceedings."

         The trial court considered the mandated factors and did not consider any improper factors.[37] Timothy simply disputes the outcome of the trial court's balancing test, providing no basis to conclude that the decision was manifestly unreasonable.[38] We hold that the trial court did not abuse its discretion by electing not to close the 2016 hearings.

         C. The Trial Court Did Not Err By Sua Sponte Admitting Into Evidence The Messages Between Julia And Jackie.

         Timothy next argues that the trial court erred by sua sponte admitting into evidence email and text messages between Julia and her witness, Jackie. He claims "[t]here was no opportunity to test the validity or completeness of the messages ... as they were admitted during the recitation of [the] trial court's order in the case." Timothy makes no claim that the messages were invalid or incomplete; he merely asserts they show only Julia's "blatant effort to manipulate and befriend the third party for [her] own agenda." He argues that the court's sua sponte admission of the communications into evidence during its decision on record infringed his due process rights to notice and opportunity to be heard, as well as his right of cross-examination.

         Timothy's arguments have no merit, either procedurally or substantively. The messages were properly marked and included on the exhibit list prior to trial as required by Alaska Civil Rule 43.1(a); such exhibits "may be admitted into evidence upon ... the court's own motion, "[39] which is precisely what occurred here. And Timothy did not timely object to admission of the messages.[40] This failure might reasonably be excused because, as Timothy points out, the messages were admitted during recitation of the court's order. But Timothy's counsel was present for the oral order, and the court provided Timothy's counsel an opportunity to ask questions and lodge objections; Timothy's counsel made no objection to admission of the evidence at that time. And Timothy fails even now to state any specific ground of objection to admission of the messages into evidence. As the court noted, the messages were relevant to Julia's case and a foundation was established when both Julia and Jackie "testified to the texting relationship and to the authenticity of the texts."

         Beyond the procedural defects in his claim, Timothy's argument fails on the merits as well. Alaska Evidence Rule 103 requires that "a substantial right of the party" be affected before error can be found.[41] Timothy alleges infringements of his rights to notice, opportunity to be heard, and cross-examination. But Julia included the messages on her exhibit list, providing notice that she intended to introduce them. And although she failed to move for their admission into evidence, Julia relied heavily on the messages during her questioning of Jackie. Timothy's counsel questioned Jackie extensively about the messages on cross-examination, and during Julia's direct examination Timothy's attorney unsuccessfully challenged the foundation provided for the messages. There is no merit to Timothy's claim that he had "no opportunity to test the validity or completeness of the messages." We therefore reject his claim of error.

         D. The Trial Court Made Insufficient Findings To Demonstrate Jackie Was A Domestic Living Partner When The Acts Of Domestic Violence Occurred.

         Timothy finally argues the trial court erred in concluding that he had "a history of perpetrating domestic violence against... a domestic living partner" under AS 25.24.150(g), and therefore erred in applying AS 25.24.150(j)[42] and limiting him to supervised visitation with his children until he completed a parenting class and a batterer intervention program. "A parent has a history of perpetrating domestic violence under if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence."[43]

         Because there was no allegation that Timothy had caused anyone serious physical injury, to conclude that AS 25.24.150(j) applied the trial court had to find that Timothy had engaged in "more than one incident of domestic violence" against a "domestic living partner."[44] The term "domestic violence" is defined in AS 18.66.990, [45]and it includes both coercion and criminal trespass in the second degree (or an attempt to commit either offense) "by a household member against another household member."[46] "Household member" is defined broadly under AS 18.66.990(5) and includes anyone who could be considered a "domestic living partner" under AS 25.24.150(g). The term "domestic living partner" is not defined in statute.[47]

         Accordingly, for purposes of this appeal, to find that AS 25.24.150(j) applied - limiting Timothy to supervised visitation until he completed parenting and batterer intervention classes-the trial court had to find that on more than one occasion Timothy committed, or attempted to commit, criminal trespass in the second degree and/or coercion against a "domestic living partner."[48] The court found by a preponderance of the evidence that during the relevant period Timothy and Jackie were "domestic living partner[s]" under AS 25.24.150(g) and that Timothy had committed two counts of criminal trespass in the second degree and one count of coercion against her. Timothy disputes all three domestic violence findings and contends they "should not determine his custody and visitation." We first address Timothy's arguments that the court erred in finding he committed three acts of domestic violence. We next address his argument that the court erred in concluding those acts were committed against a "domestic living partner" within the meaning of AS 25.24.150(g).

         1. The trial court did not err in determining Timothy had committed three acts of domestic violence.

         a. A "household member" can commit trespass against another "household member."

         "A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully ... in or upon [a] premises . . ., "[49] A person commits "domestic violence" by criminally trespassing "against another household member."[50] Household members include people "who live together or who have lived together... who are dating or who have dated... [or] who are engaged in or who have engaged in a sexual relationship."[51]

         Timothy's sole challenge to the trial court's two trespass findings is his argument that "household members" cannot commit criminal trespass against each other; if he "were a residen[t] of the household, as defined, then he could not commit trespass." This argument is flawed. The legislature defined domestic violence as an offense committed "by a household member against another household member" and in the same section included criminal trespass as a listed offense.[52] "Household members" is a broadly defined term of art including people who may, but need not, reside in the same home.[53]

         "Household members" under AS 18.66.990(5) can thus commit trespass against one another. And under the facts of this case, the trial court's finding that Timothy committed trespass against Jackie was not clearly erroneous even with the "household member" finding. There is ambiguity in the record concerning Timothy's and Jackie's living arrangements and whether he may at times have had a privilege to enter her home without her express permission.[54] Jackie testified that around the time Timothy used a credit card to enter her home, "[h]e would stay over quite often, so it's basically like he was living there." And Timothy notes Jackie's testimony that they both at times "carded the door" when Jackie would forget her keys inside the house. But Jackie also testified that Timothy "wasn't staying at my house" when he broke in. The court found Jackie was credible and accepted her testimony that Timothy was not invited or authorized to enter her house at that time without permission, notwithstanding his defense that "this was common practice between the two of them." Despite any ambiguity in the record, given Jackie's explicit testimony that Timothy broke into her home without her permission, we are not "left with a 'definite and firm conviction' "[55]that the court made a mistake in finding Timothy committed criminal trespass.

         Nor is there any conflict between Timothy's "household member" status and the second criminal trespass finding, when Timothy refused to leave Jackie's home despite being ordered to do so. A person can commit criminal trespass despite being initially privileged to enter a premises by "fail[ing] to leave . . . after being lawfully directed to do so."[56] The court did not err by concluding Timothy had committed two counts of criminal trespass against a "household member" for purposes of the statutory domestic violence provisions. We note here, however, and discuss at length below, that the extent of Timothy's privilege to enter Jackie's home - or, relative to the second criminal trespass determination, to stay in Jackie's home in the face of an argument between them - does have implications for the trial court's "domestic living partnership" finding.

         b. The trial court's coercion finding was not clearly erroneous.

         The trial court found by a preponderance of the evidence that Timothy committed the crime of coercion or attempted coercion under AS 11.41.530(a)(6):

A person commits the crime of coercion if the person compels another to engage in conduct from which there is a legal right to abstain ... by means of instilling in the person who is compelled a fear that, if the demand is not complied with, the person who makes the demand or another may
. . . .
(6) testify or provide information or withhold testimony or information with respect to a person's legal claim or defense.

         Timothy begins his coercion challenge by noting "[t]here was no testimony that [he] threat[ened] physical violence, " and there was likewise no testimony that Jackie "was actually coerced." We presume Timothy intends these to be claims of error. But AS 11.41.530(a)(6) does not require the threat of physical violence. And as the trial court noted, "[a]ttempts under Alaska law are the same as the act itself for purposes of domestic violence."[57] Any suggestion that the ...


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