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 ...