from the Superior Court No. 3 SW-16-00120 CI of the State of
Alaska, Third Judicial District, Kenai, Anna Moran, Judge.
L. Pevehouse, Gilman & Pevehouse, Kenai, for Appellant.
E. White, Hughes White Colbo Wilcox & Tervooren, LLC,
Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
appeals a long-term domestic violence protective order
entered against him for stalking his ex-wife. He argues that
the superior court: (1) abused its discretion and violated
his due process rights in its treatment of his ten-year-old
son's proposed testimony; (2) violated the doctrine of
ripeness by warning that future conduct could justify a
stalking finding; (3) violated the doctrine of res judicata
by reconsidering a claim that it previously had adjudicated
in an earlier domestic violence petition; and (4) failed to
make requisite findings of fact meeting the elements of
stalking. He asks us to vacate the order. Seeing no error, we
affirm the superior court's protective order.
FACTS AND PROCEEDINGS A. Facts
and Vince B. divorced in September 2016 and share
custody of their two sons, ages 12 and 9. The couple
separated two and a half years prior to the divorce; the
proceedings have been prolonged and unfriendly. The parties
have struggled to communicate in the course of their shared
custody, often hurling profanities at one another.
Sarah's new boyfriend has been a particular source of
conflict. In February 2016 Vince dropped the children off at
Sarah's boyfriend's house while she was not present.
Vince struck Sarah's boyfriend in the face, prompting a
call to the police. Several other hostile exchanges in 2016
led Sarah to file two domestic violence protective order
petitions. The first was denied; the second was granted, in
part based on testimony from the first petition, and is the
subject of this appeal.
April 2016, while the divorce case was pending, Sarah filed
the first domestic violence protective order petition against
Vince. At the hearing, corroborated by two witnesses, Sarah
testified that Vince had shoved her and made crude comments
in a school gym where both were attending a school concert.
Sarah also testified that Vince had punched her boyfriend in
front of their children, that he "said cruel words"
to her, and that he twice drove by her place of work, once
making an offensive hand gesture.
denied the crude statements and said he "accidentally
bumped the side of her back" with his knee in the school
gym. He perceived that Sarah "kind of lunged sideways
towards her friends" and that her physical response to
his contact was an overreaction. Vince also testified that he
had serious problems with Sarah's boyfriend because he
had "criminal stalking charges against him" as well
as multiple restraining orders and Vince believed it
"psychologically dangerous to [his] children" to be
at her boyfriend's house.
court denied the petition despite finding there was
"good circumstantial evidence" that Sarah "was
shoved, and this was more than a mere accident." The
court nevertheless held that Vince's conduct did not rise
to the level of harassment, assault, or stalking. With
specific respect to stalking, the court explained that
"the hard part for [stalking] is it has to be a course
of conduct, so more than one incident, that places her in
fear of death or physical injury." The court found that
Vince's course of conduct did not yet "rise to the
level of stalking." Talking to both Sarah and Vince, the
court did, however, put Vince on notice that another wrong
move could make Sarah eligible for a domestic violence
But I tell you all this because I'm not finding domestic
violence in this instance, but I'm putting [Vince] on
[notice] that he's now engaged in a course of conduct
that has placed you in fear of physical injury, and if he
does - touches you ... or do[es] anything else to you, I will
issue a DV order, okay, because now you have engaged in a
course of conduct.
You know, flipping her off, coming into the bleachers,
sitting down next to her when you knew she didn't want
you to be there, or she moves away from you, you leave and
you come back, and I don't buy it for a minute that you
inadvertently kneed her in the back, I don't buy it for a
So because of that finding, if you do anything else to her,
she will be in fear of imminent physical injury and you will
be - you will be eligible - she will be eligible for a
domestic violence stalking order and you could be facing
criminal charges. I just want that really clear. Is that
indicated he understood, responding, "Yes,
address Vince's concerns about Sarah's boyfriend, the
court required that the boyfriend not have contact with the
children. But the court also suggested that Vince get mental
health counseling because his obsession with Sarah's
partners was "sounding kind of creepy." The court
repeatedly warned Vince that he should avoid contacting Sarah
or her boyfriend in a manner that suggested stalking.
Notably, the court told Vince that "he can't be
driving by or acting in a certain way or he could be subject
to domestic violence stalking. So I just want that really
clear . . .." The court further suggested the parties
limit their texts and other communications to those
concerning the children.
parties reached a custody agreement in July 2016, and by
September Sarah and Vince finalized their divorce. Their
communications continued to sour thereafter. Vince's
emails were increasingly aggressive in tone and content.
Vince referenced Sarah's "unnecessary, hurtful,
nasty and hate filled rhetoric toward" him, calling it
"emotionally damaging." Vince threatened to call
the police if Sarah's boyfriend contacted him, and he
requested that Sarah not speak to him unless through an
attorney. In a September email Vince called Sarah profane
names, blaming her for a provision in their divorce
settlement requiring him to sell a property where his father
was living and had planned to retire.
October email Vince lambasted Sarah for her relationships
with other men and their impact on the children. He used
sexually explicit profanities and wrote: "You need to
make sure that [your boyfriend] understands if he is around
our kids let alone continues to yell and verbally, [m]entally
or physically abuse our kids he is going to be. Very. Very.
Very Sorry." The next day Vince and Sarah got into a
heated argument over their custody days and Vince threatened
to call the police if Sarah did not give him the children. In
November Vince informed Sarah that he "might be"
traveling to visit his ailing father, and he wrote: "Be
sure and tell [your attorney] so he can tell the judge what a
no good SOB I am for leaving again."
December Sarah again petitioned for a long-term domestic
violence protective order. Sarah alleged that since their
last court appearance Vince had continued to harass her by
text, email, and phone. Sarah relayed that on Christmas Eve,
he called "[her] cell to talk to [their] children";
after he was done, he asked to speak to her. Sarah put him on
speaker phone with her mother in the room. Vince proceeded to
yell, call her profanities, and make explicit comments about
her sexual relations with her boyfriend.
contended that two days after the hostile Christmas Eve phone
conversation, she met Vince for their scheduled exchange of
the children. The boys got out of her car and walked to his
without any communication between the parents. Vince drove
away first; Sarah left after him. Vince had pulled over on
the side of the road, and Sarah passed him while she was on
her way to her boyfriend's house. After Sarah arrived at
her boyfriend's house, she saw Vince's truck drive
slowly by and then double back, stopping at the end of the
driveway. Because Sarah's boyfriend and Vince had
previously fought in front of the children and each man had
taken legal steps to avoid future contact with the other, she
could think of no good reason for Vince to follow her there.
He then drove into the driveway and parked in front of the
house. According to Sarah, she felt "pani[c]ky" and
called the troopers. She feared that the situation would
"escalate" without their involvement and that Vince
could "snap" given his posttraumatic stress
disorder (PTSD) diagnosis and the fact that he "packs a
gun with him."
response to Sarah's petition, a magistrate judge granted
a 20-day ex parte domestic violence protective order and set
a hearing for January 12, 2017. Vince moved to change the
hearing date and to allow his son, who was then ten years
old, to testify. Vince stated that, although he did not want
to involve his young son, his son was his "only
witness" and could testify that the reason Vince was at
Sarah's boyfriend's house "was simply because
[the child] needed something from his mother and wished to
speak with her."
parties, without counsel, telephoned in for a brief hearing
on January 10. They discussed the son's testimony and
agreed to continue the domestic violence hearing to January
13. The court repeatedly questioned the necessity of the
child's testimony and eventually suggested:
"[L]et's keep [the child] out of it and let's
just assume that [he] would testify that his dad brought him
there to talk to [his mom] and he went to the door."
Vince and Sarah both agreed that they did not want their son
to have to testify and that he need not attend trial.
court also recommended that the parties familiarize
themselves with criminal trespass and stalking statutes. When
Vince expressed confusion, the court explained that
"[s]talking usually is a course of conduct," and
again directed Vince to look at the statute defining stalking
in the second degree because "that's what the
[c]ourt has to base its decision on."
Vince and Sarah testified at the hearing, where they were
represented by counsel. Sarah's testimony was largely
consistent with her petition. She testified about the emails
and phone call preceding the incident and about how
Vince's increasingly aggressive tone placed her in fear.
She also described a hostile encounter at their son's
birthday party, when Vince suddenly "demand[ed]"
she end the party and exchange the children with him,
repeatedly stating: "If you don't give me my kids, I
will call the cops." Sarah testified that when Vince
followed her to her boyfriend's house without notice,
with the children in the car, she "panicked" and
called the troopers because she feared violence and
"[t]here was no reason for him to be there." She
added that over the eight years of their marriage Vince had
taken antidepressants for PTSD and mood swings; she believed
"he's ready to snap" and "needs mental
Sarah's cross-examination, the court took the opportunity
to "redirect" Vince's counsel, who was not
present at the hearing on the first petition, to focus on the
stalking issue. The court explained it was considering
whether these recent incidents combined with the kneeing
incident placed Sarah in fear of physical injury:
There was no question that something happened [at the school
gym] and that she was afraid. I thought it was more 50/50. I