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Vince B. v. Sarah B.

Supreme Court of Alaska

July 27, 2018

VINCE B., Appellant,
SARAH B., Appellee.

          Appeal from the Superior Court No. 3 SW-16-00120 CI of the State of Alaska, Third Judicial District, Kenai, Anna Moran, Judge.

          Andy L. Pevehouse, Gilman & Pevehouse, Kenai, for Appellant.

          Jimmy E. White, Hughes White Colbo Wilcox & Tervooren, LLC, Anchorage, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.


          WINFREE, Justice.


         A man 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.


         Sarah and Vince B.[1] 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.

         1. First petition

         In 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.

         Vince 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.

         The 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 stalking order:

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 minute.
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 clear?

         Vince indicated he understood, responding, "Yes, ma'am."

         To 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.

         2. Post-divorce

         The 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.

         In an 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."

         3. Second petition

         In late 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.

         Sarah 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."

         In 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."

         B. Proceedings

         The 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.

         The 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."

         Both 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 help."

         During 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 ...

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