SARAH M. WHALEN, Appellant,
v.
SEAN PATRICK WHALEN, Appellee.
Appeal
from the Superior Court No. 3 AN- 15-03474 CI of the State of
Alaska, Third Judicial District, Anchorage, Frank A.
Pfiffner, Judge.
Gregory R. Henrikson, Walker & Eakes, Anchorage, for
Appellant.
No
appearance by Appellee Sean Patrick Whalen. Christine Pate,
Sitka, for Amicus Curiae Alaska Network on Domestic Violence
and Sexual Assault.
Elizabeth Hague, Freshfields Bruckhaus Deringer, Washington,
D.C., for Amicus Curiae Domestic Violence Legal Empowerment
and Appeals Project.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
STOWERS, CHIEF JUSTICE.
I.
INTRODUCTION
Sarah
and Sean Whalen's relationship had been plagued by
domestic violence prior to the incidents involved in this
appeal. Sarah had petitioned for multiple domestic violence
protective orders against Sean, some of which had been
granted. In November 20 1 5 Sarah filed a petition for a
long-term domestic violence protective order against Sean.
The superior court ruled that she could not rely on
Sean's past history of domestic violence alone to obtain
a new protective order but had to show that Sean had
committed a new incident of domestic violence since the
previous protective order. The court also found that Sarah
had not proved any new incident and denied her petition.
Sarah appeals, arguing that she should be allowed to rely on
past incidents of domestic violence that had supported past
protective orders to obtain a new protective order. In the
alternative she argues that there had been a new incident of
domestic violence. We affirm the superior court's denial
of the petition for a domestic violence protective order.
II.
FACTS AND PROCEEDINGS
Sarah
M. Whalen and Sean Patrick Whalen married in May 2004 and
have three children. They separated in April 2012. In June
2015 the superior court issued a decree of divorce.
Sarah
had petitioned for and received multiple domestic violence
protective orders against Sean, most recently in September
2014. In September 2015 Sarah filed a request to modify the
September 2014 protective order. Because most provisions of
long-term protective orders last for only one year,
[1]
this was effectively a request to renew or extend an expiring
order. Sarah used a court-form domestic violence petition to
file her motion. On the form, she selected the option to
request that the court "modify the . . . long-term
protective order issued in this case as follows" and
wrote, "Extend the order for an additional year and
modify visitation." In the section for "reason(s)
for this request" she wrote that she was "still in
fear" of Sean for herself and for their children.
The
superior court held a hearing in November 20 1 5 and orally
denied the motion. The court explained that Sarah could not
get an extension of a previously issued protective order but
would have to file a petition for a new long-term protective
order. Sarah did not appeal this ruling.
Later
that month Sarah filed a petition for ex parte and long-term
domestic violence protective orders.[2] In the petition she
recounted a recent incident involving Sean and the children
at a lake and described Sean's history of domestic
violence. The superior court held a hearing in December 2015.
Sarah and Sean testified. Sarah was represented by counsel;
Sean represented himself. The court explained at the outset
of the hearing that under the domestic violence protective
order statute a party could not receive a new protective
order where a prior protective order had been issued unless
there was a new incident of domestic violence. The court
instructed Sarah not to present evidence of incidents of
domestic violence that occurred before her last protective
order was issued. In accordance with this instruction the
parties gave testimony only concerning incidents that took
place after the September 2014 order.
Testimony
addressed three separate incidents: Sarah alleged that Sean
had tampered with her house's heating system, that he had
entered her garage to collect his possessions, and that he
had screamed at and intimidated their children at the lake.
The court declined to find by a preponderance of the evidence
that Sean had tampered with Sarah's heating system. Next
the court found that Sarah had given Sean permission to enter
her premises to collect his possessions and concluded that
Sean therefore had not committed criminal trespass in the
second degree, a domestic-violence crime.[3] Finally, the
court concluded, and Sarah conceded, that the incident with
the children at the lake did not constitute a new incident of
domestic violence. The court orally denied the petition and
subsequently issued a written order. Sarah appeals the
court's legal rulings that the domestic violence
protective order statute requires a new incident of domestic
violence for a new protective order and that Sean did not
commit second-degree criminal trespass. Sean does not
participate in this appeal. Amici curiae Alaska Network on
Domestic Violence and Sexual Assault and Domestic Violence
Legal Empowerment and Appeals Project filed a brief in
support of Sarah's position that the statute does not
require a new incident of domestic violence for a new
protective order to be issued.
III.
STANDARD OF REVIEW
Sarah's
appeal raises issues of res judicata and the interpretation
of the domestic violence protective order statute and the
second-degree criminal trespass statute. "Whether res
judicata applies is a question of law that we review de
novo."[4]"We review the interpretation of a
statute de novo, adopting the rule of law most persuasive in
light of precedent, reason, and policy."[5]
IV.
DISCUSSION
A.
The Domestic Violence Protective Order Statute
Alaska
Statute 18.66.100 provides a statutory method for "[a]
person who is or has been a victim of a crime involving
domestic violence" to obtain "a protective order
against a household member";[6] "household member"
is defined to include a former spouse no longer living with
the victim.[7] "If the court finds by a
preponderance of evidence that the respondent has committed a
crime involving domestic violence against the petitioner,
regardless of whether the respondent appears at the hearing,
the court may order any relief available under [AS
18.66.100(c)]."[8] The statute further provides that
"provisions of a protective order issued under... [AS
18.66.100(c)(1)] are effective until further order of the
court" and that those issued under "(c)(2)-(l6)...
are effective for one year unless earlier dissolved by court
order."[9] Subsection (c)(1) allows for protective
orders that "prohibit the respondent from threatening to
commit or committing domestic violence, stalking, or
harassment."[10] Subsections (c)(2)-(l5) allow courts to
issue orders that prohibit different types of interactions
with the petitioner, allocate use of property, and assign
temporary custody of children and child support obligations,
among other things.[11]Subsection (c)(16) allows the court to
"order other relief the court determines necessary to
protect the petitioner or any household
member."[12] Subsection (e) provides that "[a]
court may not deny a petition for a protective order under
this section solely because of a lapse of time between an act
of domestic violence and the filing of the
petition."[13]
Sarah
has petitioned for and received multiple protective orders
under this framework. She now seeks a new protective order
based on the same incidents of domestic violence for which
she received the prior orders.
Sarah's
and amici's briefs discuss the importance of protections
against domestic violence generally and of renewal of
protective orders specifically. Amici note the high rates of
domestic violence in Alaska[14] and the cyclical nature of
domestic violence situations.[15] There is no question that
Sarah's and amici's policy arguments are compelling.
But at its core this appeal involves questions of res
judicata and statutory interpretation. The superior court
correctly ruled that Sarah could not receive a new protective
order without showing a new incident of domestic violence.
1.
Res judicata extinguished Sarah's claim for a new
protective order.
"The
doctrine of res judicata, or claim preclusion, 'prevents
a party from suing on a claim which has been previously
litigated to a final judgment by that party . . . .'
"[16] "When a valid and final personal
judgment is rendered in favor of the plaintiff[, ]. .. [t]he
plaintiff cannot thereafter maintain an action on the
original claim or any part thereof, although [s]he may be
able to maintain an action upon the
judgment."[17] The question, then, is whether Sarah is
attempting to receive a second judgment on a claim that she
has previously asserted.
Alaska
Statute 18.66.100 sets forth the elements of a claim for a
domestic violence protective order: a person may petition for
and receive a domestic violence protective order if "the
respondent has committed a crime involving domestic violence
against the petitioner." Sarah's claim against Sean
for a domestic violence protective order accrued when Sean
committed a crime involving domestic violence against her.
Under the doctrine of claim preclusion, this claim was then
extinguished when she received a valid and final personal
judgment against him in the form of a domestic violence
protective order. Sarah "may be able to maintain an
action upon th[is] judgment," but she may not
"maintain an action on the original
claim."[18]
Sarah
argues that protective orders are a form of injunctive relief
that addresses an abatable condition and therefore "res
judicata does not apply."[19] Sarah cites to nuisance law
for this proposition.[20] A nuisance caused by an abatable
condition constitutes a temporary nuisance and "gives
rise to a new cause of action with each invasion or
injury."[21] But this analogy fails because Sarah has
not alleged a new statutory invasion or injury in the form of
a new domestic violence incident. Instead, she argues that
she is still in fear of Sean based on the domestic violence
that formed the factual basis of her earlier domestic
violence protective order. Res judicata bars her most recent
action.
Sarah
also argues that McComas v. Kirn[22] supports
allowing a new petition for a protective order. In
McComas the superior court issued an ex parte protective
order but then declined to issue a long-term protective
order, instead opting to include a no-contact order in the
parties' divorce decree.[23] Later, when the respondent was
scheduled to be released from custody, the petitioner again
petitioned for ex parte and long-term protective orders,
which the court granted.[24] On appeal we held that res judicata
did not bar issuing the long-term protective order because
the end of the respondent's incarceration constituted a
change in circumstances.[25]
But the
superior court in McComas never granted the original
petition for a long-term protective order, nor did it deny
the petition because it found no incidents of domestic
violence. It instead exercised its discretion in issuing a
different remedy, discretion that AS 1 8.66.100 gives the
court.[26] When circumstances changed, the court
was free to again exercise its discretion and grant the
protective order. In this case, the superior court did grant
a protective order. The court may only grant another
protective order if there is a new claim in the form of a new
domestic violence incident. A change in circumstances may
establish a new claim for res judicata purposes,
[27]
but under AS 18.66.100 a claim for a protective order
requires a new incident of domestic violence to obtain a
subsequent protective order.[28]
Because
Sarah had already received a judgment on her claim for a
domestic violence protective order, res judicata prevents her
from obtaining another protective order based on the same
conduct that gave rise to the first protective
order.[29]
2.
The statute does not allow for multiple protective
orders.
Sarah
argues that AS 1 8.66.1 00 allows courts to grant additional
protective orders even if there has been no new incident of
domestic violence. We disagree.
The
statute sets out the full framework for protective orders,
and it does not provide for the issuance of additional
protective orders. Rather, the language of the statute
unambiguously provides for the duration of the various kinds
of protective relief that can be ordered. The protective
relief under AS 18.66.100(c)(1) has an indefinite time
limitation; this relief remains "effective until further
order of the court."[30] Relief under the other
subsections of AS 18.66.100(c) is expressly limited to
"one year unless earlier dissolved by court
order."[31]
This
one-year limit was enacted in 2004, replacing the previous
limit of six months provided in the Domestic Violence
Prevention and Victim Protection Act of 1996.[32] The 1996 Act
replaced former AS 25.35.010, which provided for a 90-day
protective order that could be extended for another 45
days.[33] In enacting the Domestic Violence
Prevention and Victim Protection Act of 1996 the legislature
chose to replace a statute that included an express extension
provision with a statute that did not include any similar
provision but provided specific time limits. Those specific
time limits were expanded by the 2004 legislation. If the
legislature intended to allow for multiple protective orders
from the same incident of domestic violence, it did not say
so in the statute.[34]
Sarah
argues that AS 18.66.100(e), combined with the purpose of the
statute, suggest that the legislature intended to allow for
multiple protective orders. Alaska Statute 18.66.100(e)
provides, "A court may not deny a petition for a
protective order under this section solely because of a lapse
of time between an act of domestic violence and the filing of
the petition." But the superior court in this case did
not deny the protective order because of any lapse of time
between the acts of domestic violence and the filing of the
petition; it denied the order because it had already issued
an earlier order addressing those same acts of domestic
violence. Alaska Statute 18.66.100(e), therefore, does not
apply. It is true that "[t]he purpose of [AS 18.66.100]
is self-evident - to protect victims of domestic
violence."[35] But we will not rewrite a statute to
promote that statute's purpose.[36] Here the legislature set
forth a detailed framework for protecting victims of domestic
violence, and it is the legislature's prerogative to make
any policy changes to the statute.
Amici
argue that discussion in senate committees about the 2004
change in duration of protective orders from six months to
one year shows that the legislature believed petitioners
could renew orders. Both senators and witnesses expressed the
view that the change from six months to one year would reduce
the number of renewal hearings, thus increasing judicial
efficiency and avoiding the need for the parties to be
together as often.[37] But a victim may apply for additional
protective orders if there has been a new incident of
domestic violence, and any violation of a domestic violence
order itself constitutes a new incident of domestic
violence.[38] One senator noted that in most instances
only one protective order will ever be issued and
characterized hearings for additional protective orders as
occurring when there were "still . . . problems in the
relationship."[39] This understanding is consistent with
allowing additional orders only when the prior order has been
violated or when a new incident of domestic violence has
occurred. Even if amici are correct that the legislature
believed in 2004 that domestic violence victims could receive
a new protective order without showing a new incident of
domestic violence, we will not rewrite the law to conform to
a mistaken view of the law that the legislature had when it
amended the statute.[40]
It is
the legislature's role to establish Alaska's policy
with respect to domestic violence protective orders,
including the time limits for protective orders and the
availability of extension or renewal. Here the legislature
enacted an unambiguous statute with a clear time limit -
originally six months then later one year - and it did so
while replacing a statute that permitted an extension. It is
not the court's role or prerogative to modify the
legislature's policy decision. "[W]e will not invade
the legislature's province by extending the plain
language of AS 18.66.100 to allow for renewal of protective
orders.[41] Sarah's "remedy lies with the
legislature."[42]
B.
The Second-Degree ...