Whalen v. Whalen

          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 ...