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Mitchell v. Mitchell

Supreme Court of Alaska

July 19, 2019

ROBIN LEE MITCHELL, Appellant,
v.
JOHN R. MITCHELL, Appellee.

          Appeal from the Superior Court of the State of Alaska No. 3KN-17-00818 CI, Third Judicial District, Kenai, Jennifer K. Wells, Judge.

          Robin L. Mitchell, pro se, Eagle River, Appellant.

          Joseph Raymond Skrha, Law Office of Joseph Raymond Skrha, Kenai, for Appellee.

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

          OPINION

          MAASSEN, JUSTICE.

         I. INTRODUCTION

         A husband was granted a 20-day domestic violence protective order against his wife. During a brief extension of the 20-day order, the wife sent the husband a text message about their dog. This text message, a violation of the 20-day order, formed the basis of a long-term domestic violence protective order entered a few weeks later. The long-term order was affirmed on appeal.

         A little over a year later, the husband was granted a new long-term protective order based on the same texting incident. The wife again appealed, but while the appeal was pending the superior court dissolved the second order as having been unlawfully granted.

         On this appeal the wife challenges both the first long-term order and the second long-term order. We conclude that her challenges to the first order are barred by res judicata and that her challenge to the second order is moot. We therefore dismiss the appeal.

         II. FACTS AND PROCEEDINGS

         John and Robin Mitchell were married at the time of the events underlying this appeal. On August 10, 2016, having recently returned to Alaska from New York, Robin was at the family's Anchor Point cabins with John and their granddaughter. Robin and John got into an argument, which, according to John, culminated with Robin throwing a log at the windshield of his truck as he drove away. John requested a 20-day domestic violence protective order, which was granted. The district court scheduled a hearing for August 23 on John's petition for a long-term protective order.

         Robin returned to New York. On August 15 John moved to continue the hearing date on his petition for a long-term protective order and to extend the 20-day protective order until the new hearing date. John's attorney titled this a "non-opposed motion" and asserted that Robin had agreed to it by phone, although Robin disputes this. In any event, the court granted the motion, moving the hearing date to September 16 and extending the 20-day protective order through that date. Both the motion and the order indicate service on Robin by mail at her residence in Riverhead, New York, but Robin claims she never received either document and was therefore unaware that the 20-day protective order had been extended.

         On September 5 Robin sent John a short text message about her dog Smokey: "Palmer pound called. Why do they have smoky all weekend?" John replied that Robin was violating the protective order, and a short text conversation followed.

         The hearing on John's petition for a long-term protective order was continued once more, then held on September 20. The court declined to find that Robin had assaulted John at the cabin, but it granted the long-term protective order on grounds that Robin's text messages violated the no-contact provision of the 20-day protective order. Robin appealed the long-term order to the superior court, which affirmed it. She then filed a petition for hearing with this court, but we declined to hear it.

         The following year, on September 25, 2017, John asked the superior court to extend the long-term protective order. The court noted that the year-long order had already expired. On October 4, 2017, however, the court issued John a new long-term protective order under a new case number. The court did not find any new instances of domestic violence; it predicated the new long-term order on the same ground as the expired 2016 order - Robin's September 2016 violation of the 20-day order by texting - finding in addition that Robin was "hyper-focused on the details of [John's] life."

         Robin filed this appeal of the 2017 long-term protective order. In August 2018, while this appeal was pending, Robin also filed a motion in superior court to dissolve the 2017 order; the court granted her motion in part in September 2018. The superior court dissolved the 2017 order, concluding that, in light of this court's recent opinion in Whalen v. Whalen, [1] it was improper to base a second long-term order on only the same acts that formed the basis of an earlier long-term order. The court denied Robin's request that all record of the dissolved order be expunged.

         The Alaska Legislature reacted to Whalen by amending the statutes governing the issuance of protective orders, effective September 8, 2019.[2] Among other things, the amendments prohibit a court from denying a petition for a protective order on grounds that (1) the alleged domestic violence was the basis for a previous protective order; or (2) the court previously found the petitioner to be a victim of domestic violence but did not order relief, if the petition alleges a change of circumstances.[3] The amendments also allow a petitioner to file for an extension of a protective order "[w]ithin 30 days before, or within 60 days after," the order's expiration.[4]

         III. STANDARD OF REVIEW

         We review the superior court's decision to grant or deny a protective order for abuse of discretion.[5] We apply our independent judgment to questions of law, including statutory interpretation[6] and the ...


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