from the Superior Court of the State of Alaska No.
3KN-17-00818 CI, Third Judicial District, Kenai, Jennifer K.
L. Mitchell, pro se, Eagle River, Appellant.
Raymond Skrha, Law Office of Joseph Raymond Skrha, Kenai, for
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
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.
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.
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
FACTS AND PROCEEDINGS
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.
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
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.
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.
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]
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,  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.
Alaska Legislature reacted to Whalen by amending the
statutes governing the issuance of protective orders,
effective September 8, 2019. 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. 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.
STANDARD OF REVIEW
review the superior court's decision to grant or deny a
protective order for abuse of discretion. We apply our
independent judgment to questions of law, including statutory
interpretation and the ...