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.
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:
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.
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."
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 post-traumatic stress disorder (PTSD) diagnosis and the fact that he "packs a gun with him."
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:
After Sarah finished testifying, Vince relayed his version of events. Vince explained that he had stopped alongside the road because his son was "panicking because he needed [a particular] game" and Vince "walked along the side of the pickup on the passenger's side to help him look for this game." When they couldn't find the game, Vince testified he saw "[his] ex-wife [drive] by, so I followed her out to [her boyfriend's] house." Because he had been there only once before, he relied on his children to give him directions and missed the driveway. After circling back, Vince testified that he "got out of the pickup with [the child], [and] walked to the door." He then "knocked on the door like three or four times ... probably 15, 20 seconds at the door," before "walk[ing] back to
Vince explained he did not just call or text Sarah because they "don't communicate" and she "rarely answers the phone" when he calls. But he admitted that "with all this that's going on, I probably should not have driven out there with my son so he could get the game."
The court granted the petition, finding that the dynamic between the former couple was more than merely unpleasant and that the sum of Vince's actions had placed Sarah in fear of physical injury. The court noted that it had been "very clear with [Vince] at the last hearing," warning him that it was a "close case" and recommending that he "get some mental health counseling" because he was "overly obsessed with [Sarah] and her boyfriend" and "subsequent behaviors could cause the court to revisit this issue." The court observed that Vince's "obsession with [Sarah's] relationship ... is continuing.... All of his claims are about concern and safety for his kids, but they always circle back to [Sarah's] relationship...."
The court found Vince's explanation about picking up a video game "extremely wishy washy," given the history of hostility between him and Sarah's boyfriend, Vince's efforts to keep his children away from the boyfriend, and the availability of other avenues, like phone or text, to resolve the issue. It then concluded:
The court found stalking in the second degree
The superior court's decision to grant or deny a protective order is reviewed for abuse of discretion.
Vince argues that the court abused its discretion and violated his due process rights "by disbelieving" his son's anticipated testimony after previously stating "it would accept [the testimony] as true." Vince contends it is procedurally unfair that the court effectively "revers[ed]" its prior ruling and gave
A decision to permit or exclude the testimony of a child witness generally is reviewed for an abuse of discretion.
We are unpersuaded by Vince's arguments. The due process assertion is unavailing because the court's approach to the child's testimony posed no "risk of an erroneous deprivation" of Vince's interest in putting forth a defense to the stalking allegation.
Perhaps more significantly, the court did not deprive Vince of the benefit or substance of the anticipated testimony. The court adhered to Vince's version of what his son would testify to and never stated that it was false. Vince suggests that because the court remarked that "there was absolutely no reason for [Vince] to go to [Sarah's boyfriend's] home," it disbelieved that the child actually asked to speak to his mother and retrieve a game. This mischaracterizes the court's full holding — that Vince "could have done this by phone or text or some other means" and that his justification for following Sarah to her boyfriend's house was not a reasonable one in light of other credible testimony suggesting Vince's actions here, despite "claims ... about concern and safety for his kids," were more motivated by his "obsession" with his ex-wife's new relationship than the child's need to pick up a game. Because the court adopted the anticipated testimony Vince proffered and did not mislead him in any way, his due process arguments fail.
We also conclude the court did not abuse its discretion by allegedly "reversing its prior ruling" on the child's testimony because, as discussed above, no such reversal occurred. The court consistently said it would accept Vince's version of what the child would say if he took the stand, and it considered that
We thus decline to vacate the protective order on either basis Vince asserts.
Vince contends the superior court erred by considering the substance of the first petition in its grant of the second, and he asks us to vacate the order on two grounds: the doctrines of ripeness and res judicata. We examine each in turn.
Vince argues that the court's warning to him at the May 2016 hearing — that any future misconduct could result in a protective order — was a "prognosticative ruling in violation of the doctrine of ripeness."
We conclude the superior court did not violate the doctrine of ripeness when it warned Vince that he was on the road to placing Sarah in fear of physical injury sufficient to satisfy a domestic violence finding. A reasonable reading of the court's reasoning does not suggest that the court bound itself to grant any petition Sarah brought in the future, irrespective of its merits. Rather, the court was saying that Vince was dangerously close to crossing over the threshold between an isolated incident that made Sarah afraid and a course of conduct sufficient to establish stalking. This statement was a warning, not a ruling, and thus does not raise issues of ripeness.
Vince also argues that res judicata barred the superior court from considering the events of the first domestic violence petition, which it had previously denied, to support its conclusion that Vince engaged in a course of conduct that recklessly placed Sarah in fear of physical injury. He asserts that by doing so, the court effectively reversed its earlier ruling that the kneeing incident did not place Sarah in fear of imminent physical injury. Vince argues that the court relied exclusively on the previously adjudicated kneeing incident to find that Sarah feared physical harm, pointing to the court's statement: "He did push her. That's enough to recklessly place fear in her of some kind of physical injury." According to Vince, this exclusive reliance implicates res judicata.
"Res judicata, or claim preclusion, bars relitigation of a claim when there is `(1) a final judgment on the merits, (2) from a
Res judicata does not apply here for several reasons. First, Sarah's second petition raised new claims of stalking and harassment.
Finally, given that the statutory framework for domestic violence petitions requires courts to consider a "course of conduct,"
In light of the foregoing, we conclude that neither ripeness nor res judicata precluded the superior court from considering testimony from the first petition in determining whether Vince's course of conduct recklessly placed Sarah in fear of physical injury.
A court may find stalking in the second degree "if the person knowingly engages in a course of conduct that recklessly places another person in fear of death or physical injury, or in fear of the death or physical injury of a family member."
Vince argues that the superior court failed to make "detailed factual findings" showing that the incident alleged in the second petition was a nonconsensual contact or placed Sarah in reasonable fear of physical injury. He cites Petersen v. State for the proposition that "contact is not nonconsensual merely because it is `uncomfortable,'"
Vince also asserts that the superior court did not explicitly find the December 2016 incidents placed Sarah in fear of physical injury and could not have plausibly done so, because "not knowing why someone knocks on your door is not a reasonable basis to fear physical injury." Vince believes that the court clearly erred when it exclusively relied on the April kneeing incident, which it had previously found did not place Sarah in fear of imminent physical injury, to determine that she was placed in fear by the December incidents.
Vince's arguments are unavailing. The court was not mistaken in its determination that the acts alleged in the petition were nonconsensual, and, contrary to Vince's assertions, the court made factual findings supporting its determination that were not clearly erroneous. Sarah's boyfriend and Vince previously had physically fought on the boyfriend's property, prompting the boyfriend to seek a "no trespass" order against Vince. At the hearing on the first petition, the court explicitly told Vince that he could not "be driving by or acting in a certain way or he could be subject to domestic violence stalking." The court suggested that the parties limit their communications and ordered that the boyfriend have no contact with the children at all. Sarah brought these petitions because she wanted to further limit her contact with Vince, especially when it came to his interactions with her boyfriend.
Vince's decision to follow Sarah to her boyfriend's house after exchanging the children met all three AS 11.41.270(b)(4)(A)-(C) "nonconsensual contact" definitions. By following Sarah to her boyfriend's house and knocking on the door three or four times, Vince initiated a contact to which Sarah did not consent because she had no notice; the contact fell outside the scope of communicating regarding child custody arrangements, largely because of an order and custody provision Vince had requested that Sarah's boyfriend have no contact with Vince and Sarah's children; and finally, Vince "disregarded [Sarah's] express desire" that in-person contact between herself
It was also not clearly erroneous for the court to find that Vince's course of conduct placed Sarah in reasonable fear of physical injury. Although hearing a knock on a door may not typically give rise to a fear of injury, Vince's argument ignores the context surrounding the relationship between the parties. Even Vince admitted, "with all this that's going on, I probably should not have driven out there with my son so he could get the game." The superior court's decision navigated this context. The court considered evidence of a past violent encounter on Sarah's boyfriend's property; escalating anger in the communications between Vince and Sarah in the 48 hours prior to the incident; and an order prohibiting contact between Sarah's boyfriend and the children. The court therefore reasonably found that Vince's presence on the boyfriend's property, without any notice, was alarming and placed Sarah in fear of physical injury. Combined with testimony from the hearing on the first petition that Vince drove by Sarah's work and kneed her at the school, this was the basis upon which the court found she was placed in physical fear by repeated nonconsensual contacts with him. Contrary to Vince's assertions, the court did not rely on the one incident in which he physically touched Sarah to find fear of physical injury, but rather a course of conduct.
Vince's arguments hinge on the notion that the court should divorce individual incidents from their context and consider in isolation whether a single incident placed the petitioner in fear of physical injury. The statute for stalking in the second degree mandates otherwise, requiring the court to look at a pattern of behavior.
The superior court's decision to grant the long-term domestic violence protective order is AFFIRMED.
