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Lana C. v. Cameron P. (03/11/2005) sp-5875
Lana C. v. Cameron P. (03/11/2005) sp-5875
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LANA C., )
) Supreme Court No. S-10272
Appellant, )
) Superior Court No.
v. ) 3AN-98-04147 CI
)
CAMERON P., ) O P I N I O N
)
Appellee. ) [No. 5875 - March 11,
2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Lana C., pro se, Anchorage,
Appellant. Rhonda F. Butterfield, Law
Offices of David W. Baranow, Anchorage, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Lana C. appeals the superior courts order finding her
in contempt for violating the terms of a non-disclosure order
that had been entered as part of a child custody settlement. The
non-disclosure order restricted Lanas right to disclose
allegations of past child abuse committed by her former husband
against their daughter. Lana was found to have violated that
order when she mentioned the alleged past abuse in a petition for
a domestic violence protective order sought on behalf of her
daughter. In its contempt order, the superior court expanded the
original non-disclosure order by prohibiting Lana from making any
allegations of child abuse against her ex-husband in any court
for any purpose. Because we find that an order that seeks to bar
an individual from presenting relevant evidence to a court in a
domestic violence proceeding is void as contrary to public
policy, we reverse the finding of contempt and vacate the order
prohibiting Lana from making any accusations of child abuse
against her ex-husband.
II. FACTS AND PROCEEDINGS
Lana C. and Cameron P. were married in 1992 and had a
daughter, Barbara, the same year.1 The couple separated in April
1997.
In April 1997 the Division of Family and Youth Services
(DFYS) investigated a report that Cameron intentionally bit
Barbara on the cheek and left a mark. The investigation did not
confirm the allegations of abuse but DFYS noted inappropriate
parenting by Cameron. In June 1997 Cameron was convicted of
assaulting Lana. Also in June 1977, Shirley Webster, a therapist
at the Anchorage Center for Families, reported that Barbara had
disclosed that her father had touched her in an inappropriate
sexual manner. Webster suspected possible sexual abuse by the
father and notified DFYS. The DFYS investigation was not
actively pursued at that time because DFYS determined that
Barbara was re-telling segments of past incidents already
investigated.
In March 1998, one month after Cameron filed for
divorce, Lana contacted DFYS to report concerns regarding
Camerons possible sexual abuse of Barbara. After receiving the
report of harm, Anchorage Police Detective Paul Ard and DFYS case
worker Edward Sheridan interviewed Barbara. During the
interview, Barbara, who was then five years old, reported
several incidents of sexual abuse committed against her by her
father. Caseworker Sheridan reported that Barbaras physical
examination revealed an abnormal genital exam with suspicions of
sexual abuse. Cameron exercised his constitutional right to
remain silent and was not interviewed by DFYS. In January 1999
DFYS determined that sexual abuse was substantiated and
identified Cameron as the perpetrator. The DFYS caseworker
further stated that [o]ur position is that, as a victim of sexual
abuse, [Barbara] should not have contact with her abuser. The
district attorney declined to prosecute Cameron.
Superior Court Judge Rene J. Gonzalez presided over the
divorce and custody proceedings. In April 1998 the superior
court entered a temporary interim order that extended a domestic
violence protective order obtained on behalf of Barbara, and
granted Lana sole legal and physical custody of her daughter.
The superior court also appointed Pamela Montgomery as guardian
ad litem to represent Barbara.
In March 1999 Lana and Cameron were divorced. The
issues of child custody, visitation, and support were bifurcated
from the divorce proceedings and addressed at a hearing on
January 25, 2000. At that hearing, the parties informed the
court that they had reached a settlement and placed the details
of the settlement agreement on the record. Lana refused to sign
the agreement. In an order issued on January 27, 2000, the
superior court found that the signature of [Lana] is not
necessary for enforcement of the parties child custody and
support agreement because the agreement had been accepted by both
parties in open court at the hearing. The superior court also
approved the settlement agreement and incorporated it into the
findings, conclusions, and divorce decree.
Under the settlement agreement, Lana was granted legal
custody of Barbara. The agreement provided that Barbara would
live primarily with her mother but would also participate in
regular supervised visits with her father and engage in therapy
with him on a schedule determined by Dr. Karen Henderson-Dixon.
Camerons visitation rights were to be increased progressively
over time through mutual agreement or decision by an arbitrator.
The agreement also stated that each parent shall have full and
open access to the childs medical and educational records and
shall enjoy the opportunity to attend and fully participate in
all school conferences and major medical/dental consultations
involving the child.
The agreement contained two additional provisions which
are material to the contempt order now being appealed. The first
provision stated:
Allegations regarding child abuse have been
made against the father. Given [Barbaras]
young age, the parties are in agreement that
it is unlikely that the truth or falsity of
these allegations will ever be completely
known. The parties agree that civil child
custody litigation to prove or disprove these
allegations will no longer be pursued by
either party in any tribunal, court or forum,
judicial or administrative.
Another provision stated:
The parties agree that [Barbara] should not
be subjected to undue stress as it appears
that this may cause or exacerbate physical
sickness in the child. In this connection,
the parties agree that the issues of alleged
past abuse or assault shall not be referred
to, mentioned to or reiterated to the child
or to others by either parent except as may
be determined necessary in a therapeutic
setting only in the sole discretion of Dr.
Karen Henderson-Dixon. The parties agree
that the Courts interim mutual third party
nondisclosure order[2] shall remain in effect
on a permanent basis.
On August 31, 2000, Cameron visited Barbaras school
towards the end of the school day, while Barbara was still in
class. Cameron stated in an affidavit that [he] arrived just a
few minutes early and that [his] intention was to wait until
[Barbara] had left her classroom for the day before speaking with
her teacher. There was no school conference scheduled during
that week, but Cameron had left a message with the school
receptionist stating that he planned to visit Barbaras teacher.
Lana alleges that when she encountered Cameron at the school that
day, he said that he knew Barbaras room number and that he would
get her eventually.
On the same day, Lana filed a petition for a twenty-day
and a long-term domestic violence protective order. The petition
required that the petitioner describe the domestic violence
committed by the respondent, listing the most recent incident
first. In response to this question, Lana responded:
[Cameron] was at our daughters school, [and]
told me he knew her room number and told me
he would get her eventually. He appeared
like he did when he was ready to hit me when
we were married. While we were married, he
assaulted me nine separate times. He was
convicted of assaulting me []. Later, DFYS
confirmed child sexual abuse. He also bit
our daughters face, finger, pulled her hair,
and [illegible] name calling i.e. Stupid
Fucking Bitch.
The petition for a protective order also included a section on
visitation. The petitioner was required to provide an answer to
the following prompt:
Visitation. I understand that the court may
only grant visitation to the respondent if my
safety and the safety of the children can be
protected. If the court considers
visitation, these are my safety concerns . .
. .
Lana responded as follows:
The decree requires supervised visits only.
[Cameron] has sexually and physically abused
our daughter, so a professional supervisor is
required.
Later that day, Magistrate R. Brock Shamberg entered an ex parte
twenty-day protective order, which included the following
exceptions for therapy and visitation: Therapy sessions may
continue as directed by Dr. Karen Henderson-Dixon. Visitation
may be implemented on a supervised basis by the doctor if she
believes it beneficial for [Barbara].
On September 5, 2000, counsel for Cameron filed a
motion for order to show cause why Lana should not be held in
contempt for violating the court order not to discuss Camerons
alleged past abuse of Barbara with a third party, and for
interfering with Camerons access to Barbaras school and
educational records.
On September 15, 2000, a hearing was held before
Magistrate Shamberg on Lanas request for a long-term protective
order. Cameron and his attorney were not present at the hearing.
The magistrate entered a six-month protective order. On October
11, 2000, another hearing was held before Magistrate Shamberg
regarding this order. Both parties and their attorneys were
present. At the beginning of the hearing, the magistrate
indicated that the previous six-month order had been vacated.
After hearing testimony about the incident at Barbaras school,
the magistrate entered another six-month protective order but did
not enter any orders regarding visitation. On October 23, 2000,
Cameron filed objections to Magistrate Shambergs rulings; those
objections were forwarded to the superior court for
consideration.
On December 4, 2000, Judge Gonzalez presided over a
hearing on Camerons motion for order to show cause why Lana
should not be held in contempt of court. In her testimony, Lana
admitted that she stated in her application for a protective
order that her daughter had been abused by Cameron. She also
testified that her counsel, who filled out part of the petition
for her, told her that the petition for a protective order was
not child custody litigation. In his closing argument, Camerons
attorney requested that the court find Lana in contempt, vacate
the domestic violence order, and award Cameron attorneys fees for
the hearing.
On June 8, 2001, the superior court found that there
was insufficient evidence to support a finding that Cameron had
committed a crime involving domestic violence and vacated the
long-term domestic violence order. On the same day, the superior
court entered findings of fact, conclusions of law and judgment
regarding contempt. The superior court noted that Lanas
petition for a protective order included allegations that Cameron
had committed child sexual abuse and found that Lana knowingly
and willfully violated the court order that prohibited her from
continuing to make allegations of child sexual abuse against
[Cameron]. The superior court entered judgment, which included
an order that Lana shall not make any accusations against
[Cameron] of child sexual abuse in any petitions, demands or
requests for relief filed in any court for any and all purposes.
The trial court further ordered that Lana shall not make any
statements to any other person regarding alleged past child abuse
except, as may be determined necessary to the childs therapeutic
counselor Dr. Karen Henderson-Dixon. Finally, the superior court
ordered Lana to pay all costs and attorney fees incurred in this
civil contempt proceeding.
On August 1, 2001, the superior court awarded Cameron
$1,505.24 in attorneys fees and costs for the civil contempt
proceedings. Lana now appeals the superior courts finding of
contempt, the superior courts modification of the non-disclosure
order, and the award of attorneys fees and costs to Cameron.
III. STANDARD OF REVIEW
We exercise our independent judgment when reviewing the
legal interpretation of property settlements and child custody
agreements that are incorporated into divorce decrees.3 We
review de novo contempt citations imposed under Alaska Civil Rule
90(b).4 We also exercise our independent judgment in deciding
whether a court has made factual findings satisfying each element
necessary for indirect contempt.5 But we review for clear error
factual findings a court makes in deciding whether to hold a
respondent in contempt.6IV. DISCUSSION
A. The Finding of Contempt
Lana appeals the finding of contempt on several
grounds. She argues that she did not violate the terms of the
non-disclosure order, that the superior courts interpretation of
the order to include domestic violence proceedings deprived her
of the protection of Alaska laws, that any violation of the order
was not willful, and that the superior court erred in
characterizing the proceeding as civil contempt and therefore
failed to afford her the procedural protections required in a
criminal contempt proceeding.
The parties disagree about whether the statements made
by Lana in her domestic violence petition violated the terms of
the order. Cameron argues that Lanas statements that DFYS
confirmed sexual abuse and that Cameron had sexually and
physically abused Barbara violated the portion of the order that
prohibited the parties from mentioning the allegations of the
past abuse and assault because [t]he parties agree that [Barbara]
should not be subjected to undue stress as it appears that this
may cause or exacerbate physical sickness in the child. Lana
argues that the purpose of this provision was to protect Barbara
from experiencing a stressful reaction to allegations of past
abuse. She contends that the parties intended this provision to
be limited to discussing the alleged past abuse with Barbara or
with other individuals who might mention the allegations to
Barbara. Cameron argues that Lana also violated the portion of
the order providing that neither party will pursue civil child
custody litigation to prove or disprove these allegations [of
child abuse] because Lana filled out the section of the domestic
violence petition relating to child custody. Lana replies that
by filing a petition for a protective order she was not pursuing
civil child custody litigation.
As an initial matter, we note that Lanas interpretation
of the order appears more persuasive. Because the order states
that the prohibition on disclosure is made in connection with the
parties desire to spare Barbara undue stress, the non-disclosure
provision appears to have been intended to protect Barbara from
being exposed to disparagement of one parent by the other or by
individuals informed of the allegations by the other parent. As
such, this provision apparently does not apply to statements made
to the court in a domestic violence order. It also appears that
Lana did not violate the orders prohibition on pursuing civil
child custody litigation to prove the sexual abuse charges. Lana
already had legal and physical custody at the time of the
petition, and her attorney told the magistrate at the hearing on
the long-term protective order that they did not believe Camerons
visitation rights should change. But we need not determine
whether Lana violated the order because we find that even if the
terms of the order could be interpreted to bar Lana from raising
past incidents of child abuse in a domestic violence proceeding,
such an order would be void as against public policy. For the
same reason, we do not reach the question of whether the superior
court erred in characterizing the proceeding as one for civil
rather than criminal contempt.
Alaska courts have recognized that the rules of
evidence establish a strong public policy that all relevant
evidence should be available to the trier of fact to ensure a
fair and just decision.7 Alaska Rule of Evidence 404(b)(4)
expressly provides that evidence of other crimes involving
domestic violence are admissible in criminal prosecutions for
crimes involving domestic violence. This rule reflects the
policy that judges and jurors must have access to this
information to determine whether the defendant characteristically
commits such acts, so that the defendants character can be taken
as circumstantial evidence that the defendant acted true to
character during the episode being litigated.8 Similarly, a
judge or magistrate hearing a petition for a domestic violence
protective order will find information about past episodes of
domestic violence relevant in determining whether a petitioner is
in danger and needs the protection of a restraining order. All
too often, domestic violence has tragic and irreversible
consequences; as one commentator has noted, [o]f all the women
murdered in the United States in a given year, approximately
thirty percent lose their lives to husbands or boyfriends.9 It
is vital that the court in a domestic violence proceeding have
all available relevant evidence in making its determination.10
Evidence of past alleged incidents of domestic violence is
particularly useful in light of the rate of recidivism among
domestic violence offenders.11
We therefore conclude that a private agreement that
seeks to bar an individual from presenting relevant evidence to a
court in a domestic violence proceeding, or a court order
implementing or enforcing such an agreement, is unenforceable as
contrary to public policy. Our holding is in keeping with other
jurisdictions that have found that settlements or agreements
preventing an individual from providing evidence relevant to
litigation or investigations are contrary to public policy and
therefore unenforceable.12 To the extent that the non-disclosure
order prohibited Lana from mentioning Camerons alleged child
abuse in her domestic violence petition, that order was
unenforceable and cannot form the basis of a finding of contempt.
B. The Modification of the Non-Disclosure Order To Include
Future Conduct
In its contempt order, the superior court expanded the
terms of the non-disclosure order, ordering that Lana shall not
make any accusations against [Cameron] of child sexual abuse in
any petitions, demands or requests for relief filed in any court
for any and all purposes. This order appears to bar Lana not
only from discussing the past allegations, but also from
reporting any future instances of child abuse committed by
Cameron. Under its terms the order would, for example, prohibit
Lana from seeking a protective order or informing the court if
she discovered that Cameron had sexually assaulted their
daughter. For the same reason that a court order cannot prevent
an individual from providing relevant evidence regarding past
allegations of sexual abuse in a domestic violence proceeding, an
order seeking to prevent an individual from reporting future
criminal behavior to a court is contrary to public policy and
therefore void.13
C. Attorneys Fees and Costs
Lana also appeals the award of attorneys fees and
costs. Our disposition of the issues on appeal clearly
establishes that Lana is the prevailing party. The award of
costs and fees to Cameron is therefore vacated, and the case is
remanded to permit Lana to apply for attorneys fees and costs
incurred in the contempt proceeding before the superior court.14
V. CONCLUSION
The finding of contempt is REVERSED. The order
prohibiting Lana from making any accusations of child sexual
abuse against Cameron in any court for any purpose is VACATED.
The award of attorneys fees and costs to Cameron is VACATED and
the case is REMANDED to afford Lana an opportunity to apply for
attorneys fees and costs.
_______________________________
1 This opinion uses pseudonyms for the names of the
parties and their child.
2 The temporary interim order and domestic violence
protective order provided in part: Neither party nor any witness
to this proceeding may discuss the child custody issues or other
issues involving the parties child with any other witness or
other person, except for legal counsel, medical or mental health
care providers for the child or government agents having an
official need to discuss information involving the child.
3 Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999).
4 Anchorage Police & Fire Ret. Sys. v. Gallion, 65 P.3d
876, 879-80 (Alaska 2003).
5 Id. at 880.
6 Id.
7 Russell v. Municipality of Anchorage, 706 P.2d 687, 693
(Alaska App. 1985).
8 Bingaman v. State, 76 P.3d 398 (Alaska App. 2003).
9 Alison J. Nathan, Note, At the Intersection of Domestic
Violence and Guns: The Public Interest Exception and the
Lautenberg Amendment, 85 Cornell L. Rev. 822, 824 (2000). As the
court of appeals has recognized, fifty percent of female murder
victims in Alaska in 1990 were killed by their husbands or
boyfriends. State v. Huletz, 838 P.2d 1257, 1261 n.3 (Alaska
App. 1992) (quoting Council on Domestic Violence and Sexual
Assault, Annual Report to Governor Hickel and the Alaska
Legislature 2 (1992)).
10 AS 11.56.745, which provides that it is a crime to
interfere with the report of a crime involving domestic violence,
also reflects the publics interest in the enforcement of domestic
violence laws.
11 See Nathan, supra note 9, at 823-24 (discussing the
high recidivism rate associated with domestic violence); see also
Huletz, 838 P.2d at 1261 n.3 (quoting Council on Domestic
Violence and Sexual Assault, Annual Report, at 2, which found
that most victims of spousal battering in Alaska were abused at
least once a month).
12 See, e.g., EEOC v. Astra USA, Inc., 94 F.3d 738, 744-45
(1st Cir. 1996) (holding that settlement agreements prohibiting
employees who had made sexual harassment claims from discussing
the incidents that gave rise to their claim with EEOC
investigators are void as against public policy); In re JDS
Uniphase Corp. Sec. Litig., 238 F. Supp. 2d 1127, 1137 (N.D. Cal.
2002) (holding that to extent confidentiality agreements preclude
employees from assisting in securities fraud investigations,
those agreements conflict with public policy); Mary R. v. B. & R.
Corp., 196 Cal. Rptr. 871, 875-76 (Cal. App. 1983) (finding that
court order prohibiting settling parties in civil suit involving
allegations that doctor sexually abused patient from discussing
allegations with investigators from agency charged with
regulating medical profession violates public policy and will not
be enforced).
13 The parties have not raised the question of whether
Lana is barred from challenging the validity of the underlying
non-disclosure order in an appeal from the finding of contempt.
There is a split among the jurisdictions that have examined this
question. See, e.g., United States v. Terry, 17 F.3d 575, 579
(2d Cir. 1994) (holding that defendant cannot collaterally attack
court order in contempt proceeding concerning defendants
violation of that order); Weidner v. State, 764 P.2d 717, 721
(Alaska App. 1988) (same); State v. Alston, 887 P.2d 681, 690
(Kan. 1994) (same); Dept of Rev. v. Universal Foods Corp., 862
P.2d 1288, 1291-92 (Or. 1993) (same). But see People v.
Gonzalez, 910 P.2d 1366, 1374-76 (Cal. 1996) (rejecting
collateral bar rule). Because the parties have not briefed this
issue, we decline to address the potential applicability of the
collateral bar rule in this case. Moreover, we are not vacating
the superior courts underlying non-disclosure order but simply
interpreting it in a manner that does not contravene public
policy.
14 See Stone v. Stone, 647 P.2d 582, 587 (Alaska 1982)
(holding that where disposition on appeal established husband as
the prevailing party, award of attorneys fees to wife was
properly vacated and remanded to afford husband an opportunity to
seek an award of attorneys fees).
