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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).