Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morris v. Horn (11/13/2009) sp-6431

Morris v. Horn (11/13/2009) sp-6431, 219 P3d 198

     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

DEWEY MORRIS, III, )
) Supreme Court No. S- 12514
Appellant,)
) Superior Court No. 3PA-02- 719 CI
v. )
) O P I N I O N
SANDRA J. HORN, )
) No. 6431 - November 13, 2009
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Eric Smith, Judge, and Vanessa White, Judge.

          Appearances:   Dewey  Morris,  III,  pro  se,
          Anchorage, Appellant.  William Grant Stewart,
          Wasilla, for Appellee.

          Before:   Fabe,   Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          CHRISTEN, Justice.

I.   INTRODUCTION

          Dewey   Morris,  III  appeals  superior  court   orders
enforcing  a  property  settlement  agreement,  modifying   child
support,  and limiting visitation based on a finding of  domestic
violence under AS 25.24.150.  Because the superior court did  not
address  Morriss claim that he conveyed his one-half interest  in
the  marital residence to his former spouse in exchange  for  her
promise  to assume the corresponding obligations, we reverse  the
order  enforcing  the parties property settlement  agreement  and
remand  for a determination of whether this conveyance  occurred.
Because the modified child support order and record are silent on
how  child  support  was calculated, we reverse  that  order  and
remand.   Finally, because it was inappropriate  to  give  issue-
preclusive  effect  to  a prior domestic violence  order  entered
without actual litigation of the domestic violence allegation, we
reverse  the  visitation order and remand for rehearing  on  that
issue.

II.  FACTS AND PROCEEDINGS
          Sandra  Horn, formerly Sandra Morris, and Dewey Morris,
III  married in 1976 in Michigan.  They later moved with  six  of
their  ten children to Willow and began building a house.  Morris
is a carpenter.  Horn works as a home health-care provider.
          In  April  2002  Horn and Morris filed a  petition  for
dissolution  without  the  benefit  of  counsel.   The   petition
proposed the award of the Willow home to Horn and Morris jointly.
The parties estimated the value of the Willow home to be $80,000.
The petition stated that Morris would pay monthly spousal support
and  $1,545.76 in monthly child support under Alaska  Civil  Rule
90.3 for the five children living at home.  The petition did  not
address child custody or define visitation.
          In  August  2002 Horn and Morris filed an amendment  to
the  dissolution  agreement  and participated  in  a  dissolution
hearing before Superior Court Judge Beverly W. Cutler without the
benefit  of  counsel.  They agreed on the record that both  would
continue living in and jointly owning the Willow house, and  that
Morris  would  pay the property taxes and loan  payments  on  the
construction loan he obtained and secured with a deed of trust on
the  house.1   The court approved these agreements  in  its  oral
decision on the record.2
          The  dissolution decree, entered August 27, 2002:   (1)
granted  Horn  legal and primary physical custody with  free  and
open  visitation  to  Morris, including  overnight,  unsupervised
visitation;  (2)  ordered Morris to pay $500 in  monthly  spousal
support with no end date; and (3) ordered Morris to pay $1,545.76
in  monthly child support under Civil Rule 90.3 until  and  while
each  child  is  twenty-one if unmarried, in high  school  or  an
equivalent technical or vocational program, and dependent.3
          By June 2003 Morris was in arrears on his child support
obligation  and Child Support Enforcement Division  (CSED)  began
withholding  payments from his income.  In  September  2003  CSED
calculated Morriss arrears as totaling $12,772.24. By this  time,
Horn was apparently paying the property taxes on the Willow home.
          In  October 2003 Horn filed a petition for a twenty-day
protective order and a long-term protective order against Morris;
she  was represented by counsel in filing this petition and going
forward.4  Horn cited two incidents that occurred that  month  to
support the domestic violence petition: (1) Morris allegedly  had
a  fight with a baby-sitter in front of the children resulting in
a call to state troopers;5 and (2) Morris allegedly followed Horn
to  or from the Anchorage airport and threatened her.  On October
30,  2003,  a magistrate issued an ex parte twenty-day protective
order, which was later extended by the parties stipulation.
          In February 2004 Horn requested that CSED waive Morriss
spousal  support obligation to help him meet his  child  support,
tax,  and  loan obligations; CSED granted this request.   But  by
November  2004, Morris had apparently stopped making payments  on
          the construction loan secured by the house.  Horn made payments
on the loan to avoid foreclosure in 2004, 2005, and 2006.
          In  June  2006 Morris filed pro se a motion  to  modify
custody, support, and visitation.6  Morris claimed in his  motion
that  Horn was blocking his efforts to visit their children.   He
requested  a hearing on visitation and custody, weekly visitation
and  unlimited phone contact, and full or fifty-percent  custody.
Morris also sought a decrease in child support based on decreased
income.7
          Horn opposed Morriss motion and filed a cross-motion to
modify  custody and correct or amend judgment.  She  argued  for,
among  other  things, full legal and physical  custody  under  AS
25.24.150,  claiming Morris had physically abused  her  and  that
this required denying him custody and unsupervised visitation.8
          Horn  also  requested  that  the  court:  (1)  issue  a
permanent restraining order; (2) reduce to writing the oral order
that  Morris  pay the property taxes and require compliance  with
that order;9 (3) order Morris to pay past due child support;  and
(4)  require Morris to pay the construction loan, repay Horn  for
$9,849.83  in  payments she had made on it, meet a  deadline  for
paying  off  the  loan,  and  grant  Horn  access  to  the   loan
information.  Horn filed her own affidavit, as well as affidavits
of  two  of the parties children and several friends, to  support
her  allegations  of  domestic  violence,  substance  abuse,  and
Morriss failure to pay the property taxes and loan payments.10
          Morris responded by filing an affidavit in August  2006
in  which he claimed, among other things, that he had transferred
his one-half interest in the Willow property to Horn by quitclaim
deed  and  was  not responsible for the property  taxes  or  loan
payments,  and that he did not have substance abuse  problems  or
need parenting or other counseling.
          Superior  Court Judge Eric Smith, to whom the case  had
been  reassigned, issued an order denying Morriss request  for  a
hearing  on  modification  of  custody  for  failure  to  show  a
significant  or substantial change of circumstances.11   But  the
court  found the breakdown in communications between the  parties
showed  a change of circumstances for purposes of visitation  and
granted  Morriss request for a hearing on that issue.  The  court
reserved  Morriss  motion  to  modify  child  support   for   the
visitation hearing and ordered the parties to file child  support
guideline affidavits.
          Without  making  a  finding as to  whether  Morris  had
conveyed his one-half interest in the marital residence  to  Horn
in  exchange  for  her  agreement to  assume  the  tax  and  loan
obligations,  the  court  granted Horns request  to  enforce  the
parties original property agreement and to require Morris to  pay
the  taxes and loan payments.  The court did so because it  found
that  Morris  agreed  to  assume those obligations  at  the  2002
dissolution hearing.  It ordered Morris to reimburse Horn for the
tax  and  loan  payments  she made, to  prospectively  pay  those
obligations, and to grant Horn access to the loan information.
          In  December 2006 Horn moved for both interim and long-
term  protective  orders under AS 25.24.14012 and  AS  18.66.100,
submitting  another  affidavit alleging that  Morris  physically,
          verbally, and sexually assaulted and threatened her.  The court
did  not hold a hearing before granting the order on January  18,
2007.
          On  February  27,  2007, Superior Court  Judge  Vanessa
White,  to  whom the case had been reassigned, held a hearing  on
child  support and visitation.  The hearing did not  address  the
property  tax  and  loan payment issues, and the  court  did  not
permit  Morris to challenge the order requiring him to pay  these
obligations.  At the hearing Morris presented for the first  time
some  pay stubs and tax returns, dated from 2001 through  2007.13
Because  of  Morriss untimely production of these documents,  the
court  reserved the question of child support.14  Horn stipulated
that  she should not receive child support for A.M., one  of  the
parties daughters, after December 31, 2006.
          On  the  issue  of  visitation, the  court  heard  Horn
testify  that Morris physically, verbally, and sexually assaulted
and  abused  her, and that Morris has a substance abuse  problem.
Two witnesses testified that they observed Morris act verbally or
physically  aggressive toward Horn or the children;  one  witness
testified she heard Morris verbally threaten Horn and that Morris
told  her he had sexually assaulted Horn. The court also  held  a
confidential  interview with two of the children.  Morris  denied
any  domestic violence, alleged Horn was verbally abusive  toward
him,  and  denied substance abuse.  He testified that,  after  he
left  the  marital  residence around October 2002,  he  tried  to
contact  the  children still living in the home but Horn  blocked
these  efforts  by,  among other tactics,  obtaining  restraining
orders  against him.  Horn denied these allegations and testified
that  Morris  failed to show up to four scheduled visits  and  to
events to which he had been invited.
          Based on this testimony, the court made an oral finding
that  at  least two instances of domestic violence had  occurred:
one  in  October 2003 that led to a domestic violence restraining
order,  and one based on Morriss threats of bodily harm to  Horn.
The  court  concluded  that  finding two  instances  of  domestic
violence  created  an  unrebutted presumption  of  a  history  of
domestic  violence,  requiring limited or  supervised  visitation
under  AS  25.24.150.15  In an oral decision on the  record,  the
court  ordered  that unsupervised visits could occur  only  after
Morris completed an intervention program for batterers at his own
expense.   The  court  also  ordered  Morris  to  participate  in
therapeutic visits with the children at his expense.16
          Morris  filed his child support guideline affidavit  in
March  2007.   This document reported his total gross  income  as
$37,823.50, and his net income as $20,984.72.  In April 2007  the
court  signed a written order modifying child support to  $921.83
per  month  for  three children, ending December  31,  2006,  and
$754.22 for two children, starting January 1, 2007.
          Morris appeals.
III. STANDARD OF REVIEW
          We  determine  de novo whether relief  requested  by  a
former  spouse  constitutes  enforcement  or  modification  of  a
property settlement agreement.17  But we review a superior  court
order   enforcing  a  property  settlement  agreement  that   was
          incorporated into a dissolution decree for abuse of discretion.18
Likewise,  we  review child support awards and visitation  orders
for abuse of discretion.19  A superior court abuses its discretion
by  making  a decision that is arbitrary, capricious,  manifestly
unreasonable,  or  . . . stem[s] from an improper  motive.20   We
review the superior courts analysis of legal questions de novo.21
IV.  DISCUSSION
     A.    The Superior Court Must Decide Whether Morris Conveyed
His One-       Half Interest in the Marital Residence to Horn  in
Exchange   for   Her          Promise  To  Assume  the   Property
Obligations.
          Morris  argues that the court abused its discretion  by
requiring him to pay  property taxes on the Willow home and  loan
payments  on  the  construction loan per the parties  dissolution
decree.   He claims that when the parties realized they could  no
longer  live together, he transferred his interest in the marital
home  to  Horn and they agreed she would assume the property  tax
and  loan payment obligations.  Horn replies that because  Morris
never  filed  a  Civil Rule 60(b) motion to modify  the  property
agreement, he cannot seek relief now.22
          The   court  ordered  Morris  to  pay  the  obligations
associated  with  the  Willow residence  without  addressing  his
allegation  that a subsequent conveyance occurred.  Instead,  the
court  found  that Morris agreed to pay the taxes  and  the  loan
amounts at the dissolution hearing, and that this verbal property
agreement merged into the dissolution decree and was enforceable.
Because the superior court failed to address the question whether
the  parties  entered into a subsequent contract that  superseded
their earlier agreement, we remand for a determination of whether
Morris conveyed his interest in the home to Horn after the decree
was entered.
          Generally,  if  a party to a property settlement  seeks
relief  from  a  dissolution decree into which the settlement  is
incorporated,  the party must request relief   under  Civil  Rule
60(b).23  Although the court may adjudicate property rights,24 it
does  not  have  statutory authority to modify  the  terms  of  a
property settlement.25
          Here,  it  is  undisputed that Morris neither  filed  a
Civil  Rule  60(b)  motion  nor  requested  modification  of  the
property  agreement.   But  he repeatedly  alleged  a  subsequent
transaction occurred in which he transferred his interest in  the
marital residence to Horn in return for her promise to assume the
tax  and loan obligations.  When he made this allegation  in  the
child  support  and  visitation hearing,  the  court  refused  to
address  it because property issues were not within the scope  of
the  hearing.   On  appeal, Morris again claims he  conveyed  his
interest in the marital residence to Horn and that she agreed  to
undertake the tax and loan obligations.
          At  no  point has a court addressed Morriss  allegation
that  a subsequent transaction occurred.  Notably, Horn does  not
directly  refute  the assertion: she claims  Morris  makes  false
statements regarding the transfer of the property, but  she  also
argued  in the trial court that the marital home had been awarded
to  her,  contrary to the dissolution decree granting the parties
          joint ownership.  Indeed, before the trial court Horn repeatedly
referred to the marital residence as solely hers.
          Whether  this subsequent transaction occurred  matters.
We have explained:
          A subsequent contract completely covering the
          same  subject-matter, and made  by  the  same
          parties,   as   an  earlier  agreement,   but
          containing terms inconsistent with the former
          contract,  so  that  the  two  cannot   stand
          together,  rescinds,  substitutes,   and   is
          substituted  for  the  earlier  contract  and
          becomes the only agreement of the parties  on
          the subject.[26]
          
If Morris conveyed his one-half interest in the marital residence
to Horn, and if the parties agreed Horn would accept the property
in   exchange  for  her  promise  to  assume  the  tax  and  loan
obligations,   then  this  subsequent  contract  supersedes   the
earlier, conflicting property settlement agreement.  Under such a
scenario,  Civil Rule 60(b) would not apply because Morris  would
be  seeking to enforce the subsequent contract, not to modify  or
obtain  relief from the dissolution decree.  We therefore  remand
for the superior court to make a finding about whether the second
transaction occurred.27
     B.    The  Superior  Court Must Show How It  Calculated  the
Child Support       Obligation in the Child Support Order.
          Morris   complains   the  superior  court   incorrectly
calculated  the amount of child support he owes under Civil  Rule
90.328  for  four  reasons.  Although we reject most  of  Morriss
claims,  we  reverse  and  remand the  child  support  order  for
clarification.   We first address our reasons for  reversing  the
order and then discuss Morriss other, unavailing claims.
          1.   The superior court must show how it calculated the
child support            obligation.
          Morris  argues  the  court should have  calculated  his
child support based on an income of $30,000, not $40,000.  At the
2007 hearing the court admitted into evidence pay stubs from 2001
to 2007, giving little weight to those from 2001 and 2002 because
they  preceded the original 2002 child support order.  The  court
explained  that  the  older pay stubs were of  limited  relevance
because    the    court   is   not   allowed   to   retroactively
modify . . . child support.  The court ordered Morris to fill out
a  DR-305 form using his 2006 and 2007 pay stubs to determine his
average  net monthly income, on which the award would  be  based.
Morriss  2007 DR-305 form indicated his gross income amounted  to
$37,823.50 and his net income to $20,984.72.  It did not indicate
whether Morris received a permanent fund dividend (PFD) for  that
year.  His June 2006 DR-305 indicated his gross income, including
a  PFD,  was $36,118.45, and his net income was $33,833.40.   But
neither  the  order  modifying  child  support  nor  the   record
specifies  which  income figures were used to  calculate  Morriss
obligations.
          We  are unable to determine what income the court  used
for  its calculation.  Our attempts to recreate the child support
          calculation    working backwards from the obligations in the
order  were unsuccessful.  We used Morriss 2006 and 2007 incomes,
both  with  and  without  a PFD.  But none  of  our  calculations
yielded  the amounts listed in the modified child support  order.
We  have held that trial courts must make specific findings under
Rule 90.3.29  Because we cannot determine how the court calculated
this  child  support obligation, we must reverse and  remand  for
clarification.30
          2.    The  superior court did not abuse its  discretion
under  any of             Morriss other theories challenging  the
support order.

               a.     The  superior  court  did  not  abuse   its
discretion  by  not                  calculating  Morriss  income
based on his average income                  over several years.

          Morris   claims  that  because  his  income  has   been
inconsistent,  the  court should have averaged  his  income  over
several  years.31  We disagree.   Under Civil Rule  90.3(a),  the
court  must  calculate  the non-custodial parents  child  support
based  on  the  parents adjusted annual income, which  means  the
parents   total   income  from  all  sources,   minus   specified
deductions.32   The  commentary to Civil Rule  90.3  states:  The
determination  of future income may be especially difficult  when
the  obligor has had very erratic income in the past.  In such  a
situation,  the  court may choose to average  the  obligors  past
income over several years.33
          The record contains testimony indicating Morriss income
was inconsistent.  Horn testified in the August 2002 hearing that
because Morris is a carpenter, some months or years he might make
really  good money and when that jobs over . . . it  could  be  a
very  different  amount.   In the February  2007  hearing  Morris
testified  his wages went up and down depending on  the  job  and
overtime.  He stated in his motion to modify child support and in
his  accompanying affidavit that his income had decreased.  Based
on  this record the court could have found his income erratic and
could have averaged his past income from 2003 to 2007.   But  the
court  has  discretion to determine the best indicator of  future
earnings.   Here,  the court appears to have focused  on  Morriss
earnings in the most recent fourteen months.34  This decision was
reasonable and not an abuse of discretion.35
               b.    The superior court properly included A.M. in
the  child                      support order until her  date  of
emancipation.
          Morris complains the court erred by including A.M., one
of  the  parties daughters, in the child support order,  claiming
she  was  legally emancipated when he filed his  motion  in  June
2006.   Horn  replies that Morris knew that A.M. was not  legally
emancipated until December 2006 and that he waived any  objection
by not raising this issue below.
          Horn  has the better of these arguments.  She  filed  a
notice of ineligibility in January 2007, before the child support
hearing,  stating  that  A.M. was ineligible  for  child  support
effective December 31, 2006.  During the hearing, Horn stipulated
          that she should not receive child support for A.M. as of end of
December.   Morris  did not object to ending  the  child  support
obligation  for  A.M.  after December 2006.   On  appeal,  Morris
provides  no  support  for  his  claim  that  A.M.  was   legally
emancipated before January 1, 2007.  The superior court  did  not
err  by  including A.M. in the child support order, with  Morriss
obligation for her to extend until December 31, 2006.
               c.     The  superior  court  did  not  abuse   its
discretion by not                  permitting Morris to pay child
support  under  the seasonal                   income  provision,
Civil Rule 90.3(c)(5).
          Morris  contends that [d]espite the fact [he] testified
he was employed on a seasonal basis as a carpenter, the court did
not  calculate  his  child support under Civil  Rule  90.3(c)(5).
Horn  responds that Morris never requested seasonal payments  and
has waived the issue.  We agree with Horn.
          Under  Civil Rule 90.3(c)(5), if a court finds  a  non-
custodial  parents income is seasonal, the court may  order  that
the  annual  support amount be paid in unequal monthly  payments,
with  higher  payments during the months the  parent  expects  to
receive  higher  income and lower payments in  other  months.   A
court should not make such an order unless (a) it finds that  the
burden  of  budgeting  for periods of unequal  income  should  be
placed on the obligee rather than the obligor and (b) the obligee
agrees.36
          Morris   did   not   request   seasonal   payments   or
characterize his employment as seasonal in his motion, affidavit,
DR-305s, or testimony below.  The closest he came to raising this
issue  was  his June 2006 motion requesting a decrease  in  child
support.  There, Morris stated that his work hours were sporadic,
that  he had just obtained full-time employment, and that he  did
not make the income he had made in 2002.  But he did not fill out
the seasonal income section on either his June 2006 or March 2007
DR-305  forms, and his August 2006 affidavit stated only that  he
was  not making the income he had made in 2002.  Further,  Morris
did  not  characterize his work as seasonal at the child  support
and  visitation hearing.  At that hearing the following  exchange
occurred between the court and Morris:
          Q:    And   .   .   .   given   that    youre
          a  .  . . carpenter, can I assume that unlike
          other   construction  workers,   ironworkers,
          masons, people like that, you can work  year-
          round if theres work available?

          A:  If theres work available and  and you can
          take the job on.
          
          The  record and testimony show Morris did not claim  or
testify his work was seasonal in the trial court; thus, he waived
this issue.37
     C.    It  Was  Error To Conclude the 2003 Domestic  Violence
Restraining         Order Established that Morris Has  a  History
of Domestic Violence for           Purposes of AS 25.24.150.
          Morris  claims  the court erred in limiting  visitation
          under AS 25.24.150 based on a prior protective order.  He appears
to  believe  that the court relied on the January  2007  domestic
violence  order  to  find  that he  has  a  history  of  domestic
violence.  Horn  argues that the court properly  limited  Morriss
visitation under AS 25.24.150, claiming the court relied not only
on the January 2007 order, but also on other evidence of domestic
violence in the record.
          The  court  did  not  reduce its  visitation  order  to
writing, but the court did make oral findings on the record.   It
found  there was an incident of domestic violence in  October  of
2003  which  led  to  a long-term domestic violence  order  being
entered . . . that has res judicata effect in this proceeding  in
that  that   that  required a finding by a preponderance  of  the
evidence  that  domestic violence has occurred.  The  court  also
found  the testimony of Ms. Horn, corroborated by more  than  one
witness  here today, that Mr. Morris made threats of bodily  harm
to her, was sufficient to make a preponderance finding that there
is  at  least a second act of domestic violence because of  those
corroborated threats of bodily harm to Ms. Horn.
          Although  the  court  heard  a  significant  amount  of
testimony  about  Morriss  alleged  abuse  of  Horn,  the   court
refrained  from finding other instances of domestic violence:  Im
not  saying  the  other  incidents of alleged  domestic  violence
occurred  or did not occur, but these are the two that I  feel  I
can,  that  I  must find by a preponderance of the  evidence  did
exist  and thats all the statute requires me to find.  The  court
concluded   these   two  domestic  violence  findings   satisfied
AS  25.24.150(h), raising an unrebutted presumption  of  domestic
violence   under  AS  25.24.150(g)  and  triggering   limits   on
visitation per AS 25.24.150(j).  The court orally ordered  Morris
to  complete  a  batterers intervention program  and  to  undergo
therapeutic visitation with the children.
           Alaska  Statute 25.24.150(g) states that if the  court
finds  that  a  parent  has  a history of  perpetrating  domestic
violence  against the other parent, the perpetrator  may  not  be
awarded  sole  or  joint legal or physical  custody.   Subsection
.150(h)  provides  that  a parent has a history  of  perpetrating
domestic  violence under (g) of this section if the  court  finds
that, during one incident of domestic violence, the parent caused
serious  physical  injury  or the court  finds  that  the  parent
engaged in more than one incident of domestic violence.38  Once a
court  finds  a  history of perpetrating domestic violence  under
(g),  subsection .150(j) requires the court to limit the  parents
visitation:
          [T]he   court  shall  allow  only  supervised
          visitation  by  that parent with  the  child,
          conditioned  on the parents participating  in
          and  successfully completing an  intervention
          program   for  batterers,  and  a   parenting
          education     program,    where    reasonably
          available,  except that the court  may  allow
          unsupervised visitation if it is shown  by  a
          preponderance  of  the  evidence   that   the
          violent  parent . . . does not pose a  danger
          of  mental or physical harm to the child, and
          unsupervised visitation is in the childs best
          interests.
          
          From  the audio recording of the oral findings,  it  is
clear  the  court relied on the 2003 domestic violence  order  to
find one of the two instances of domestic violence; the court did
not  rely on the 2007 order.  Specifically, the court stated that
the  2003 domestic violence order had res judicata effect on  the
courts  custody and visitation determination under AS  25.24.150,
requiring the court to find that an incident of domestic violence
had  occurred  for  purposes  of AS 25.24.150(g)  and  (h).   But
because  the doctrine of res judicata bars . . . relitigation  of
the  same  cause of action,39 and because domestic  violence  and
visitation  modification  proceedings  are  different  causes  of
action,40  we  believe the court must have meant  to  invoke  the
doctrine of issue preclusion, or collateral estoppel.  Under that
doctrine,  an  issue  of fact which is actually  litigated  in  a
former  action may, under certain circumstances, be  regarded  as
conclusive in a subsequent case.41
          Although  we  have not decided whether,  as  a  general
matter,  domestic violence orders issued under AS  18.66.100  may
have  issue-preclusive effect in a subsequent  child  custody  or
visitation  proceeding, we addressed a similar issue in  F.T.  v.
State.42  There,  we held that the trial court  erred  in  taking
judicial notice of [prior] restraining orders for the purpose  of
establishing that [the father] had committed acts of violence  in
the  past  in a subsequent child-in-need-of-aid proceeding.43  We
stated:
          The  superior court may have meant to  invoke
          the   doctrine  of  issue  preclusion;   that
          doctrine  is  also  not  applicable  to  this
          case.  . . . Whether domestic violence orders
          issued  under  [former] AS  25.35.010  or  AS
          25.35.020  [renumbered  as  AS  18.66.100  et
          seq.]  can  cause  issue  preclusion   in   a
          subsequent child in need of aid proceeding is
          a topic of some complexity.  It is sufficient
          for  our  purposes in this opinion  to  state
          that issue preclusion in such cases would  by
          no  means  be  inevitable.  The issue  as  to
          whether   the  individual  in  question   had
          committed acts of domestic violence must have
          actually  been litigated; a judgment  entered
          by   default  does  not  qualify  as   actual
          litigation.  Further, various  exceptions  to
          the  rule  of issue preclusion may  apply  in
          this   case.   None  of  these  matters  were
          explored  in  the trial court  and  therefore
          issue  preclusion by reason of  the  domestic
          violence  orders  would  have  been   plainly
          inappropriate.[44]
          
          We believe this reasoning applies here and leads to the
          conclusion that the superior courts use of issue preclusion was
inappropriate  because  the issue of domestic  violence  was  not
actually  litigated  in the prior protective  order  proceedings.
The  issue  was  not actually litigated in the  2003  restraining
order  proceedings  because the twenty-day order  was  issued  ex
parte, without Morriss presence,45 and the parties stipulated  to
extend  it.   Although  a  stipulation may  be  binding  in  that
particular  proceeding,  it  is  generally  accepted  that  issue
preclusion  ordinarily does not attach [to a stipulation]  unless
it  is clearly shown that the parties intended that the issue  be
foreclosed in other litigation.46 There is no indication  in  the
record that Morris intended his stipulation to establish the fact
of  domestic  violence for use in a later custody  or  visitation
proceeding. Therefore, the doctrine of issue preclusion cannot be
invoked to establish an act of domestic violence in this case.
          Horn  claims the court did not err because it  did  not
rely  on  just  the  domestic violence  order  to  find  domestic
violence  for purposes of limiting visitation under AS 25.24.150.
Horn  is partly right  the court did rely on Horns testimony  and
the  testimony of her witnesses to find one of the  incidents  of
domestic violence.  But unless the court finds that a single  act
of   domestic  violence  caused  serious  physical  injury,    AS
25.24.150(h)  requires  the  court to  find  that  at  least  two
instances  of  domestic violence occurred before the  presumption
arises  in  favor  of  supervised visitation.   Here,  the  court
independently  made  findings on only one  instance  of  domestic
violence;  it  found the second instance because it believed  the
2003 domestic violence order had issue-preclusive effect.
          On  these facts and this record, it was error to  apply
the  doctrine  of  issue preclusion to find a prior  instance  of
domestic violence.  Therefore, we reverse the visitation  ruling.
On remand, the court must determine whether it can make a finding
that a second incident of domestic violence occurred based on the
testimony  and  evidence presented.  If  the  evidence  does  not
justify  such a finding, the court must reassess the restrictions
placed on Morriss visitation with the parties children.47
V.   CONCLUSION
          For  the above reasons, we REVERSE the superior  courts
order  enforcing the original property decree, the  courts  child
support  order, and the courts visitation order.  We  REMAND  for
further proceedings consistent with this opinion.


                                        
_______________________________
     1     The parties also agreed that any decision to sell  the
property would be made jointly and that there was no mortgage  on
the property.

     2     The court asked the parties if each agreed this was  a
complete  and fair agreement and both responded yes.   The  court
concluded  this  appeared to be a complete  and  fair  agreement,
though  it  was  confusing,  but not  impermissible,  to  have  a
dissolution  decree  if the parties were still  living  together.
Both  parties agreed to this. Morris later testified he lived  in
the  Willow  home until a couple of months after the  dissolution
hearing.

     3     In  June  2003  Morriss child support  obligation  was
reduced to $1,426.89 per month because one of the children was no
longer living at home.

     4    AS 18.66.110(a) states, in pertinent part:

          A person who is a victim of a crime involving
          domestic  violence may file a petition  under
          AS  18.66.100(a)  and  request  an  ex  parte
          protective  order.  If the court  finds  that
          the  petition establishes probable cause that
          a   crime  involving  domestic  violence  has
          occurred,  it  is necessary  to  protect  the
          petitioner from domestic violence, and if the
          petitioner  has  certified to  the  court  in
          writing  the efforts, if any, that have  been
          made to provide notice to the respondent, the
          court  shall ex parte and without  notice  to
          the    respondent    issue    a    protective
          order.  .  .  . An ex parte protective  order
          expires 20 days after it is issued . . . .
          
          AS 18.66.100 provides, in relevant part:

          (a) A person who is or has been a victim of a
          crime involving domestic violence may file  a
          petition  in  the district or superior  court
          for  a  protective order against a  household
          member. . . .
          
          (b) When a petition for a protective order is
          filed, the court shall schedule a hearing and
          provide  at  least  10  days  notice  to  the
          respondent   of  the  hearing  and   of   the
          respondents  right to appear  and  be  heard,
          either in person or by an attorney. . . .
          
     5    Horn was out of town during this incident, but her baby-
sitter called the state troopers after Morris allegedly yelled at
her on the phone.

     6    By this time he owed a total of $38,833.01 in child and
spousal support.

     7     The  dissolution petition reported that Morriss  total
gross income was $55,744 and his net income was $47,562.  The DR-
305  form he filed with his motion to modify child support listed
his  total  gross  income as $36,118.45 and  his  net  income  as
$33,833.40.

     8    AS 25.24.150 provides, in pertinent part:

          (g) There is a rebuttable presumption that  a
          parent  who  has  a history  of  perpetrating
          domestic violence against the other parent, a
          child,  or a domestic living partner may  not
          be  awarded sole legal custody, sole physical
          custody,   joint  legal  custody,  or   joint
          physical custody of a child.
          
          (h)  A  parent  has a history of perpetrating
          domestic  violence under (g) of this  section
          if  the court finds that, during one incident
          of   domestic  violence,  the  parent  caused
          serious  physical injury or the  court  finds
          that the parent has engaged in more than  one
          incident    of   domestic   violence.     The
          presumption    may   be   overcome    by    a
          preponderance  of  the  evidence   that   the
          perpetrating    parent    has    successfully
          completed   an   intervention   program   for
          batterers,  where reasonably available,  that
          the  parent  does  not  engage  in  substance
          abuse,  and  that the best interests  of  the
          child require that parents participation as a
          custodial parent because the other parent  is
          absent   .   .   .   or  because   of   other
          circumstances that affect the best  interests
          of the child.
          
          . . .

          (j)  If the court finds that a parent  has  a
          history  of  perpetrating  domestic  violence
          under  (g)  of this section, the court  shall
          allow  supervised visitation by  that  parent
          with  the child, conditioned on that  parents
          participating in and successfully  completing
          an intervention program for batterers, and  a
          parenting education program, where reasonably
          available,  except that the court  may  allow
          unsupervised visitation if it is shown  by  a
          preponderance  of  the  evidence   that   the
          violent  parent  has  completed  a  substance
          abuse   treatment  program   if   the   court
          considers  it  appropriate,  is  not  abusing
          alcohol or psychoactive drugs, does not  pose
          a  danger of mental or physical harm  to  the
          child, and unsupervised visitation is in  the
          childs best interests.
          
     9    Horn claimed she had paid around $24,000 in taxes.

     10     Horns  affidavit and those of her children, who  were
eighteen  and  fifteen at the time, make serious  allegations  of
abuse.   Horn  stated Morris  sexually assaulted her both  during
and  after  the  marriage,  verbally and  physically  abused  her
throughout  the marriage, and used severe physical discipline  on
the children.  The younger child stated in her affidavit that she
had  observed Morris throw, grab, and physically fight with Horn,
had seen injuries and scars on Horn because of his abuse, and had
heard him threaten to kill her.

     11     AS  25.20.110(a) permits a court to  modify  a  child
custody or visitation award if the court determines that a change
in  circumstances requires the modification of the award and  the
modification is in the best interests of the child.

     12     AS  25.24.140(b)  permits courts to  issue  necessary
protective orders during the pendency of a dissolution action.

     13     The  court admitted the pay stubs and tax returns  as
exhibits but only one document, apparently concerning 2006 taxes,
is in the record.

     14     The  court  ordered Morris to file a proposed  DR-305
within five days of the hearing using his 2007 and 2006 pay stubs
(fourteen  months of pay stubs) as the basis for calculating  his
average income.

     15     AS 25.24.150(g), (h), (j).  The court found there was
insufficient evidence to make a finding on substance abuse.

     16     We  understand that the trial court used  the  phrase
therapeutic  visits  to  mean visits with  the  children  in  the
presence of, or facilitated by, a counselor.

     17     Krushensky  v. Farinas, 189 P.3d 1056,  1060  (Alaska
2008)  (citing  Williams v. Crawford, 982 P.2d 250,  253  (Alaska
1999)).

     18     Horchover v. Field, 964 P.2d 1278, 1281 (Alaska 1998)
(citing Meyeres v. Meyeres, 705 P.2d 921, 922-23 (Alaska 1985)).

     19     Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002)
(citing  Schuyler  v.  Briner, 13 P.3d 738,  741  (Alaska  2000))
(child support); Faro v. Faro, 579 P.2d 1377, 1379 (Alaska  1978)
(citing  Curgus  v.  Curgus, 514 P.2d  647,  649  (Alaska  1973))
(visitation).

     20     Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska
1998) (citation omitted).

     21     Hopper v. Hopper, 171 P.3d 124, 128-29 (Alaska  2007)
(citing McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999)).

     22    Alaska Civil Rule 60(b) provides, in relevant part:

          On  motion  and upon such terms as are  just,
          the  court  may relieve a party or  a  partys
          legal  representative from a final  judgment,
          order,   or   proceeding  for  the  following
          reasons:
          
          (1)   mistake,  inadvertence,   surprise   or
          excusable neglect;
          (2)  newly discovered evidence which  by  due
          diligence  could not have been discovered  in
          time  to  move  for  a new trial  under  Rule
          59(b);
          (3)  fraud  (whether  heretofore  denominated
          intrinsic  or  extrinsic), misrepresentation,
          or other misconduct of an adverse party;
          (4) the judgment is void;
          (5)   the   judgment  has   been   satisfied,
          released, or discharged, or a prior  judgment
          upon  which it is based has been reversed  or
          otherwise   vacated,  or  it  is  no   longer
          equitable  that  the  judgment  should   have
          prospective application; or
          (6)  any other reason justifying relief  from
          the operation of the judgment.

          The  motion shall be made within a reasonable
          time,  and for reasons (1), (2) and  (3)  not
          more  than one year after the date of  notice
          of the judgment or orders as defined in Civil
          Rule 58.1(c).
          
     23    See Stone v. Stone, 647 P.2d 582, 585-86 (Alaska 1982)
(holding  that if a party fails to seek timely relief under  Rule
60(b), the superior court lacks jurisdiction to grant relief from
the original decree).

          Neither  party  disputes the courts  finding  that  the
verbal  tax and loan agreements constituted a property settlement
that merged into the dissolution decree.

     24     AS  25.24.160(a)(4); see also Lowe v. Lowe, 817  P.2d
453, 456 (Alaska 1991).

     25    Stone, 647 P.2d at 585 (citing former AS 09.55.220).

     26     Bishop  v.  Clark,  54 P.3d 804,  809  (Alaska  2002)
(quoting 15 Walter H.E. Jaeger, Williston on Contracts  1826,  at
485-86 n.9 (3d ed. 1972)).

     27    Horn argues Morris waived his claims regarding the tax
obligation  by  failing to raise them in his  points  on  appeal.
See  Alaska R. App. P. 204(e).  Morris filed his points on appeal
pro  se.   His  list  of  points on appeal and  the  accompanying
affidavit  reference the tax obligation; the latter  requests  an
order  that  Horn be required to pay the taxes.   Because  Morris
filed  these documents pro se, and because he generally  complied
with  the requirements of Appellate Rule 204(e), we apply a  more
relaxed procedural standard.  Cf. Smith v. Sampson, 816 P.2d 902,
906 (Alaska 1991) (citing Bauman v. State, Div. of Family & Youth
Servs.,  768 P.2d 1097, 1099 (Alaska 1989)).  We also apply  this
standard  to the other claims that Horn argues Morris waived  for
failure to include them in his points on appeal.

     28     Civil Rule 90.3 provides the presumptive formula  for
calculating a non-custodial parents child support obligation.

     29     Terry  v.  Terry, 851 P.2d 837, 837-38 (Alaska  1993)
(citing Renfro v. Renfro, 848 P.2d 830 (Alaska 1993)).

     30     Cf. Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998);
Terry, 851 P.2d at 838-39.

     31      Morris   did  not  waive  this  argument;   he   was
unrepresented  in the hearing and he submitted pay  stubs  dating
back  to  2001, impliedly requesting that the court consider  his
income over several years.

     32    Alaska R. Civ. P. 90.3(a) & (a)(1).

     33    Alaska R. Civ. P. 90.3, cmt. III.E.  The commentary to
Civil  Rule  90.3  has not been officially adopted,  but  it  can
provide  useful guidance in applying the rule.  Miller v. Clough,
165  P.3d 594, 600 n.10 (Alaska 2007) (citing Caldwell v.  State,
105 P.3d 570, 573 n.6 (Alaska 2005)).

     34    The court did not consider income from 2002 or earlier
in  order  to  avoid retroactively modifying child support.   See
Alaska  R. Civ. P. 90.3(h)(2); see also Yerrington v. Yerrington,
933  P.2d  555,  558  (Alaska 1997). But it may  be  that  Morris
offered  earlier income information to buttress an argument  that
his 2006 income was aberrational, and not a reliable indicator of
his future earnings.  On remand, Morris will have the opportunity
to  offer  income information that pre-dates 2006, if he believes
it provides a better indication of his future income.

     35     Renfro  v.  Renfro, 848 P.2d 830, 833  (Alaska  1993)
(citing Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)).

     36    Alaska R. Civ. P. 90.3(c)(5).

     37     Cf.  Brandon v. Corr. Corp. of Am., 28 P.3d 269,  280
(Alaska 2001).

     38     The presumption may be overcome by a preponderance of
the  evidence  that  the  perpetrating  parent  has  successfully
completed  an intervention program for batterers  .  .  .  .   AS
25.24.150(h).

     39    Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska  1997) (explaining the doctrine of res judicata  provides
that  a final judgment in a prior action bars a subsequent action
if the prior judgment was (1) a final judgment on the merits, (2)
from  a  court of competent jurisdiction, [and] (3) in a  dispute
between the same parties (or their privies) about the same  cause
of  action (citing Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska
1985))).

     40     Cf. Lashbrook v. Lashbrook, 957 P.2d 326, 329 (Alaska
1998)  (Domestic  violence proceedings and  custody  modification
proceedings are distinct proceedings.).

     41     F.T.  v. State, 862 P.2d 857, 864 n.13 (Alaska  1993)
(citing Restatement (Second) of Judgments  27 (1982)).

     42    862 P.2d 857 (Alaska 1993).

     43    Id. at 859, 863-64.

     44     Id.  at  864  n.13  (citing Restatement  (Second)  of
Judgments   27  cmt.  e (1982) (judgment not  conclusive  because
issues  not  actually  litigated)  and  Restatement  (Second)  of
Judgments  28(3), 28(5), 29(2), 29(5) (1982)).  The exceptions we
cited  were:  (1) new determination of the issue is warranted  by
differences  in  the quality or extensiveness of  the  procedures
followed;  (2)  clear and convincing need for a new determination
of  the   issue . . . because of the potential adverse impact  of
the  determination on . . . interests of persons  not  themselves
parties   to   the  initial  action,  it  was  not   sufficiently
foreseeable  at  the time of the initial action  that  the  issue
would  arise  in  the  context of a subsequent  action,  lack  of
adequate  opportunity  or incentive to obtain  a  full  and  fair
adjudication  in the initial action; (3) forum in  second  action
affords  .  .  .  procedural opportunities  in  presentation  and
determination of the issue that were not available in  the  first
action and could likely result in a different determination;  and
(4)  prior  determination may have been affected by relationships
among the parties to the first action that are not present in the
subsequent action, or apparently was based on a compromise . .  .
finding.   See  Restatement (Second) of Judgments  28(3),  28(5),
29(2), 29(5) (1982).

     45    See AS 18.66.110(a) (permitting courts to issue twenty-
day  protective orders ex parte and without notice under  certain
circumstances).

     46     18A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure  4443 (2d ed. 2009).

     47     The court is free to continue the existing visitation
order until it reassesses the visitation restrictions.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC