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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wee v. Eggener (3/12/2010) sp-6461

Wee v. Eggener (3/12/2010) sp-6461, 225 P3d 1120

     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

JHYSHAIN WEE, )
) Supreme Court No. S- 13465
Appellant,)
) Superior Court No. 3AN-08- 4371 CI
v. )
) O P I N I O N
)
CHARLES EGGENER, ) No. 6461 - March 12, 2010
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack Smith, Judge.

          Appearances:   Justin  Eschbacher  and   Gary
          Eschbacher,  Law Offices of G. R. Eschbacher,
          Anchorage, for Appellant.  Robert  C.  Erwin,
          Robert   C.   Erwin,  LLC,   Anchorage,   for
          Appellee.

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

          WINFREE, Justice.

I.   INTRODUCTION
          Following  a  five-day custody trial between  unmarried
parents regarding their young son, the trial court found that the
father  has  a  history  of  domestic violence.   It  nonetheless
awarded  shared  physical  custody  and  temporary  joint   legal
custody, deferring final determination of legal custody  for  one
year.   When issuing its oral findings and conclusions, the trial
court  also  granted the fathers request for a mutual no  contact
order.
          The   mother  appealed  the  trial  courts  awards   of
temporary  joint legal custody and shared physical custody.   She
argued that a court may not award any type of custody to a parent
who  has  a  history  of domestic violence unless  the  statutory
presumption  against  custody is overcome,  and  that  the  court
failed  to  find  the father had overcome that presumption.   She
also  appealed the trial courts deferral of final legal  custody,
its  award  of  unsupervised visitation to the  father,  and  the
mutual no contact order.
          After  oral argument, we issued an order:  (1) vacating
the  trial  courts  order awarding shared  physical  custody  and
temporary  joint  legal custody to the father; (2)  vacating  the
shared  physical  custody schedule ordered by  the  trial  court;
(3)  remanding  limited  jurisdiction  to  the  trial  court   to
establish a reasonable unsupervised visitation schedule  for  the
father;  and  (4)  vacating the mutual no  contact  order  as  it
applied to the mother contacting the father.  We now explain  the
basis for our decision.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Jhyshain  Wee  and Charles Eggeners  son  was  born  in
September 2004.  The two have never married, but began cohabiting
when  Wee  became pregnant.  Within a few months  of  their  sons
birth  their relationship became strained and plagued with  abuse
accusations.
          Wee reported that the relationship deteriorated due  to
verbal and physical abuse Eggener directed towards her.  In  July
2006  one  such  incident  led  to a long-term  protective  order
against  Eggener.   Wee claimed she sought that protective  order
after  Eggener grabbed her, causing a large bruise on  her  upper
arm.   Wee  explained Eggener grabbed her when she  attempted  to
leave  the  house during one of his rage outburst[s].  Two  weeks
after  obtaining the protective order, Wee modified it  to  allow
Eggener  contact with their son.  And two months after  obtaining
the  protective order, Wee rescinded or asked for a dismissal  of
the proceedings.
          Wee also detailed a January 2007 incident when Eggeners
escalating  anger  frightened her, and out  of  concern  for  her
safety  and that of their son, she attempted to dial 9-1-1.   Wee
claimed  Eggener disconnected the call, pushed her onto the  bed,
and restrained her movement.  Eggener confirmed he took the phone
out of Wees hand and hung it up.  But Eggener claimed he had been
unaware  Wee actually had dialed 9-1-1, because she often  picked
up  the phone and threatened to call for help without dialing any
number.
          Wee  testified that Eggener often physically restrained
her,  as  during  the January 2007 incident  or  when  she  would
threaten to leave the house with their son or call for help after
tiring  of Eggeners shouting.  Wee claimed that while restraining
her,  Eggener would shout at her for periods of five  to  fifteen
minutes, sometimes when their son was watching.  She claimed this
sort of incident happened about three or four times a month.
          Eggener admitted that he and Wee argued when their  son
was  young, but he blamed the arguments on his desire to increase
Wees  involvement  in  their sons life and in  household  chores.
Eggener  testified that during these arguments Wee would threaten
to  take their son and leave the country, to go to a shelter,  or
to  call  the  police  and claim Eggener physically  abused  her.
Eggener estimated that Wee made threats like these at least twice
a  week.  Eggener also claimed Wee twice threatened to kill their
son.
          According  to  Eggener,  Wee  became  depressed  around
December  2007.  Eggener thought that about that time  their  son
began  preferring Eggeners company to Wees, contributing to  Wees
depression.   During this time Wee told Eggener  she  thought  he
might  be  sexually abusing their son.  Although Eggener  claimed
this  allegation  was  unfounded,  Wee  went  to  the  Office  of
Childrens Services (OCS) and alleged Eggener was sexually abusing
their son.  Wee then filed for a protective order against Eggener
on  behalf of her son based on the abuse allegation.  At the same
time, Wee filed for a protective order against Eggener on her own
behalf.
          In  early January 2008 the superior court granted  Wees
motion  on behalf of the son for a twenty-day ex parte protective
order  against Eggener.  At the subsequent hearing  Wee  withdrew
the  sons motion for a long-term protective order but pursued her
own  domestic  violence protective order  against  Eggener.   The
court  granted  Wees  motion for a domestic  violence  protective
order against Eggener based on the order granted in 2006, finding
that  she  was still in fear.  The court also ordered a 4/3,  3/4
custody schedule.
     B.   Proceedings
          In early 2008, shortly after Wee filed for the domestic
violence  protective orders, Eggener filed a complaint  for  sole
legal  and  primary physical custody of their son.  Wee countered
with her own request for sole legal and primary physical custody.
On  December  30, 2008, after a five-day trial, the  trial  court
entered its custody orders.
          The   trial   court  first  found  that:   the   childs
relationship  with each parent was loving and affectionate;  both
parents  were capable of providing for the childs needs; and  the
child had spent his whole life with both parents.  The court also
found there was no evidence that substance use affects the childs
well-being.
          The  trial court stressed that the custody case focused
on  two  issues  Eggeners alleged child sexual abuse and domestic
violence.  With regard to the former, the court found Wee  failed
to prove that any sexual abuse had occurred or that the child was
in  danger  in that regard.  The court then addressed Wees  claim
that  Eggener  has  a  history  of  domestic  violence  under  AS
25.24.150(g) and (h).1
          The trial court noted Eggener had two domestic violence
orders  entered against him, one in 1994 and one in  2006.2   The
trial court noted that it had granted the 2008 order based on the
prior  granting  of the 2006 domestic violence  protective  order
finding that [Wee was] still in fear.  The trial court stated  it
must consider all incidents of domestic violence, but the age and
nature of each incident would influence its finding.  Considering
those factors, the trial court found the 1994 incident attenuated
          by age, yet it ha[d] some weight in determining this case.  The
trial  court  noted  that  the incident, which  involved  Eggener
restraining  his teenage daughter, was consistent with  the  2006
incident involving Eggener restraining Wee.  The trial court also
found Eggeners actions in January 2007, when he disconnected Wees
9-1-1  call  and  restrained her, constituted domestic  violence.
Because  these examples demonstrated Eggener engaged in  multiple
domestic  violence  incidents,  the  trial  court  found   by   a
preponderance of evidence that Eggener has a history of  domestic
violence under AS 25.24.150(h).3  The trial court ordered Eggener
to  complete  a  state-approved domestic violence  course  and  a
parenting course.
          Applying  AS 25.24.150(j)4 the trial court found  by  a
preponderance of evidence that Eggener did not abuse  alcohol  or
psychoactive drugs or pose a danger of mental or physical harm to
[his   son].   The  trial  court  then  found  that  unsupervised
visitation [was] in the childs best interests and ordered Eggener
and Wee to continue the existing 4/3, 3/4 custody schedule.
          The  trial  court awarded shared physical  custody  but
deferred  determining legal custody for one year,  requiring  the
parents  to  submit  to  binding  arbitration  for  non-emergency
medical and educational decisions regarding their son.  The trial
court  ordered  temporary  joint legal custody  in  the  interim.
During the oral decision, Eggener requested, and the trial  court
granted, a mutual civil no contact order between Wee and Eggener,
except for issues concerning their son.
          Wee  filed  a  motion for reconsideration, arguing  the
trial court erred by ordering a mutual no contact order and joint
legal  custody with the requirement of arbitration.  In  response
to  that  motion, the trial court affirmed the mutual no  contact
order  but deleted the requirement of binding arbitration in  its
custody order.
          Wee  appealed  the  trial  courts  decisions  regarding
custody,  visitation, and the mutual no contact  order.   Shortly
after  oral argument, we issued an order addressing Wees  appeal.
We vacated:  (1) [t]hose portions of the trial courts . . . order
granting  shared  physical  custody  and  temporary  joint  legal
custody  to  .  .  .  Eggener; (2) the  shared  physical  custody
schedule;  and (3) the mutual no contact order as it  applied  to
Wees   ability   to   contact  Eggener.   We   remanded   limited
jurisdiction  to  the  trial  court  to  establish  a  reasonable
unsupervised visitation schedule for . . . Eggener, based on  Wee
having  sole  legal and primary physical custody  of  their  son.
This opinion explains the basis for our order.
III. STANDARD OF REVIEW
          A  trial  court has broad discretion in deciding  child
custody issues.5  We review a trial courts child custody decision
for  abuse  of discretion and review underlying factual  findings
for  clear  error.6  Abuse of discretion in child  custody  cases
occurs   when  a  trial  court  considers  improper  factors   or
improperly  weighs factors in its decisional process.7   We  find
clear error when, after review of the entire record, we are  left
with a definite and firm conviction a mistake occurred.8  But  we
grant  particular deference to the trial courts factual  findings
          when they are based primarily on oral testimony, because the
trial court, not this court, performs the function of judging the
credibility of witnesses and weighing conflicting evidence.9   We
review  questions of law, such as whether the trial court applied
the correct legal standard, de novo.10
IV.  DISCUSSION
     A.   It Was Error To Order Temporary Joint Legal Custody and
          Shared  Physical Custody After Finding  Eggener  Has  a
          History  of  Domestic Violence Without  Addressing  the
          Presumption Against Custody in AS 25.24.150(g).
          
          In  2004  the legislature added several subsections  to
the child custody statute, AS 25.24.150.11  One of the additions,
subsection (g), creates a rebuttable presumption against awarding
sole  or  joint legal or physical custody to a parent who  has  a
history  of  perpetrating  domestic violence  against  the  other
parent. 12  Under AS 25.24.150(h), another 2004 addition  to  the
child  custody statute, [a] parent has a history of  perpetrating
domestic  violence if the parent caused serious  physical  injury
during  a domestic violence incident or has engaged in more  than
one incident of domestic violence.13
          Alaska   Statute   25.24.150(g)s  presumption   against
custody  may  be overcome if a parent with a history of  domestic
violence:  completes an intervention program for batterers,  when
reasonably available; does not engage in substance abuse; and the
childs  best  interests require that parents participation  as  a
custodial parent . . . .14  If the presumption is not overcome, AS
25.24.150(g) prohibits awarding the perpetrating parent any  type
of custody.15
          Here  the  trial court found Eggener has a  history  of
domestic   violence  but  failed  to  address  AS   25.24.150(g)s
presumption  against custody.  We have explained  that  the  path
charted  in subsection .150(g)-(i) must be followed when a  court
finds one parent has a history of domestic violence.16  The trial
courts  custody  awards  cannot be sustained,  and  we  therefore
vacated  the trial courts award of temporary joint legal  custody
and  shared physical custody to Eggener, along with the 4/3,  3/4
shared physical custody schedule.  We do not reach Wees challenge
to  the courts deferral of final legal custody because without  a
finding that Eggener overcame the presumption against custody, he
has  no  right  to any type of custody.  Wee has sole  legal  and
primary physical custody of the child, although Eggener may  move
for  a  change  in  custody  if  he can  overcome  the  statutory
presumption against custody.17
     B.   It  Was  Not  an  Abuse of Discretion To Award  Eggener
          Unsupervised Visitation.
          
          When  a  court finds a parent has a history of domestic
violence,  it  generally can grant the perpetrating  parent  only
supervised   visitation.18   But  AS  25.24.150(j)  outlines   an
exception  to  this general rule  a court may award  unsupervised
visitation  if a preponderance of evidence shows the perpetrating
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.19
          After   finding  Eggener  has  a  history  of  domestic
violence,   the  trial  court  looked  to  AS  25.24.150(j)   and
determined   Eggener  met  the  requirements   for   unsupervised
visitation.  The trial court found by a preponderance of evidence
that  Eggener does not abuse alcohol or psychoactive  drugs,  nor
does  he  pose a danger of mental or physical harm to [his  son].
The  trial  court also found by a preponderance of evidence  that
the  childs  best interests warranted unsupervised visitation  by
Eggener.
          Wee  challenges the trial courts finding  that  Eggener
does  not  pose  a risk of harm to the child.  She  argues  [t]he
evidence at trial was overwhelming that Mr. Eggener posed a  risk
of  harm  to [their son] given his mental health issues  and  his
inability  to  control his anger.  To support  her  argument  Wee
cites   testimony  describing  Eggeners  past  sexual   behavior,
potential   for   alcohol  abuse  in  the  future,   narcissistic
personality traits, and anger management issues.
          Ample  testimonial evidence in the record supports  the
trial   courts  finding.   Dr.  Bruce  Smith,  who  performed   a
psychological evaluation of Eggener, testified that the results .
.  .  do  not  reflect a concern that [Eggener] is prone  to  use
physical  abuse  in his interaction with [his  son].   Dr.  Smith
concluded  there is nothing from [his] data that [he] can rely on
to  state  that [Eggener] should not be in the role of parent  to
his  child.   Dr.  David  Wilcox, a  clinical  psychologist  with
expertise  in  anger  management, drug and  alcohol  issues,  and
sexual  compulsivity  and who also serves as Eggeners  therapist,
reached  a  similar conclusion:  I have no new  information  that
would  make me believe that Mr. Eggener shouldnt be able to  have
visits  with his child, unsupervised visits . . . .  The  custody
investigator,  Elizabeth  Still,  also  recommended  unsupervised
visitation, suggesting she did not believe Eggener posed  a  risk
of harm to his son.
          Based  on this evidence, the finding that Eggener  does
not pose a risk of harm to his son is not clearly erroneous.  And
conflicting  evidence  does not by itself indicate  an  abuse  of
discretion.20   For  these reasons, we affirm  the  trial  courts
unsupervised  visitation  award  to  Eggener;  we  have   already
remanded  limited jurisdiction to the trial court to determine  a
reasonable unsupervised visitation schedule for Eggener.
     C.   It  Was  an Abuse of Discretion To Issue the Mutual  No
          Contact Order Because the Order Was Not Supported by an
          Independent Basis Against Wee and Conflicts with Public
          Policy.
          
          Eggener  requested and was granted a mutual no  contact
order  while the court was issuing its oral decision.  The  trial
court  noted  Wee  had  contacted  Eggener  throughout  the  2006
domestic  violence protective order and without  a  mutual  order
Eggener  was  set[] . . . up for failure.  In  response  to  Wees
motion  for reconsideration, the trial court affirmed its  mutual
          no contact order based upon the conduct of [Wee] throughout the
relationship.
          Wee argues the entry of the mutual no contact order was
an  abuse of discretion because the trial court did not find  Wee
had  committed any acts of domestic violence against Mr. Eggener,
nor  in  any way posed a danger to Mr. Eggener.  Eggener responds
that the mutual no contact order is within the inherent power  of
the court and should be affirmed.21
          The  legislature has expressed a policy against issuing
mutual  no contact orders in a domestic violence proceeding:  [a]
court may not grant protective orders against the petitioner  and
the  respondent  in the same action under [the Domestic  Violence
and  Sexual Assault] chapter.22  We have stated that this  policy
applies in divorce litigation when only one partner has committed
acts  of  domestic violence,23 and we now extend this  policy  to
divorce-like litigation between unmarried couples when  only  one
partner has committed acts of domestic violence.  In addition  to
social  concerns  underlying  this policy,24  unwarranted  mutual
orders  in divorce-like settings may create enforcement  problems
because  police will not know whose conduct prompted  the  order,
who  is  actually  afraid  of being seriously  hurt,  or  how  to
proceed.25
          In  Cooper  v. Cooper we addressed a challenge  to  the
factual  basis  for a mutual restraining order.26   The  superior
court  had  issued a mutual restraining order, upon the  husbands
request,  based on safety concerns expressed by both parties  and
the high level of animosity and distrust exhibited throughout the
litigation.27  On appeal the wife challenged the orders mutuality,
claiming  the  court  lacked  a  factual  basis  for  imposing  a
restraining order against her.28  We quoted Siggelkow v. State for
the rule that where an independent basis exists for a restraining
order,  it  may issue pursuant to the courts equitable power.  29
But we also stated that when a court imposes a mutual restraining
order, an independent basis for the order must exist with respect
to each party.30  We further explained that neither an expression
of  concern  by  the  parties  nor a  general  acknowledgment  of
animosity and distrust creates an independent basis for an order.31
We concluded that the restraining order against the wife lacked a
specific  factual basis to support a belief that the  wife  would
commit  future harassment or contact, and held that the  superior
court  had  abused its discretion by issuing a mutual restraining
order.32
          Although  Cooper  addressed a mutual restraining  order
issued  during a divorce proceeding, it relates directly to  Wees
contention that there was no factual basis for the trial court to
issue  a no contact order against her.  Neither the trial  courts
findings nor the evidence presented at trial indicates Eggener is
or has been a victim of a crime involving domestic violence.33  In
accordance with Cooper, Eggeners expression of concern  that  Wee
may contact him is insufficient to establish an independent basis
for a protective order.34  It was therefore an abuse of discretion
to issue a mutual no contact order lacking an independent factual
basis against Wee.35
          On  the  other hand, a specific and independent factual
          basis supported the portion of the no contact order prohibiting
Eggener from contacting Wee  the trial court found Wee had been a
victim of Eggeners domestic violence, and the trial court entered
the  no  contact order because Wees domestic violence  protective
order against Eggener was scheduled to expire soon.
          For  these reasons we vacated the mutuality of  the  no
contact  order  preserving the no contact order as it applies  to
Eggener,  but eliminating the no contact order as it  applies  to
Wee.
V.   CONCLUSION
          As  provided in our earlier order, we VACATE the  trial
courts  order granting temporary joint legal custody  and  shared
physical  custody  to  Eggener, we VACATE  the  4/3,  3/4  shared
physical  custody  schedule, and we VACATE  the  portion  of  the
mutual  no contact order prohibiting Wee from contacting Eggener.
The  trial courts award of unsupervised visitation to Eggener  is
AFFIRMED,  but  we  REMAND for the trial  court  to  establish  a
reasonable   visitation  schedule  for  Eggener  based   on   the
statutorily  required  grant of sole legal and  primary  physical
custody to Wee.
_______________________________
     1    AS 25.24.150(g) and (h) state:

          (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,  suffers  from  a  diagnosed   mental
          illness that affects parenting abilities,  or
          engages   in  substance  abuse  that  affects
          parenting  abilities,  or  because  of  other
          circumstances that affect the best  interests
          of the child.
          
     2     Eggeners  ex-wife  obtained the 1994  order  after  an
incident during an exchange of their teenage daughter.

     3     AS  25.24.150(h) describes two ways in which a  parent
can  be  found  to have a history of domestic violence:  (1)  the
parent  engaged in one incident of domestic violence that led  to
serious physical injury or (2) the parent has engaged in multiple
incidents of domestic violence.  See note 1, above.

     4    AS 25.24.150(j) states:

          (j)  If the court finds that a parent  has  a
          history  of  perpetrating  domestic  violence
          under  (g)  of this section, the court  shall
          allow  only  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.
          
     5     Millette v. Millette, 177 P.3d 258, 261 (Alaska  2008)
(citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).

     6     Jaymot  v. Skillings-Donat, 216 P.3d 534, 538  (Alaska
2009) (citing Millette, 177 P.3d at 261).

     7    Id. at 538-39 (quoting Millette, 177 P.3d at 261).

     8     Dingeman  v.  Dingeman, 865 P.2d 94, 96 (Alaska  1993)
(quoting  Brosnan  v. Brosnan, 817 P.2d 478, 480  (Alaska  1991))
(emphasis and internal quotation marks omitted).

     9     Millette, 177 P.3d at 261 (quoting Ebertz  v.  Ebertz,
113  P.3d  643,  646  (Alaska  2005)) (internal  quotation  marks
omitted).

     10    Harvey v. Cook, 172 P.3d 794, 797 (Alaska 2007) (citing
Ebertz, 113 P.3d at 646).

     11    Ch. 111  5, SLA 2004; Puddicombe v. Dreka, 167 P.3d 73,
77  (Alaska 2007); see generally Lisa Bolotin, Note, When Parents
Fight:   Alaskas   Presumption  Against   Awarding   Custody   to
Perpetrators of Domestic Violence, 25 Alaska L. Rev. 263,  272-87
(2008).

     12     Parks  v.  Parks,  214 P.3d 295,  299  (Alaska  2009)
(quoting AS 25.24.150(g) and citing Puddicombe, 167 P.3d at  77);
see  Bolotin,  note 11, above at 287-89 (noting  AS  25.24.150(g)
ensures  that courts consider the existence of domestic  violence
in making custody decisions).

     13    AS 25.24.150(h); see also Parks, 214 P.3d at 299.

     14    AS 25.24.150(h); see Michele M. v. Richard R., 177 P.3d
830, 837 (Alaska 2008) (citing Puddicombe, 167 P.3d at 77) (If  a
history of domestic violence is found, then the lower court  must
test,  per AS 25.24.150, whether the presumption against awarding
custody  to  the  parent  with  a  history  of  abuse  has   been
overcome.); see Bolotin, note 11, above, at 285.

     15    See AS 25.24.150(g).

     16    Puddicombe, 167 P.3d at 77.

     17    The courts order that Eggener complete a state-approved
domestic  violence course implies Eggener had  not  overcome  the
presumption at the time of the custody trial.

     18    See AS 25.24.150(j).

     19    Id.

     20    Cf. Harding v. Harding, 377 P.2d 378, 380 (Alaska 1962)
(citing Chirikoff Island Cattle Corp. v. Robinette, 372 P.2d 791,
794  (Alaska 1962)) (The fact that the award of custody was based
upon  extremely conflicting evidence does not of itself  show  an
abuse of discretion.).

     21     We  have held that in appropriate circumstances trial
courts may issue no contact orders under their inherent equitable
powers.   See Siggelkow v. State, 731 P.2d 57, 61 (Alaska  1987).
We  review decisions to grant a mutal no contact order for  abuse
of  discretion.  See Cooper v. Cooper, 144 P.3d 451, 454  (Alaska
2006)  (citing State v. Kluti Kaah Native Vill. of  Copper  Ctr.,
831 P.2d 1270, 1272 n.4 (Alaska 1992)).

     22     AS  18.66.130(b).  AS 18.65.530 expresses  a  similar
policy by discouraging arrest of all parties involved in domestic
violence  incidents:  If a peace officer receives  complaints  of
domestic violence from more than one person arising from the same
incident,  the  officer  should  arrest  the  principal  physical
aggressor and may not threaten or suggest the possible arrest  of
all  persons involved in the same incident in a manner that would
have  a  tendency to discourage domestic violence reporting.   AS
18.65.530(b),  (d).   Both AS 18.65.530  and  AS  18.66.130  were
enacted  in  1996 as part of House Bill 314, An Act  relating  to
domestic violence and to crime victims and witnesses . . . .  Ch.
64,  29, 33, SLA 1996.

     23     Cooper,  144 P.3d at 459 n.25 (citing AS 18.66.130(b)
and  recognizing that mutual restraining orders have come  to  be
disfavored  in  domestic violence cases, and  stating  that  this
should  carry  over to divorce litigation as well when  only  one
partner has committed acts of domestic violence.).

     24    For example, one commentator suggests that rather than
empowering  a domestic violence victim, mutual protective  orders
restrict, condemn, and isolate the victim.  Sandra S. Park, Note,
Working Towards Freedom From Abuse:  Recognizing a Public  Policy
Exception to Employment-at-Will for Domestic Violence Victims, 59
N.Y.U. Ann. Surv. Am. L. 121, 148 (2003).

     25     See  Fred  G. Zundel & Patrick D. Costello,  Domestic
Violence Trends & Topics, 52 Advocate (Idaho), Jan. 2009, 23, 23.

     26    144 P.3d at 459.

     27    Id. at 454, 459.

     28    Id. at 459.

     29    Cooper, 144 P.3d at 459 (quoting Siggelkow, 731 P.2d at
61).

     30    Id.

     31    Id.

     32    Id.

     33     AS  18.66.100(a); see also AS 18.66.990(3)  (defining
domestic violence).

     34    See Cooper, 144 P.3d at 459.

     35     See  id.  (holding that because the order  lacked  an
independent  basis, it was an abuse of discretion  to  issue  the
mutual   restraining  order).   Although  a   domestic   violence
protective  order cannot be entered against Wee, the trial  court
is free to pursue other avenues to address any tendency by Wee to
inappropriately contact Eggener.

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