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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McAlpine v. Pacarro (10/21/2011) sp-6612

McAlpine v. Pacarro (10/21/2011) sp-6612, 262 P3d 622

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

KALINDI McALPINE,                                 ) 
                                                  )   Supreme Court No. S-13903 
                       Appellant,                 ) 
                                                  )   Superior Court No. 3AN-05-04946 CI 
        v.                                        ) 
                                                  )   O P I N I O N 
SHAUN PACARRO,                                    ) 
                                                  )   No. 6612 - October 21, 2011 
                       Appellee.                  ) 
                                                  ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, Eric A. Aarseth, Judge. 

               Appearances:      Kalindi McAlpine, pro se, Alachua, Florida, 
               Appellant.    Herbert A. Viergutz, Law Office of Herbert A. 
               Viergutz, P.C., Anchorage, for Appellee. 

               Before:      Carpeneti,     Chief   Justice,  Fabe,   Winfree,    and 
               Christen, Justices.    [Stowers, Justice, not participating.] 

               WINFREE, Justice. 

I.      INTRODUCTION 

               A mother appeals the superior court's denial of an evidentiary hearing for 

her motion to modify child custody.  Because the mother was entitled to an evidentiary 

hearing in this case, we remand for further proceedings. 

----------------------- Page 2-----------------------

II.	    FACTS AND PROCEEDINGS 

        A.	     Facts 

                In December 1999, while Kalindi McAlpine and Shaun Pacarro were living 

together,   Shaun   assaulted   Kalindi.    Shaun   pleaded   guilty   to,   and   was   convicted   of, 

domestic violence assault. In 2000 Kalindi and Shaun married.  Shaun's conviction was 

set aside in early 2001 after he met conditions of a suspended imposition of sentence. 

                In 2004 Kalindi petitioned for an ex parte domestic violence protective 

order against Shaun, asserting that Shaun abused her throughout their entire relationship 

even after he was arrested in 1999.  The district court granted the petition after finding 

by a preponderance of the evidence that Shaun committed a crime involving domestic 

violence against Kalindi. 

                Kalindi and Shaun divorced in 2005.   Proceeding pro se, they entered into 

a court-approved custody settlement agreement:              they agreed to joint legal custody of 

their three minor children, two daughters and one son, with Kalindi having primary 

physical custody and Shaun having visitation.          In October 2006, again proceeding pro 

se,   Kalindi   and   Shaun    entered   into  a  second    court-approved     custody    settlement 

agreement.     This agreement allowed Kalindi to move with the children to Florida and 

gave Shaun visitation with the children during the summer.  There is no indication in the 

record that the parties mentioned the 1999 and 2004 (or any other) incidents of domestic 

violence during these proceedings.        Kalindi moved with the children to Florida in July 

2007. 

        B.	     Proceedings 

                1.	    2007   motions,  December   2007   hearing,   and   December   2007 
                       interim order 

                In October and November 2007, after Kalindi moved to Florida with the 

children, Shaun filed motions asserting his visitation was denied.  Kalindi later filed, in 

                                                 -2-	                                          6612
 

----------------------- Page 3-----------------------

Alaska, a petition for ex parte and long-term domestic violence protective orders against 

Shaun; her ex parte motion was granted on December 8. 

                Kalindi   and   Shaun   appeared   pro   se   at   a   December   11   hearing   on   the 

visitation motion and long-term domestic violence petition.  Kalindi acknowledged that 

she   had   not   let   Shaun   see   the   children,   but   asserted  this   was   because   Shaun   had 

threatened her and the children and had abused the children. 

                The superior court questioned Shaun about his 1999 conviction.                   Shaun 

confirmed that he pleaded guilty and was convicted of domestic violence assault against 

Kalindi.  The court noted that Shaun's conviction resulted in a suspended imposition of 

sentence, probation for one year, and a condition that Shaun attend   and   complete a 

domestic violence intervention program.  Shaun asserted that he completed the required 

program in July 2000. 

                The superior court noted that Kalindi had petitioned for a domestic violence 

protective order against Shaun in 2004.          The court pointed to the 2004 petition as one 

example of how Kalindi is "familiar with the system [and] . . . knows how [domestic 

violence] protective orders work."         The court did not question Shaun or Kalindi about 

the events underlying the 2004 petition and order. 

                The superior court vacated the ex parte domestic violence protective order 

and denied the petition for a long-term protective order, finding Kalindi's "testimony 

regarding her allegations of domestic violence by [Shaun] against her and the children 

to be false" and that there was "no credible evidence of domestic violence by [Shaun] in 

the 2005-2007 time period."         The court granted Shaun primary physical custody of the 

children because of Kalindi's interference with Shaun's custodial rights and because the 

factors pertaining to the children's best interests under AS 25.24.150(c) clearly weighed 

in favor   of   the   children being in their father's custody.        The court indicated that its 

custody modification "should be understood to be an interim order, effective from the 

                                                  -3-                                             6612
 

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date of the hearing until another hearing is conducted . . . in the summer of 2008.  If no 

hearing is requested, then the interim order will become permanent." (Emphasis omitted.) 

                Neither parent sought appellate review of the interim order. 

                2.      2008 motions, August 2008 hearing, and October 2008 order 

                In early 2008 Kalindi and Shaun each retained counsel.  In May Shaun filed 

a motion seeking supervision of Kalindi's visitation with the children.  Kalindi opposed 

the motion and filed a cross-motion asserting Shaun denied her visitation.  The superior 

court held a hearing on August 22 and issued a written order on October 20, which the 

clerk distributed on November 3: Kalindi was granted continued unsupervised visitation 

contingent on her following certain conditions, and Shaun retained primary physical 

custody. 
                Neither parent moved to modify physical custody in 2008.1             Neither parent 

sought appellate review of the October 2008 order. 

                3.      October 2009 motion and May 2010 order 

                In October 2009 Kalindi filed a motion seeking to modify "interim" custody 

and visitation, to establish "final child custody orders," and to determine the rule of law 
regarding the effect of Shaun's prior domestic violence on the custody decision.2  Kalindi 

        1       Kalindi   asserts   that   she   moved   to   modify   custody   at   the   August   2008 

hearing, but this is not reflected in the record.  At a June 2008 hearing Kalindi's attorney 
stated that he was planning to prepare a modification motion and asked how the court 
would respond and whether such a motion would affect the upcoming August visitation 
hearing.     The   court responded that it was up to the parties to decide whether to file 
motions,     a  modification    motion    would    not  affect  the  visitation   hearing,   and,   if  a 
modification motion were filed and a hearing warranted, the court would likely have to 
schedule the hearing for the fall.  This discussion did not constitute a motion to modify 
custody. 

        2       See AS 25.24.150(g): "There is a rebuttable presumption that a parent who 

                                                                                       (continued...) 

                                                  -4-                                            6612
 

----------------------- Page 5-----------------------

sought     sole  legal   and  primary    physical   custody    of   the  children   and  requested    an 

evidentiary hearing. 

                In early 2010 the case was reassigned to Superior Court Judge Eric A. 

Aarseth.     Kalindi again requested an evidentiary hearing on her motion.                 In May the 

superior court denied her motion without a hearing, stating that the August 2008 hearing 

had resulted in a "final order" and concluding that Kalindi was "barred by the doctrines 

of res judicata and collateral estoppel from attempting to re-litigate legal and factual 

matters that existed prior to the August 22, 2008 hearing," including "factual issues that 

were known or should have been known to" her at the hearing. 

                4.      Appeal 

                Kalindi appeals pro se from the May 2010 order; we understand Kalindi's 

primary     argument     to  be  that  the   superior   court   erred   by  denying    her   a  custody 
modification hearing to present evidence of Shaun's history of domestic violence.3 

                Kalindi also presents arguments that the superior court erred in December 

2007 by:   (1) denying her due process by not giving her notice that custody was at issue 

at the December hearing; (2) modifying custody; and (3) finding that she "has a blatant 

disregard for the father."      We decline to reach the merits of these arguments because 

Kalindi did not timely seek review of the December 2007 order.  A party must appeal a 

"final   judgment   for   custody   of   children"   within   15   days   of   the   clerk's   distribution 

        2       (...continued) 

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." 

        3       See Romero v. Cox, 166 P.3d 4, 8 (Alaska 2007) ("[W]e judge a pro se 

litigant's [appellate] briefing by a less demanding standard." (internal quotation marks 
omitted)). 

                                                   -5-                                            6612
 

----------------------- Page 6-----------------------

certificate.4   The   December   2007     order   indicated  that   the   court's   interim   custody 

modification would become permanent unless a hearing was requested in the summer of 

2008.   Kalindi did not seek interlocutory review of that order, and neither Kalindi nor 

Shaun requested a custody hearing to prevent the interim order from becoming final. 

After the August 2008 visitation hearing, the court issued a written order in October 

indicating that Kalindi would continue having unsupervised visitation and Shaun would 

retain primary physical custody.       The clerk distributed that order in early November. 

Certainly by that point the December 2007 order had become a final judgment effectively 

ending the 2007 custody dispute.        Kalindi did not appeal the October 2008 order, but 

instead filed a new motion in the superior court a year later in October 2009.               That 

motion resulted in the May 2010 order.         We limit our review to Kalindi's appeal from 

that order. 

III.    STANDARD OF REVIEW 

               We review de novo "[w]hether a moving party has made out a prima facie 
showing sufficient to justify a custody modification hearing."5       We will affirm the denial 

of a custody modification motion without a hearing if "the facts alleged, even if proved, 

cannot warrant modification, or if the allegations are so general or conclusory, and so 

convincingly refuted by competent evidence, as to create no genuine issue of a material 
fact requiring a hearing."6 

        4      Alaska R. App. P. 218. 

        5      Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008) (citing Harrington v. 

Jordan, 984 P.2d 1, 3 (Alaska 1999)). 

        6      Id. (citing Harrington, 984 P.2d at 3). 

                                                -6-                                          6612
 

----------------------- Page 7-----------------------

IV.     DISCUSSION 

                Kalindi    contends    the  superior   court   erred  in  denying    her  a  custody 

modification hearing to present evidence of Shaun's domestic violence history.  Kalindi 

further contends the court erred by denying her modification motion without considering 

whether AS 25.24.150(g)'s rebuttable presumption applied.                Kalindi also asserts the 

court erred by ignoring:  (1) evidence submitted at the December 2007 hearing; (2) new 

evidence that Shaun committed domestic violence between 2005 and 2007; and (3) new 

evidence that Shaun committed domestic violence after taking custody of the children 

in   December   2007.     These   arguments   bring   to   bear   different   and   competing   policy 

concerns   regarding   finality   of   judgments,   child   custody   modification,   and   domestic 

violence as a factor in child custody determinations. 

                Res judicata, or claim preclusion, bars relitigation of a claim when there is 

"(1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a 
dispute between the same parties (or their privies) about the same cause of action."7  But 

AS 25.20.110 provides an exception to the general principle that final judgments should 

not be disturbed - it allows parents to seek modification of child custody based on a 

change of circumstances if modification is in the best interests of the child.  A custody 

modification motion is not a new action, but rather a request to reopen the final judgment 
in the same case.8     Consequently res judicata does not apply to custody modification 

motions, although the principle of   finality does - parties should not be allowed to 

        7       Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith v. C.S.K. 

Auto, Inc., 132 P.3d 818, 820 (Alaska 2006)). 

        8       See Bunn v. House, 934 P.2d 753, 757 n.12 (Alaska 1997) (holding same 

in child support modification case). 

                                                 -7-                                             6612 

----------------------- Page 8-----------------------

relitigate "in the hope of gaining a more favorable position."9            Our cases demonstrate that 

the   change   in   circumstances   requirement   for   custody   modification   "is           intended   to 

discourage continual relitigation of custody decisions, a policy motivated by the judicial 

assumption   that   finality   and   certainty   in   custody   matters   are   critical   to   the   child's 
emotional welfare."10 

                 Although      a   party   moving     for   custody     modification      must   generally 

demonstrate "a substantial change in circumstances since the last custody order was 
entered,"11 we have relaxed this rule in custody matters involving domestic violence, 

directing the superior court to look back to events that occurred before the initial custody 

order if not adequately addressed at the initial custody determination or subsequent 
proceedings.12       Taking      prior   domestic     violence    into  consideration      is  particularly 

important in cases where a settlement agreement deciding custody was made by pro se 

        9        See id. at 758. 

        10       Peterson   v.   Swarthout,   214   P.3d   332,   340-41   (Alaska   2009)   (quoting 

Gratrix     v.  Gratrix,   652    P.2d   76,   82-83   (Alaska    1982))    (internal   quotation     marks 
omitted). 

        11       Bagby v. Bagby, 250 P.3d 1127, 1129 (Alaska 2011). 

        12       See Williams v. Barbee, 243 P.3d 995, 1002-03 (Alaska 2010) (holding in 

part   that   application   of   AS   25.24.150(g)'s   rebuttable   presumption   was   necessary   in 
custody modification case where initial custody settlement agreement was made without 
addressing   presumption   and   where   parties   had   history   of   domestic   violence   during 
marriage); Michele M. v. Richard R., 177 P.3d 830, 831, 835-38 (Alaska 2008) (holding 
in 2006 custody dispute between unmarried parties that it was plain error for superior 
court not to determine whether father's actions in previous relationship amounted to 
"history of perpetrating domestic violence" even though court had alluded to domestic 
violence   in   findings   from   2001   custody   trial);  see   also   Williams,   243   P.3d   at   1001 
(noting purpose of rebuttable presumption is to protect children from "severe and long- 
lasting effects" of domestic violence and "to decrease the likelihood that children would 
be placed in the custodial household where domestic violence exists"). 

                                                    -8-                                               6612
 

----------------------- Page 9-----------------------

parties with a history of domestic violence.13 

                 In this case Shaun and Kalindi, proceeding pro se, entered into divorce- 

related custody settlement agreements in 2005 and 2006.   The 1999 and 2004 instances 

of domestic violence by Shaun were not raised in these proceedings.  Although the 1999 

and   2004   incidents   were   mentioned   at   the   December   2007   hearing,   they   were   not 
sufficiently considered nor were relevant findings made at that time.14                 And because the 

August 2008 hearing involved only visitation motions, Kalindi was not required to raise 
all of her custody-related claims, even if she knew or should have known about them.15 

        13       See    Williams,     243    P.3d    at  997,    1003    (noting     application     of  AS 

25.24.150(g)'s        rebuttable      presumption       is   "especially     necessary"       under    such 
circumstances). 

        14       See id. at 1004 ("If pro se parties make allegations of domestic violence the 

superior court must inquire into the allegations and allow the parties to present evidence 
regarding the allegations."); id. ("We hold today that where a superior court finds that 
domestic   violence   occurred,   it   must   make   express   findings   regarding           whether   the 
incident or incidents of domestic violence constitute a 'history of perpetrating domestic 
violence' under AS 25.24.150(h)."); Michele M., 177 P.3d at 837 (holding it was plain 
error for superior court not to make findings whether father's previous acts constituted 
history     of  domestic     violence);    see    also   AS    25.24.150(h)      (defining     "history    of 
perpetrating      domestic      violence"     for   purposes     of   AS    25.24.150(g)'s       rebuttable 
presumption). 

        15       We   note   that   at   a   June   2008   hearing   the   superior   court   discussed   the 

upcoming       August     visitation   hearing,    urging   the   parties   to  focus   on  issues   in  the 
supervised visitation motion and stressing that the hearing was "not going to turn into 
a hearing for all purposes." 

                 We   also   note   that   such   a   requirement   might   put   victims   of   domestic 
violence in a particularly difficult position because violence may be continuing, victims 
may "be afraid to confront [the] abuser in court, . . . [and may] suffer from psychological 
effects such as post-traumatic disorder, anxiety, [and] depression."  See Lisa Bolotin, 
Note,    When      Parents    Fight:    Alaska's    Presumption       Against    Awarding      Custody     to 
                                                                                           (continued...) 

                                                    -9-                                               6612
 

----------------------- Page 10-----------------------

                Taking the competing policy considerations into account, we conclude that 

res judicata does not bar Kalindi's 2009 motion to modify custody.  Nor does the finality 

principle bar Kalindi from basing her 2009 motion   on   the 1999 and 2004 domestic 

violence incidents, any new claims of domestic violence occurring between 2005 and 

2007,   or   claims   of   domestic   violence   occurring   after   the   December   2007   hearing, 

because   none   of   these   undisputed   or   alleged   incidents   have   been   addressed   by   the 

superior court in its custody determinations.           We also conclude that the 1999 and 2004 

domestic violence incidents alone are sufficiently serious to provide a prima facie case 
for modification, and therefore a hearing is required.16 

                Kalindi, however, may be collaterally estopped from relitigating domestic 

violence allegations actually raised and adjudicated at the December 2007 hearing - 

"[c]ollateral    estoppel,   or  issue   preclusion,    'bars  the  relitigation   of  issues   actually 
determined in [earlier] proceedings.' "17           We require four elements before collateral 

estoppel may be applied:         (1) the party against whom preclusion is sought was a party 

or privy to the first action; (2) the issue is identical to the issue previously decided; (3) 

a final judgment on the merits was issued; and (4) the determination of the issue was 
essential to the final judgment.18        Those elements are present as to the 2005 to 2007 

domestic violence allegations that were actually raised at the December 2007 hearing. 

        15      (...continued) 

Perpetrators of Domestic Violence, 25 ALASKA L. REV . 263, 269, 290 (2008) (citations 
omitted). 

        16      See Barile, 179 P.3d at 946-47. 

        17      Latham v. Palin, 251 P.3d 341, 344 (Alaska 2011)   (quoting Jeffries v. 

Glacier State Tel. Co., 604 P.2d 4, 8 n.11 (Alaska 1979)). 

        18      Id. (citing Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1110 

(Alaska 2002)). 

                                                  -10-                                            6612
 

----------------------- Page 11-----------------------

We have noted that existence of those elements provides only the underlying basis for 

the trial court's exercise of discretion to apply or not apply collateral estoppel, and that 

"this discretion must be tempered by principles of fairness in light of the circumstances 
of each particular case."19     For example, it may be unfair to apply collateral estoppel if 

the stakes in the first proceeding did not warrant a full and vigorous contest of the issue20 

or if the party against whom collateral estoppel is sought was otherwise precluded from 
fully and fairly contesting the issue.21 

                In its May 2010 order the superior court did not express any consideration 

of the fairness of applying collateral estoppel to the findings made in the December 2007 

hearing and order, and the briefing before us does not adequately address the question. 

We therefore leave it to the superior court on remand to consider whether, under the facts 

of   this   case,   applying   collateral   estoppel   to   the   December   2007   findings   regarding 

specific allegations of domestic violence in the 2005 to 2007 time frame would be fair 

to Kalindi. 

        19      Misyura v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010). 

        20      Sengupta   v.   Univ.   of   Alaska,   21   P.3d   1240,   1250   n.29   (Alaska   2001) 

(considering application of collateral estoppel to administrative findings and noting that 
difference in amount at stake in proceedings could affect incentive to litigate issue (citing 
RESTATEMENT (SECOND) OF JUDGMENTS   28(5) (1982))). 

        21      See, e.g.,Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 908 

& n.17 (Alaska 1991) (considering application of collateral estoppel to administrative 
findings   and   noting   that   application   requires   fairness   determination,   which      entails 
whether prior proceeding met essential elements of adjudication, including adequate 
notice   and   right   to   present   and   rebut   evidence   and   argument   (citing   RESTATEMENT 
(SECOND) OF JUDGMENTS   83(2) (1982))). 

                                                  -11-                                            6612
 

----------------------- Page 12-----------------------

V.     CONCLUSION 

             We REMAND to the superior court for an evidentiary hearing consistent 

with this opinion on Kalindi's motion to modify custody. 

                                        -12-                                   6612
 
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