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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Timothy W. v. Julia M. (8/25/2017) sp-7196

Timothy W. v. Julia M. (8/25/2017) sp-7196

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  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  

                                                                                                                             

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



TIMOTHY  W.,                                                           )  

                                                                       )     Supreme  Court  No.  S-16222  

                                 Appellant,                            )  

                                                                                                                                         

                                                                       )     Superior Court No. 3AN-12-06387 CI  

           v.                                                          )  

                                                                                                  

                                                                       )     O P I N I O N  

              

JULIA M.,                                                              )  

                                                                                                                     

                                                                       )     No. 7196 - August 25, 2017  

                                 Appellee.                             )  

                                                                       )  



                                                                                                                 

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                      

                      Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                                                                                                           

                      Appearances:  Meredith A. Ahearn, Law Office of Meredith  

                                                                                                                   

                      Ahearn,            Anchorage,              for      Appellant.                  Notice         of  

                                                                 

                      nonparticipation filed by Appellee.  



                                                                                                                   

                      Before:          Stowers,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                       

                      Bolger, Justices.  [Carney, Justice, not participating.]  



                                            

                      WINFREE, Justice.  



 I.         INTRODUCTION  



                                                                                                                                           

                      The father in a custody, support, and visitation dispute maintains that the  



                                                  

 trial court was biased against him.  The father challenges the court's:  (1) denial of his  



                                                                                                                                          

judicial recusal motion; (2) decision to keep certain hearings open to the public; (3) sua  



                                                                                                                                          

 sponte admission of evidence during its oral decision on the record; and (4) findings that  



                                                                                                                                 

 the  father  had  a  history  of  domestic  violence  against  a  "domestic  living  partner"  


----------------------- Page 33-----------------------

                            Because"domesticlivingpartner"must beanarrowertermthan "household                                                                 



member," the questions then become how narrow that definition should be and whether                                                                                  



Jackie should qualify.                          Bolotin notes that prior to 2008 "all appellate cases that applied                                                    



 [AS] 25.24.150(g) . . . concerned violence between parents of the child whose custody                                                                               



was in dispute," but that our 2008                                    Michele M.              case "clarifies that a spouse who is not the                                     

                                                                                                                                              94     In  Michele M.,  

parent of the child also qualifies as a 'domestic living partner.' "                                                                                                          



however, it was unclear whether the ex-wife qualified "merely because she had been  

                                                                                                                                                                           



married to [the father], or because she had lived with him after" the child at issue in the  

                                                                                                                                                                               

custody dispute was born.95  

                                            



                            An accurate assessment of the state of the law after Michele M. and at the  

                                                                                                                                                                               



publication of Bolotin's note in 2008, therefore, would conclude there was no indication  

                                                                                                                                                                 



that "domestic living partner" must have the same meaning as "household member"  

                                                                                                                                                                  



under AS 18.66.990(5), but it must include ex-spouses with whom the perpetrator has  

                                                            



resided.   Subsequent to publication of Bolotin's article all appellate cases applying  

                                                                                                                                                     



AS 25.24.150(g) have continued to concern "violence between parents of the child  

                                                                                                                                                                          

whose custody wasindispute,"96 withoneexceptionwherewe provided relevant dictum.  

                                                                                                                                                                      



              93            (...continued)  



                                                                                                                            

'crime involving domestic violence' is so expansive[,] . . . there will be many cases in  

                                                                                                    

which, even though the defendant's crime may qualify as a 'crime involving domestic  

                                                                                                                                    

violence', it makes no sense" to require a batterer intervention program).  



              94            Bolotin, supra note 79, at 282-83 (citing Michele M. v. Richard R., 177  

                                                                                                                                                                             

P.3d 830, 837-38 (Alaska 2008)).  

                                                        



              95            Id. at 283; see Michele M., 177 P.3d at 837-38.  

                                                                                                               



              96            Bolotin, supra note 79, at 282-83 (citing Puddicombe v. Dreka, 167 P.3d  

                                                                                                                                                                            

73 (Alaska 2007); O'Dell v. O'Dell, No. S-12097, 2007 WL 1378153 (Alaska May 9,  

                                                                                                           

2007)).  



                                                                                      -33-                                                                                 7196
  


----------------------- Page 34-----------------------

                                                                    97  

                          In  Harrisv.Governale                        weconsidered                whether domesticviolencebetween                     



a   father   and   an   ex-girlfriend   should   be   factored   in   to   a   custody   determination   -   



involving the father and the mother of another child - under either the general best                                                                           

                                    98     or      when           applying             the       presumption                 against           custody            in  

interests           analysis                                                                                                                                    



AS 25.24.150(g).  In that case the father and the ex-girlfriend were not living together  

                                     



at the time of the custody trial, but they "had lived together for four years, had a child  

                                                                                                                                     

together, and continued to share major expenses while living apart."99   We held that the  

                                                                                                                                                                 



trial court should have considered a domestic violence incident between them when  

                                                                                                                                                            



conducting the best interests analysis but that the presumption in subsection .150(g) was  

                                                                                                                                                                



not triggered because it was unclear whether the father or the ex-girlfriend had been the  

                                                                                                                                                                 

perpetrator.100               Although the presumption could apply only when the parent seeking  

                                                                                                                                                        



custody was the perpetrator, we accepted that it would have been triggered had the trial  

                                                                                                                                                               

court  found  that  the  ex-girlfriend  was  the  victim  of  assault  by  the  father.101                                                                    The  

                                                                                                                                                              



conclusion  that  subsection  .150(g)  would  have  applied  was  only  dictum,  but  the  

                                                                                                                                                                



reasoning augments the holding in Michele M. and indicates that the term "domestic  

                                                                                                                                                   



living partner" includes not only ex-spouses, but also other persons with whom the  

                                                                                                                                                                



parent seeking custody had resided and had a child.  

                                                                                         



                          In this case the trial court interpreted Michele M. to mean that "a domestic  

                                                                                                                                                      



living partner includes a former girlfriend," but made no reference to Harris.  Timothy  

                                                                                                                                                      



             97           311 P.3d 1052, 1057-59 (Alaska 2013).                           



             98           See  AS 25.24.150(c)(7).   



             99           Harris, 311 P.3d at 1057.              



             100          Id.  at 1058.   



             101          Id.  



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----------------------- Page 35-----------------------

correctly points out that the court's interpretation of                                        Michele M.           is overbroad, as the          



                                                                                                           102  

victim in that case was an ex-wife, not merely an ex-girlfriend.                                                                                  

                                                                                                                 But Timothy does not  



                                                                                                                                          

address Harris either, nor explicitly argue that "domestic living partner" should include  



                                                                                                                                                  

only spouses and ex-spouses; he does suggest that the definition should require that the  



                                                                                                                                          

victim and perpetrator be "partners in the sense of family with children" and "reside  



                   

together."  



                                                                                                                       

                       We  are  therefore  presented  with  three  questions  in  determining  how  



                                                                                                                                                  

"domestic living partner" should be interpreted and applied in this case:  (1) should the  



                                                                                                                                                 

term  include  only  spouses  and  ex-spouses?  (2)  should  the  term  require  that  the  



                                                                                                                                                  

perpetrator and victim have a child together? and (3) should the term require that the  



                                                    

perpetrator and victim reside together?  



                                                                                                                                               

                       The answer to the first question is no.   The plain meaning of the term  

                                                                                        103  Had the legislature wished courts  

                                                                                                                                             

"domestic living partner" supports this conclusion. 



to consider only spouses and ex-spouses then it easily could have employed that more  

                                             

                                                                                                                          104  Additionally,  

familiar language, rather than the term of art "domestic living partner."                                                       

                                                                                                           



as noted above, our precedent does not foreclose an interpretation extending beyond ex- 

                                                                                                                                                  



spouses, and the dictum in Harris suggests that we have been prepared to include ex- 

                                                                                                                                                 

girlfriends (or ex-boyfriends) in the definition in the past.105  

                                                                                             



                       The answer to the second question is likewise no - there is no requirement  

                                                                                                                                  



that the perpetrator and the victim have a child together as Timothy seems to suggest.  

                                                                                                                                                        



            102        Michele M. v. Richard R.                    , 177 P.3d 830, 831, 837-38 (Alaska 2008).
                      



            103  

                               

                       AS 25.24.150(g).
  



            104  

                                      

                       See AS 25.24.150(g).
  



            105  

                                                                  

                       See Harris, 311 P.3d at 1058.
  



                                                                        -35-                                                                  7196
  


----------------------- Page 36-----------------------

Nothing   either   in   the   statute   or   in   our   precedent   indicates   that   such   a condition                                   is  



                 106  

necessary. 



                      The answer to the third question is yes; there is a requirement that the  

                                                                                                                                          



perpetrator and victim lived in the same household, but "lived together" must be given  

                                                                                                                                      



a fairly relaxed meaning.  This requirement is suggested by a plain reading of the term  

                                                                                                                                        



"domestic living partner," relying on common public definitions in place at the time  

                                                                                                                                        

AS 25.24.150(g) was enacted:107   "domestic" refers to "the family or the household";108  

                                                                                                                        



"living" appears to be a gerund formed from the verb "live" that here employs the  

                                                                                                                                          

meaning "to occupy a home" or "cohabit";109 and the meaning of "partner" here seems  

                                                                                                                                     



to be either "persons who are married or who live together" or people "who share[] . . .  

                                                                                                                                              

in a venture with shared benefits and shared risks."110  "Domestic partnership" is defined  

                                                                                                                                   



as "[a] nonmarital relationship between two persons . . . who live together as a couple for  

                                                                                                                                           

a  significant  period  of  time."111                      In  combination  these  words  strongly  suggest  a  

                                                                                                                                            



requirement that the relationship between the perpetrator and the victim not be casual,  

                                                                                                                         



and that they reside in the same household on a basis that entails some commitment.  

                                                                                                                      



           106        See AS 25.24.150;  Harris, 311 P.3d at 1057-58;                                  Michele M.         , 177 P.3d at   



831, 837-38; Bolotin,                supra  note 79, at 281-84.       



           107        See   Ch.   111,    5,   SLA  2004  (adding  subsections  .150(g)-(k)   to  

                                                                                                                                          

AS 25.24.150).  

       



           108        Domestic, BLACK'S  LAW  DICTIONARY  (8th ed. 2004).                            

                                        



           109        WEBSTER'S    THIRD                 NEW       INTERNATIONAL                 DICTIONARY    1323    (Philip  



Babcock Gove et al. eds., 2002).            



           110        Partner, BLACK'S  LAW  DICTIONARY  (8th ed. 2004).                          

                                      



           111        Domestic Partnership, BLACK'S  LAW  DICTIONARY  (8th ed. 2004).                                    

                                                             



                                                                    -36-                                                              7196
  


----------------------- Page 37-----------------------

                                     An argument against such an interpretation is that although a plain reading                                                                                                          



of the term"household member" suggests that the perpetrator and victimreside together,                                                                                                                                



the definition provided in AS 18.66.990(5) extends well beyond any such constraint.                                                                                                                                                              



However, as notedabove,"household member"and"domesticliving partner"should not                                                                                                                                                        



be   given   the   same   meaning;  if   the   legislature   did   not   intend   to   place   additional  



constraints on the presumptions found in AS 25.24.150(g) and (j), then it would not have                                                                                                                                         



added language requiring that the domestic violence be perpetrated against "the other                                                                                                                                          



                                                                                                                             112 

                                                                                                                                     And whereas the legislature provided  

parent, a child, or a domestic living partner."                                                                                                                                        



a statutory definition of "household member" that explicitly expanded the term beyond  

                                                                                                                                                                                                                          



its  plain  meaning,  the  legislature  provided  no  such  definition  for  "domestic  living  

                                                                                                                                                                                                                             



partner," suggesting that the termshould be interpreted more in accordance with its plain  

                                                                                                                                                                                                                                 

meaning.113  



                                     Although the plain meaning of "domestic living partner" suggests some  

                                                                                                                                                                                                                               



requirement that the perpetrator and victim did in fact live together, we do not believe  

                                                                                                                                                                                             



that  requirement  can  be  construed  too  strictly.                                                                                      As  Bolotin  highlights,  legislatures  

                                                                                                                                                                             



enacting presumptions against custody and unsupervised visitation for perpetrators of  

                                                                                                                                                                                                                                        



domestic violence were generally motivated by social science findings indicating that  

                                                                                                                                                                                                      



"[c]hildren who witness domestic abuse" are more likely to experience a variety of  

                                                                                                                                                                                                                                       

mental and physical health problems.114                                                                          Within the context of serious and committed  

                                                                                                                                                                                                                



relationships,  if  courts  were  to  interpret  the  term  "domestic  living  partners"  as  

                                                                                                                                                                                                                                      



exclusively requiring a traditional household where the partners share one home on a  

                                                                                                                                                                                                                                          



more or less permanent basis, then cases of domestic violence where the partners have  

                                                                                                                                                                                                                                 



                   112               AS 25.24.150(g).
   



                   113               See  AS 18.66.990(5); AS 25.24.150(g).
                                 



                   114               Bolotin,  supra  note 79, at 270-73.
                                   



                                                                                                                 -37-                                                                                                           7196
  


----------------------- Page 38-----------------------

unorthodox housing arrangements - for example, retaining their own homes and taking                                                                                         



turns staying at each or living in different cities and regularly visiting each other -                                                                                             



might slip through the cracks.                                     The sponsor of H.B. 385 was concerned that "[w]hen                                                   



children witness violence in the home, they have been found to suffer many of the                                                                                                 



                                                                                                                                                      115 

symptoms that are experienced by children who are directly abused."                                                                                         We conclude  



that in adopting the term "domestic living partner" to address the broad problem of  

                                                                                                                                                                                     



children witnessingdomesticabuse, the legislature intended tocaptureviolencethat took  

                                                                                                                                                                                 



place within the context of relationships where partners spend a significant amount of  

                                                                                                                                                                                     



their time in a shared domestic environment.  

                                                                    



                             It was not clearly erroneous to find Timothy and Jackie's relationship fell  

                                                                                                                                                                                   



within this definition.  Jackie testified that although Timothy "had his own place[ h]e  

                                                                                                                                                                                  



would stay over quite often, so it's basically like he was living" at her home for the better  

                                                                                                                                                                              



part of a year.  Timothy "talk[ed] about marriage," "spent time with [Jackie's] children,  

                                                                                                                                                                       



and when he had visitation with his own children . . . those children also spent time at  



 [Jackie's] home and with [Jackie's] children."  Jackie responded affirmatively when  

                                                                                                                                                                             



asked whether Timothy had "been essentially living with" her from the time they began  

                                                                                                                                                                             



dating, and she testified that one of her children "referred to [Timothy] as Daddy."  

                                                                                                                                                                                           



Jackie's and Timothy's children spent a significant amount of time together during the  

                                                                                                                                                                                   



period the adults were dating. In short, although TimothyandJackiemaintained separate  

                                                                                                                                                                        



residences,  their  lives  were  clearly  very  intertwined  during  some  part  of  their  

                                                                                                                                                                              



relationship, when they generally lived and slept in the same home and incorporated their  

                                                                                                                                                                                



children into their shared lives.  Jackie and Timothy spent a significant amount of their  

                                                                                                                                                                                



time in a shared, marriage-like, domestic environment; we thus affirm as not clearly  

                                                                                                                                                                           



               115           Rep. Lesil McGuire, Sponsor Statement for H.B. 385 (Mar. 15, 2004),                                                                           



http://www.akrepublicans.org/mcguire/23/spst/mcgu_hb385.php.  



                                                                                        -38-                                                                                   7196  


----------------------- Page 39-----------------------

erroneous the trial court's general finding that Jackie was Timothy's "domestic living                                                                                                                                                                                                                                                                                                 



partner" for purposes of AS 25.24.150(g).                                                                                           



                                                                                                                             ii.	                          Additional   findings   are   necessary   to   determine  

                                                                                                                                                           whether Timothy and Jackie were "domestic living                                                                                                                                                                             

                                                                                                                                                            partners"   when   the   crimes  of   domestic   violence  

                                                                                                                                                            occurred.  



                                                               Our inquiry, however, does not end there.                                                                                                                                                                  The trial court did not enter                                                                                   



findings on when Jackie's status as a "domestic living partner" with Timothy began and                                                                                                                                                                                                                                                                                                            



ended.     As   discussed   earlier,   given   the   extremely   broad   definition   of   "household  



member" provided in AS 18.66.990(5), Timothy's argument that "household members"                                                                                                                                                                                                                                                                                   



cannot commit trespass against each other is incorrect. But there is considerable tension                                                                                                                                                                                                                                                                                        



between findings that two people are "domestic living partners" and that one committed                                                                                                                                                                                                                                                                           



trespass against the other during that relationship.                                                                                                                                                                                    Alaska Statute 11.46.330 prohibits a                                                                                                                                  



person                                    from                            "enter[ing]                                                   or                 remain[ing]                                                      unlawfully                                                   in                 or                  upon                              premises";  



AS 11.46.350(a)(1) defines "enter or remain unlawfully" to include situations where a                                                                                                                                                                                                                                                                                                                        



person   "enter[s]   or   remain[s]   in   or   upon   premises   .  .  .  when   the   defendant   is   not  



otherwise privileged to do so                                                                                                         ."   (Emphasis added.)                                                                                People considered "domestic living                                                                                                         



partners"underAS25.24.150(g) generally                                                                                                                                                               would beexpected toshareprivileges to enter                                                                                                                                            



each other's premises; conversely, if they do not share those privileges, then perhaps                                                                                                                                                                                                                                                                                        



they should not                                                           be considered "domestic living partners" under AS 25.24.150(g).                                                                                                                                                                                                                                                     The  



term"domestic living partner" is descriptive, not prescriptive, and we do not suggest that                                                                                                                                                                                                                                                                                                        



status  confers  a privilege to enter a partner's home, nor a privilege to remain there "after                                                                                                                                                                                                                                                                                           

being lawfully directed to" leave.                                                                                                                             116  

                                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                We instead question whether an individual who  



                                116                           AS 11.46.250(a)(2).   Cf. State v. Lilly, 717 N.E.2d 322, 327 (Ohio 1999)  



 ("A majority of other jurisdictions that have addressed th[e] issue have found that the                                                                                                                                                                                                                                                                                                            

entry   of   an   estranged   spouse   upon   the   property   of   the   other  spouse   constitutes   an  

                                                                                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                                                                -39-	                                                                                                                                                                                        7196
  


----------------------- Page 40-----------------------

 does not enjoy such a privilege or whose privilege has terminated - equivalent to an                                                                                                                                                                                                                                                                                                                                                                                                              



 "estranged spouse" - appropriately can be considered a "domestic living partner."                                                                                                                                                                                                                                                                                                                                                                                                                                  



 Every case turns on its own facts, but we question whether that designation can be                                                                                                                                                                                                                                                                                                                                                                                                               



 applied if the unwelcome "partner" has no privilege to enter.                                                                                                                                                                                                                                                               



                                                                             The context of this case raises at least two scenarios where this tension                                                                                                                                                                                                                                                                                      



presents itself. The trial court's first trespass finding involved Timothy, with his children                                                                                                                                                                                                                                                                                                                                                                      



present, using a credit card to enter Jackie's home without her permission.                                                                                                                                                                                                                                                                                                                                                                           Although  



Jackie testified that it was "basically like [Timothy] was living" at her home during that                                                                                                                                                                                                                                                                                                                                                                                                  



period, she also testified that she considered his entry unauthorized because "he wasn't                                                                                                                                                                                                                                                                                                                                                                                   



staying at my house at that point in time."                                                                                                                                                                                                    The court made no explicit findings on when                                                                                                                                                                                        



their status as "domestic living partners" began or ended; it is therefore not clear whether                                                                                                                                                                                                                                                                                                                                                                        



the court felt they were active "domestic living partners" when the trespass occurred, or                                                                                                                                                                                                                                                                                                                                                                                                             



whether they had achieved "domestic living partner" status and it had not terminated                                                                                                                                                                                                                                                                                                                                                               



simply because Timothy was no longer authorized to enter Jackie's home (assuming he                                                                                                                                                                                                                                                                                                                                                                                                                



 ever had been granted that privilege).                                                                                                                                                                                But more importantly the court's lack of findings                                                                                                                                                                                          



leaves unexplained how Timothy and Jackie could be domestic living partners at a time                                                                                                                                                                                                                                                                                                                                                                                             



Timothy was not privileged to enter Jackie's home.                                                                                                                                                                                                                  



                                                                             The trial court's findings concerning the second trespass likewise fail to                                                                                                                                                                                                                                                                                                                                              



resolve this tension. In                                                                                                          that instance Timothy was at Jackie's residence when she became  



infuriated and ordered him to leave; Timothy "declined to do so . . . until [Jackie]                                                                                                                                                                                                                                                                                                                                                                              



threatened [him] with pepper spray and by calling the police."  Certainly there may be                                                                                                                                                                                                                                                                                                                                                                                                             



factual  scenarios   where   courts   will   find   both   that   two   people   are   "domestic   living  



partners" and that one of them committed                                                                                                                                                                                                                          trespass by refusing to leave the other's                                                                                                                                                            



                                        116                                   (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

unauthorized entry to support charges of trespass and burglary."); State v. Parvilus, 332  

                                                                                                                                                                                                                                                           

 P.3d 281, 286 (N.M. 2014) (also collecting cases).  



                                                                                                                                                                                                                                              -40-                                                                                                                                                                                                                                     7196
  


----------------------- Page 41-----------------------

                                                                                                                             

premises after being directed to do so.   But the trial court's limited findings do not  



                                                                          

demonstrate whether those circumstances apply here.  



                                                                                                                          

                    Because it is unclear whether Timothy and Jackie were "domestic living  



                                                                                                                           

partners"  when  the  trespasses  occurred,  we  must  also  question  whether  they  were  



                                                                                                                             

"domestic living  partners"  when  the other  act of domestic violence occurred.                                            We  



                                                                                                                                

conclude it is necessary to remand so the court can determine:  (1) the specific timing of  



                                                                                                                              

Timothy and Jackie's domestic living partnership; (2) thespecificarrangements they had  



                                                                                                                              

during  that  domestic  living  partnership  regarding  movement  between  houses  -  



                                                                                                                          

including any express, implied, or apparent authority each had to enter the other's house  



                                                                                                                          

during the domestic living partnership; and (3) how the timing and nature of these  



                                                                                       

arrangements relate to the criminal trespass and coercion findings.  



                                                                                                                                 

                    In remanding we decline to establish any precise delineations on when a  



                                                                                                                             

domestic living partnership must be found to begin and end.  We have established that  



                                                                                                                   

the status of "domestic living partner" is achieved whenever partners spend a significant  



                                                                                                                                

amount of their time with each other - and when applicable, with their children - in  



                                                                                                                          

a  shared,  marriage-like,  domestic  living  environment.                              There  will  be  cases  when  



                                                                                                                          

domesticlivingpartnerships -likemarriages -disintegrate,although cohabitiveliving  



                                                                                                                               

arrangements may stay the same for some period of time.   Trial courts need to be  



                                                                                                                     

attentive to the facts of each case to determine when couples no longer are domestic  



                                                                                                                              

living partners but rather are merely household members. We defer any decisions on the  



                                                                                                                                

temporal limitations of domestic living partnerships to future cases where the issue is  



                       

more squarely presented.  



V.        CONCLUSION  



                                                                                                                             

                    We VACATE the trial court's decision  applying  AS 25.24.150(j)  and  



                                                                                                                           

REMAND for further proceedings consistent with this opinion.  We AFFIRM all other  



                                         

aspects of the trial court's decision.  



                                                              -41-                                                        7196
  

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