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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
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
corrections@akcourts.us.
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"
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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)).
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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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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.
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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).
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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.
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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.
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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...)
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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).
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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.
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