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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vince B. v. Sarah B. (7/27/2018) sp-7264

Vince B. v. Sarah B. (7/27/2018) sp-7264

           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                                        



VINCE  B.,                                                        )  

                                                                  )    Supreme  Court  No.  S-16616  

                                 Appellant,                       )  

                                                                                                                                   

                                                                  )    Superior Court No. 3SW-16-00120 CI  

           v.                                                     )  

                                                                                            

                                                                  )    O P I N I O N  

                

SARAH B.,                                                         )  

                                                                                                         

                                                                  )    No. 7264 - July 27, 2018  

                                 Appellee.                        )  

                                                                  )  



                                                                                                               

                                   

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

                                                                                     

                      Judicial District, Kenai, Anna Moran, Judge.  



                                                                                                     

                      Appearances:   Andy L. Pevehouse, Gilman & Pevehouse,  

                                                                                                              

                      Kenai, for Appellant. Jimmy E. White, Hughes White Colbo  

                                                                                              

                      Wilcox & Tervooren, LLC, Anchorage, for Appellee.  



                                                                                                            

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

                                           

                      and Carney, Justices.  



                                           

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                 

                      A man appeals a long-term domestic violence protective order entered  



                                                                                                                                          

against him for stalking his ex-wife.  He argues that the superior court:  (1) abused its  



                                                                                                                                     

discretion and violated his due process rights in its treatment of his ten-year-old son's  



                                                                                                                                 

proposed testimony; (2) violated the doctrine of ripeness by warning that future conduct  



                                                                                                                        

could justify a stalking finding; (3) violated the doctrine of res judicata by reconsidering  



                                                                                                                                        

a claim that it previously had adjudicated in an earlier domestic violence petition; and  


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(4)  failed to make requisite findings of fact meeting the elements of stalking. He asks us                                                            



to vacate the order.                Seeing no error, we affirm the superior court's protective order.                                                    



II.         FACTS AND PROCEEDINGS      



            A.          Facts  

                                                          1 divorced in September 2016 and share custody of their  

                        Sarah and Vince B.                                                                                                          



two sons, ages 12 and 9.  The couple separated two and a half years prior to the divorce;  

                                                                                                                                             



the proceedings have been prolonged and unfriendly.   The parties have struggled to  

                                                                                                                                                       



communicate in the course of their shared custody, often hurling profanities at one  

                                                                                                                                                    



another.  Sarah's new boyfriend has been a particular source of conflict.  In February  

                                                                                                                                           



2016 Vince dropped the children off at Sarah's boyfriend's house while she was not  

                                                                                                                                                     



present.   Vince struck Sarah's boyfriend in the face, prompting a call to the police.  

                                                                                                                                                             



Several  other  hostile  exchanges  in  2016  led  Sarah  to  file  two  domestic  violence  

                                                                                                                                           



protective order petitions.  The first was denied; the second was granted, in part based  

                                                                          



on testimony from the first petition, and is the subject of this appeal.  

                                                                                                                             



                        1.          First petition  

                                               



                        In April 2016, while the divorce case was pending, Sarah filed the first  

                                                                                                                                                    



domestic violence protective order petition against Vince.  At the hearing, corroborated  

                                                                                                                                     



by two witnesses, Sarah testified that Vince had shoved her and made crude comments  

                                                                                                                                         



in a school gym where both were attending a school concert.  Sarah also testified that  

                                                                                                                                                     



Vince had punched her boyfriend in front of their children, that he "said cruel words" to  

                                                                                                                                                        



her, and that he twice drove by her place of work, once making an offensive hand  

                                                                                                                                                  



gesture.  

                 



                        Vince denied the crude statements and said he "accidentally bumped the  

                                                                                                                                                      



side of her back" with his knee in the school gym.  He perceived that Sarah "kind of  

                                                                                                                                                       



            1           We  use  initials  to  protect  the  parties'  children's  privacy.   



                                                                           -2-                                                                         7264  


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

                                                                                                                              

lunged sideways towards her friends" and that her physical response to his contact was  



                                                                                                                     

an overreaction. Vince also testified that he had serious problems with Sarah's boyfriend  



                                                                                                                   

because he had "criminal stalking charges against him" as well as multiple restraining  



                                                                                                                               

orders and Vince believed it "psychologically dangerous to [his] children" to be at her  



                              

boyfriend's house.  



                                                                                                               

                    Thecourt denied thepetitiondespitefindingtherewas "goodcircumstantial  



                                                                                                                            

evidence" that Sarah "was shoved, and this was more than a mere accident."  The court  



                                                                                                                                 

nevertheless held that Vince's conduct did not rise to the level of harassment, assault, or  



                                                                                                                               

stalking.  With specific respect to stalking, the court explained that "the hard part for  



                                                                                                                               

[stalking] is it has to be a course of conduct, so more than one incident, that places her  



                                                                                                                               

in fear of death or physical injury."  The court found that Vince's course of conduct did  



                                                                                                                              

not yet "rise to the level of stalking."  Talking to both Sarah and Vince, the court did,  



                                                                                                                                  

however, put Vince on notice that another wrong move could make Sarah eligible for a  



                                          

domestic violence stalking order:  



                                                                                                  

                              But I tell you all this because I'm not finding domestic  

                                                                                                    

                    violence in this instance, but I'm putting [Vince] on [notice]  

                                                                                                      

                    that he's now engaged in a course of conduct that has placed  

                                                                                                          

                    you in fear of physical injury, and if he does - touches you  

                                                                                                       

                    . . . or do[es] anything else to you, I will issue a DV order,  

                                                                                                   

                    okay, because now you have engaged in a course of conduct.  



                                                                                                 

                              You know, flipping her off, coming into the bleachers,  

                                                                                                          

                    sitting down next to her when you knew she didn't want you  

                                                                                                          

                    to be there, or she moves away from you, you leave and you  

                                                                                                         

                    come  back,  and  I  don't  buy  it  for  a  minute  that  you  

                                                                                                       

                    inadvertently  kneed  her  in  the  back,  I  don't  buy  it  for  a  

                    minute.  



                                                                                                      

                              So because of that finding, if you do anything else to  

                    her, she will be in fear of imminent physical injury and you  

                                                                                                              

                    will be - you will be eligible - she will be eligible for a  



                                                               -3-                                                         7264
  


----------------------- Page 4-----------------------

                                                                                                      

                    domestic violence stalking order and you could be facing  

                                                                                                       

                    criminal charges.  I just want that really clear.  Is that clear?  



                                                                                           

Vince indicated he understood, responding, "Yes, ma'am."  



                          

                    To address Vince's concerns about Sarah's boyfriend, the court required  



                                                                                                                              

that the boyfriend not have contact with the children.  But the court also suggested that  



                                                                                                                              

Vince get mental health counseling because his obsession with Sarah's partners was  



                                                                                                                           

"sounding kind of creepy."  The court repeatedly warned Vince that he should avoid  



                                                                                                                            

contacting Sarah or her boyfriend in a manner that suggested stalking. Notably, the court  



                                                                                                                         

told Vince that "he can't be driving by or acting in a certain way or he could be subject  



                                                                                                                         

to domestic violence stalking.  So I just want that really clear . . . ."  The court further  



                                                                                                                               

suggested the parties limit their texts and other communications to those concerning the  



               

children.  



                    2.        Post-divorce  



                                                                                                                    

                    The parties reached a custody agreement in July 2016, and by September  



                                                                                                                             

Sarah  and  Vince  finalized  their  divorce.                      Their  communications  continued  to  sour  



                                                                                                                          

thereafter.   Vince's emails were increasingly aggressive in tone and content.   Vince  



                                                                                                                             

referenced Sarah's "unnecessary, hurtful, nasty and hate filled rhetoric toward" him,  



                                                                                                                       

calling  it  "emotionally  damaging."                     Vince  threatened  to  call  the  police  if  Sarah's  



                                                                   

boyfriend contacted him, and he requested that Sarah not speak to him unless through  



      

an attorney.  In a September email Vince called Sarah profane names, blaming her for  



                                                                                                                           

a provision in their divorce settlement requiring him to sell a property where his father  



                                                          

was living and had planned to retire.  



                                                                                                                            

                    In an October email Vince lambasted Sarah for her relationships with other  



                                                                                                                                     

men and their impact on the children.  He used sexually explicit profanities and wrote:  



                                                                                                                                

"You need to make sure that [your boyfriend] understands if he is around our kids let  



                                                                                                                           

alone continues to yell and verbally, [m]entally or physically abuse our kids he is going  



                                                               -4-                                                         7264
  


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

                                                                                                                          

to be. Very. Very. Very Sorry."   The next day  Vince  and Sarah got into a heated  



                                                                                                                                

argument over their custody days and Vince threatened to call the police if Sarah did not  



                                                                                                                       

give him the children.  In November Vince informed Sarah that he "might be" traveling  



                                                                                                                                

to visit his ailing father, and he wrote: "Be sure and tell [your attorney] so he can tell the  



                                                                                 

judge what a no good SOB I am for leaving again."  



                                            

                     3.        Second petition  



                                                                                                                        

                     In late December Sarah again petitioned for a long-term domestic violence  



                                                                                                                              

protective  order.            Sarah  alleged  that  since  their  last  court  appearance  Vince  had  



                                                                                                                              

continued to harass her by text, email, and phone.  Sarah relayed that on Christmas Eve,  



                                                                                                                                  

he called "[her] cell to talk to [their] children"; after he was done, he asked to speak to  



                                                                                                                                  

her.  Sarah put him on speaker phone with her mother in the room.  Vince proceeded to  



                                                                                                                                

yell, call her profanities, and make explicit comments about her sexual relations with her  



                  

boyfriend.  



                                                                                                                           

                      Sarah contended that two days after the hostile Christmas Eve phone  



                                                                                                                                

conversation, she met Vince for their scheduled exchange of the children. The boys got  



                                                                                                                            

out of her car and walked to his without any communication between the parents. Vince  



                                                                                                                               

drove away first; Sarah left after him. Vince had pulled over on the side of the road, and  



                                                                                                                            

 Sarah passed him while she was on her way to her boyfriend's house.   After Sarah  



                                                                                                                          

arrived at her boyfriend's house, she saw Vince's truck drive slowly by and then double  



                                                                                                                               

back, stopping at the end of the driveway.  Because Sarah's boyfriend and Vince had  



                                                                                                                            

previously fought in front of the children and each man had taken legal steps to avoid  



                                                                                                                                

future contact with the other, she could think of no good reason for Vince to follow her  



                                                                                                                                  

there.  He then drove into the driveway and parked in front of the house.  According to  



                                                                                                                           

 Sarah, she felt "pani[c]ky" and called the troopers.  She feared that the situation would  



                                                                                                                            

"escalate"  without  their  involvement  and  that  Vince  could  "snap"  given  his  post- 



                                                                                                                            

traumatic stress disorder (PTSD) diagnosis and the fact that he "packs a gun with him."  



                                                                -5-                                                         7264
  


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

                                                                                                                             

                    In responseto Sarah'spetition, a magistrate judge granted a 20-day ex parte  



                                                                                                                          

domestic violence protective order and set a hearing for January 12, 2017. Vince moved  



                                                                                                                                     

to change the hearing date and to allow his son, who was then ten years old, to testify.  



                                                                                                                               

Vince stated that, although he did not want to involve his young son, his son was his  



                                                                                                                           

"only witness" and could testify that the reason Vince was at Sarah's boyfriend's house  



                                                                                                                           

"was simply because [the child] needed something from his mother and wished to speak  



                 

with her."  



                    B.         Proceedings  



                                                                                                                 

                    The  parties,  without  counsel,  telephoned  in  for  a  brief  hearing  on  



                                                                                                                      

January 10.  They discussed the son's testimony and agreed to continue the domestic  



                                                                                                                               

violence hearing to January 13.  The court repeatedly questioned the necessity of the  



                                                                                                                             

child's testimony and eventually suggested:  "[L]et's keep [the child] out of it and let's  



                                                                                                                               

just assume that [he] would testify that his dad brought him there to talk to [his mom] and  



                                                                                                                                 

he went to the door."  Vince and Sarah both agreed that they did not want  their son to  



                                                                         

have to testify and that he need not attend trial.  



                                                                                                                             

                    The court also recommended that the parties familiarize themselves with  



                                                                                                                            

criminal trespass and stalking statutes.   When Vince expressed confusion, the court  



                                                                                                                                 

explained that "[s]talking usually is a course of conduct," and again directed Vince to  



                                                                                                                          

look at the statute defining stalking in the second degree because "that's what the [c]ourt  



                                            

has to base its decision on."  



                                                                                                                   

                    Both Vince and Sarah testified at the hearing, where they were represented  



                                                                                                                       

by counsel.  Sarah's testimony was largely consistent with her petition.  She testified  



                                                                                                                       

about  the  emails  and  phone  call  preceding  the  incident  and  about  how  Vince's  



                                                                                                                     

increasingly aggressive tone placed her in fear.  She also described a hostile encounter  



                                                                                                                              

at their son's birthday party, when Vince suddenly "demand[ed]" she end the party and  



                                                                                                                              

exchange the children with him, repeatedly stating: "If you don't give me my kids, I will  



                                                                -6-                                                        7264
  


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

                                                                                                                            

call the cops."  Sarah testified that when Vince followed her to her boyfriend's house  



                                                                                                                       

without notice, with the children in the car, she "panicked" and called the troopers  



                                                                                                                            

because she feared violence and "[t]here was no reason for him to be there."  She added  



                                                                                                                               

that over the eight years of their marriage Vince had taken antidepressants for PTSD and  



                                                                                                                   

mood swings; she believed "he's ready to snap" and "needs mental help."  



                                                                                                                                 

                    During  Sarah's  cross-examination,  the  court  took  the  opportunity  to  



                                                                                                                                  

"redirect" Vince's counsel, who was not present at the hearing on the first petition, to  



                                                                                                                            

focus on the stalking issue. The court explained it was considering whether these recent  



                                                                                                                         

incidents combined with the kneeing incident placed Sarah in fear of physical injury:  



                                                                                                           

                    There  was  no  question  that  something  happened  [at  the  

                                                                                                         

                    school gym] and that she was afraid.  I thought it was more  

                                                                                 

                    50/50.  I couldn't get the one percent.  



                                                                                                

                              But I can tell you his behavior since then is convincing  

                                                                                                             

                    me that one percent is tipping in her favor.  And we had a lot  

                                                                                                   

                    of testimony about what's going on, the behavior between  

                                                                                                       

                    these two parties and . . . I thought he [had] mental health  

                                                                                                          

                    issues,  because  he  kind  of  liked  to  intimidate,  or  he  was  

                                            

                    unwinding . . . at the trial.  It sounds like he's continuing to  

                                                                                                          

                    unwind, and that  subsequent behavior I can consider and  

                                                                                                           

                    revisit . . . the testimony I've already heard, which I said was  

                                                                                                              

                    really close.  It was . . . by a hair.  That hair is tipping now in  

                                                                                                       

                    her favor, just so you know where I'm coming from.  



                                                                                                                            

                    After Sarah finished testifying, Vince relayed his version of events. Vince  



                                                                                                                         

explained that hehad stopped alongsidetheroadbecausehis son was "panicking because  



                                                                                                               

he needed [a particular] game" and Vince "walked along the side of the pickup on the  



                                                                                                                           

passenger's side to help him look for this game."  When they couldn't find the game,  



                                                                                                                  

Vince testified he saw "[his] ex-wife [drive] by, so I followed her out to [her boyfriend's]  



                                                                                                  

house."  Because he had been there only once before, he relied on his children to give  



                                                                                                                              

him directions and missed the driveway. After circling back, Vince testified that he "got  



                                                                -7-                                                         7264
  


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

                                                                                                                                

out of the pickup with [the child], [and] walked to the door." He then "knocked on the  



                                                                                                                    

door like three or four times . . . probably 15, 20 seconds at the door," before "walk[ing]  



                                                                                                                                 

back to [his] pickup so [the child] could speak to his mother and get the game he  



                                                                                                                             

wanted."  When no one answered the door after a few minutes, they went home.  



                                                                                                                           

                    Vince explained he did not just call or text Sarah because they "don't  



                                                                                                                               

communicate" and she "rarely answers the phone" when he calls.  But he admitted that  



                                                                                                                               

"with all this that's going on, I probably should not have driven out there with my son  



                                           

so he could get the game."  



                                                                                                                           

                    The court granted the petition, finding that the dynamic between the former  



                                                                                                                           

couple was more than merely unpleasant and that the sum of Vince's actions had placed  



                                                                                                                              

Sarah in fear of physical injury.   The court noted that it had been "very clear with  



                                                                                                              

[Vince] at the last hearing," warning him that it was a "close case" and recommending  



                                                                                                                              

that he "get some mental health counseling" because he was "overly obsessed with  



                                                                                                                       

[Sarah] and her boyfriend" and "subsequent behaviors could cause the court to revisit  



                                                                                                                                    

this issue."  The court observed that Vince's "obsession with [Sarah's] relationship . . .  



                                                                                                                              

is continuing. . . . All of his claims are about concern and safety for his kids, but they  



                                                                              

always circle back to [Sarah's] relationship . . . ."  



                                                                                                                            

                    The  court  found  Vince's  explanation  about  picking  up  a  video  game  



                                                                                                                         

"extremely  wishy  washy,"  given  the  history  of  hostility  between  him  and  Sarah's  



                                                                                                                               

boyfriend,  Vince's  efforts  to  keep  his  children  away  from  the  boyfriend,  and  the  



                                                                                                                    

availability of other avenues, like phone or text, to resolve the issue.  It then concluded:  



                                                                                                         

                    I think this is a course of conduct, him driving by her work  

                                                                                                           

                    and going to the school, coming sitting next to her.  He did  

                                                                                                             

                    push her.   That's enough to recklessly place fear in her of  

                                                                    

                    some kind of physical injury.  



                                                                                                               

                               So I am finding he is gone over the top and now by a  

                                                                                                             

                    preponderance of the evidence that there is stalking . . . .  



                                                                -8-                                                         7264
  


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

                                                                                                          2  

The   court   found   stalking   in  the   second   degree   and   granted   the   domestic   violence  



protective order.                     Vince appeals.                    



III.           STANDARD OF REVIEW                       



                             Thesuperior court's                         decision to grant                  or denyaprotectiveorder is reviewed                         



                                                  3                                                                                                                 4  

for abuse of discretion.                                                                                                                                                

                                                       So too is the decision whether to let a child testify.                                                           Whether  



                                                                                                                           5 

                                                                                                                              Interpretation of a statute is  

there was a violation of due process is a question of law. 



                                                                                                                                                                6  

                                                                                                                                                                                

also "a question of law which involves this court's independent judgment."                                                                                          "We apply  



                                                                                                                 7  

                                                                                                                                                                                     

our independent judgment to issues of res judicata,"                                                                  and "[q]uestions of ripeness are  



               2             See   AS 11.41.270(a) ("A person commits the crime of stalking in the                                                                                  



second degree if the person knowingly engages in a course of conduct that recklessly                                                                                  

places another person in fear of death or physical injury, or in fear of the death or                                                                                                 

physical injury of a family member.").                                                



               3             Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006).  

                                                                                                                                  



               4             See  Helen  S.K.  v.  Samuel  M.K.,  288  P.3d  463,  475  (Alaska  2012);  

                                                                                                                                                                            

McMaster v. State, 512 P.2d 879, 881 (Alaska 1973); Sawyer v. State, 244 P.3d 1130,  

                                                                                                                                                                    

 1135-36 (Alaska App. 2011).  

                                                                  



               5             D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207 (Alaska  

                                                                                                                                                                          

2000).  

                



               6             Cooper, 144 P.3d at 434 (quoting Odum v. Univ. of Alaska, Anchorage , 845  

                                                                                                                                                                                    

P.2d 432, 454 (Alaska 1993)).  

                                                                     



               7             Patrawke  v.  Liebes,  285  P.3d  268,  271  n.7  (Alaska  2012)  (quoting  

                                                                                                                                                                        

McComas v. Kirn, 105 P.3d 1130, 1132 (Alaska 2005)).  

                                                                                                                            



                                                                                           -9-                                                                                  7264
  


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

                                     8  

reviewed de novo."                      We review the factual findings underlying a domestic violence                                            



                                                          9  

protective order for clear error.                             



IV.	        DISCUSSION  



                                                                                                                                                  

            A.	          The Superior Court Did Not Abuse Its Discretion Or Violate  

                                                                                                                                                

                         Procedural Due Process Regarding The Child's Testimony.  



                                                                                                                                                  

                         Vince argues that the court abused its discretion  and  violated  his  due  



                                                                                                                                                     

process rights "by disbelieving" his son's anticipated testimony after previously stating  



                                                                                                                                                          

"it would accept [the testimony] as true."  Vince contends it is procedurally unfair that  



                                                                                                                                                           

the court effectively "revers[ed]" its prior ruling and gave no warning that sparing the  



                                                                                                                                                     

child from the witness stand due to his age would deprive Vince of a defense.  Vince  



                                                                                                                                                         

asserts  that his son's testimony was critical to his defense against stalking for two  



                                                                                                                                                              

reasons:            first,  it  proved  that  knocking  on  Sarah's  boyfriend's  door  was  not  a  



                                                                                                                                                            

"nonconsensual contact"; and second, it revealed that his actions could not, under an  



                                                                                                                                                           

objective standard, have placed Sarah in fear of physical injury.  Vince claims that, but  



                                                                                                                                             

for his reliance on the court's representation that it would accept his son's anticipated  



                                                                                                                                      

testimony as true, he would have insisted his son testify at the hearing.  



                                                                                                                                                

                         A decision to permit or exclude the testimony of a child witness generally  



                                                                       10 

                                                                                                               

is reviewed for an abuse of discretion.                                     When assessing a due process claim, we turn  



            8            RBG Bush Planes, LLC v. Kirk                            , 340 P.3d 1056, 1060 (Alaska 2015) (citing                         



State v. Am. Civil Liberties Union of Alaska                                      , 204 P.3d 364, 368 (Alaska 2009)).                                  



            9	           McComas, 105 P.3d at 1132.  

                                                                                  



             10          See Helen S.K. v. Samuel M.K., 288 P.3d 463, 475 (Alaska 2012) (holding  

                                                                                                                                                 

court "did not abuse its discretion in deciding to conduct in camera interviews" rather  

                                                                                                                                                      

than have children testify in open court in child custody case); McMaster v. State, 512  

                                                                                                                                                          

P.2d 879, 881 (Alaska 1973) (holding decision to let particular witness testify is "left in  

                                                                                                                                                              

the sound discretion of the trial judge" and affirming decision to allow five year old to  

                                                                                                                                                             

                                                                                                                                        (continued...)  



                                                                            -10-	                                                                      7264
  


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

                                                                                                                                        11  

to the factors enunciated by the United States Supreme Court in                                       Mathews v. Eldridge               .    



                                                                                                                                     

We consider "[f]irst, the private interest that will be affected by the official action," then  



                                                                                                                                      

"the risk of an erroneous deprivation of such interest through the procedures used," and  



                                                                                                                               

finally,  "the Government's interest, including the . . . fiscal and administrative burdens  

                                                                                           12   We have held that a court's  

                                                                                                                                 

that the additional or substitute procedures would entail." 



decision to control the manner in which a child's testimony is taken into account does  

                                                                                                  

not necessarily violate a parent's due process rights.13  

                                                                                        



                     We are unpersuaded by Vince's arguments.  The due process assertion is  

                                                                                                                                         



unavailing because the court's approach to the child's testimony posed no "risk of an  

                                                                                                                                        



erroneous deprivation" of Vince's interest in putting forth a defense to the stalking  

                                                                                                                              

allegation.14  At no point did the court mislead Vince by representing it would accept the  

                                                                                                                                       



child's anticipated testimony as true. The court stated, "let's just assume that [the child]  

                                                                                                                                  



would testify that his dad brought him there to talk to [his mother] and he went to the  

                                                                                                                                       



door." This was not an assurance that the child's testimony would conclusively establish  

                                                                                                                              



           10         (...continued)  



                                                                                                                                   

testify); Sawyer v. State, 244 P.3d 1130, 1136 (Alaska App. 2011) ("It was not an abuse  

                                                                                                                            

of discretion for the judge to conclude that any marginal probative value of the children's  

                                                                                                         

testimony was outweighed by the danger of unfair prejudice . . . .").  



           11        424 U.S. 319, 334-35 (1976); D.M. v. State, Div. of Family &Youth Servs.,  

                                                                                                                                 

995 P.2d 205, 212 (Alaska  2000).  

                                                         



           12        Mathews, 424 U.S. at 334-35.  

                                                          



           13        See Helen S.K., 288 P.3d at 475 ("The parents' due process rights were  

                                                                                                                                    

observed by the summary of information from the [in-camera] interviews provided by  

                                                                             

the court.").  

                      



           14        Mathews, 424 U.S. at 334-35.  

                                                          



                                                                  -11-                                                             7264
  


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

                                                                                                                           

that Vince's motives in driving to Sarah's boyfriend's house were benign or would  



                                                                                       

outweigh other credible testimony supporting a stalking finding.  



                                                                                                                          

                    Perhaps more significantly, the court did not deprive Vince of the benefit  



                                                                                                                             

or substance of the anticipated testimony. The court adhered to Vince's version of what  



                                                                                                                         

his son would testify to and never stated that it was false.  Vince suggests that because  



                                                                                                                        

the court remarked that "there was absolutely no reason for [Vince] to go to [Sarah's  



                                                                                                                          

boyfriend's] home," it disbelieved that the child actually asked to speak to his mother  



                                                                                                                           

and retrieve a game. This mischaracterizes the court's full holding - that Vince "could  



                                                                                                                                

have done this by phone or text or some other means" and that his justification for  



                                                                                                                             

following Sarah to her boyfriend's house was not a reasonable one in light of other  



                                                                                                               

credible testimony suggesting Vince's actions here, despite "claims . . . about concern  



                                                                                                                               

and safety for his kids," were more motivated by his "obsession" with his ex-wife's new  



                                                                                                                                

relationship than the child's need to pick up a game.  Because the court adopted the  



                                                                                                                               

anticipated testimony Vince proffered and did not mislead him in any way, his due  



                              

process arguments fail.  



                                                                                                                      

                    We  also  conclude  the  court  did  not  abuse  its  discretion  by  allegedly  



                                                                                                                              

"reversing its prior ruling" on the child's testimony because, as discussed above, no such  



                                                                                                                             

reversal occurred.  The court consistently said it would accept Vince's version of what  



                                                                                                                          

the child would say if he took the stand, and it considered that version of events against  



                                                                                                                        

other testimony in its final ruling. Because no "revers[al]" occurred, the court's findings  



                                                                                                                              

and conclusions at the hearing did  not "substantially deviate from [its] earlier  oral  



                                                               -12-                                                         7264
  


----------------------- Page 13-----------------------

                  15  

decision."             And the court was within its discretion to spare the child from testifying in                                                    



                                                                                                                                          16  

open court about a domestic violence and custody battle between his parents.                                                                   



                        We thus decline to vacate the protective order on either basis Vince asserts.  

                                                                                                                                              



            B.          Neither Ripeness Nor Res Judicata Was Implicated.  

                                                                                                      



                        Vince contends the superior court erred by considering the substance of the  

                                                                                                                                                      



first petition in its grant of the second, and he asks us to vacate the order on two grounds:  

                                                                                                                                                             



the doctrines of ripeness and res judicata.  We examine each in turn.  

                                                                                                                  



                        1.          Ripeness  



                        Vince argues that the court's warning to him at the May 2016 hearing -  

                                                                                                                                                             



that any future misconduct could result in a protective order - was a "prognosticative  

                                                                                                                              

ruling in violation of the doctrine of ripeness."17  

                                                                                                                                                    

                                                                                      Because the court ruled that Sarah was  



                                                                                                                                            

"not placed in fear" of imminent physical injury by the kneeing incident, Vince contends  



            15          See   Ogden   v.   Ogden,   39   P.3d   513,   518   (Alaska   2001)   (concluding  



discrepancies between oral and written decisions required remand).                                                           



            16          See Helen S.K., 288 P.3d at 475; Sawyer v. State, 244 P.3d 1130, 1136  

                                                                                                                                                  

(Alaska App. 2011); see also AS 12.45.046(b) (enumerating factors superior court must  

                                                                                                                                                   

consider in deciding whether child may testify in criminal proceedings, including "the  

                                                                                                                                                    

mental or emotional strain that will be caused by requiring the child to testify under  

                                                                                                                                                 

normal courtroom procedures").  

                                                            



            17          "A  case  is  justiciable  only  if  it  has  matured  to  a  point  that  warrants  

                                                                                                                                           

decision."  State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska  

                                                                                                                                             

2009).         A suit ripe for  declaratory  or  injunctive relief will present " 'a substantial  

                                                                                                                                       

controversy, between parties having adverse legal interests, of sufficient immediacy and  

                                                                                                                                                     

reality.' "  Jacko v. State, Pebble Ltd. P'ship, 353 P.3d 337, 340 (Alaska 2015) (quoting  

                                                                                                                                            

Brause  v.  State,  Dep't  of  Health  & Soc.  Servs.,  21  P.3d  357,  359  (Alaska  2001)).  

                                                                                                                                                             

"[R]ipeness turns on 'the fitness of the issues for judicial decision' and 'the hardship to  

                                                                                                                                                        

the parties of withholding court consideration.' "  Brause, 21 P.3d at 359 (alteration in  

                                                                                                                                                        

                                                 HARLES    ALAN    WRIGHT,    ET   AL.,    FEDERAL    PRACTICE    &  

original)  (quoting  13A  C 

                                   

PROCEDURE   3532, at 112 (2d ed. 1984)).                                     



                                                                          -13-                                                                    7264
  


----------------------- Page 14-----------------------

the court's admonition that "if [he] [did] anything else to her, she [would] be in fear of  

                                                                                                                                   



imminent physical injury" constituted a ruling over a speculative, inchoate dispute.  

                                                                                                                                       



Vince  characterizes  this  warning  that  he  not  do  "anything"  as  "injunctive"  and  

                                                                                                                               



"impermissibly over broad" given the parties' regular interaction in sharing custody.  

                                                                                                                                    



                    We conclude the superior court did not violate the doctrine of ripeness  

                                                                                                                         



when it warned Vince that he was on the road to placing Sarah in fear of physical injury  

                                                                                                                             



sufficient to satisfy a domestic violence finding.  A reasonable reading of the court's  

                                                                                                                           



reasoning does not suggest that the court bound itself to grant any petition Sarah brought  

                                                                                                                          



in the future, irrespective of its merits.   Rather, the court was saying that Vince was  

                                                                                                                               



dangerously close to crossing over the threshold between an isolated incident that made  

                                                                                                                             



Sarah afraid and a course of conduct sufficient to establish stalking.  This statement was  

                                                                                                                                



a warning, not a ruling, and thus does not raise issues of ripeness.  

                                                                                        



                     2.        Res judicata  

                                                     



                    Vince  also  argues  that  res  judicata  barred  the  superior  court  from  

                                                                                                                             



considering the events of the first domestic violence petition, which it had previously  

                                                                                                                     



denied,  to  support  its  conclusion  that  Vince  engaged  in  a  course  of  conduct  that  

                                                                                                                               



recklessly placed Sarah in fear of physical injury.  He asserts that by doing so, the court  

                                                                                                                              



effectively reversed its earlier ruling that the kneeing incident did not place Sarah in fear  

                                                                                                                                



of imminent physical injury.   Vince argues that the court relied exclusively on the  

                                                                                                                                 



previously adjudicated kneeing incidenttofind that Sarah feared physical harm, pointing  

                                                                                                                         



to the court's statement: "He did push her. That's enough to recklessly place fear in her  

                                                                                                                                 



of some kind of physical injury." According to Vince, this exclusive reliance implicates  

                                                                                                                      



res judicata.  

                     



                     "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  

                                                                                                                                   



                                                               -14-                                                          7264
  


----------------------- Page 15-----------------------

a dispute between the same parties (or their privies) about the same cause of action.' "                                                     18  



                                                                                                                                      

But the statutory elements of stalking in the second degree include whether "the person  



                                                                            

knowingly engage[d] in a course of conduct that recklessly place[d] another person in  



                                                                                                                                     

fear of death or physical injury, or in fear of the death or physical injury of a family  

                 19  A course of conduct is defined as "repeated acts of nonconsensual contact  

member."                                                                                                                             

involving the victim or a family member."20   The statute requires the court to revisit past  

                                                                                                                                          



conduct to decide the import of subsequent conduct.  And we have held that the denial  

                                                                                                                                      



of an earlier petition for a protective order does not necessarily bar the court from  

                                                                                                                                        

considering the same conduct in deciding a later petition.21  

                                                                                                    



                       Res judicata does not apply here for several reasons. First, Sarah's second  

                                                                                                                                     

petition raised new claims of stalking and harassment.22                                          Second, the parties did not  

                                                                                                                       



actually relitigate the kneeing incident, nor did the court reverse its previous decision.  

                                                                                                                                                  



            18        McAlpine  v.  Pacarro,  262  P.3d  622,  625  (Alaska  2011)  (quoting  Angleton  



v.  Cox,  238  P.3d  610,  614  (Alaska  2010)).   



            19        AS   11.41.270(a)  (emphasis  added).    



           20         AS   11.41.270(b)(1).   



           21         See McComas v. Kirn, 105 P.3d 1130, 1135-36 (Alaska 2005) (holding res  

                                                                                                                                            

judicata  did not apply where court dissolved first protective order because ex-husband  

                                                                                                                             

was in prison but granted second protective order upon finding ex-husband continued  

                                                                                                                                

             

to contact victim while in prison and was soon to be released); Fardig v. Fardig, 56 P.3d  

                                                                                                                                         

9, 11-12 (Alaska 2002) (holding neither res judicata nor collateral estoppel barred court  

                                                                                                                                        

from considering issue of alleged drug use raised and dismissed in previous domestic  

                                                                                                                                 

violence hearing because doing so in "the context of a motion to modify custody" and  

                                                                                     

upon evidence of new drug use did "not relitigate a past decision").  

                                                                                                                     



           22         See McComas, 105 P.3d at 1135-36; Fardig, 56 P.3d at 11-12; McAlpine,  

                                                                                                                               

262 P.3d at 627 (concluding res judicata did not bar mother from basing motion to  

                                                                                                                                             

modify custody onpast domesticviolenceincidents and newclaims of domestic violence  

                                                                                                                                   

that superior court had not addressed or sufficiently considered).  

                                                                                                                



                                                                     -15-                                                              7264
  


----------------------- Page 16-----------------------

In   its   hearing   on   the   first  petition,   the   court   found   that   Vince   had   kneed   Sarah  



intentionally. Reference to this prior finding in the subsequent hearing did not constitute                                                                              



a retroactive finding, relitigation, or reversal:                                                    the court simply considered whether the                                            



kneeing   incident,   in   conjunction   with   the   incidents   alleged   in   the   second   petition,  



constituted a course of conduct that placed Sarah in fear of physical injury.                                                                                           



                             Finally, given that the statutory framework for domestic violence petitions                                                                    

                                                                                                                23  we conclude the superior court's  

requires courts to consider a "course of conduct,"                                                                                                                             



revisiting of the kneeing incident was appropriate. To prohibit a court from considering  

                                                                                                                                                                     



past behavior in the context of new alarming acts would defeat the statute's mandate that  

                                                                                                                                                                                      



courts  consider  the  full  history  of  nonconsensual  contacts  in  ascertaining  whether  

                                                                                                                                              

stalking occurred.24  Thestatutecontemplates thereality that repeatednonconsensualacts  

                                                                                                                                                                                      



may place a person in greater fear of physical injury than isolated ones, and it does not  

                                                                                                                                                                                       

require actual physical violence in each instance.25   Although the court found Sarah was  

                                                                                                                                                                                      



neither placed in fear of imminent physical injury nor physically injured by Vince in the  

                                                                                                                                                                                        



kneeing incident, his continuing  course of conduct recklessly placed her in fear of  

                                                                                                                                                                                         

physical injury, which is all the stalking statute requires.26                                                                  The court's consideration of  

                                                                                                                                                                                          



conduct raised in the first domestic violence petition did not violate res judicata.  

                                                                                                                                                                                  



               23            AS   11.41.270(a)-(b)(1).     



               24            See  AS   11.41.270(b)(4).   



               25            See  AS  11.41.270(b)(4)(A)-(I)  (including  within  "nonconsensual  contact"  



definition   acts   such   as   "following   or   appearing   within   the   sight   of   that   person,"  

"appearing  at  the  workplace  or  residence  of  that  person,"  and  "contacting  that  person  by  

telephone").   



               26            See AS  11.41.270(a).  

                                                                               



                                                                                           -16-                                                                                    7264
  


----------------------- Page 17-----------------------

                       3.          Summary  



                       In light of the foregoing, we conclude that neither ripeness nor res judicata  

                                                                                                                                           



precluded  the  superior  court  from  considering  testimony  from  the  first  petition  in  

                                                                                                                                                    



determining  whether  Vince's  course  of  conduct  recklessly  placed  Sarah  in  fear  of  

                                                                                                                                                    



physical injury.  

                             



            D.         It Was Not Clearly Erroneous To Find That Stalking Occurred.  

                                                                                                                             



                       A court may find stalking in the second degree "if the person knowingly  

                                                                                                                                     



engages in a course of conduct that recklessly places another person in fear of death or  

                                                                                                                                                     

physical injury, or in fear of the death or physical injury of a family member."27  

                                                                                                                                                The  



                                                                                                                                       

statute defines course of conduct as "repeated acts of nonconsensual contact involving  



                                                         28  

                                                                                                                                                    

the victim or a family member."                                Contact is nonconsensual if it is:  (1) "initiated or  



                                                                                                                                         

continued without that person's consent"; (2) "beyond the scope of the consent provided  



                                                                                                                                                    

by that person"; or (3) "in disregard of that person's expressed desire that the contact be  



                                             29  

                                                                                                                                                

avoided or discontinued."                          Types of nonconsensual contact include, in relevant part:  



                                                                                                                                    

"following or appearing within the sight of that person"; "approaching or confronting  



                                                                                                                                                  

that person  in  a public place or  on private property"; as well  as  "appearing  at the  



                                                                     30  

                                                       

workplace or residence of that person." 



                       Vince  argues  that  the  superior  court  failed  to  make  "detailed  factual  

                                                                                                                                           



findings" showing that the incident alleged in the second petition was a nonconsensual  

                                                                                                                              



contact or placed Sarah in reasonable fear of physical injury.  He cites Petersen v. State  

                                                                                                                                               



for   the   proposition   that   "contact   is   not   nonconsensual   merely   because   it   is  

                                                                                                                                                   



            27         Id.  



            28         AS 11.41.270(b)(1).                   



            29         AS 11.41.270(b)(4).                    



            30         AS 11.41.270(b)(4)(A)-(C).                          



                                                                        -17-                                                                   7264
  


----------------------- Page 18-----------------------

                                                                                                             31  

 'uncomfortable,' "                                                                                                   and he argues that all the incidents alleged in the second petition                                                                                                                                                                                                                                



were consensual because they did not occur outside the scope of "Sarah's consent to                                                                                                                                                                                                                                                                                                                                                                                                                    



 contact with Vince" about shared custody.   Vince asserts that "there was no evidence                                                                     



presented that Sarah had ever expressed a desire that Vince never contact her at all, or                                                                                                                                                                                                                                                                                                       



not contact her at her boyfriend's house."                                                                                                                                                                                                          



                                                                             Vince   also   asserts   that   the   superior   court   did   not   explicitly   find  the  



December 2016 incidents placed Sarah in fear of physical injury and could not have                                                                                                                                                                                                                                                                                                                                                                                                     



plausibly done so, because "not knowing why someone knocks on your door is not a                                                                                                                                                                                                                                                                                                                                                                                                                            



reasonable basis to fear physical injury."                                                                                                                                                                                                          Vince believes that the court clearly erred                                                                                                                                                                                     



when it exclusively relied on the April kneeing incident, which it had previously found                                                                                                                                                                                                                                                                                                                                                                                           



 did not place Sarah in fear of imminent physical injury, to determine that she was placed                                                                                                                                                                                                                                                                                                                                                                                    



in fear by the December incidents.                                                                                                                                                                        



                                                                             Vince's arguments are unavailing.                                                                                                                                                                                      The court was not mistaken                                                                                                                                                     in   its  



 determination that the acts alleged in the petition were nonconsensual, and, contrary to                                                                                                                                                                                                                                                                                                                                                                                                               



Vince's assertions,thecourt madefactual findingssupporting                                                                                                                                                                                                                                                                                                    its determinationthat were                                                                                                 



not clearly erroneous. Sarah's boyfriend and Vince previously had physically fought on                                                                                                                                                                                                                                                                                                                                                                                                                



the boyfriend's property, prompting the boyfriend to seek a "no trespass" order against                                                                                                                                                                                                                                                                                                                                                                                    



Vince.   At the hearing on the first petition, the court explicitly told Vince that he could                                                                                                                                                                                                                                                                                                                                                                                       



not "be driving by or acting in a certain way or he could be subject to domestic violence                                                                                                                                                                                                                                                                                                                                                                          



 stalking."   The court suggested that the parties limit their communications and ordered                                                                                                                                                                                                                                                                                                                                                                              



that the boyfriend have no contact with the children at all. Sarah brought these petitions                                                                                                                                                                                                                                                                                                                                                                        



                                       31                                     930 P.2d 414, 431 (Alaska App. 1996) (discussing stalking statutes and                                                                                                                                                                                                                                                                                                                                          



 observing that AlaskaConstitution protects"aperson'sright                                                                                                                                                                                                                                                                                            to engagein uncomfortable,                                             

 distasteful,   and   annoying   contacts   -   even   abrasive   confrontations   -   with   other  

 citizens").     



                                                                                                                                                                                                                                               -18-                                                                                                                                                                                                                                      7264
  


----------------------- Page 19-----------------------

because she wanted to further limit her contact with Vince, especially when it came to       



his interactions with her boyfriend.                                            



                                           Vince's decision to follow Sarah to her boyfriend's house after exchanging                                                                                                                               



the    children    met    all    three    AS    11.41.270(b)(4)(A)-(C)    "nonconsensual   contact"  



definitions. By following Sarah to her boyfriend's house and knocking on the door three                                                                                                                                                                                  



or four times, Vince initiated a contact to which Sarah did not consent because she had                                                                                                                                                                                      



no notice; the contact fell outside the scope of communicating regarding child custody                                                                                                                                                                          



arrangements, largely because of an order and custody provision Vince had requested                                                                                                                                                                       



that Sarah's boyfriend have no contact with Vince and Sarah's children; and finally,                                                                                                                                                                             



Vince "disregarded [Sarah's] express desire" that in-person contact between herself and                                                                                                                                                                                       



Vince, as well as between Vince and her boyfriend, "be avoided or discontinued" in light                                                                                                                                                                                   

                                                                                                       32  Thesecond petition thus alleged a new nonconsensual  

of past violence and                                            harassment.                                                                                                                                                               



contact that the court could consider in whether Vince engaged in a course of conduct.  

                                                                                                                                                                                                                                                             



                                            It was also not clearly erroneous for the court to find that Vince's course  

                                                                                                                                                                                                                                        



of conduct placed Sarah in reasonable fear of physical injury. Although hearing a knock  

                                                                                                                                                                                                                                                                   



on a door may not typically give rise to a fear of injury, Vince's argument ignores the  

                                                                                                                                                                                                                                                                               



context surrounding the relationship between the parties.  Even Vince admitted, "with  



all this that's going on, I probably should not have driven out there with my son so he  

                                                                                                                                                                                                                             



could get the game."  The superior court's decision navigated this context.  The court  

                                                                                                                                                                                                                                                                        



considered  evidence  of  a  past  violent  encounter  on  Sarah's  boyfriend's  property;  

                                                                                                                                                                                                                                                         



escalating anger in the communications between Vince and Sarah in the 48 hours prior  

                                                                                                                                                                                                                                                                          



to the incident; and an order prohibiting contact between Sarah's boyfriend and the  

                                                                                                                                                                                                                                                                              



children. The court therefore reasonably found that Vince's presence on the boyfriend's  

                                                                                                                                                                                                                                                    



property, without any notice, was alarming and placed Sarah in fear of physical injury.  

                                                                                                                                                                                                                                                                                             



                      32  

                                                                                                                               

                                           See AS 11.41.270(b)(4).  



                                                                                                                                      -19-                                                                                                                                             7264  


----------------------- Page 20-----------------------

Combined with testimony from the hearing on the first petition that Vince drove by                                                                                                                                                            



Sarah's work and kneed her at the school, this was the basis upon which the court found                                                                                                                                              



she was placed in physical fear by repeated nonconsensual contacts with him.                                                                                                                                               Contrary  



to Vince's assertions, the court did not rely on the one incident in which he physically                                                                                                                        



touched Sarah to find fear of physical injury, but rather a course of conduct.                                                                                                                                            



                                      Vince's   arguments   hinge   on   the   notion   that   the   court   should   divorce   



individual incidents                                     fromtheir context and consider in isolationwhether asingle incident                                                                                                   



placed the petitioner in fear of physical injury.                                                                                       The statute for stalking in the second                                                    



                                                                                                                                                                                                                                                 33  

degree   mandates   otherwise,   requiring  the   court   to   look   at   a   pattern   of   behavior.                                                                                                                                                  



Accordingly, we decline to vacate or remand on this ground.  

                                                                                                                                                                               



V.                 CONCLUSION  



                                      The superior court's decision to grant the long-term domestic violence  

                                                                                                                                                                                                                             



protective order is AFFIRMED.  

                                                                                             



                   33                 See AS 11.41.270(a).  

                                                                                                     



                                                                                                                     -20-                                                                                                                          7264  

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