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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Whalen v. Whalen (8/10/2018) sp-7268

Whalen v. Whalen (8/10/2018) sp-7268

           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                                      



SARAH  M.  WHALEN,                                              )  

                                                                )          Supreme  Court  No.  S-16200  

                                Appellant,                      )  

                                                                                                                                           

                                                                )          Superior Court No. 3AN-15-03474 CI  

           v.                                                   )  

                                                                                                

                                                                )          O P I N I O N  

                               

SEAN PATRICK WHALEN,                                            )  

                                                                                                                  

                                                                )          No. 7268 - August 10, 2018  

                                Appellee.                       )  

                                                                 

_______________________________ )  



                                                                                                              

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

                                                                                                                

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



                                                                                                           

                     Appearances:              Gregory  R.  Henrikson,  Walker  &  Eakes,
  

                                                                                                               

                     Anchorage, for Appellant.  No appearance by Appellee Sean
  

                                                                                                           

                     Patrick Whalen.   Christine Pate,  Sitka, for Amicus  Curiae
  

                                                                                                                       

                     Alaska Network on Domestic Violence and Sexual Assault.
  

                                                                                                    

                     Elizabeth           Hague,          Freshfields            Bruckhaus             Deringer,
  

                                                                                                       

                     Washington,  D.C.,  for Amicus  Curiae  Domestic  Violence
  

                                                                              

                     Legal Empowerment and Appeals Project.
  



                                                                                                          

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

                                           

                      and Carney, Justices.
  



                                                     

                      STOWERS, Chief Justice.
  

                                                                                                                                         

                     MAASSEN, Justice, with whom WINFREE, Justice, joins,  dissenting in
  

                     part.
  



I.         INTRODUCTION  



                                                                                                                             

                      Sarah  and  Sean  Whalen's  relationship  had  been  plagued  by  domestic  



                                                                                                                               

violence prior to the incidents involved in this appeal.  Sarah had petitioned for multiple  


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

domestic violence protective orders against Sean, some of which had been granted.                                                                                                                                                                                                                                              In  



November 2015 Sarah filed a petition for a long-term                                                                                                                                                   domestic violence protective order                                                                             



against Sean.                                       The superior court ruled that she could not rely on Sean's past history of                                                                                                                                                                                                   



domestic violence alone to obtain a new protective order but had to show that Sean had                                                                                                                                                                                                                                     



committed a new incident of domestic violence since the previous protective order. The                                                                                                                                                                                                                                    



court also found that Sarah had not proved any new incident and denied her petition.                                                                                                                                                                                                                                                         



 Sarah appeals, arguing that she should be allowed to rely on past incidents of domestic                                                                                                                                                                                                               



violence that had supported past protective orders to obtain a new protective order.                                                                                                                                                                                                                                           In  



the alternative she argues that there had been a new incident of domestic violence.                                                                                                                                                                                                                                       We  



affirm the superior court's denial of the petition for a domestic violence protective order.                                                                                                                                                                                                                       



II.                       FACTS AND PROCEEDINGS                                   



                                                   Sarah M. Whalen and Sean Patrick Whalen married in May 2004 and have                                                                                                                                                                                                 



three children.                                          They separated in April 2012.                                                                                         In June 2015 the superior court issued a                                                                                                              



decree of divorce.                   



                                                   Sarah had petitioned for and                                                                             received multipledomesticviolenceprotective                                                                                             



orders against Sean, most recently in September 2014.  In September 2015 Sarah filed                                                                                                                                                                                                                                    



a request to modify the September 2014 protective order.  Because most provisions of  

                                                                                                                                                                                         1 this was effectively a request to renew  

long-termprotective orders last for only one year,                                                                                                                                                                                                                                                                 



or extend an expiring order.  Sarah used a court-form domestic violence petition to file  

                                                                                                                                                                                                                                                                                                                             



her motion.  On the form, she selected the option to request that the court "modify the  

                                                                                                                                                                                                                                                                                                                              



 . . . long-term protective order issued in this case as follows" and wrote, "Extend the  

                                                                                                                                                                                                                                                               



order for an additional year and modify visitation." In the section for "reason(s) for this  

                                                                                                                                                                                                                                                                                                                            



request" she wrote that she was "still in fear" of Sean for herself and for their children.  

                                                                                                                                                                                                                                                                                                                                             



                          1                        See AS 18.66.100(b)(2).  

                                                                                 



                                                                                                                                                                -2-                                                                                                                                                                    7268  


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                               The superior court held a hearing in November 2015 and orally denied the                                                                                             



motion. The court explained that Sarah could not get an extension of a previously issued                                                                                                     



protective order but would have to file a petition for a new long-term protective order.                                                                                                                     



Sarah did not appeal this ruling.                           



                               Later that month Sarah filed a petition for ex parte and long-term domestic                                                                            

                                                                2    In the petition she recounted a recent incident involving  

violence protective orders.                                                                                                                                                         



Sean and the children at a lake and described Sean's history of domestic violence.  The  

                                                                                                                                                                                                  



superior court held a hearing in December 2015.  Sarah and Sean testified.  Sarah was  

                     



represented by counsel; Sean represented himself.  The court explained at the outset of  

                                                                                                                                                                                                      



the hearing that under the domestic violence protective order statute a party could not  

                                                                                                                                                                                                   



receive a new protective order where a prior protective order had been issued unless  

                                                                                                                                                                                            



there was a new incident of domestic violence. The court instructed Sarah not to present  

                                                                                                                                                                                          



evidence of incidents of domestic violence that occurred before her last protective order  

                                                                                                                                                                                               



was  issued.                      In  accordance  with  this  instruction  the  parties  gave  testimony  only  

                                                                                                                                                                                               



concerning incidents that took place after the September 2014 order.  

                                                                                                                                                   



                               Testimony addressed three separate incidents: Sarah alleged that Sean had  

                                                                                                                                                                                                   



tampered with her house's heating system, that he had entered her garage to collect his  

                                                                                                                                                                                                    



possessions, and that he had screamed at and intimidated their children at the lake.  The  

                                                                                                                                                                                                  



court declined to find by a preponderance of the evidence that Sean had tampered with  

                                                                                                                                                                                                 



Sarah's heating system.  Next the court found that Sarah had given Sean permission to  

                                                                                                                                                                                                      



enter her premises to collect his possessions and concluded that Sean therefore had not  

                                                                                                                                                                                                   



                2              An   ex   parte   protective   order   lasts   for   20   days.     AS   18.66.110(a).     A  



long-term protective order may be issued only after a hearing for which the respondent                                                                                           

received proper notice.                                 AS 18.66.100(b).   



                                                                                                  -3-                                                                                          7268
  


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                                                                                                                                                                                                                                             3  

  committed criminal trespass in the second degree, a domestic-violence crime.                                                                                                                                                                   Finally,  



 the court concluded, and Sarah conceded, that the incident with the children at the lake                                                                                                                                                                     



  did not constitute a new incident of domestic violence.                                                                                                                         The court orally denied the                                                   



 petition and subsequently issued a written order. Sarah appeals the court's legal rulings                                                                                                                                                           



 that the domestic violence protective order statute requires a new incident of domestic                                                                                                     



 violence for a new protective order and that Sean did not commit second-degree criminal                                                                                                                                                          



 trespass.   Sean does not participate in this appeal.                                                                                                         Amici curiae Alaska Network on                                                                     



  DomesticViolenceand                                                    Sexual Assault and DomesticViolenceLegalEmpowerment and                                                                                                                                



 Appeals Project filed a brief in support of Sarah's position that the statute does not                                                                                                                                                                         



 require a new incident of domestic violence for a new protective order to be issued.                                                                                                                                                       



  III.                STANDARD OF REVIEW                                       



                                           Sarah's appeal raises issues of res judicata and the interpretation of the                                                                                                                                           



  domestic   violence   protective   order   statute   and   the   second-degree   criminal   trespass  



                                                                                                                                                                                                                                                                        4  

  statute.   "Whether   res judicata applies is a question of law that we review de novo."                                                                                                                                                                                  



                                                                                                                                                                                                                                                           

  "We  review  the  interpretation  of  a  statute  de  novo,  adopting  the  rule  of  law  most  



                                                                                                                                                                   5  

                                                                                                                                           

 persuasive in light of precedent, reason, and policy." 



  IV.                 DISCUSSION  



                                                                                                                                                                                 

                      A.                  The Domestic Violence Protective Order Statute  



                                                                                                                                                                                                                                                             

                                          Alaska Statute 18.66.100 provides a statutory method for "[a] person who  



                                                                                                                                                                                                              

  is or has been a victim of a crime involving domestic violence" to obtain "a protective  



                      3                   Criminal trespass against a former spouse is a crime involving domestic                                                                                                                              



 violence.   See  AS 18.66.990(3)(C), (5)(A).                                                                  



                      4                   Pister v. State, Dep't ofRevenue, 354 P.3d 357, 362 (Alaska2015) (quoting  

                                                                                                                                                                                                                                                 

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

                                                                                                                                                                  



                      5                   L.D.G., Inc. v. Brown, 211 P.3d 1110, 1118 (Alaska 2009) (citing Alaskans  

                                                                                                                                                                                                                                               

for Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275 (Alaska 2004)).  

                                                                                                                                                                                                 



                                                                                                                                  -4-                                                                                                                      7268
  


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

                                                         6  

order against a household member";                         "household member" is defined to include a former                      



                                                                   7  

spouse no longer living with the victim.                                                                                                 

                                                                       "If the court finds by a preponderance of  



                                                                                                                                 

evidence that the respondent has committed a crime involving domestic violence against  



                                                                                                                                      

the petitioner, regardless of whether the respondent appears at the hearing, the court may  

                                                                                    8  The statute further provides that  

                                                                                                                                       

order any relief available under [AS 18.66.100(c)]." 



"provisions of a protective order issued under . . . [AS 18.66.100(c)(1)] are effective until  

                                                                                                                                     



further order of the court" and that those issued under "(c)(2)-(16) . . . are effective for  

                                                                                                                                        

one  year  unless  earlier  dissolved  by  court  order."9                                 Subsection  (c)(1)  allows  for  

                                                                                                                                       



protectiveorders that "prohibit therespondentfromthreatening to commitor committing  

                                                                                                                          

domestic violence, stalking, or harassment."10   Subsections (c)(2)-(15) allow courts to  

                                                                                                                                         



issue orders that prohibit different types of interactions with the petitioner, allocate use  

                                                                                                                                       



of property, and assign temporary custody of children and child support obligations,  

                                                                                                                         

among other things.11   Subsection (c)(16) allows the court to "order other relief the court  

                                                                                                                                    

                                                                                                                      12   Subsection  

determines necessary to protect the petitioner or any household member."                                                   

                                                                                                       



(e) provides that "[a] court may not deny a petition for a protective order under this  

                                                                                                                                      



           6          AS   18.66.100(a).  



           7          AS   18.66.990(5)(A).  



           8          AS   18.66.100(b).    "[C]rime   involving   domestic   violence"   is   defined   in  



AS   18.66.990(3).  



           9          AS   18.66.100(b).  



           10         AS   18.66.100(c)(1).  



           11         AS   18.66.100(c)(2)-(15).  



           12         AS   18.66.100(c)(16).  



                                                                    -5-                                                             7268
  


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

 section solely because of a lapse of time between an act of domestic violence and the                                                                                                                                           

 filing of the petition."                                  13  



                                     Sarah has petitioned for and received multiple protective orders under this  

                                                                                                                                                                                                                                



 framework.   She now seeks a new protective order based on the same incidents of  

                                                                                                                                                                                                                                   



 domestic violence for which she received the prior orders.  

                                                                                                                                           



                                     Sarah's and amici's briefs discuss the importance of protections against  

                                                                                                                                                                                                                      



 domestic violence generally and of renewal of protective orders specifically. Amici note  

                                                                                                                                                                                                                              

 the high rates of domestic violence in Alaska14   and the cyclical nature of domestic  

                                                                                                                                                                                                                

 violence situations.15  There is no question that Sarah's and amici's policy arguments are  

                                                                                                                                                                                                                                 



 compelling.  But at its core this appeal involves questions of res judicata and statutory  

                                                                                                          



 interpretation.  The superior court correctly ruled that Sarah could not receive a new  

                                                                                                                                                                                                                           



 protective order without showing a new incident of domestic violence.  

                                                                                                                                                                      



                   13               AS 18.66.100(e).   



                   14                The 2015 Alaska Victimization Survey, analyzed by the University of                                                                                                                           



 Alaska Anchorage Justice Center for the Council on Domestic Violence and Sexual  

                                                                                                                                                                                                                      

 Assault, reported that 40% of adult women residing in Alaska experienced intimate                                                                                                                                

 partner violence. U                               NIV . OF  ALASKA  ANCHORAGE  JUSTICE  CTR.&C                                                                                 OUNCILON                     DOMESTIC  

 VIOLENCE & SEXUAL ASSAULT, INTIMATE PARTNER VIOLENCE AND SEXUAL VIOLENCE  

                                                                                                                                                                                                              

 IN  THE  STATE  OF  ALASKA:   KEY  RESULTS  FROM  THE  2015 ALASKA  VICTIMIZATION  

                                                                                                                                                                                               

 SURVEY (2015), https://www.uaa.alaska.edu/academics/college-of-health/departments/   

                         

justice-center/research/alaska-victimization-survey/_documents/avs-alaska-statewide- 

 2015.summary.1103.051a.pdf.  



                   15  

                                                                                                                                                                                                                

                                    See Mary Ann Dutton,  Understanding Women's Responses to Domestic  

                                                                                                                                                                            OFSTRA   L. R                      EV. 1191,   

 Violence:  A Redefinition of Battered Woman Syndrome, 21 H 

 1208-09 (1993);                              see also B.C. v. T.G.                                     , 65 A.3d 281, 288 (N.J. Super. Ch. Div. 2013)                                                                   

 ("The New Jersey Supreme Court has expressly recognized the reality that domestic                                                                                                                              

 violence often repeats itself in cycles." (citing                                                                              State v. Kelly                       , 478 A.2d 364 (1984)));                   

Krank v. Krank                             , 541 N.W.2d 714, 718 (N.D. 1996) ("It is common for domestic abuse                                                                                                            

 to occur as a stage in a cycle of violence.").                                       



                                                                                                                 -6-                                                                                                        7268
  


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

                          1.	          Res judicata extinguished Sarah's claim for a new protective                                               

                                       order.  



                          "The doctrine of res judicata, or claim preclusion, 'prevents a party from     



 suing  on   a   claim   which   has   been   previously   litigated   to   a   final   judgment   by   that  



                         16  

party . . . .' "                                                                                                                                                 

                               "When a valid and final personal judgment is rendered in favor of the  



                                                                                                                                            

plaintiff[,] . . . [t]he plaintiff cannot thereafter maintain an action on the original claim  



                                                                                                                                                                

 or  any  part  thereof,  although  [s]he  may  be  able  to  maintain  an  action  upon  the  



                      17  

judgment."                                                                                                                                              

                            The question, then, is whether Sarah is attempting to receive a second  



                                                                                       

judgment on a claim that she has previously asserted.  



                                                                                                                                                     

                          Alaska Statute 18.66.100 sets forth the elements of a claim for a domestic  



                                                                                                                                                      

violence protective order:  a person may petition for and receive a domestic violence  



                                                                                                                                                       

protective order if "the respondent has committed a crime involving domestic violence  



                                                                                                                                                   

 against the petitioner."  Sarah's claim against Sean for a domestic violence protective  



                                                                                                                                                                        

 order accrued when Sean committed a crime involving domestic violence against her.  



                                                                                                                                                                

Under the doctrine of claim preclusion, this claim was then extinguished when she  



                                                                                                                                                     

received a valid and final personal judgment against him in the form of a domestic  



                                                                                                                                                            

violence  protective  order.                            Sarah  "may  be  able  to  maintain  an  action  upon  th[is]  



                                                                                                                                         18  

                                                                                                                           

judgment," but she may not "maintain an action on the original claim." 



                          Sarah  argues that protective orders are a form of injunctive relief that  

                                                                                                                                                               

 addresses an abatable condition and therefore "res judicata does not apply."19  Sarah cites  

                                                                                                                                                               



             16           Girdwood  Mining  Co.  v.  Comsult  LLC,  329  P.3d   194,  200  (Alaska  2014)  



 (quoting  McElroy  v.  Kennedy,  74  P.3d  903,  906  (Alaska  2003)).  



             17           RESTATEMENT  (SECOND)  OF  JUDGMENTS      18(1)  (Am.  Law  Inst.   1982).  



             18           Id.  



             19            Van  Deusen  v.  Seavey,  53  P.3d  596,  600  (Alaska  2002).  



                                                                                 -7-	                                                                        7268
  


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

                                                                    20  

to nuisance law for this proposition.                                     A nuisance caused by an abatable condition                        



constitutes a temporary nuisance and "gives rise to a new cause of action with each                                                                  

                                     21     But  this  analogy  fails  because  Sarah  has  not  alleged  a  new  

invasion   or   injury."                                                                                                                              



statutory invasion or injury in the form of a new domestic violence incident. Instead, she  

                                                                                                                                                        



argues that she is still in fear of Sean based on the domestic violence that formed the  

                                                                                                                                                        



factual basis of her earlier domestic violence protective order. Res judicata bars her most  

                                                                                                                                                      



recent action.  

             

                         Sarah also argues that McComas v. Kirn22  supports allowing a new petition  

                                                                                                                                                 



for a protective order. In McComas the superior court issued an ex parte protective order  

                                                                                                                                                     



but then declined to issue a long-term protective order, instead opting to include a no- 

                                                                                                                                      

contact order in the parties' divorce decree.23   Later, when the respondent was scheduled  

                                                                                                                                            



to be released from custody, the petitioner again petitioned for ex parte and long-term  

                                                                                                                                            

protective orders, which the court granted.24   On appeal we held that res judicata did not  

                                                                                                                                                         



bar  issuing  the  long-term  protective  order  because  the  end  of  the  respondent's  

                                                                                                                                     

incarceration constituted a change in circumstances.25  

                                                                     



                        But the superior court in McComas never granted the original petition for  

                                                                                                                                                         



a long-term protective order, nor did it deny the petition because it found no incidents  

                       



of domestic violence.  It instead exercised its discretion in issuing a different remedy,  

                                                                                                                                               



            20          See id.
   



            21  

                                                                                                                                                     

                        Id. (citing Beatty v. Wash. Metro. Area Transit Auth., 860 F.2d 1117, 1122
  

                    

(D.C. Cir. 1988)).  



            22           105  P.3d   1130  (Alaska  2005).  



            23          Id.  at   1131,   1135.  



            24          Id.  at   1131-32.  



            25          Id.  at   1135-36.  



                                                                            -8-                                                                     7268
  


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

                                                                                                     26  

discretion that AS 18.66.100 gives the court.                                                             When circumstances changed, the court                                           



was free to again exercise its discretion and grant the protective order.                                                                                        In this case, the            



superior court did grant a protective order.                                                     The court may only grant another protective                                   



order if there is a new claim in the form of a new domestic violence incident.                                                                                                 A change   

                                                                                                                                                                        27   but  under  

in   circumstances   may   establish   a   new   claim for                                                          res   judicata   purposes,                                         



AS 18.66.100 a claim for a protective order requires a new incident of domestic violence  

                                                                                                                                                                                  

to obtain a subsequent protective order.28  

                                                                             



                               Because Sarah had already received a judgment on her claimfor a domestic  

                                                                                                                                                                                



violence protective order, res judicata prevents her from obtaining another protective  

                                                                                                                                                                              

order based on the same conduct that gave rise to the first protective order.29  

                                                                                                                                                             



               26             See  AS 18.66.100(b) ("[T]he court                                             may  order any relief available under (c)                                         



of this section." (emphasis added)).                          



               27             See Jackinsky v. Jackinsky, 894 P.2d 650, 656 (Alaska1995) ("Res judicata  

                                                                                                                                                                                    

does  not  act  as  a  bar  when  the  conduct  giving  rise  to  the  later  suit  post-dates  the  

                                                                                                                                                                                             

conclusion of the first suit." (citing RESTATEMENT  (SECOND) O                                                                                 F  JUDGMENTS    24 cmt.                    

                                                                                 

f (Am. Law Inst. 1982))).               



               28              In McComas  we noted that "[t]he . . . no-contact order was apparently  

                                                                                                                                                                            

insufficient to deter McComas from contacting Kirn" because he repeatedly violated it.  

                                                                                                                                                                                                       

McComas, 105 P.3d at 1136.  A violation of the terms of a domestic violence protective  

                                                                                                                                                                               

order is itself a crime involving domestic violence, see  AS 18.66.990(3)(G), which  

                                                                                                                                                                                      

allows for a petition for a new protective order.  

                                                                                               



               29              This case concerns only the claim-preclusive effect of a domestic violence  

                                                                                                                                                                                  

protective order in a second proceeding on a petition for a domestic violence protective  

                                                                                                                                                                              

order involving the same parties.  It does not concern any principles of issue preclusion,  

                                                                                                                                                                            

see Harris v. Governale, 311 P.3d 1052, 1057 (Alaska 2013) ("It was within the court's  

                                                                                                                                                                                      

discretion to decline to give the protective order collateral estoppel effect . . . ."), nor  

                                                                                                                                                                                             

does it concern  the claim-preclusive effect of  a  domestic violence protective order  

                                                                                                                                                                                        

proceeding on other types of proceedings,  cf. AS 18.66.130(e) ("A protective order  

                                                                                                                                                                                        

issued under this chapter is in addition to and not in place of any other civil or criminal  

                                                                                                                                                                                  

                                                                                                                                                                      (continued...)  



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

                                                   2.                        The statute does not allow for multiple protective orders.                                                                                                                                                



                                                    Sarah argues that AS 18.66.100 allows courts to grant additional protective                                                                                                                                                                     



orders even if there has been no new incident of domestic violence.                                                                                                                                                                                                 We disagree.   



                                                   The statute sets out the full framework for protective orders, and it does not                                                                                                                                                                                             



provide for the issuance of additional protective orders.                                                                                                                                                                   Rather, the language of the                                                                       



 statute unambiguously provides for the duration of the various kinds of protective relief                                                                                                                                                                                                                            



that can be ordered.                                                           The protective relief under AS 18.66.100(c)(1) has an indefinite                                                                                                                                                      



                                                                                                                                                                                                                                                                                                        30  

time limitation; this relief remains "effective until further order of the court."                                                                                                                                                                                                                              Relief  



                                                                                                                                                                                                                                                                                                                  

under the other subsections of AS 18.66.100(c) is expressly limited to "one year unless  



                                                                                                                               31  

                                                                                                   

earlier dissolved by court order." 



                                                                                                                                                                                                                                                                                                                               

                                                   This one-year limit was enacted in 2004, replacing the previous limit of six  



                                                                                                                                                                                                                                                                                                                                 

months provided in the Domestic Violence Prevention and Victim Protection Act of  



                      32  

                                                                                                                                                                                                                                                                                                              

 1996.                            The 1996 Act replaced former AS 25.35.010, which provided for a 90-day  



                          29(...continued)  



remedy.").  



                                                   Sarah   alternatively   argues   that   the   superior   court   should   have   issued   a  

no-contact order under its inherent equitable power.                                                                                                                                               See Wee v. Eggener                                                          , 225 P.3d 1120,                      

 1126-28 (Alaska 2010).                                                                       But Sarah did not ask for a no-contact order in superior court.                                                                                                                                                                               

We therefore review for plain error,                                                                                                 see Sharpe v. Sharpe                                                           , 366 P.3d 66, 75 (Alaska 2016),                                                              

and   find   none.    "Plain   error 'exists                                                                                                where   an   obvious mistake                                                                             has   been   made   which  

creates a high likelihood that injustice has resulted.' "                                                                                                                                              Id.  at 75 n.65 (quoting                                                                 David S. v.                         

State, Dep't of Health & Soc. Servs.                                                                                                  , 270 P.3d 767, 774 (Alaska 2012)). Whether to issue                                                                                                                             

a no contact order is a heavily fact dependant question, and the superior court has broad                                                                                                                                                                                                                           

discretion.   See Wee                                                        , 225 P.3d at 1124.                                                      We cannot conclude the court plainly erred.                                                                                                        



                          30                       AS   18.66.100(b)(1).  



                          31                       AS   18.66.100(b)(2).  



                          32                       Ch.   124,    23,  SLA  2004;  ch.  64,    33,  SLA   1996.  



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

                                                                                                                                  33  

protective order that could be extended for another 45 days.                                                                           In enacting the Domestic           



Violence Prevention and Victim Protection Act of 1996 the legislature chose to replace                                                                                         



a statute that included an express extension provision with a statute that did not include                                                                                     



any similar provision but provided specific time limits.                                                                  Those specific time limits were                            



expanded  by the 2004 legislation.                                               If the legislature intended to allow for multiple                                          



protective orders from the same incident of domestic violence, it did not say so in the                                                                                                 

statute.34  



                              Sarah argues that AS 18.66.100(e), combined with the purpose of the  

                                                                                                                                                                                        



statute, suggest that the legislature intended to allow for multiple protective orders.  

                                                                                                                                                                                                 



Alaska Statute 18.66.100(e) provides, "A court may not deny a petition for a protective  

                                                                                                                                                                         



order under this section solely because of a lapse of time between an act of domestic  

                                                                                                                                                                           



violence and the filing of the petition."  But the superior court in this case did not deny  

                                                                                                                                                                                     



the protective order because of any lapse of time between the acts of domestic violence  

                                                                                                                                                                             



and the filing of the petition; it denied the order because it had already issued an earlier  

                                                                                                                                                                                 



order addressing those same acts of domestic violence.  Alaska Statute 18.66.100(e),  

                                                                                                                                                                 



therefore, does not apply.  It is true that "[t]he purpose of [AS 18.66.100] is self-evident  

                                                                                                                                                                     



               33            Former AS 25.35.010(c),                                  repealed by                 ch. 64,  33, SLA 1996.                  



               34             The  one-year  limit  and  lack  of  a  renewal  procedure  in  AS  18.66.100  

                                                                                                                                                                        

distinguish this case from Muma v. Muma, 60 P.3d 592 (Wash. App. 2002).  In Muma  

                                                                                                                                                                                 

the  Washington  Court  of  Appeals  concluded  that  res  judicata  did  not  prevent  an  

                                                                                                                                                                     

additional protective order because "the domestic violence issues . . . ha[d] not been fully  

                                                                                                                                                                                     

litigated  to their  finality."   Id.  at 595.                                              But under  Washington's domestic violence  

                                                                                                                                                                            

protective order statute, "the court may either grant relief for a fixed time period or enter  

                                                                                                                                                                                    

a permanent order of protection."  Wash. Rev. Code Ann.  26.50.060(2) (West 2017).  

                                                                                                                                                                                                 

"If the court grants an order for a fixed period, the petitioner may apply for renewal of  

                                                                                                                                                                                           

the order . . . at any time within three months before the order expires," and "[t]he court  

                                                                                                                                                                                    

shall grant the petition for renewal unless the respondent proves by a preponderance of  

                                                                                                                                                                                           

the evidence that the respondent will not resume acts of domestic violence."   Id.    

                                                                                                                                                                                            

26.50.060(3).  



                                                                                           -11-                                                                                     7268
  


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

                                                                               35  

-   to protect victims of domestic violence."                                         But we will not rewrite a statute to                        



                                                     36  

promote that statute's purpose.                                                                                                                  

                                                         Here the legislature set forth a detailed framework for  



                                 

protecting victims of domestic violence, and it is the legislature's prerogative to make  



                                              

any policy changes to the statute.  



                                               

                       Amici argue that discussion in senate committees about the 2004 change  



                                                                        

in duration of protective orders from six months to one year shows that the legislature  



                                                                                                                                              

believed petitioners could reneworders. Both senators and witnesses expressed the view  



                                                                                                                                        

that the change from six months to one year would reduce the number of renewal  



                                                                                                                                                  

hearings, thus increasing judicial efficiency and avoiding the need for the parties to be  

                              37   But a victim may apply for additional protective orders if there has  

                                                                                                                                                 

together as often. 



been a new incident of domestic violence, and any violation of a domestic violence order  

                                                                                                                                             

                                                                                            38   One senator noted that in most  

itself constitutes a new incident of domestic violence.                                                                                       

                                                                             



instances only one protective order will ever be issued and characterized hearings for  

                                                                                                                                                 



additional protective orders as occurring when there were "still . . . problems in the  

                                                                                                                                                 

                        39   This understanding is consistent with allowing additional orders only  

relationship."                                                                                                                                



            35         MacDonald v. State                 , 997 P.2d 1187, 1189 (Alaska App. 2000).                       



            36  

                                                                                                                                         

                       See State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska  

Pipeline Serv. Co.              , 262 P.3d 593, 597-98 (Alaska 2011).                   



            37         See Minutes, Sen. Judiciary Comm. Hearing on S.B. 308, 23rd Leg., 2d  

                                                                                                                                                  

Sess. 21 (Mar. 26, 2004) (comments of Sen. Hollis French); Minutes, Sen. State Affairs  

                                                                                                                                          

Comm. Hearing on S.B. 308, 23rd Leg., 2d Sess. 13-17 (Mar. 11, 2004) (comments of  

                                                                                                                                                   

Sen. Hollis French and Sen. Gretchen Guess and testimony of Lauree Huganon, Alaska  

                                                                                                                                          

Network on Domestic Violence and Sexual Assault).  

                                                                             



            38         See AS 18.66.990(3)(G).  

                                      



            39         Minutes, Sen. State Affairs Comm. Hearing on S.B. 308, 23rd Leg., 2d  

                                                                                                                                                  

Sess. 16 (Mar. 11, 2004) (comments of Sen. Hollis French).  

                                                                                          



                                                                       -12-                                                                  7268
  


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

when the prior order has been violated or when a new incident of domestic violence has                                                                                                                                      



occurred.   Even if amici are correct that the legislature believed in 2004 that domestic                                                                                                                   



violence victims could receive a new protective order without showing a new incident                                                                                                                           



of domestic violence, we will not rewrite the law to conform to a mistaken view of the                                                                                                                                      

law that the legislature had when it amended the statute.                                                                                           40  



                                   It  is  the  legislature's  role  to  establish  Alaska's  policy  with  respect  to  

                                                                                                                                                                                                                              



domestic violence protective orders, including the time limits for protective orders and  

                                                                                                                                                                                                                           



the availability of extension or renewal.  Here the legislature enacted an unambiguous  

                                                                                                             



statute with a clear time limit - originally six months then later one year - and it did  

                                                                                                                                                                                                                            



so while replacing a statute that permitted an extension.   It is not the court's role or  

                                                                                                                                                                                                                              



prerogative to  modify  the legislature's policy  decision.                                                                                                 "[W]e will  not  invade the  

                                                                                                                                                                                                                           



legislature's province by extending the plain language of" AS 18.66.100 to allow for  

                                                                                                                                                                                                                            

renewal of protective orders.41                                                     Sarah's "remedy lies with the legislature."42  

                                                                                                                                                                   



                  B.               The Second-Degree Criminal Trespass Statute  

                                                                                                                                                  



                                   Although Sarah cannot renew or extend her previous domestic violence  

                                                                                                                                                                                                              



protective order, she would be eligible to receive a new protective order if she were able  

                                                                                                                                                                                                                          



to prove that Sean committed a new incident of domestic violence.  Sarah appeals the  

                                                                                                                                                                                                                            



superior court'sdeterminationthatSeandidnot commitsecond-degreecriminal trespass,  

                                                                                                                                                                                                              



                  40               State, Dep't of Revenue, Child Support Enf't Div. ex rel Gause v. Gause                                                                                                                         ,  



967 P.2d 599, 602-03 (Alaska 1998) (citing                                                                        City of Fairbanks v. Schaible                                               , 375 P.2d 201,            

209 (Alaska 1962),                                   overruled on other grounds by Scheele v. City of Anchorage                                                                                                        , 385   

P.2d 582 (Alaska 1963)).                        



                  41               Alyeska Pipeline Serv. Co. , 262 P.3d at 598.  

                                                                                                                                             



                  42               Id.  



                                                                                                             -13-                                                                                                      7268
  


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

                                                 43  

a domestic-violence crime.                           "A person commits the crime of criminal trespass in the                                         

second degree if the person enters or remains unlawfully . . . in or upon premises."                                                               44  



                        Sarah and Sean both testified that Sean entered the garage at a house Sarah  

                                                                                                                                                



owned and took a box of his things.  Sean testified that he had received an email from  

                                  



Sarah telling him that his "belongings were underneath a blue tarp in the front yard and  

                                                                                                                                                    



[he] could go by and get them."  When he got to the house, there was nothing under the  

                                                                                                                                                     



tarp.  He thought that maybe she had placed his belongings in the backyard because the  

                                                                                                                                                     



weather had been bad recently.  He went into the backyard, and the back door to the  

                                                                                                                                                     



garage was open.                    He took  the box  of his belongings and  left.                                       Sarah's testimony  

                                                                                                                                        



contradicted only Sean's claim that the back door was open:  Sarah testified that she left  

                                                                                                                                                    



the back door closed and locked.  The court credited Sean's testimony that the door was  

                                                                                                                                                    

not locked.45  

        



                        Based on this testimony the superior court ruled that as a matter of law Sean  

                                                                                                                                                  



had not committed criminal trespass in the second degree.  The court explained:  

                                                                                                                            



                        In order to have [criminal trespass in the second degree],  

                                                                                                                    

                        you've  got  to  enter  [or]  remain  unlawfully  .  .  .  upon  

                                                                                                                        

                        premises.  .  .  .              And  I  believe  [Sean's]  testimony  that  

                                                                                                                           

                        [Sarah] - and she didn't contradict this - that she invited  

                                                                                                                      

                        him onto the premises by email to get his stuff under a tarp -  

                                                                                                                              

                        of course, it didn't happen to be under the tarp.  It happened  

                                                                                                                  

                        to be in the open door garage.  He was invited to enter upon  

                                                                                                                          



            43          See  AS   18.66.990(3)(C).  



            44          AS   11.46.330(a)(1).  



            45          To   the   extent   the   superior   court   resolved   this   factual   dispute   in   Sean's  



favor,  we  find  no  clear  error.   Findings  of  fact  that  rely  on  the  testimony  of  witnesses  are  

reviewed  with  particular  deference:   "the  trial  court,  not  this  court,  judges  the  credibility  

of  witnesses   and  weighs   conflicting   evidence."   Norris  v.  Norris, 345 P.3d   924,   928  

(Alaska  2015)  (quoting  Limeres  v.  Limeres,  320  P.3d  291,  296  (Alaska  2014)).  



                                                                         -14-                                                                    7268
  


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

                                   the premises to get his personal property.                                                                  It wasn't unlawful        

                                   because he was invited.                                           It's not [second-degree] criminal                                   

                                   trespass.  



                                   On   appeal   Sarah   challenges   the   superior   court's   interpretation   of   the  



 statutory language, arguing that the court should have considered the scope of Sean's                                                                                                                           

                                                                                                                                                                                                                46       But  

permission to be on Sarah's premises, citing to cases on the tort of trespass.                                                                                                                                         

 criminal trespass is a creature of statute and not the common law of torts.47  And there  



 is case law that supports the court's conclusion that Sean did not commit second-degree  

                                                                                                                                                                                             



 criminal trespass because Sarah gave him permission to enter her premises, even though  

                                                                                                                                                                                                                 

the permission arguably was limited.48                                                                  Sarah does not discuss the statutory definitions  

                                                                                                                                                                                                      



 of  "enter  or  remain  unlawfully"  or  "premises,"  nor  does  she  discuss  prior  cases  

                                                                                                                                                                                                                   



                  46               See, e.g.             ,  Matanuska Elec. Ass'n v. Weissler                                                      , 723 P.2d 600, 605-06 (Alaska                              



 1986); see also                          RESTATEMENT   (SECOND) O                                                  F   TORTS    169 (Am. Law Inst. 1965) ("A                                                          

 consent given by a possessor of land to the actor's presence on a part of the land does not                                                                                                                              

 create a privilege to enter or remain on any other part.");                                                                                                  id.    169 cmt. b ("If the                                 

possessor's consent is restricted as stated in this Section, the actor's presence on the land                                                                                                                           

 outside of the permitted area, unless it is otherwise privileged, is a trespass for which he                                                                                                                               

 is liable to the possessor and which deprives him of the rights which as licensee he has                                                                                                                                 

 against the possessor.").     



                  47               See AS 11.46.330(a) (defining "criminal trespass in the second degree");  

                                                                                                                                                                                                          

AS11.46.350(a) (defining "enter or remainunlawfully");AS11.81.900(b)(50) (defining  

                                                                                                                                                                                                           

 "premises").  Turney v. State, 922 P.2d 283, 285-90 (Alaska App. 1996).  

                                                                                                                                                                              



                  48               In Arabie v. State , 699 P.2d 890 (Alaska App. 1985), the court of appeals  

                                                                                                                                                                                                               

 considered the similar second-degree burglary statute: "[a] person commits the crime of  

                                                                                                                                                                                                                             

burglary in the second degree if the person enters or remains unlawfully in a building  

                                                                                                                                                                                                           

with intent to commit a crime in the building."  AS 11.46.310(a).  The court ruled that  

                                                                                                                                                                                          

the defendant who entered a walk-in cooler at a liquor store by a back door did not "enter  

                                                                                                                                                                                                                   

 or remain unlawfully in a building" because the liquor store was open at the time.  

                                                                                                                                                                                                                                     

Arabie , 699 P.2d at 892-93.  That the cooler itself was not open to the public did not  

                                                                                                                                                                                                                          

matter because it was all one building.  Id. at 892.  

                                                                                                                       



                                                                                                            -15-                                                                                                     7268
  


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

                                                                                                                                                    49  

interpreting the second-degree criminal trespass statute or related statutes.                                                                            "Failure to   



develop an argument constitutes a waiver of that argument, and the argument will be                                                                                        

                                                 50    We decline to import tort law principles into this criminal  

considered abandoned."                                                                                                                      



statute absent more thorough briefing and consider the issue waived.  

                                                                                                                            



V.            CONCLUSION  



                           We AFFIRM the superior court's denial of the petition for a long-term  

                                                                                                                                                          



protective order.  

                                    



              49           See supra            notes 47-48.   



              50  

                                                                                                                                                                            

                            Wright v. Anding, 390 P.3d 1162, 1175 (Alaska 2017) (citing Shearer v.  

                                                                           

Mundt, 36 P.3d 1196, 1199 (Alaska 2001)).  



                                                                                    -16-                                                                             7268
  


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

 MAASSEN, Justice, with whom WINFREE, Justice, joins, dissenting in part.                                                                                                                                     



                                      I dissent from part IV.A of today's opinion.                                                                                  I would hold that if a court                                  



 finds that the petitioner still needs protection following the expiration of a long-term                                                                                                                           



 domestic violence protective order, neither the governing statute nor the doctrine of res                                                                                                                                                 



judicata precludes the court from issuing a second order based on the same "crime                                                                                                                                              



 involving domestic violence."                           



                                      First, I disagree with the court's interpretation of AS 18.66.100. The court                                                                                                                   



 writes that "[i]f the legislature intended to allow for multiple protective orders from the                                                                                                                                               

                                                                                                                                                                                               1  but the inverse is  

 same incident of domestic violence, it did not say so in the statute,"                                                                                                                                                                       



 also true:  The legislature did not say it intended to prohibit  "multiple protective orders  

                                                                                                                                                                                                                                 



 from the same incident of domestic violence," which it could easily have done had it  

                                                                                                                                                                                                                                               



 intended that result.  The court finds oblique support for its holding in the directive of  

                                                                                                                                                                                                                                             



 AS 18.66.100(b)(2) that most provisions of a long-term protective order "are effective  

                                                                                                                                                                                                                           



 for one year unless earlier dissolved by court order."  But that directive simply assures  

                                                                                                                                                                                                                               



 that there will be a new judicial review of an order's most intrusive terms before they are  

                                                                                                                                                                                                                                           



 extended or reimposed. Long-termprotectiveorders may contain anumberofprovisions  

                                                                                                                                                                                                                      

 that  restrict  some  ordinary  concomitants  of  daily  living:                                                                                                               seeing  one's  children,2  

                                                                                                                                                                                                                       

 communicating  with  family  members,3   visiting  particular  neighborhoods,4                                                                                                                                            or  using  

                                                                                                                                                                                                                                  



                   1                  Op. at 11.         



                   2                  See  AS 18.66.100(c)(9) (authorizing court to "award temporary custody of                                                                                                                               



                                                                                                                                             

 a minor child to the petitioner and . . . arrange for visitation").  



                   3                  See AS 18.66.100(c)(2) (authorizing court to "prohibit therespondent from  

                                                                                                                                                                                                                                      

 telephoning, contacting, or otherwise communicating directly or indirectly with the  

                                                                                                                                                                                                                                          

 petitioner").  



                   4                  See AS 18.66.100(c)(4) (authorizing court to "direct the respondent to stay  

                                                                                                                                                                                                                                        

                                                                                                                                                                                                              (continued...)  



                                                                                                                    -17-                                                                                                             7268
  


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

               5  

firearms.   It is not unreasonable to require a petitioner to return to court to justify the                                             



continuation   of   such   extraordinary   restrictions  if,  after   a   year   has   passed,   she   still  



                                6  

requires protection.               



                                                                                                                                         

                      Second, I believe that the court is mistaken in its application of the res  



                                                                                                                                             

judicata doctrine.  As the court observes, res judicata "prevents a party from suing on a  

                                                                                                                           7   The court  

                                                                                                                                      

claim which has been previously litigated to a final judgment by that party." 



describes a petitioner's claim for a domestic violence protective order as having a single  

                                                                                                                                    



element - the respondent's commission of a crime involving domestic violence against  

                                                                                                                                   



the petitioner - and concludes that once that element has been established on a petition,  

                                                                                                                                 

the claim is extinguished.8   But finding that a crime of domestic violence was committed  

                                                                                                                             



is only the first of two steps in a trial court's analysis of the petition; having made that  

                                                                                                                                        

                                                                                                                                   9   The  

finding of fact, the court has discretion whether to grant the protective order.    

                                                                                                                          



           4(...continued)  



                                                                                                                                        

away  from the  residence,  school,  or  place  of  employment  of  the  petitioner  or  any  

                                                                                                                         

 specified place frequented by the petitioner or any designated household member").  



           5          See AS18.66.100(c)(6), (7) (authorizing court under certain circumstances  

                                                                                                                        

to order respondent to surrender firearms and to prohibit respondent from using or  

                                                                                                                                           

possessing deadly weapons).  

                                



           6          In contrast, a long-term protective order's prohibition on "threatening to  

                                                                                                                                           

commit or committing domestic violence, stalking, or harassment" -which is "effective  

                                                                                                                               

until further order of the court" and thus potentially indefinitely - does not require  

                                                                                                                                   

periodic  judicial  review  because  it  applies  to  all  members  of  society  regardless.  

                                                                                                                                                

AS 18.66.100(b)(1), (c)(1).  

                                    



           7          Op. at 7 (quoting Girdwood Mining Co. v. Comsult LLC, 329 P.3d 194, 200  

                                                                                                                                         

(Alaska 2014)); see also McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).  

                                                                                                                         



           8          Op. at 7-8.  

                                  



           9          See Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006) ("We review the  

                                                                                                                                          

                                                                                                                        (continued...)  



                                                                    -18-                                                              7268
  


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

touchstone of the court's exercise of discretion is implicit in the title of the order sought:                                                                          



It is a "protective order," intended not only to acknowledge a past bad act on the part of                                                                         



                                                                                                                                                                   10  

the respondent but also, and primarily, to protect the petitioner from future harm.                                                                                     

                                                                                        11     And whether  the petitioner requires  

                                                                                                                                                       

                                                                                

Today's opinion necessarily recognizes this. 



continuing protection from future harm does not depend on whether the act of domestic  

                                                                                                                                                      

violence is new12  or on whether it was raised and litigated before.  

                                                                                                                                 



                          For  res  judicata  purposes,  a  domestic  violence  petition  is  thus  much  

                                                                                                                                                           



different from, say, a claim for the tort of assault, in which the plaintiff is awarded  

                                                                                                                                                      



compensation for a past wrong and then closes the books on it forever.  A domestic  

                                                                                                                                                     



violence petitioner is seeking ongoing protection, not compensation for a past wrong.  

                                                                                                                                                        



                          Assume,  for  example,  that  an  act  of  domestic  violence  prompted  the  

                                                                                                                                                                



petitioner to seek a protective order in 2017. If an order was issued, it answered only the  

                                                                                                                                                                 



question whether the petitioner needed a protective order in 2017.  It did not decide a  

                                                                                                                                                                     



claim which was not and could not have been raised yet: whether the petitioner will still  

                                                                                                                                                                



need a protective order after the one-year term of the 2017 order expires.  Because that  

                                                                                                                                                                



             9(...continued)  



                                                                                                                                                                   

decisions to deny a protective order and grant a mutual restraining order for abuse of  

discretion.").  



             10           See AS 18.66.100(c)(16) (providing that a long-term protective order may  

                                                                                                                                                               

"order  other  relief  the  court  determines  necessary  to  protect  the  petitioner  or  any  

                                                                                                                                                               

household member" (emphasis added)).  

                                                              



             11           Op. at 11-12 ("It is true that '[t]he purpose of [AS 18.66.100] is self-evident  

                                                                                                                                                 

-  to  protect  victims  of  domestic  violence.'  "  (alterations  in  original)  (quoting  

                                                                                                                                                     

MacDonald v. State, 997 P.2d 1187, 1189 (Alaska App. 2000)).  

                                                                                                              



             12           See AS 18.66.100(e) ("A court may not deny a petition for a protective  

                                                                                                                                                   

order under this section solely because of a lapse of time between an act of domestic  

                                                                                                                                                     

violence and the filing of the petition.").  

                                                          



                                                                               -19-                                                                          7268
  


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

claim was not and could not have been litigated in 2017, the doctrine of res judicata, by                                                                                                 



                                                        13  

definition, cannot apply.                                                                                                                                                  

                                                               The passage of time since the act of domestic violence  



                                                                                                                                                                                           

occurred and the respondent's good behavior in the meantime are certainly relevant to  



                                                                                                                                                                                            14  

                                                                                                                                                                   

whether the petitioner continues to need protection, but they are in no way dispositive. 

                              The  court  today  distinguishes  our  decision  in  McComas  v.  Kirn15                                                                                    as  

                                                                                                                                                                                         



involving a change in circumstances that allowed the granting of a second petition for  

                                                                                                                                                 

a long-term protective order after the first petition had been denied.16                                                                                            I  agree that  

                                                                                                                                                                                      



McComas is distinguishable.  But McComas 's factual context highlights the problems  

                                                                             



with  today's  restrictive  interpretation  of  the  protections  available  to  those  who  

                                                                                                                                                                                    



legitimately fear domestic violence.  The respondent in McComas was in prison at the  

                                                                                                                                                                                   



time the parties were divorced, and we cited that fact as support for the initial denial of  

                                                                                                                                                                                           

                                                                                                                                                               17  But suppose  

the petition: "McComas was incarcerated and did not constitute a threat."                                                                                                     

                                                                                                                                              



the first petition had been granted and McComas got out of prison a year later.  Under  

                                                                                                                                                         



               13             See Patterson v. Infinity Ins. Co.                                      , 303 P.3d 493, 497 (Alaska 2013) ("[A]                                      



fundamental tenet of the res judicata doctrine is that it precludes relitigation between the                                                                                             

same parties not only of claims that were raised in the initial proceeding, but also of                                                                                        

those relevant claims that could have been raised then." (quoting                                                                              Calhoun v. Greening                            ,  

636 P.2d 69, 72 (Alaska 1981) (alteration in original))).                                           



               14             Issue preclusion may apply in this context, but not in the way the court  

                                                                                                                                                                                    

today holds.  Collateral estoppel may (but does not necessarily) establish the statutory  

predicate for the second petition:  "that the respondent has committed a crime involving  

                                                                                                                                                                          

domestic violence against the petitioner."   AS 18.66.100(a).  See, e.g., Andrea C. v.  

                                                                                                                                                                                           

Marcus K., 355 P.3d 521, 527 (Alaska 2015) ("[T]he superior court retains discretion  

                                                                                                                                                                         

regarding when it will apply the doctrine" of collateral estoppel to a prior finding that a  

                                                                                                                                                                                             

crime of domestic violence had been committed.).  

                                                                                   



               15             105 P.3d 1130 (Alaska 2005).  

                                                                                  



               16             Op. at 8-10.  

                                                          



               17            McComas, 105 P.3d at 1135-36 (quoting appellee's argument).  

                                                                                                                                                 



                                                                                           -20-                                                                                     7268
  


----------------------- Page 21-----------------------

today's opinion, the fact that the petitioner's fear is now real and immediate will not                                                                                                                                                                                                                                                                                       



alone   support  a   new   protective   order;   she   must   await   a   new   incident   of   domestic  



violence.    



                                                           Such a result is anathema to the purpose of domestic violence protective                                                                                                                                                                                                              



orders, and AS 18.66.100 does not require it.                                                                                                                                                                 I would therefore reverse the superior                                                                                                     



court's decision on this issue.                                                                            



                                                                                                                                                                                                    -21-                                                                                                                                                               7268
  

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