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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stephan P. v. Cecilia A. (5/29/2020) sp-7453

Stephan P. v. Cecilia A. (5/29/2020) sp-7453

           Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                         

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



STEPHAN  P.,                                                          )  

                                                                      )     Supreme  Court  No.  S-17076  

                                 Appellant,                           )  

                                                                                                                                       

                                                                      )     Superior Court No. 3PA-18-00049 CI  

           v.                                                         )  

                                                                                                 

                                                                      )     O P I N I O N  

                  

CECILIA A.,                                                           )  

                                                                                                               

                                                                      )     No. 7453 - May 29, 2020  

                                 Appellee.                            )  

                                                                      )  



                                                                                                               

                                            

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

                                                                                           

                      Judicial District, Palmer, Vanessa White, Judge.  



                                                                                                              

                      Appearances:  Stephan P., pro se, Palmer, Appellant.  Notice  

                                                                                                                 

                      of Non-Participation filed by Brooke Browning Alowa, Law  

                                                                                                        

                      Offices of Kenneth J. Goldman, P.C., Palmer, for Appellee.  



                                                                                                         

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

                                           

                      and Carney, Justices.  



                                            

                      STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                         

                      AlaskaStatute18.66.100 provides that avictimofdomesticviolence, or the  



                                                                                                                             

parent of a victim who is a minor, may petition for a protective order against a household  



                                                                                                                                

member.  Before granting this order, the court must hold a hearing and make findings  



                                                                                                                                         

that the household member committed a "crime involving domestic violence against the  



[victim]."  


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

                                                       The mother of an autistic child filed a petition for a protective order against                                                                                                                                                                                                



the child's father, alleging that the father kicked the child during an altercation that took                                                                                                                                                                                                                                                   



place at the Extreme Fun Center in Wasilla.                                                                                                                                         At the hearing on the long-term protective                                                                                           



order, the court admitted the mother's recording of statements the son made to her                                                                                                                                                                                                                                                                 



approximately 30-35 minutes after the incident. The son stated that the father kicked him                                                                                                                                                                                                                                                          



in the buttocks; the only disinterested witness with personal knowledge of the incident                                                                                                                                                                                                                                          



testified that the father did not kick his son.                                                                                                                                     



                                                       Relying   on   the   recording   and   testimony   from   the   child's   mother   and  



therapist, the superior court found that the father committed assault; relying on the                                                                                                                                                                                                                                                               



mother's testimony, the court found that the father committed criminal trespass and                                                                                                                                                                                                                                                               



granted   the   mother's   petition.     The   court   also   required   the   father  to  undergo   a  



psychological evaluation and pay the mother's attorney's fees.                                                                                                                                                                                                    We vacate and remand                                             



the superior court's assault finding and reverse the court's trespass finding.                                                                                                                                                                                                                                       We vacate   



the court's protective order, its order that the father undergo a psychological evaluation,                                                                                                                                                                                                                          



and its award of attorney's fees.                                                                              



II.                         FACTS AND PROCEEDINGS                                       



                           A.                          Facts  



                                                       Stephan P. and Cecilia A. were married in 2002 and had a son, S.P., in                                                                                                                                                                                                                            

                        1  S.P. hasbeendiagnosed with several health conditions including autismspectrum  

2006.                                                                                                                                                                                                                                                                                                                        



disorder and attention-deficit/hyperactivity disorder.                                                                                                                                                                              Because of his developmental  

                                                                                                                                                                                                                                                                                                    



disorders, S.P. exhibits inattention, impulsiveness, and repetitive and rigid thinking  

                                                                                                                                                                                                                                                                                                                              



patterns.  

                                     



                                                       Stephan and Cecilia divorced in July 2015.   Cecilia was awarded sole  

                                                                                                                                                                                                                                                                                                                                                



physical  and  legal  custody  of  S.P.,  and  Stephan  was  granted  two  professionally  

                                                                                                                                                                                                                                                                                                     



                            1                          We  use  initials  in  lieu  of  the  parties'  names  to  protect  their  privacy.  



                                                                                                                                                                            -2-                                                                                                                                                                                  7453  


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

                                                                                                                        

supervised visits and three telephone calls with S.P. per week.  Following their divorce  



                                                                                                                             

Cecilia and Stephan strictly adhered to the visitation schedule and terms, but over time  



                                                                                         

Cecilia permitted Stephan to have more contact with S.P.  



                                                                                                                        

                    Their visits evolved into unsupervised visitation from late 2016 through  



                                                                                                                                

2017.       When  S.P.  was  home-schooled  for  a  period  of  several  months,  he  went  to  



                                                                                                                             

Stephan's house nearly every day.  Eventually Stephan and S.P. began spending time  



                                                         

together without any fixed schedule.  



                                                                                                  

                    In January 2018 Stephan took S.P. to the Extreme Fun Center, an arcade  



                                                                                                                            

in Wasilla.   At some point during their time at the Fun Center, S.P. ran away from  



                                                                                                                          

Stephan.  Stephan tried to stop S.P. before he ran outside.  Stephan and the Fun Center  



                                                                                                                        

manager cornered S.P. inside, and S.P. dropped to the ground.  According to a witness,  



                                                                                                                               

Stephan told him to get up and that they were leaving, and S.P. responded, "I am not  



                                                                                                                          

going anywhere with you, you son of a bitch." The witness testified that Stephan pulled  



                                                                                                                     

S.P. up by the wrist and jacket collar and walked him out of the Fun Center.  



                                                                                                                               

                    Stephan called Cecilia to let her know he was bringing S.P. back to her, and  



                                                                                                                               

she agreed to meet him at a restaurant.  When she arrived Stephan was parked in his  



                                                                                                                           

truck, and S.P. was waiting inside the restaurant entryway.  She went inside and found  



                                                                                                                               

S.P.wringing his clothing and repeating,"Mama,Papa, Mama,Papa"; sheassociated this  



                                                                                                                       

conduct with S.P. preparing to tell her "something that's happened."  Cecilia used her  



                                                                                                 

phone to record S.P. as he explained what happened at the Fun Center:  



                                                  

                    Cecilia:            What happened?  



                                                                                                              

                    S.P.:                He, he called me an asshole, and he called me a  

                                                                                                           

                                        little motherfucker.  And he, he also kicked me  

                                                   

                                        in the butt.  



                                                             

                    Cecilia:            Where were you?  



                                                                                                       

                    S.P.:                At the Extreme Fun Center.  And I was trying  

                                                                                                        

                                        to get up by myself when he, when he, mmh  



                                                               -3-                                                         7453
  


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

                                                                                   (whimpers).     I  was  just   trying   to   get   up   by  

                                                                                  myself when he told me to get up.                                                                             But I kept     

                                                                                  trying to get up, but he kept forcing me to get                                                                                        

                                                                                  up.     And,   and,   and   he   got   me   by   my   hand  

                                                                                  really, really hard.                     



                                         Cecilia:	                                   And then he kicked you?                                     



                                          S.P.:	                                     No.    Uh, when I was, when I was, when I was                                                                                 

                                                                                  trying to get up then he kicked me, when I was                                                                                    

                                                                                  trying to get up.                                  And he was kicking me in my                                                         

                                                                                  butt, in my, in my butt, and I kept -                                                                               



                                         Cecilia:	                                   Were there other people there?                                            



                                          S.P.:	                                     Yeah, the, the manager was watching.                                                                                  And -                    



                                         Cecilia:	                                   Do you know the name of the manager?                                                        



                                          S.P.:	                                     No.    And then, and then, the, and then the, uh,   

                                                                                   and Papa, and then Papa kicked me in my butt   

                                                                                  when   I   was   trying   to   get   up.     And   [it]   kept  

                                                                                  making me fall to the ground.                                       



Cecilia testified that she recorded S.P. 30-35 minutes after Stephan called her.                                                                                                                                                                   



                     B.                  Proceedings  



                                                                                                       

                                          1.                  Pre-hearing proceedings  



                                                                                                                                                                                                                                          

                                         The day after the Fun Center incident Cecilia filed a petition in Anchorage  

                                                                                                                                                                                                                                   2   The district  

                                                                                                                                                                                                                                                      

district court for a domestic violence protective order under AS 18.66.100. 



                     2                   AS 18.66.100(a) allows a parent whose minor child is a victim of domestic                                                                                                                              



violence to petition for an order protecting the child against a household member. Before                                                                                                                                                              

granting   such   an   order,  the   court  must   hold   a   hearing   and   make   findings   that   the  

household   member   committed   a   "crime   involving   domestic   violence   against   the  

 [victim]."   AS   18.66.100(b).   AS   18.66.990(3)   defines   "crime   involving   domestic  

violence." Relevant to this case, criminal assault and criminal trespass are "crime[s]                                                                                                                                                        

involving   domestic   violence"   when   committed   by   one   household   member   against  

another household member.                                                               See  AS 18.66.990(3)(A), (C); AS 11.41.230 (defining the                                                                                                                  

                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                  -4-	                                                                                                                      7453
  


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

court held an ex parte hearing and denied Cecilia's request for a 20-day protective order.                                                                                                                                                                                                                                                                                                                                   



The court then transferred venue to Palmer.                                                                                                                                                                              The Palmer superior court scheduled a                                                                                                                                                     



hearing on the petition for a long-term protective order for February 2018 that was later                                                                                                                                                                                                                                                                                                            



continued to April.                                                                         



                                                                2.                             Protective order hearing                                                             



                                                                Lori Houston, a licensed clinical social worker and S.P.'s therapist since                                                                                                                                                                                                                                                       



2012, testified at the hearing as an expert on behalf of Cecilia.                                                                                                                                                                                                                                                        Houston described  



 Stephan as a loving father, but she said that when Stephan loses control over S.P.'s                                                                                                                                                                                                                                                                                                        



behavior he enters an "aggressive, bully state" that causes him to discipline S.P. in                                                                                                                                                                                                                                                                                                                          



harmful ways.   She testified that S.P. had begun expressing reluctance about spending                                                                                                                                                                                                                                                           



time with Stephan after the Fun Center incident.                                                                                                                                                                                        



                                                                Houston   also   described   an   altercation   she   had   with   Stephan  at  her  



workplace sometime in 2014 or 2015. According to Houston, Stephan was upset that she                                                                                                                                                                                                                                                                                                                       



would not testify at a prior court hearing between Cecilia and Stephan.                                                                                                                                                                                                                                                                          Stephan raised   



his   voice   and   demanded   that   she   testify.     Ultimately,   other   staff   were   required   to  



intervene and de-escalate the situation, and Houston barred Stephan from returning to                                                                                                                                                                                                                                                                                                                           



her office.                                        At the protective order hearing, she recommended that Stephan undergo a                                                                                                                                                                                                                                                                                          



psychological evaluation, reconnect with S.P. in a therapeutic setting, and attend a class                                                                                                                                                                                                                                                                                                    



on parenting children with special needs.                                                                                                                                                            



                                                                Cecilia testified regarding the recording she made after the incident at the                                                                                                                                                                                                                                                               



Fun Center.                                                   She stated that she had several subsequent phone conversations with the                                                                                                                                                                                                                                                                      



                                2                               (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                

elements of criminal assault in the fourth degree); AS 11.46.330 (defining the elements  

                                                                                                                                                                                                                                                                                                                                                                                      

of criminal trespass in the second degree). As written, the petition was to protect Cecilia,  

                                                                                                                                                                                                                                                                                                                                                                   

but the Anchorage district court converted it to a petition on behalf of S.P.  



                                                                                                                                                                                                       -5-                                                                                                                                                                                          7453
  


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

Fun Center manager, who was also present and who observed the incident, but she did                                                                     



                                                                                                    3  

not subpoena him, and he did not testify at the hearing.                                               



                        After describing what S.P. told her following the incident, Cecilia pivoted  

                                                                                                                                                



to discuss her desired terms for the long-term protective order.  She expressed a desire  

                                                                                                                                                  



to return to the terms of the 2015 divorce decree, which limited Stephan to supervised  

                                                                                                       



visitation with S.P. and three phone calls per week.  To support her request, Cecilia  

                                                                                                                                                



asserted that Stephan did not respect her rules and boundaries, and she described two  

                                                                                                                                                      



separate incidents when Stephan came to her home uninvited.  

                                                                                                                  



                        In the first, Stephan wanted to borrow Cecilia's blender.  When Stephan  

                                                                                                                                  



could not reach Cecilia at work, he went to her house and knocked on the windows.  

                                                                                                                                                               



Cecilia stated, "I can't remember whether it is that [S.P.] saw and opened the door or  

                                                                                                                                                         



whether the front gate was locked . . . .  I can't remember that part, but I know that the  

                                                                                                                                                        



babysitter was wondering what to do . . . .  I told [Stephan], 'You just can't do that.' "  

                                                                                                                                                               



                        In  the second  incident,  Cecilia and S.P.  were doing  yard work  in  her  

                                                                                                                                                       



backyard when they began arguing over how much Cecilia would pay S.P. for doing his  

                                                                                                                                                        



chores.  While they were arguing, Stephan arrived unexpectedly and offered to help.  

                                                                                                                                                               



Cecilia told Stephan to go; when he did not leave, she threatened to call the police.  As  

                                                                                                                                                        



she went back inside her home to fetch her phone, Stephan backed his truck out of her  

                                                                                                                                                       



driveway  into  the  street.                       When  the  police  arrived,  they  explained  to  Cecilia  the  

                                                                                                                                                       

mechanics of enforcing a trespass order.4                                     After understanding this, Cecilia asked the  

                                                                                                                                                        



police to "put a trespass again because of what had happened."  

                                                                                              



                        Following Cecilia's testimony, the court questioned her regarding these  

                                                                                                                                                    



incidents:  



            3           Stephan  also  did  not  subpoena  the  manager.  



            4           The  record  does  not  include  any  trespass  order.   



                                                                            -6-                                                                          7453  


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

                                                                                                          

                    Judge:	              I was attempting to multi-task and I missed part  

                                                                                                          

                                        of your testimony.  Were you saying that you  

                                                                                                

                                        received  a  trespass  order  so  that  [Stephan]  

                                                                              

                                        could not come on your property?  



                                                                                                 

                    Cecilia:	            I    did.       Per     the   Palmer          police   officer's  

                                                                                                       

                                        information that he gave me, I told him I might  

                                                                                               

                                        have to go to the, to get, file for a restraining  

                                                                                                                 

                                        order again, and I told him what had happened.  

                                                                                                       

                                        And I think, I don't know if you want to know  

                                                                                                     

                                        what had happened that particular time -  



                                                                                                    

                    Judge:	              Well, I want to know how [Stephan] became  

                                                                                                       

                                        aware  that  he  was  not  to  come  on  your  

                                        property.  



                                                                                                                 

                    Cecilia:	            I believe the Palmer police officer called him.  

                                                                                                       

                                        I think they told me they were going to notify  

                                                          

                                        him about that.  



                                                                                                                        

                    AmandaJones was theonly disinterested witness totheFunCenter incident  



                                                                                                                           

who testified.  She was at the Fun Center planning a party when she saw Stephan chase  



                                                                                                                           

and restrain S.P.   After a chance encounter with Stephan several weeks later, Jones  



                                                                                                                                

agreed to testify as to her observations that day.  She described S.P. as "pretty out of  



                                                                                                                                     

control" during the incident, throwing himself to the ground and swearing at Stephan.  



                                                                                                                             

She testified that Stephan did not kick or swear at S.P. and that Stephan did what "any  



                                                                                                                      

parent wouldhavedone." On cross-examinationJones statedthat Stephan was frustrated  



                                                                      

with S.P. but had not raised his voice at him.  



                                                                                                                                 

                    After all the witnesses testified, Cecilia played the recording she made of  



                                                                                                                              

S.P.'s  account  of  the  incident.                Stephan  did  not  expressly  object  to  the  use  of  the  



                                                                                                                         

recording, though he did challenge the recording's trustworthiness during his closing  



                                                                                                                               

argument when he engaged in a dialogue with the court regarding the relative weight the  



                                                               -7-	                                                        7453
  


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

                                                                                    5  

court should give to the recording.                                                    The court asked Stephan, "So you think I should                                                       



give more weight to . . . Jones's testimony than to [S.P.]'s recorded statement?" Stephan                                                                                                   



responded, "Yes, I do. I think that . . . I don't know what an autistic mind is like and the,                                                                                                         



the blowing things out of proportion, the imaginations, the -"                                                                                           At that point the court          



interjected, "All right.                                  Your time is up."                              Later, the court ruled sua sponte that the                                                    



recording was admissible under the excited utterance exception to the hearsay rule                                                                                                                   



because it was taken about 30 minutes after the incident and because S.P.'s manner of                                                             



                                                                                   6  

speech was "excited and agitated."                                                     



                                The court found that Jones testified honestly, but it also discredited her  

                                                                                                                                                                                                       



testimony, finding that Jones was not confident she had fully observed everything that  

                                                                                                                                                                                                      



happened at the Fun Center.  The court also relied on S.P.'s recorded statements and  

                                                                                                                                                                                                      



Houston's testimony that S.P. had become reluctant to spend time with Stephan since the  

                                                                                                                                                                                                        



Fun Center incident.  The court found by "a preponderance, but a bare preponderance"  

                                                                                                                                                                         



of the evidence that Stephan kicked S.P. and therefore committed assault in the fourth  

                                                                                                             

                  7    The court also found that Stephan committed criminal trespass in the second  

degree.                                                                                                                                                                                       



                5               Stephan raised similar arguments challenging the trustworthiness of the                                                                                                



recording in his motion to reconsider.                          



                6               Alaska Evidence Rule 803(2) provides an exception to the rule against  

                                                                                                                                                                                             

hearsay for statements "relating to a startling event or condition made while the declarant  

                                                                                                                                                                                          

was under the stress of excitement caused by the event or condition."  See generally  

                                                                                                                                                                                        

Alaska  R.  Evid.  801  (defining  hearsay);  Alaska  R.  Evid.  802  (stating  hearsay  is  

                                                                                                                                                                                    

inadmissible unless an exception applies).  

                                                                                



                7               See AS 11.41.230 (defining the elements of criminal assault in the fourth  

                                                                                                                                                                                                

degree).  



                                                                                                    -8-                                                                                            7453
  


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

            8  

degree  "because[Stephan]went to [Cecilia's]homewithout invitation after having been                                                           



instructed not to do so."                  

                                                                                                                                             9  the  

                       Because these are both domestic violence offenses that affect S.P.,                                                       



court granted the domestic violence protective order.   The court limited Stephan to  

                                                                                                                                   



communication  with  Cecilia  through  email  and  text  messages,  and  it  ordered  that  

                                                                                                                                               



Stephan's contact with S.P. be limited to the terms of the 2015 divorce decree.  The  

                                                                                                                                               



court's protective order also required Stephan to undergo a psychological evaluation.  

                                                                                                                                                        



The court distributed a written order to the parties in open court.  

                                                                                                      



                       3.          Post-hearing motions  

                                                            



                       Stephan filed a motion for reconsideration.   With respect to the court's  

                                                                                                                                          



                          10  

                                                                                                                                    

assault finding,              he argued that (1) the court gave too little weight to Jones's testimony;  

              



                                                                                                                                      

(2) Houston's testimony about a 2015 altercation with him was improper character  



                                                                                                                                              

evidence; (3) the court wrongly denied his motion to have S.P. testify; and (4) the court  



                                                                                                                             

wrongly allowed Cecilia to play the recording.  Stephan submitted an accompanying  



                                                                                                                                                

affidavit from Jones where she summarized her prior testimony and clarified that she  



                                                                                                                                                

"saw this entire incident and there was nothing that got between [Stephan] and the boy  



                                                                                                                                        

and my view of any of it at any time."  Regarding the court's trespass finding, Stephan  



                                                                                                                                                

asserted that (1) the court was confused and that he never violated a trespass order; and  



                                                                                                              

(2) he did not receive proper notice of the trespass allegations.  



            8          See  AS  11.46.330  (defining  the  elements  of  criminal  trespass  in  the  second  



degree).  



            9          See  AS   18.66.990(3)(A),  (C);  AS   11.41.230;  AS   11.46.330.   



            10         We  give  Stephan's  argument  the  benefit  of  pro  se  lenience.   See,  e.g.,  Tobar  



v.  Remington  Holdings  LP,  447  P.3d   747,   753   (Alaska   2019);   Gilbert  v.  Nina  Plaza  

Condo  Ass'n ,  64  P.3d   126,   129  (Alaska  2003).  



                                                                        -9-                                                                  7453
  


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

                       The  superior  court  denied  Stephan's  motion,  and  Cecilia  filed  a  motion  for  



                                                  11  

her  attorney's  fees  and  costs.                    Stephan  argued that Cecilia waived her right  to  pursue  



attorney's  fees  when  she  filed  her  motion  more  than  ten  days  after  the  court  distributed  



                       12  

its  judgment.             The  court  awarded  Cecilia  20%  of  her  actual  attorney's  fees  and  costs.   



                       Stephan appeals the superior court's long-term domestic violence protective  



order,   its   requirement   that   he   undergo   a   psychological   evaluation, and its   award   of  



attorney's  fees  to  Cecilia.   Cecilia  filed  a  Notice  of  Non-Participation  in  this  appeal.   



III.        STANDARDS  OF  REVIEW  



                       "The  question  of  competency  of  a  particular  witness  to  testify  is  .  .  .  left  in  

the sound discretion  of  the trial  judge" and is reviewed for  abuse  of discretion.13  "We  



                                                                                                                                                  14  

review  a  trial  court's  'decision  to  admit  or  exclude  evidence  for  abuse  of  discretion.'  "                                                



Whether  the  trial  court  correctly  interpreted  and  applied  an  evidentiary  rule  is  reviewed  

de  novo.15  



            11         See AS 18.66.100(c)(14) ("A protective order under this section may . . .                                                



require the respondent to pay costs and fees incurred by the petitioner in bringing the                                                         

action under this chapter.").       



            12         See Alaska R. Civ. P. 82(c) ("The motion must be filed within 10 days after  

                                                                                                                                              

the date shown in the clerk's certificate of distribution on the judgment as defined by  

                                                                                                                                                 

Civil Rule 58.1.  Failure to move for attorney's fees within 10 days, or such additional  

                                                                                                                                    

time as the court may allow, shall be construed as a waiver of the party's right to recover  

                                                                                                                                         

attorney's fees."). Stephan also argued that AS 09.60.010(e) permitted the court to deny  

                                                                                                                                             

an award of attorney's fees if it "would inflict a substantial and undue hardship" on him.  

                                                                                                                                                       

Stephan does not renew this second argument on appeal.  

                                                                                      



            13         McMaster v. State, 512 P.2d 879, 881 (Alaska 1973).  

                                                                                                        



            14         Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) (quoting Liimatta v. Vest,  

                                                                                                                                             

45 P.3d 310, 313 (Alaska 2002)).  

                                              



            15         See Sanders v. State, 364 P.3d 412, 419-20 (Alaska 2015) ("When the  

                                                                                                                                                

                                                                                                                              (continued...)  



                                                                       -10-                                                                 7453
  


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

                         "We review a trial court's factual findings for clear error.                                               We will reverse     



only when left with a 'definite and firm conviction . . . that a mistake has been made.'                                                                            

We apply our independent judgment to questions of law."                                                     16  



                                                                                                                              

                         A trial court's decision to grant or deny a motion for reconsideration lies  

                                       17   "We shall reverse only in the event there has been an abuse of  

                                                                                                                                                              

within its discretion. 

discretion."18  



IV.         DISCUSSION  



            A.           We Vacate The Superior Court's Domestic Violence Protective Order.  

                                                                                                                                                     



                         The superior court found that (1) Stephan assaulted S.P. when he kicked  

                                                                                                                                                     



him at the Fun Center and (2) Stephan criminally trespassed by going to Cecilia's house  

                                                                                                                                                       



without invitation when he had been "instructed not to do so."  We vacate and remand  

                                                                                                                                                    



the court's assault finding, and we reverse the court's trespass finding.  Without these  

                                                                                                                                                        



two findings, the domestic violence protective order cannot stand.  We therefore vacate  

                                                                                                                                                      



the order.  

        



                         1.          We vacate and remand the superior court's assault finding.  

                                                                                                                                             



                         The only direct evidence that Stephan assaulted S.P. came from S.P.'s out- 

                                                                                                                                                           



of-court recorded statement.  And Jones squarely contradicted S.P. when she stated that  

                                                                                                                                                           



             15          (...continued)  



                                                                                                                                                              

admissibility of evidence 'turns on a question of law, such as the "correct scope or  

                                                                                                                                                            

interpretation of a rule of evidence," we apply our "independent judgment . . . ." ' "  

                                                                                                                                              

(quoting Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012))).  



             16          McGraw v. Cox, 285 P.3d 276, 279 (Alaska 2012) (alteration in original)  

                                                                                                                                                  

(footnotes omitted) (quoting In re Protective Proceedings of W.A., 193 P.3d 743, 748  

                                                                                                                                                           

(Alaska 2008)).  

                



             17          See Brown v. State, 563 P.2d 275, 279 (Alaska 1977).  

                                                                                                                  



             18          Id.  



                                                                             -11-                                                                       7453
  


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

Stephan did not kick or swear at him.                                        Because the superior court found by "a bare                                   



preponderance"   that   Stephan   kicked   S.P.,   any   error   related   to   its   treatment   of   this  

                                                              19    We hold that errors related to the recording and  

evidence was likely prejudicial.                                                                                                                            



Jones's testimony require us to vacate the superior court's assault finding.  On remand  

                                                                                                                                                      



the  court  must  reexamine  whether  an  assault  occurred  after  reevaluating  Jones's  

                                                                                                                                                     



testimony  and  after  making  findings  as  to  S.P.'s  competency  to  testify  and  the  

                                                                                                                                                             



trustworthiness of the recording.  

                                           



                                      a.	         It was an abuse of discretion for the superior court to  

                                                                                                                                                               

                                                  admittherecording without making thresholdfindings as  

                                                                                                                                                                

                                                  to S.P.'scompetency andtherecording's trustworthiness.  

                                                                                                                                    



                         Stephan contends that the superior court "listen[ed] to my son who was not  

                                                                                                                                                              



present, on a recording presented by Cecilia . . . .  It could not be determined when and  

                                                                                                                                                             



under what circumstances or coercion this recording was made." We construe Stephan's  

                                                                                                                                                  

argument as a challenge to the admission of the recording under the hearsay rules.20  

                                                                                                                                                  



                                                                                                                                                             

                         These rules provide that statements made by out-of-court declarants and  



                                                                                                                                                      21  

                                                                                                                                                            The  

offered for their truth are ordinarily inadmissible unless an exception applies. 



             19          See Graham R. v. Jane S.                         , 334 P.3d 688, 692 (Alaska 2014) ("[W]e will                                      



reverse an evidentiary ruling only if [the] error prejudicially affected aparty's substantial                                                   

rights." (second alteration in original) (quoting                                       Lum v. Koles            , 314 P.3d 546, 552 (Alaska           

2013))).  



             20          Stephan did not object to the admission of the recording on express hearsay  

                                                                                                                                                      

grounds.  But before the hearing, he objected to Cecilia testifying about the Fun Center  

                                                                                                                                                       

incident:  "The mother was not present and can only report misinterpreted facts from  

                                                                                                                                                           

hearsay."  He also asked the court to require S.P. to testify personally.  And the superior  

                                                                                                                                                     

court sua sponte dealt with the hearsay aspect of the recording when it ruled that the  

                                                                                                                                                              

recording  was  admissible  as  an  excited  utterance.                                               Given  this  posture,  the  hearsay  

                                                                                                                                                     

objection is preserved for our review.  

                                                          



             21          Alaska R. Evid. 801(c) ("Hearsay is a statement, other than one made by  

                                                                                                                                  

                                                                                                                                          (continued...)  



                                                                              -12-	                                                                       7453
  


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

hearsay    exceptions    rely    on    the    theory    that    some    hearsay    statements    "possess  



circumstantial guarantees of trustworthiness sufficient to justify non-production of the                                                                   

declarant."22  



                                                                                                                                                             

                         The excited utterance exception derives from the declarant's condition of  



                                                                                                                                                          

excitement that "temporarily stills the capacity of reflection and produces utterances free  

                                               23   Thus, we generally view out-of-court statements pertaining  

                                                                                                                                              

of conscious fabrication." 



to and made under conditions of stress sufficiently reliable in their own right that we  

                                                                                                                                                           



have jettisoned the usual requirement for the declarant to testify in court and be subject  

                                                                                                                                                    

to cross-examination.24   But while the court may admit statements that qualify under the  

                                                                                                                                                            

excited utterance exception, it still maintains discretion whether to do so.25   The premise  

                                                                                                                                                   



underlying the excited utterance exception is the presumption that the "excitement"  

                                                                                                                                        



creates a circumstantial guarantee that the utterance is trustworthy.  But if there is other  

                                                                                                                                                        



evidence that undermines trustworthiness -for example, that the declarant suffers from  

                                                                                                                                                        



            21           (...continued)  



                                                                                                                                                         

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth  

                                                                                                                                                             

of the matter asserted."); Alaska R. Evid. 802 ("Hearsay is not admissible except as  

                                                                                                                                                            

provided by these rules, by other rules prescribed by the Alaska Supreme Court, or by  

                                               

enactment of the Alaska Legislature.").  



            22           Alaska R. Evid. 803 cmt.  

                                                                



            23           Alaska R. Evid.  803(1),  (2)  cmt.  (citing  6  JOHN   HENRY   WIGMORE,   A  

                                                                                                             

TREATISE ON THE                  ANGLO-AMERICAN  SYSTEM OF                                EVIDENCE IN             TRIALS AT          COMMON  LAW  

§ 1747, at 135 (1940)).         



            24  

                                                                                                                                                  

                         See Alaska R. Evid. 803(2); State v. Agoney, 608 P.2d 762, 764 (Alaska  

                                                                                                                                              

 1980) ("It is only the suspension of [the normal powers of reflection and conscious  

deliberation] which lends a special trustworthiness to the utterance, and thus justifies                                                          

                                                                                                                                               

exempting it from the ordinary scrutiny of cross-examination on the witness stand.").  



            25           See Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) .  

                                                                                                                            



                                                                            -13-                                                                       7453
  


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

 a mental or intellectual disability characterized by inattention and impulsiveness - then                                                                                                                                                              



the court must take this evidence into consideration.                                                              



                                         The   trustworthiness   of   the   recording   was   an   issue   before   the   court   in  



 Stephan's   pre-trial   motion  to   have   S.P.   testify.     Rather   than   relying   on   Cecilia's  



recording of S.P., Stephan moved the court to allow S.P. to "explain to the court how and                                                                                                                                                                 



why he was restrained" and to "tell [the] court what he wants." And he suggested means                                                                                                                                                            



by which the court could hear from S.P. directly by receiving S.P.'s testimony in camera.                                                                                                                                                                               



But Cecilia opposed this motion, stating that her son "fail[ed] to meet the minimum                                                                                                                                                    

                                                                                                                                                                                              26         She highlighted his  

 standards of witness competency" under Evidence Rule 601.                                                                                                                                                                                                 



 autism, intellectual disability, and "negative reactions to stress" as reasons he should not  

                                                                                                                                                                                                                                                            



testify.  The superior court denied Stephan's motion without analysis; it later explained  

                                                                                                                                                                                                                                       



that allowing S.P. to testify would be "problematic" and "potentially stressful" given his  

                                                                                                                                                                                                                                                            



 autism.  

                        



                                        We acknowledge cases from other jurisdictions holding that a declarant's  

                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                     27       But the  

competency need not factor into the decision to admit a hearsay statement.                                                                                                                                                                                 

                                                                                                                                                                                                      



                    26                  EvidenceRule601establishesapresumption                                                                                                that all persons arecompetent                           



to testify.  Crawford v. State                                                         , 337 P.3d 4, 30 (Alaska App. 2014).  "What is important   

under the general test . . . is that the witness be capable of expressing himself so as to be                                                                                                                                                                 

understood by the court . . . , and recognize the duty to tell the truth."                                                                                                                                 Sevier v. State                            , 614   

P.2d 791, 794 (Alaska 1980).                                          



                    27                  See, e.g., Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir. 1988) ("We  

                                                                                                                                                                                                                                                    

 agree with the majority of courts that have studied this issue and have reached the  

                                                                                                                                                                                                                                                          

conclusion  that  'although  a  child  is  incompetent  to  testify,  testimony  as  to  his  

                                                                                                                                                                                                                                                          

 spontaneous declarations or res gestae statements is nevertheless admissible.' " (quoting  

                                                                                                                                                                                                                                         

Jay   M.   Zitter,   Annotation,  Admissibility   of   Testimony   Regarding   Spontaneous  

                                                                                                                                                                                                                           

Declarations Made by One Incompetent to Testify at Trial, 15 A.L.R. 4th 1043 (1982)));  

                                                                                                                                                                                                                                          

People  v.  Smith,  604  N.E.2d  858,  871  (Ill.  1992)  (holding  that  trustworthiness  of  

                                                                                                                                                                                                                                                             

declarant's statement "stems not from . . . competency, but rather  from the unique  

                                                                                                                                                                                                                                               

                                                                                                                                                                                                                             (continued...)  



                                                                                                                            -14-                                                                                                                      7453
  


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

unique circumstances in this case require us to distinguish this case from the cases in                                                                                                                                                                                                                                 



other jurisdictions.                                                    Here, the parties do not dispute that S.P. is autistic and has other                                                                                                                                                                



mental health issues; these issues raise questions as to whether he could faithfully report                                                                                                                                                                                                              



what happened at the Fun Center under                                                                                                              any  circumstances, not just in court.                                                                                                     We also   



find it troubling that Cecilia recorded S.P.'s statement to use as evidence in the protective                                                                                                                                                                                              



order proceedings and had S.P. actually testify at the ex parte hearing on her petition for                                                                                                                                                                                                                          



a short-term protective order, but then vociferously objected to allowing Stephan to call                                                                                                                                                                                                                         



 S.P.  as a witness at the long-term hearing, specifically citing Evidence Rule 601 and                                                                                                                                                                                                                          



arguing S.P. was not a competent witness due in part to his autism and intellectual                                                                                                                                                                                                  



disability.     She   has   used   S.P.  as   both   sword   and   shield,   which   we   believe   to   be  



fundamentally inconsistent and unfair. The superior court should consider these unique                                                                                                                                                                                                                



facts and circumstances on remand.                                                                   



                                                 A court enjoys "considerable discretion" in deciding whether to admit a                                                                                                                                                                                                   

                                                                                                                                                                                                                      28          But because the issue of  

hearsay statement under the excited utterance exception.                                                                                                                                                                                                                                                              



 S.P.'s competency placed the recording's trustworthiness squarely before the court, it  

                                                                                                                                                                                                                                                                                                                          



was an abuse of discretion to admit the recording absent a threshold finding on S.P.'s  

                                                                                                                                                                                                                                                                                                         



competency and a determination of the extent to which his autism, youth, and other  

                                                                                                                                                                                                                                                                                                           



mental health issues affected the recording's trustworthiness.  Without the recording,  

                                                                                                                                                                                                                                                                                         



which provided the only direct evidence of assault that the court found by "a bare  

                                                                                                                                                                                                                                                                                                              



preponderance" to have occurred, the assault finding has no evidentiary support.  We  

                                                                                                                                                                                                                                                                                                                 



therefore vacate it and remand for the court to make findings consistent with this opinion.  

                                                                                                                                                                                                                                                                                                 



                         27                       (...continued)  



                                                                                                                                                                                                                                                                                                                

circumstances in which . . . statements were made" and therefore that competency is "not  

                                                                                                                                      

relevant to the admission of excited utterances").  



                         28                      Agoney , 608 P.2d at 764.  

                                                                                                                              



                                                                                                                                                         -15-                                                                                                                                                7453
  


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

                                           b.	           The superior court clearly erred in finding that Jones was                                                              

                                                         not confident she had a clear view of the incident.                                          



                            We have repeatedly stated, "It is the job of the trial court, not the appellate                                                           

court, to judge the credibility of the witnesses and to weigh conflicting evidence."                                                                                                 29  



                                                                                                                                                                        

Stephan asserts that the superior court "had an impartial witness before [it] who testified  



                                                                                                                                                                           

that  [Cecilia's]  claim  was  not  in  fact  what  had  actually  happened  and  [the  court]  



                                                                                                                                                                            

discounted [Jones's] testimony . . . and instead accepted and ruled upon hearsay." While  



                                                                                                                                                                                  

we decline to give new or different weight to Jones's testimony than that given by the  



                                                                                                                                                                                  

superior court, we do take issue with the court's underlying findings with respect to her  



                                                                                                                                                                                  

testimony.  The superior court found that Jones testified honestly but that Jones was not  



                                                                                                                                                                               

confident she had witnessed the entire incident.  Based on this finding, the court gave  



                                                                                                                                

less weight to Jones's testimony than to the recording.  But we find nothing in Jones's  



                                                                                                                                                                                  

hearing testimony to indicate that she did not have a clear view of what happened at the  



                                                                                                                                                                               

Fun Center or that she lacked confidence in her observations. It was therefore clear error  



                                                                                                                                                         

for the court to so find and to discount Jones's testimony based on that finding.  



                                                                                                                                                                                    

                                           c.	           The superior court abused its discretion by declining to  

                                                                                                                                                                          

                                                         consider Jones's subsequent attempt to clarify the record  

                                                                                                              

                                                         in Stephan's motion to reconsider.  



                                                                                                                                                                               

                            Alaska Civil Rule 77(k) outlines several grounds on which a party may  



              

move for reconsideration of a decision.  A litigant may not introduce new evidence or  



              29            See e.g., Brett M. v. Amanda M., 445 P.3d 1005, 1011 n.21 (Alaska 2019)  

                                                                                                                                                                             

(quoting Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005)).  

                                                                                                                   



                                                                                        -16-	                                                                                        7453  


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

                                           30  

arguments in the motion,                       but he may move for reconsideration if "[t]he court has                                   

overlooked or misconceived some material fact."                                  31  



                      In her testimony, Jones did not expressly state that she had an unobstructed  

                                                                                                                          



view of the incident at the Fun Center.  But she described the location from which she  

                                                                                                                                          



viewed what happened, and she chronicled the incident from the time she saw S.P.  

                                                                                                                                        



running  through  the  arcade  until  the  time  Stephan  ultimately  apprehended  him.  

                                                                                                                                                 



According to Jones's testimony, from her vantage point she could hear the words and  

                                                                                                                                         



tone  that  Stephan  used  when  speaking  to  S.P.;  she  could  describe  how  Stephan  

                                                                                                                                 



apprehended S.P.; and she could observe that Stephan did not kick S.P.  The superior  

                                                                                                                                  



court found that Jones was honest in her testimony and made no negative credibility  

                                                                                                                              



findings.  

                 



                      In ruling on Stephan's motion for reconsideration, the court may have  

                                                                                                                                       



impliedly determined Jones's statement in her affidavit - that she "saw th[e] entire  

                                                                                                                                      



incident" and that "nothing" blocked her view - to be new evidence not introduced  

                                                                                                                              



during the protective order hearing. But we do not arrive at the same conclusion.  In her  

                                                                                                                                          



testimony at the long-term hearing, Jones could not have described the incident from  

                                                                                                                                       



beginning to end as she did unless she had a clear view of what happened.  We view  

                                                                                                                                       



Jones's statements in her affidavit as clarifications ofthe record, made necessary because  

                                                                                                                                   



of the superior court's misconception of her hearing testimony.  Where, as here, the  

                                                                                                                                          



superior court discounted her testimony for reasons not evident in the record, it was  

                                                                                                                                         



manifestly unreasonable and an abuse of discretion for the court not to consider Jones's  

                                                                                                                                   



subsequent attempt to clarify the record through her affidavit.  

                                                                                        



           30         Katz  v.  Murphy,   165  P.3d  649,  661  (Alaska  2007).  



           31         Alaska  R.  Civ.  Proc.  77(k)(1)(ii).  



                                                                    -17-                                                                   7453  


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

                                                                                                                           

                    Given  that  the  superior  court  made  its  assault  finding  by  a  "bare  



                                                                                                                        

preponderance" of the evidence, had the superior court given Jones's testimony different  



                                                                                                                                      

weight, it is possible the court would have found that Stephan did not assault S.P.  



                                                                                                                           

Because the court based the weight it gave to Jones's testimony on an erroneous factual  



                                                                                                                                

finding and because it improperly rejected Jones's subsequent attempt to clarify the  



                                                                                

record, the court must reconsider this testimony on remand.  



                                                                                   

                    2.        We reverse the court's trespass finding.  



                                                                                                                                  

                    Cecilia's petition for a protective order did not include criminal trespass as  



                                                                              

grounds for protection.  Indeed, it is unclear from the record whether in her testimony  



                                                                                                                      

Cecilia meant to raise any allegations of actionable trespass. Cecilia discussed Stephan's  



                                                                                                                               

unauthorized  visit  to  her  property  and  his  refusal  to  leave  toward  the  end  of  her  



                                                                                                                               

testimony and in the context the relief she was requesting.   As justification for her  



                                                                                                                          

request to enforce the visitation provisions of the superior court's 2015 divorce decree,  



                                                                                                                             

she sought to persuade the court that Stephan did not "follow rules" or "respect [her]  



                     

boundaries."  



                                                                                                                        

                    The superior court appears to have focused on Stephan's possible violation  



                                                                                                                         

of a trespass order.  When the police arrived, they discussed the mechanics of a trespass  



                                                                                                                               

order with Cecilia. Cecilia then asked them to "put a trespass again because of what had  



                                                                                                                         

happened."  The court asked Cecilia whether Stephan had notice of a possible trespass  



                                                                                                                              

order.  Cecilia responded, "I believe the Palmer police officers called him.  I think they  



                                                                                                                                      

told me they were going to notify him about that." The record contains no trespass order.  



                                                                                                                        

On this evidence the court, on its own initiative, added criminal trespass as a separate  



                                                                                      

basis for finding Stephan committed an act of domestic violence.  



                                                                                                                                 

                    The court's finding of criminal trespass is lacking for multiple reasons. At  



                                                                                                                               

most, Cecilia's testimony suggests the police may have contacted Stephan about not  



                                                                                                                               

trespassing  after  the  incident  occurred;  Cecilia's  language  and  the  context  of  her  



                                                               -18-                                                         7453
  


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

testimony seem to indicate she wanted the police to warn Stephan not to trespass in the                                                                                                                                                                             



future. There was no competent evidence of a                                                                                               pre-existing  "trespass order" or any other                                                                       



protective order prohibiting Stephan from entering Cecilia's property.                                                                                                                                                             The tenuous   



nature of this testimony is insufficient to support a finding that Stephan committed                                                                                                                                                       

trespass.   It was therefore clear error for the court to so find, and we reverse.                                                                                                                                                            32  



                                                                                                                                                                                                                                                                  

                     B.	                  We  Vacate  The  Superior  Court's  Order  Requiring  Stephan  To  

                                                                                                                               

                                          Undergo A Psychological Evaluation.  



                                                                                                                                                                                                                                                      

                                          After finding that Stephan committed domestic violence, the court ordered  



                                                                                                                                                                                                                                                            

 Stephan to undergo a psychological evaluation.  The court included this directive along  



                                                                                                                                                                                                                                                                                 

with its restrictions on Stephan's contact with Cecilia in the long-term protective order.  



                                                                                                                                                                                                                                                    

As explained above, we vacate and remand the assault finding, reverse the trespass  



                                                                                                                                                                                                                                                                   

finding, and vacate the domestic violence protective order.  Since the validity of the  



                                                                                                                                                                                                                                                                    

psychological evaluation order is predicated on the validity of the protective order, we  



                                                                                                                                                        

also vacate the court's order for a psychological evaluation.  



                                                                                                                                                                        

                     C.	                  We Vacate The Award Of Attorney's Fees.  



                                                                                                                                                                                                                                           

                                          Alaska Statute 18.66.100(c)(14) permits a court to "require the respondent  



                     32                   Thecourt'sfinding                                          that Stephan committed                                                   trespassmay also                                      haveviolated   



his due process rights.                                                "To comply with due process, notice must be given sufficiently                                                                                                     

in   advance   of   scheduled   court   proceedings  so   that   the   parties   have   a   reasonable  

opportunity to prepare."                                                    Geldermann v. Geldermann                                                                , 428 P.3d 477, 483 (Alaska 2018)                                                      

(quoting Childs v. Childs                                                        , 310 P.3d 955, 960 (Alaska 2013)). Cecilia's petition for a                                                                                                                            

protective order did not include criminal trespass as grounds for protection, nor did it                                                                                                                                                                                 

include any allegations of criminal trespass.                                                                                                 Yet the superior court sua sponte found                                                                      

 Stephan committed criminal trespass without giving him notice that he may have to                                                                                                                                                                                    

defend against these allegations.                                                                      We decline to hold that the court violated Stephan's                                                                                   

due process rights because the court's trespass finding is clearly erroneous.                                                                                                                                                             See Alaska   

 Trademark Shellfish, LLC v. State                                                                         , 91 P.3d 953, 957 (Alaska 2004) ("[W]e have often   

recognized that appeals should ordinarily not be decided on constitutional grounds when                                                                                                                                                                      

narrower grounds are available.").                                   



                                                                                                                                 -19-	                                                                                                                        7453
  


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

to   pay   costs   and   fees   incurred   by   the   petitioner"   in   seeking   a   domestic   violence  



protective order. Citing this provision, Cecilia moved for an award of $4,152.36 in costs                                                                                                                      



and fees.               The superior court granted this motion, ordering Stephan to pay Cecilia 20%                                                                                                             

                                                              33   As with the order for a psychological evaluation, there is no  

of the requested amount.                                                                                                                                                                                             



basis to award attorney's fees absent a finding that Stephan committed an act of domestic  

                                                                                                                                                                                                     



violence. Because we vacate the assault finding and reverse the trespass finding, we also  

                                                                                                                                                                                                                  



vacate the award of attorney's fees.  

                                                                               



V.               CONCLUSION  



                                  WeVACATEthesuperiorcourt'sassaultfinding and REMANDfor further  

                                                                                                                                                                                                           



proceedings consistent with this opinion.  We REVERSE the court's criminal trespass  

                                                                                                                                                             



finding.                  We  VACATE  the  court's  long-term  protective  order,  its  order  requiring  

                                                                                                                                                                          



Stephan to undergo a psychological evaluation, and its award  of attorney's fees to  

                                                                                                                                                                                                                      



Cecilia.  



                 33               The superior court's award of 20% of Cecilia's requested attorney's fees   



suggests that the court may have applied Alaska Civil Rule 82(b)(2) in calculating the                                                                                                                              

award.  We note, however, that any fee award in domestic violence petitions are to be                                                                                                                 

awarded under AS 18.66.100(c)(14).               



                                                                                                         -20-                                                                                                  7453
  

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