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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John E. and Sally E., a Minor v. Andrea E. (7/19/2019) sp-7387

John E. and Sally E., a Minor v. Andrea E. (7/19/2019) sp-7387

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

JOHN  E.  and  SALLY  E.,  a  Minor,                              )  

                                                                  )    Supreme  Court  No.  S-16912  

                                 Appellants,                      )  


                                                                  )    Superior Court Nos. 3AN-10-06201 CI  


           v.                                                     )    and 3AN-17-01833 CI  



ANDREA E.,                                                                                  

                                                                  )    O P I N I O N  



                                                                  )    No. 7387 - July 19, 2019  




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


                      Judicial District, Anchorage, William F. Morse, Judge.  


                      Appearances:  John C. Pharr, Law Offices of John C. Pharr,  


                      Anchorage, for Appellants.  No appearance by Appellee.  


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


                      and Carney, Justices.  


                      BOLGER, Chief Justice.  



                      A  divorced  mother  had  sole  legal  and  physical  custody  of  her  two  


daughters.  Their father sought a protective order against the mother and a modification  


of custody after she repeatedly hit the older daughter with a belt.  The superior court  


found that the mother's actions did not trigger the presumption against custody under  


AS 25.24.150(g).  It ordered that she retain legal and physical custody, subject only to  

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

a limited protective order, and that the father have restricted visitation.                                                                                                                                        The father   


                                      We conclude that it was an abuse of discretion for the superior court to                                                                                                                                

exclude the testimony of a psychologist who diagnosed the child with PTSD.                                                                                                                                                 We thus   

vacate the custody decision and remand for a new analysis of the children's best interests                                                                                                                                   

in light of the psychologist's testimony.                                          

II.                FACTS AND PROCEEDINGS                     

                   A.                 Background  

                                                                                                                                            1  They have two daughters: one born  

                                      John and Andrea E. married in 2004.                                                                                                                                                              

in 2004, and one born in 2007.  John and Andrea divorced in 2011 and shared legal and  


physical custody of their children. That arrangement was largely unchanged until 2015,  


when the superior court granted primary physical custody and sole legal custody of the  


children to Andrea and allowed John only supervised visitation.  The court made this  


modification after finding that John had assaulted Andrea at least three times, triggering  


a rebuttable presumption that he not be awarded "sole legal custody, sole physical  


custody, joint legal custody, or joint physical custody of a child."2                                                                                                                      The court noted that  


John could overcome this domestic violence presumption by completing a domestic  


violence programapproved by the Department of Corrections, which he did in late 2016.  


                   B.                 Andrea's 2017 Assault Of Her Daughter  


                                      On June 30, 2017, Andrea punished her older daughter, who was then  


twelve,  by  hitting her  repeatedly  with  a belt.                                                                                       Andrea and  the child  gave different  


accounts of the incident at trial.  


                   1                  We use initials in lieu of the parties' last names to protect the family's                                                                                                            

privacy.  We have chosen to use a pseudonym for the name of their oldest daughter in   

the caption of this case for the same reason.                                                          

                   2                  AS 25.24.150(g).  


                                                                                                                      -2-                                                                                                             7387

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

                     1.       Andrea's account  


                    According  to  Andrea,  her  daughter  had  been  constantly  misbehaving  


leading up to the June 30 incident, and had "been sneaking out of the house for the past  


year." Andrea said she had unsuccessfully tried to control this behavior without corporal  


punishment, but eventually warned her daughter that if she continued to sneak out she  


would "get spanked."  


                    Andrea  said  that  on  June  30  she  saw  a  Snapchat  video  showing  her  


daughter walking down a busy street with friends "at three o'clock in the morning," and  


a  second  video  showing  her  smoking.                         Andrea  then  confronted  her  daughter  and  


demanded the passcode for her phone.   When the child refused, Andrea decided to  


"spank" or "whip[]" her with a belt.  Andrea claims that she then grabbed her daughter,  


turned her around, and started whipping her rear end with a plain leather belt.  She said  


that soon after she started, her daughter gave her the passcode to her phone.  


                    Andrea said that she then stopped hitting her daughter and began to review  


the  contents  of  her  cell  phone,  where  she  saw  sexual  content,  including  sexual  


communications. Andrea asked for the friend's phone number and was refused; angered  


by this, she then grabbed the belt and began hitting her daughter again. Andrea said that  


she was hitting her daughter's legs, but that the child grabbed the belt and tried to kick  


her.  Andrea said that while wrestling with her over the belt, she accidentally hit her  


daughter  in  the  face,  giving  her  a  bloody  nose.                         Andrea  said  that  her  fiancé  then  


restrained the child, the fight ended, and she told her daughter to take a shower to clean  


up.  According to Andrea, the whole incident took place within a 30-minute period.  


                    2.         The child's account  


                    The child's account differed from Andrea's in several ways.  She agreed  


that the incident began when Andrea saw videos of her "hanging out [with a friend] early  


in the morning."  She said that Andrea told her to sit on a "game chair" and "started  


                                                                -3-                                                         7387

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


hitting [her] with [a] belt." The child testified that instead of being plain leather, the belt  


was studded with "metal stars."  She also said that Andrea hit her "a few times . . . in the  


face" in addition to her legs and arms.  She said that when she tried to shield her face  


with  her  hands,  Andrea  pushed  her  hands  aside,  and  that  Andrea's  fiancé  assisted  


throughout much of the incident by restraining her while Andrea continued the beating.  


She also testified that Andrea put her hands around her neck. The child said that at some  


point Andrea "threw [a cup of juice] all over" her, then told her to take a shower.  The  


child stated that Andrea continued beating her while spraying her with the shower  




          C.        Proceedings Following The Assault  


                    The  morning  after  the  assault,  the  child  left  the  house  again  without  


Andrea's permission; she was picked up by John's wife, Kimberly, and resided with  


John and Kimberly until the end of the proceedings at issue in this appeal.  


                    John took the child to the hospital the morning after the assault, and he  


obtained an ex parte domestic violence protective order on behalf of both his daughters.  


Andrea moved to dissolve the order, and on July 5, 2017, a magistrate judge granted her  


motion with respect to the younger daughter, but not the older one.  That same day John  


filed a motion to modify custody, requesting sole legal and primary physical custody of  


both children.  


                    The superior court held a status hearing on September 21 for both the  


domestic violence case and the motion to modify custody.   Among other things, the  


parties argued over the fact that John had taken their older daughter to see a psychologist  


despite the fact that Andrea retained sole legal custody over her.  The court scheduled  


an evidentiary hearing for October 4 and 5.  


                    Variouswitnessestestifiedattheevidentiaryhearing, including Andreaand  


the older daughter, who each described their version of the assault. [summarized above  

                                                                -4-                                                         7387

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

in Part II.B] Andrea also sought to justify the incident, explaining that her mother had  


practiced even harsher forms of punishment when she was a child.  Noting that other  


punishments had failed to correct her daughter's behavior, Andrea explained that she did  


not regret her decision and would make the same one again if confronted with the same  


circumstances. The older daughter testified at the hearing that she did not want to return  


to live with Andrea, and that she still had some marks from the assault that had not yet  


gone away.  


                    John introduced photographs of the child's injuries after the assault and  


testified that a doctor performed a CAT scan of her nose because it appeared to be  


broken, but that the test showed it was not.  Another witness who saw the child right  


after the assault testified that her injuries appeared minor at the time, and were not as  


serious as those in John's photographs.  


                    John also sought to call as a witness the psychologist who had seen his  


daughter.  Andrea objected and the court ruled that it would not allow the psychologist  


to testify.   The court seemed to conclude that John lacked the authority to bring his  


daughter to the psychologist, because Andrea had sole legal custody, and that he had  


done so for litigation purposes rather than to secure emergency treatment.  In its final  


custody order, the court explained that it "declined to permit John to take advantage of  


overstepping his legal and medical authority when he took [his daughter] to a counselor  


a day before the [September 21] hearing."  


                    At the end of testimony on October 5, the court dissolved the existing ex  


parte domestic violence order to the extent that it prohibited contact between Andrea and  


her older daughter, and scheduled supervised visitation between them.  On October 13  


John filed an expedited motion to suspend this visitation until a therapist had approved  


its "time, place and manner," arguing that the child was not ready to see Andrea and that  


"[r]elations between mother and daughter cannot be normalized without therapeutic  

                                                               -5-                                                         7387

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

intervention."   The court decided that this motion was moot when it delivered its oral                                                                                                   

ruling on custody three days later, and denied it in its final custody order.                                                                                          

                              On October 16 the court held a hearing to decide John's request for a long-                                                                             

term domestic violence protective order and his motion to modify custody. John argued                                                                                               

that Andrea's assault of their older daughter resulted in "serious physical injury" because                                                                                       

it   produced   "protracted   impairment   of   health,"   and   so   triggered   the   rebuttable  

                                                                                                                3      He  also  argued  that  the  assault  

presumption   that   she   should   not   have   custody.                                                                                                                          

constituted  two  or  three  distinct  incidents  of  domestic  violence  because  Andrea  


interrupted the beating to look at her daughter's phone and - in the child's account -  


to tell her to get in the shower.  Andrea argued that her use of violence against the child  


was excusable as reasonable discipline.4  


               D.	            The Superior Court's Rulings On The Long-Term Domestic Violence  


                              Order And Motion To Modify Custody  


                              The superior court delivered an oral ruling at the close of the hearings, and  


later issued written orders. It issued a long-term domestic violence protective order with  


only one provision:  that Andrea "not threaten to commit or commit acts of domestic  


violence, stalking, or harassment."  


                              In its custody order the court made the following findings about Andrea's  


assault of her daughter:  that "Andrea hit [the child] with her hands and then several  


times with the belt on the legs and arms" after she refused to give Andrea the passcode  


to her cell phone; that once she obtained access to the phone, Andrea "resumed hitting  


[the child] with the belt"; that the child suffered "facial bruising," but that it was unclear  


whether this was caused by intentional or accidental  contact; and that the younger  


               3              See  AS 25.24.150(g)-(h).   



                              See AS 11.81.430(a)(1) (justifying the parental use of force "[w]hen and  


to the extent reasonably necessary and appropriate to promote the welfare of the child").  

                                                                                              -6-	                                                                                      7387

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

daughter "was in the same room during most of the confrontation between Andrea and                                                                                                                                         

 [her sister]."                    

                                   The court                     rejected   Andrea's argument that her                                                               assault was reasonable            

corporal   punishment.     But   it   likewise   rejected   John's   argument   that   the   assault  

constituted two distinct incidents of domestic violence or that it resulted in "serious                                                                                                                       

physical injury" to the child. The court explained that "the various acts of violence were                                                                                                                             

all part of one excessive disciplinary episode" and that they did not "create a substantial                                                                                                            

risk of [the child's] death" or cause her to "suffer protracted disfigurement or impairment                                                                                                           

of health," as was required to find a single incident of domestic violence serious enough                                                                                                                        

                                                                        5      The court thus declined to apply the domestic violence  

to trigger the presumption.                                                                                                                                                                                  

presumption in AS 25.24.150(g). It explained that Andrea's single incident of domestic  


violence  was  instead  "to  be  considered  when  weighing  the  best  interest  factors  of  


AS 25.24.150(c)." The court found the assault "troubling," but concluded that Andrea's  


violence "had a more understandable origin than [did] John's repeated behaviors" -  


presumably referring to John's multiple assaults of Andrea and other disruptive behavior  


since their divorce.  


                                   Thecourt found that Andrea's assault on her older daughter "damaged their  


relationship at a time when it needed to be strong and trusting," but that John was also  


causing harm to the child by "manipulating [his] relationship [with her] to get revenge  


on Andrea."  The court ultimately concluded that "Andrea is more able to meet each  


child's daily emotional and medical needs."  


                                   The court found it significant that the "children ha[d] been living with  


Andrea for a greater period of time in the past two years" than they had with John.  The  


court noted the older daughter "expressed a fear of returning to Andrea's home."  But  




                                   See AS 25.24.150(h).  

                                                                                                              -7-                                                                                                                7387  

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

 it   did   not   view   her   expressions  of   fear   as   "mature,   thought   out   expressions   of   a  

 preference to live with one parent rather than the other" but instead "as evidence of her                                                                                                                                                                                                              

 need for help relating with her mother."                                                                                                       

                                                The court awarded Andrea sole legal and primary physical custody of the                                                                                                                                                                                  

 children, and ordered that John have unsupervised visitation with the children for four                                                                                                                                                                                                             

 hours every week.                                                    The court recognized that the older daughter "need[ed] time and                                                                                                                                                                 

 assistance to restore her relationship with Andrea" and that Andrea needed to develop   

 more appropriate strategies for dealing with her misbehavior.                                                                                                                                                                   Accordingly the court                                           

 ordered that Andrea should arrange for counseling for the child and engage in anger                                                                                                                                                                                                           

 management and parenting counseling herself.                                                                                                                              The court ordered that neither parent                                                                             

 should use corporal punishment on the children.                                                                                                                              

                                                John   now   appeals   the   superior   court's   long-term   domestic   violence  

 protective order and its 2017 custody order.                                                                                          

 III.	                  DISCUSSION  


                        A.	                     The Decision To Exclude The Testimony Of The Older Daughter's  


                                                Psychologist Was An Abuse Of Discretion.  


                                                Johnhad his older daughter examined by apsychologistinSeptember2017,  


just before the hearings in this case, and he offered the psychologist's testimony as a  

                                                                                                                                              6   Upon Andrea's objection, the court excluded  


 hybrid witness at the October 4 hearing. 

 the evidence, deciding that the report was driven by the litigation and that it was not an  


                         6                      We have explained                                                        that "[w]hen physicians are called to testify about                                                                                                                  

 matters pertaining to the treatment of patients, the distinction between an expert witness                                                                                                                                                                                              

 and a fact witness inevitably becomes blurred."                                                                                                                         Miller v. Phillips                                            , 959 P.2d 1247, 1250                                      

 (Alaska   1998);   see   also   Thompson   v.   Cooper,   290   P.3d   393,   400   (Alaska   2012)  

 (explaining that treating physicians may be offered as                                                                                                                                   "experience-based experts" whose   

 opinions are based on treatment of the patient).                                                                                                                         

                                                                                                                                                     -8-	                                                                                                                                         7387

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

emergency counseling session or otherwise authorized by Andrea.                                                                             7  It explained in its               

written order that it "declined to permit John to take advantage of overstepping his legal                                                                                  

and medical authority."                             

                            John   argues   that   the   exclusion   of   the   psychologist's   testimony   was  

erroneous. "We review decisions involving the admission of expert testimony for abuse                                                                                     

                              8   "A decision constitutes abuse of discretion if it is 'arbitrary, capricious,  

of discretion."                                                                                                                                                

manifestly unreasonable, or . . . stems from an improper motive.' "9  


                            The court's language makes it clear that the exclusion of the testimony was  


a sanction, intended to punish John for taking the child to see the psychologist without  


legal authority. The court found that John had violated the earlier custody order granting  


Andrea sole legal custody by doing so.  It explained that its earlier order had been clear  


that John had no authority to make medical decisions for the children, and that it was not  


convinced by John's explanation that Andrea had authorized him to arrange counseling  


for their older daughter months before he brought her to the psychologist.  The record  

supports  the  superior  court's  conclusion  that  John  brought  his  daughter  to  the  


psychologist for litigation purposes rather than emergency care.  But even though John  


did not have the legal authority to bring the child to the psychologist, the reality is that  


the psychologist nevertheless saw her in a clinical setting and developed an opinion  


relevant to her best interests by doing so.  


              7             Although he did not have legal custody of the children, John did have the                                                                          

authority to provide emergency medical care to them.                                                              

              8             See  Griffith  v.  Taylor,  12  P.3d  1163,  1166  (Alaska  2000);  see  also  


del Rosario v. Clare, 378 P.3d 380, 386 (Alaska 2016) (reviewing order enforcing child  


custody decree for abuse of discretion).  


              9             del Rosario, 378 P.3d at 383 (omission in original) (quoting Gunn v. Gunn,  


367 P.3d 1146, 1150 (Alaska 2016)).  


                                                                                        -9-                                                                                7387

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

                           The court made no apparent inquiry into the potential harm to the fact-                                                                 

finding process that would be caused by precluding the psychologist's testimony.                                                                                   This  

case was a proceeding to determine the custody and protection of two children.  Their   

                                                            10   Having seen her as a patient, the psychologist planned  

best interests were paramount.                                                                                                                               

to testify about the older child's mental condition after being beaten.   This evidence  


would certainly have been relevant to the child's best interests.  And the superior court  


recognized this, stating that:  "I don't know why I should be precluded from hearing  


testimony from a person who has spoken with this child and . . . presum[ably] has some  


professional opinion.   Why am I precluded from hearing that simply because [John]  


violated my order in obtaining it?" Nevertheless it chose to exclude her testimony. This  


exclusion  arguably  made  it  harder  for  the  superior  court  to  address  the  crucial  


consideration of the child's best interests.  


                           Moreover,  the  superior  court's  statement  in  its  final  custody  order  


demonstrates that it excluded the psychologist's testimony to punish John for violating  


its earlier order.   As noted above, the court explained in its written order that it had  


"declined  to  permit  John  to  take  advantage  of  overstepping  his  legal  and  medical  


authority."  And while the court engaged in a lengthy dialogue about whether Andrea  


had granted John authority to take the child to a therapist, its ultimate conclusion focuses  


mainly on John's violation of its earlier order, not the psychologist's qualifications or the  


value of her testimony.  


             10            AS 25.24.150(c) ("The court shall determine custody in accordance with  


the best interests of the child . . . ."); Ronny M. v. Nanette H., 303 P.3d 392, 403 (Alaska  


2013) ("We have emphasized that the best interests of the child remain paramount  


. . . ."); Starkweather v. Curritt, 636 P.2d 1181, 1182 (Alaska 1981) ("The paramount  


consideration in the determination of child custody is the best interests of the child.").  

                                                                                  -10-                                                                            7387

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

                            We   conclude   that   the   superior   court's   exclusion   of   the   psychologist's  

testimony stemmed from an improper motive.                                                       A trial court has "the inherent power, as                                      

                                                                                            11    But the way in which the superior court  

well as the duty, to enforce" custody orders.                                                                                                                             

chose to enforce the order in this case potentially undermined its primary concern.  By  


excluding the psychologist's testimony, the superior court subordinated the children's  


best interests to its own interest in sanctioning John for his violation of the earlier order.  


                            We thus hold it was an abuse of discretion to punish John by excluding the  


psychologist's testimony when its inclusion could have served the best interests of his  

daughter. Because the psychologist's testimony could have affected the superior court's  


best  interests  analysis,  we  vacate  the  custody  decision.12                                                               We  now  turn  to  John's  


remaining arguments.  


              B.	           The Superior Court Did Not Err When It Found That Andrea Did Not  


                            Have A History Of Perpetrating Domestic Violence.  


                            "There is a rebuttable presumption that  a  parent who has a history of  


perpetrating domestic violence against the other parent, a child, or a domestic living  


partner may not be awarded sole legal custody, sole physical custody, joint legal custody,  


or joint physical custody of a child."13                                         "A parent has a history of perpetrating domestic  


              11	           del Rosario             , 378 P.3d at 386.          

              12            John argues that the superior court abused its discretion and made several                                                                

erroneous    factual    findings    when    analyzing    the    children's    best    interests    under  

AS25.24.150(c). Becausewe vacatethecustody decision with instructionsto reconsider  


the children's best interests in light of the psychologist's testimony, we do not reach                                                                                  

these issues.   

              13            AS 25.24.150(g).  Moreover, the parent's visitation must be supervised  


until certain conditions are met.  AS 25.24.150(j).  The domestic violence presumption  


applies not just when the court issues a custody award as part of a divorce but also when  


the court modifies custody, as in this case.   Williams v. Barbee, 243 P.3d 995, 1001  



                                                                                      -11-	                                                                               7387

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

violence . . . if the court finds that, during one incident of domestic violence, the parent                                                            

caused serious physical injury or the court finds that the parent has engaged in more than                                                                  

                                                                   14   The superior court did not apply the presumption  

one incident of domestic violence."                                                                                                         

here because it found that Andrea neither caused a serious physical injury, nor engaged  


in more than one incident of domestic violence.  John challenges both of these findings.  


After considering the record and the statutory language, we cannot conclude that the  


superior court erred.  


                         1.           Andrea did not cause serious physical injury to the child.  


                         John  argues  that  his  older  daughter  suffered  "serious  physical  injury"  


during the assault. We review thesuperior court's factual findingsconcerning theassault  




for clear error.                   Whether these factual findings support a conclusion that the child  





suffered  "serious  physical  injury"  is  a  question  of  law  that  we  review  de  novo. 


Likewise, the interpretation of the term "serious physical injury" is a question of law to  



which we apply our independent judgment. 

             13          (...continued)  


(Alaska 2010).  

             14          AS 25.24.150(h).  




                         See Faye H. v. James B., 348 P.3d 876, 878 (Alaska 2015) ("Whether the  


court's findings on domestic violence are supported by the record is a question of fact  

which we review for clear error." (quoting                                         Yelena R. v. George R.                     , 326 P.3d 989, 998            

(Alaska 2014))).   

             16          See id. ("[W]hether the court used the proper legal standard for applying  

the domestic violence presumption - including whether the court's findings support  


applying the presumption - is a question of law, which we review de novo." (quoting  


Yelena R., 326 P.3d at 998)).  


             17          See Johnson v. State, Dep't of Corr., 380 P.3d 653, 655 (Alaska 2016)  



                                                                              -12-                                                                        7387

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

                           We have previously determined that the term "serious physical injury" in                                                                        

AS 25.24.150(h) (the domestic violence presumption) has the meaning given by the                                                                                        

                                                                                                                      18   "Serious physical injury"  

 definition of "serious physical injury" in the criminal code.                                                                                                   

 is defined in the criminal code as  


                           (A)  physical  injury  caused  by  an  act  performed  under  


                           circumstances that create a substantial risk of death; or  


                           (B)  physical  injury  that  causes  serious  and  protracted  


                           disfigurement, protracted impairment of health, protracted  


                           loss  or  impairment  of  the  function  of  a  body  member  or  


                           organ, or that unlawfully terminates a pregnancy[.][19]  


                           John conceded at trial that Andrea's actions did not create a substantial risk  


 of death, unlawfully terminate a pregnancy, or impair the function of a body member or  


 organ. Thus the question before us is whether the superior court erred in concluding that  


the child did not suffer "serious and protracted disfigurement" or "protracted impairment  


 of health."  


                           The child sustained marks, scratches, and bruises - including bruises on  


her face - as a result of the beating.  There was evidence to suggest that some of these  


 injuries persisted for six days or more.  Moreover, the child testified that she still had  


 some marks on October 4, 2017, months after the assault.  But the beating did not break  


              17           (...continued)  


 ("The interpretation of a statute is a question of law to which we apply our independent  


judgment." (quoting Barber v. State, Dep't of Corr., 314 P.3d 58, 62 (Alaska 2013))).  

              18           Parks v. Parks, 214 P.3d 295, 301 (Alaska 2009).  


              19           AS 11.81.900(b)(57).  


                                                                                   -13-                                                                             7387

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

any bones and the child did not sustain any injuries that caused a permanent loss of                                                                                                                                    


function or required serious medical intervention.                                                                                   

                                  John also argues that the superior court erred by not concluding that the  


emotional  harm  suffered  by  the  child  amounted  to  serious  physical  injury.                                                                                                                              John  


additionally argues that the superior court erred by not concluding that the emotional  


harm suffered by the child was sufficient to trigger the domestic violence presumption.  


We have never held that an emotional injury could be considered a serious physical  


injury for the purposes of AS 25.24.150(h), and John provides no basis for us to do so  


now.21   And having reviewed the criminal code definition, which governs the use of the  


termin the domestic violence presumption,22 we are not convinced that "serious physical  


injury" should be expanded to include emotional harm.23  Therefore, we conclude that  


the superior court did not err when it concluded that the child did not suffer "serious  


physical injury."  


                 20               While surgical treatment or hospitalization is not necessary to establish                                                                                            

serious physical injury, the court of appeals has considered the level of medical response                                                                                                              

as indicative of the severity of an injury under AS 11.81.900(b)(57).                                                                                                                 See Konrad v.                      

State, 763 P.2d 1369, 1375-76 (Alaska App. 1988) (holding that "internal bleeding from                                                                                                                            

the spleen [which] healed without treatment within a short period of time" was not                                                                                                                                   

serious physical injury but a "collapsed right lung" requiring surgery and hospitalization                                                                                              


                 21               John points to the child in need of aid context, where "mental injury" is  


defined as "a serious injury." AS 47.17.290(3). But the statute he cites does not mention  


serious physical injury. Moreover, we have made it clear that the term "serious physical  


injury" has the same meaning for the domestic violence presumption as it does in the  


criminal code.  Parks, 214 P.3d at 301.  


                 22               See Parks, 214 P.3d at 301.  


                 23                Worden v. State, 213 P.3d 144, 148 (Alaska App. 2009) ("A basic rule of  


statutory construction 'is that statutes imposing criminal liability should be construed  


narrowly.' " (quoting State v. ABC Towing, 954 P.2d 575, 579 (Alaska App. 1998))).  


                                                                                                          -14-                                                                                                   7387

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

                             2.	           Andrea's assault of her daughter did not constitute two or more                                                                      

                                           distinct incidents of domestic violence.                             

                             Under the statute, a parent has a history of perpetrating domestic violence                                                                 

if the superior court finds that he or she "engaged in more than one incident of domestic                                                                               



                             In this case, the superior court determined that "Andrea's behavior on  


30 June 2017 constituted a single episode of domestic violence" and was "one excessive  


disciplinary  episode."                              John  argues  that  this  determination  was  erroneous  and  that  


Andrea engaged in at least two distinct incidents of domestic violence.  We review the  



superior court's factual findings for clear error.                                                         But the interpretation of the language  


"more than one incident of domestic violence" in AS 25.24.150(h) is a question of law  



to which we apply our independent judgment. 


                             Thesuperior court found that "Andreahit [her daughter]withher hands and  


then several times with the belt on the legs and arms," stopped beating her to review the  


contents of the cell phone, and then "resumed hitting [her] with the belt." These findings  

                                                                                                                                                                27    Andrea's  


are supported by Andrea's testimony and, to a certain degree, the child's. 

              24	            AS 25.24.150(h).   

              25             See Faye H. v. James B.                             , 348 P.3d 876, 878 (Alaska 2015) ("Whether the                                                     

court's findings on domestic violence are supported by the record is a question of fact  


which we review for clear error." (quoting                                                    Yelena R. v. George R.                            , 326 P.3d 989, 998   

(Alaska 2014))).   

              26	            See Johnson v. State, 380 P.3d 653, 655 (Alaska 2016).  


              27             The child testified that in addition to beating her with a belt, Andrea put her  


hands around her neck, threw a cup of juice on her, and continued hitting her after  


making her get in the shower. But we cannot conclude, and John does not argue, that the  


superior court's decision not to credit this further testimony in its final decision was clear  


error.  "When the superior court is faced with conflicting evidence, we do not re-weigh  


it.  'It is the job of the trial court, not the appellate court, to judge the credibility of the  



                                                                                         -15-	                                                                                  7387

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

testimony that the entire episode lasted approximately 30 minutes was uncontradicted in                                                                                     

the record.             John argues that by interrupting the beating to look at her daughter's phone,                                                             

                                                                                                                                                                  28   The  

Andrea broke the episode into at least two distinct incidents of domestic violence.                                                                                     

question is thus a legal one:   whether this conduct constituted one incident or  two  


incidents of domestic violence.  


                           We have not previously considered the phrase "more than one incident of  


domestic violence" in detail.29   Dictionary definitions of "incident" could provide some  


guidance,30  but are largely circular and rely on synonyms.31                                                                Thus to give meaning to  


              27           (...continued)  


witnesses and to weigh conflicting evidence.' "  Silvan v. Alcina,  105 P.3d 117, 122  


(Alaska 2005) (quoting Native Alaskan Reclamation &Pest Control, Inc. v. United Bank  


Alaska , 685 P.2d 1211, 1215 (Alaska 1984)).  

              28           He argues that there were "as many as four separate assaults," referring to  


the juice throwing and beating in the shower as the third and fourth incidents.   As  


explained in note 27, though, the superior court's apparent decision not to credit this  


testimony in its decision was not clearly erroneous.  


              29           But  see  Timothy  W.  v.  Julia  M.,  403  P.3d  1095,  1105  (Alaska  2017)  


(glossing "more than one incident" as "more than one occasion").  


              30           See Alaskans for Efficient Gov't, Inc. v. Knowles, 91 P.3d 273, 276 n.4  


(Alaska  2004)  ("Dictionaries  provide  a  useful  starting  point  for  determining  what  


 statutory terms mean, as they provide the common and ordinary meaning of words.").  


              31           See, e.g., Incident, BLACK 'S  LAW  DICTIONARY  (10th ed. 2014) ("A discrete                                                         


occurrence or happening; an event, esp. one that is unusual, important, or violent.").                                                                 

                                                                                    -16-                                                                             7387

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

"incident" we must consider the purpose behind the domestic violence presumption and                                                                        

the legislature's specific use of the word.                                  32  

                         A sponsor of the bill that enacted the domestic violence presumption made  


comments that are particularly helpful.   At one point she referred to "serious bodily  


injury on a repetitive, perpetual basis."33   Referring to the conduct that would trigger the  


presumption, she also noted that "we've always meant for it to be more than an act."34  


And she explained that the "rebuttable presumption specifies that a child will not be  


placed in . . . custody if there are proven incidents of serious bodily injury and/or a  


proven pattern of domestic violence."35                                         And an attorney who was involved in the  


development of the domestic violence presumption language referred in his testimony  


to the "control dynamic in abusive relationships" and "the abuser's clear ability in the  



relationship to do it again and again if necessary to keep control."                                                            


             32          We interpretstatutes                   "according to reason, practicality, andcommon sense,                                    

considering   the   meaning   of   the   statute's   language,   its   legislative   history,   and   its  

purpose."   Johnson v. State                       , 380 P.3d 653, 655 (Alaska 2016) (quoting                                        Barber v. State,     

Dep't of Corr.             , 314 P.3d 58, 62 (Alaska 2013)).                 

             33          Minutes, Sen. Judiciary Standing Comm. Hearing on H.B. 385, 23d Leg.,  


2d Sess. at 15 (Apr. 27, 2004) (statement of Rep. Lesil McGuire) ("If you have been the  


recipient of serious bodily injury on a repetitive, perpetual basis, it is unlikely that you  


would want to have a close and loving contact with that person that has been your  


batterer."), SJUD2004-04-270815.PDF.  


             34          Id. at 18.  


             35          Minutes, HouseJudiciary Standing Comm. Hearing on H.B. 385, 23d Leg.,  


2d        Sess.         at      29        (Mar.          1,      2004)           (statement               of       Rep.         Lesil         McGuire),  


             36          Id.      at   43   (statement   of   Allen   M.   Bailey,   family   law   attorney),  


                                                                             -17-                                                                        7387

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

                                        Thereferences                               to a"pattern"ofdomesticviolence;                                                                        to "repetitive,perpetual"   

domestic violence; to "perpetuating" domestic violence; and to "do[ing] it again and                                                                                                                                                                     

again . . . to maintain control" indicate that the legislature viewed the phrase "more than                                                                                                                                                             

one incident of domestic violence" as referring to habitual or recurring violence.                                                                                                                                                                       An  

episode of excessive corporal punishment lasting 30 minutes does not evince a "pattern"                                                                                                                                                

of   domestic   violence.     Thus,   although   it   was   arguably   broken   into   two   periods   of  

violence, we conclude that the 30-minute episode was a single incident for the purposes                                                                                                                                                   

of the domestic violence presumption.                                                                                 

                                        Accordingly we hold that it was not error to conclude that Andrea had not                                                                                                                                          

triggered the domestic violence presumption by either causing the child serious physical                                                                                                                                                    

injury or engaging in more than one incident of domestic violence.                                                                                                            

                    C.	                 The   Decision   To   Restrict   John's   Visitation   Was   Not   Adequately  


                                        John argues that the superior court erred by limiting his visitation with the  


children to only four unsupervised                                                                           hours per week.                                         We review the superior court's                                            


visitation decisions for abuse of discretion.                                                                                            

                                        In severalcases,though, wehaverequiredanexplanationwhen thesuperior  


court severely restricts a parent's visitation.38  


                                                                                                                                           John had limited visitation while he was  


completing his domestic violence program; under the 2015 order, John was only allowed  

                    37	                 Bruce H. v. Jennifer L.                                              , 407 P.3d 432, 436 (Alaska 2017).                                                                          

                    38                  See id. at 441-42 (holding that the trial court did not sufficiently explain  


decision awarding father two weeks of summer visitation, 30-minute weekly calls, and  


alternating spring/winter vacationswherefatherpreviously hadvisitationfor threenights  


per week); I.J.D. v. D.R.D., 961 P.2d 425, 432 (Alaska 1998) ("[T]he trial court must  


make specific findings supporting a limited award of visitation unless the reasons can be  


gleaned from the record."); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190-91 (Alaska  


 1987) (holding that the trial court did not adequately explain decision awarding father  


32 hours of visitation per weekend where there was no evidence he was an unfit parent).  

                                                                                                                            -18-	                                                                                                                     7387

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

supervised visitation with the children, and the record indicates that visits during this                                                                                                                                                                           

period were somewhat sporadic.                                                                             But he later had full physical custody of his older                                                                                                

daughter for the three months prior to the superior court's 2017 final custody order.                                                                                                                                                                                             

Nevertheless the superior court reinstated John's limited visitation rights.                                                                                                                                                              Without an   

explanation of its reasoning, we cannot review this decision for an abuse of discretion.                                                                                                                                                                                          

Under these circumstances, the superior court was required to explain its decision to                                                                                                                                                                                    

restrict John's visitation so severely. Although the visitation decision is vacated with the                                                                                                                                                                          

2017 custody decision, we find it necessary to identify this deficiency in case it becomes                                                                                                                                                       

relevant on remand.                                              

                     D.	                  TheSuperiorCourt's                                                      Long-TermDomesticViolenceProtectiveOrder                                                                                                 

                                          Was Not An Abuse Of Discretion.                                              

                                          John argues that we should reverse the superior court's protective order                                                                                                                                            

because   its   only   requirement   was  that   Andrea   could   not   "commit[]   further   acts   of  

domestic   violence."     We   review   the   superior   court's   protective   order   for   abuse   of  

                                 39       John contends that "[a] finding of domestic violence with no sanction but  


to follow the law is meaningless."  He points for support to a case where we held that an  


injunction requiring the state to "obey the law" while managing fisheries was too vague  


to convey the steps necessary for compliance.40  


                                                                                                                                                             But the superior court here was not  


vague at all; it specifically ordered that Andrea "not threaten to commit or commit acts  


of domestic violence, stalking, or harassment."  We therefore hold that it did not abuse  


its discretion.  

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



                                          Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, 357 P.3d  


789, 803-04 (Alaska 2015).  

                                                                                                                                  -19-	                                                                                                                         7387

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

                           E.	                       John   Waived   The   Argument   That   The   Superior   Court   Erred   By  

                                                     Denying His Motion To Suspend Andrea's Visitation.                                                                                                                                     

                                                     After the second day of the October 2017 evidentiary hearing, the superior                                                                                                                                                                                         

court scheduled supervised visitation between Andrea and her older daughter.                                                                                                                                                                                                                                              A little  

over a week later, John filed an expedited motion to suspend that visitation until a                                                                                                                                                                                                                                                               

therapist could approve its "time, place and manner." On October 16, when the superior                                                                                                                                                                                                                                  

court delivered its oral ruling on custody, Andrea's attorney asked whether the motion                                                                                                                                                                                                                                      

was moot.                                  The court responded,"Yes."                                                                                          Neither John nor his attorney objected.                                                                                                                         In the   

written custody order, the superior court denied the motion in a footnote.                                                                                                                                                                                                                            John argues  

on appeal that it was error to deny his motion to suspend visitation, but does not discuss                                                                                                                                                                                                                                  

the question of its mootness at the time of the court's ruling.                                                                                                                                                                                         We conclude that John                                                        

waived this argument; first by doing nothing to correct the court's understanding that the                                                                                                                                                                                                                                                   

                                                                         41  and second by failing to address the basis of the superior court's  

motion was moot,                                                                                                                                                                                                                                                                                                            

ruling in his briefing.42  


IV.	                       CONCLUSION  



of the children's best interests in light of the psychologist's testimony.  


                           41                         Cf. Williams v. Util. Equip., Inc.                                                                                               , 837 P.2d 1112, 1116-17 (Alaska 1992)  

(holding that a party waived appellate challenge to testimony that purportedly violated                                                                                                                                                                                                                                 

trial court's protective order when                                                                                                                he did not "make specific objections while [the                                                                                                                                      

witness] was on the stand").                                                                                      

                           42                        Manning v. State, Dep't of Fish &Game, 420 P.3d 1270, 1279 n.51 (Alaska  


2018) (holding that an argument was waived due to inadequate briefing).  


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