Cooper v. Cooper, S-11566.
| Decision Date | 29 September 2006 |
| Docket Number | No. S-11649.,No. S-11566.,S-11566.,S-11649. |
| Citation | 144 P.3d 451 |
| Parties | Cynthia M. COOPER, n/k/a Cynthia M. Hora, Appellant, v. Daniel R. COOPER, Jr., Appellee. |
| Court | Alaska Supreme Court |
Cynthia M. Hora, pro se, Anchorage.
Karla F. Huntington, Law Office of K.F. Huntington, Anchorage, for Appellee.
Christine McLeod Pate, Kari Robinson, Sitka, for Amicus Curiae Alaska Network on Domestic Violence and Sexual Assault.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and FABE, Justices.
In these consolidated cases we review a denial of a petition for a domestic violence protective order, and, in the separate divorce case, a grant of a mutual restraining order. We affirm the former and reverse the latter.
The main question presented is whether a person subject to a domestic violence order prohibiting him from being in the presence of or contacting a protected person commits the crime of violating a protective order by simply being in the same public place as the protected person. Our answer is "no." The crime requires a violation of statutory prohibitions that may be included in a protective order and being in the presence of a protected person is not among them. While a no-contacting order is an included statutory prohibition, merely being in the presence of a protected person without communicating with her is not "contacting" within the meaning of the statute.
Cynthia Hora1 and Daniel Cooper were a married couple when, in October 2003, Cooper was arrested for assaulting Hora. In November 2003 Hora petitioned for a long-term protective order and filed for divorce.
On November 28, 2003, a master issued a long-term domestic violence protective order against Cooper. The protective order prohibited Cooper from threatening to commit or committing acts of domestic violence, stalking, or harassment against Hora and her two children. This prohibition was to remain in effect until dissolved by a court. To date, it remains in effect. The protective order also contained prohibitions to remain in effect for six months, including a prohibition on being in the physical presence of, telephoning, contacting, or otherwise communicating directly or indirectly with Hora or her children. These proscriptions expired on May 28, 2004.
Hora alleges that on the day after the protective order was issued, she saw Cooper at the Dimond Mall in Anchorage. She alleges that he was staring at her in the housewares department of Gottshalks and that later that day she saw him outside the pet store. Cooper admits that he was at the Dimond Mall on the day in question, but denies having seen Hora. In January of 2004 Cooper drove past Hora and her son as they exited a barbershop. Cooper was driving slowly and he and Hora made eye contact.
In February 2004 Cooper pled no contest to a charge of family violence stemming from his October arrest. As a condition of probation, his sentence included a prohibition on contact with Hora or her children.
On April 28, 2004, Hora attended the morning session of the Alaska Bar Association Annual Convention held in Anchorage at the Captain Cook Hotel. When she noticed that Cooper was also attending the session, Hora requested that Cooper leave the conference, which he did. Cooper returned to the Captain Cook that afternoon. Hora saw Cooper at the Captain Cook and called the police. That evening Cooper was arrested for violating the November 28, 2003 protective order.
The next day, Cooper moved for clarification of the protective order. In response to this motion, Superior Court Judge John Suddock entered an order on April 30, 2004, finding that Cooper's attendance at the bar convention was not a per se violation of the order. Hora filed a motion for reconsideration, which was denied by Judge Suddock on May 5, 2004.
On May 26, 2004, Hora, in a new proceeding,2 petitioned for a twenty-day ex parte and a long-term protective order against Cooper. Superior Court Judge Sharon Gleason granted Hora an ex-parte protective order based on Cooper's April 28 arrest for violating the November 28, 2003 protective order. When she granted the ex parte order, Judge Gleason was unaware that Judge Suddock had previously made and entered two decisions on the topic of Cooper's attendance at the bar convention.
Hora alleges that on May 27, 2004, Cooper slowed down in his car and "paced" her car for at least fifty feet while she was driving down "I" Street. Cooper denies this allegation and asserts that he was in his office when the incident allegedly occurred.
Cooper moved to dismiss the May 26 petition for protective order on the basis that Judge Suddock had already ruled that attendance at the bar convention was not a per se violation of the existing protective order. Judge Gleason denied the motion to dismiss, stating that she intended to "apply the standard set out by Judge Suddock in his order dated April 30, 2004, as well as the order denying reconsideration dated [May 5, 2004]."
On June 22, 2004, an evidentiary hearing was held on Hora's petition for a long-term protective order. At the conclusion of this hearing, Judge Gleason vacated the ex parte order of May 26 and denied Hora's petition for a long-term protective order.
On August 19, 2004, Judge Suddock held a hearing to review the parties' property distribution agreement, after which he issued a final decree of divorce. At Cooper's request, Judge Suddock also issued a mutual restraining order prohibiting future, direct contact between the parties, including in-person contact, mail, phone, and electronic contact.
Hora appeals Judge Gleason's denial of her petition for a long-term protective order and Judge Suddock's grant of a mutual restraining order.
"The interpretation of a statute is a question of law which involves this court's independent judgment."3 Findings of fact are reviewed under the "clearly erroneous" standard.4 We review the decisions to deny a protective order and grant a mutual restraining order for abuse of discretion.5
This court requested supplemental briefing on the issue of mootness. If Hora prevailed in her appeal, she might be entitled to a protective order containing provisions like those in the November 28, 2003 order that expired after six months. We conclude that this possibility is sufficient to avoid dismissal for mootness.
Hora's petition for a protective order was based on the allegation that Cooper had committed the crime of violating a protective order. Hora alleged that Cooper violated the order (1) at the bar convention, (2) at the Dimond Mall, (3) outside the barber shop, and (4) by pacing her on "I" Street. Judge Gleason applied Judge Suddock's previous rulings clarifying the November 28, 2003 order to Hora's first allegation. Hora claimed that Cooper had committed the crime of violating a protective order based on two theories. First, because his conduct amounted to stalking and stalking is prohibited by the protective order. Second, because his conduct amounted to contacting, which is also prohibited by the protective order. Judge Gleason concluded that the facts did not support entering a protective order under either theory.
As to stalking, Judge Gleason recognized that the placing-in-fear element required objective fear and concluded that the proof did not satisfy that standard. As to the no-contacting order, Judge Gleason found that there had been no violation either at the bar convention or in the other instances alleged by Hora. In so ruling, Judge Gleason accepted Judge Suddock's ruling that merely being in the presence of another party at a public place was not prohibited contacting. She also found that conclusion to be consistent with the statutory language since the applicable statute, AS 18.66.100(c)(2), "does not list precluding a respondent from being in the presence of the other party." As to each of the incidents described by Hora, at the bar convention and elsewhere, Judge Gleason found that they at most involved "one to two second unplanned eye contact" which "did not constitute a violation of the protective order." She concluded: "[B]ased on the testimony I've heard, I find by a preponderance of the evidence that those were not intentional acts by Mr. Cooper to place himself in a situation where he would be having eye contact with . . . Ms. Cooper." Judge Gleason also gave an example to illustrate her conclusion:
Say he's at the barbershop, he's half shaved . . ., and all of a sudden Ms. Cooper walks in. Does he need to say then oops, sorry, got to go, and his physical countenance left in disarray? No, I don't see it that way. But does that mean that he can turn his chair and stare at Ms. Cooper? No. So that's how I would interpret the order as it was then, in a manner that is consistent with the statute.
Hora argues that Judge Gleason applied an incorrect placing-in-fear standard with respect to stalking, and incorrectly interpreted the elements of the crime of violating a protective order with respect to the no-contacting order.
Alaska Statute 18.66.100(b) gives the superior court the authority to issue a protective order if it "finds by a preponderance of the evidence that the respondent has committed a crime involving domestic violence against the petitioner."6 Under AS 18.66.990, crimes involving domestic violence include stalking and "violating a domestic violence order under AS 11.56.740."7 The crime of violating a protective order is defined by AS 11.56.740(a):
A person commits the crime of violating a protective order if the person is subject to a protective order
(1) issued or filed under AS 18.66 and containing a provision listed in AS 18.66.100(c)(1)-(7) and knowingly commits or attempts to commit an act with reckless...
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