Morris v. Horn

• Citation: 219 P.3d 198
• Decision Date: 13 November 2009
• Docket Number: No. S-12514.,S-12514.
• Parties: Dewey MORRIS, III, Appellant, v. Sandra J. HORN, Appellee.
• Court: Supreme Court of Alaska (US)

219 P.3d 198

Dewey MORRIS, III, Appellant, v. Sandra J. HORN, Appellee.

No. S-12514.

Supreme Court of Alaska.

November 13, 2009.

Dewey Morris, III, pro se, Anchorage, Appellant.

William Grant Stewart, Wasilla, for Appellee.

Before: FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.

OPINION

CHRISTEN, Justice.

I. INTRODUCTION

Dewey Morris, III appeals superior court orders enforcing a property settlement agreement, modifying child support, and limiting visitation based on a finding of domestic violence under AS 25.24.150. Because the superior court did not address Morris's claim that he conveyed his one-half interest in the marital residence to his former spouse in exchange for her promise to assume the corresponding obligations, we reverse the order enforcing the parties' property settlement agreement and remand for a determination of whether this conveyance occurred. Because the modified child support order and record are silent on how child support was calculated, we reverse that order and remand. Finally, because it was inappropriate to give issue-preclusive effect to a prior domestic violence order entered without actual litigation of the domestic violence allegation, we reverse the visitation order and remand for rehearing on that issue.

II. FACTS AND PROCEEDINGS

Sandra Horn, formerly Sandra Morris, and Dewey Morris, III married in 1976 in Michigan. They later moved with six of their ten children to Willow and began building a house. Morris is a carpenter. Horn works as a home health-care provider.

In April 2002 Horn and Morris filed a petition for dissolution without the benefit of counsel. The petition proposed the award of the Willow home to Horn and Morris jointly. The parties estimated the value of the Willow home to be $80,000. The petition stated that Morris would pay monthly spousal support and $1,545.76 in monthly child support under Alaska Civil Rule 90.3 for the five children living at home. The petition did not address child custody or define visitation.

In August 2002 Horn and Morris filed an amendment to the dissolution agreement and participated in a dissolution hearing before Superior Court Judge Beverly W. Cutler without the benefit of counsel. They agreed on the record that both would continue living in and jointly owning the Willow house, and that Morris would pay the property taxes and loan payments on the construction loan he obtained and secured with a deed of trust on the house.¹ The court approved these agreements in its oral decision on the record.²

The dissolution decree, entered August 27, 2002:(1) granted Horn legal and primary physical custody with "free and open visitation" to Morris, including overnight, unsupervised visitation; (2) ordered Morris to pay $500 in monthly spousal support with no end date; and (3) ordered Morris to pay $1,545.76 in monthly child support under Civil Rule 90.3 until and while each child is twenty-one if unmarried, in high school or an equivalent technical or vocational program, and dependent.³

By June 2003 Morris was in arrears on his child support obligation and Child Support Enforcement Division (CSED) began withholding payments from his income. In September 2003 CSED calculated Morris's arrears as totaling $12,772.24. By this time, Horn was apparently paying the property taxes on the Willow home.

In October 2003 Horn filed a petition for a twenty-day protective order and a long-term protective order against Morris; she was represented by counsel in filing this petition and going forward.⁴ Horn cited two incidents that occurred that month to support the domestic violence petition: (1) Morris allegedly had a fight with a baby-sitter in front of the children resulting in a call to state troopers;⁵ and (2) Morris allegedly followed Horn to or from the Anchorage airport and threatened her. On October 30, 2003, a magistrate issued an ex parte twenty-day protective order, which was later extended by the parties' stipulation.

In February 2004 Horn requested that CSED waive Morris's spousal support obligation to help him meet his child support, tax, and loan obligations; CSED granted this request. But by November 2004, Morris had apparently stopped making payments on the construction loan secured by the house. Horn made payments on the loan to avoid foreclosure in 2004, 2005, and 2006.

In June 2006 Morris filed pro se a motion to modify custody, support, and visitation.⁶ Morris claimed in his motion that Horn was blocking his efforts to visit their children. He requested a hearing on visitation and custody, "weekly" visitation and unlimited phone contact, and full or fifty-percent custody. Morris also sought a decrease in child support based on decreased income.⁷

Horn opposed Morris's motion and filed a cross-motion to modify custody and "correct or amend judgment." She argued for, among other things, full legal and physical custody under AS 25.24.150, claiming Morris had physically abused her and that this required denying him custody and unsupervised visitation.⁸

Horn also requested that the court: (1) issue a permanent restraining order; (2) reduce to writing the oral order that Morris pay the property taxes and require compliance with that order;⁹ (3) order Morris to pay past due child support; and (4) require Morris to pay the construction loan, repay Horn for $9,849.83 in payments she had made on it, meet a deadline for paying off the loan, and grant Horn access to the loan information. Horn filed her own affidavit, as well as affidavits of two of the parties' children and several friends, to support her allegations of domestic violence, substance abuse, and Morris's failure to pay the property taxes and loan payments.¹⁰

Morris responded by filing an affidavit in August 2006 in which he claimed, among other things, that he had transferred his one-half interest in the Willow property to Horn by quitclaim deed and was not responsible for the property taxes or loan payments, and that he did not have substance abuse problems or need parenting or other counseling.

Superior Court Judge Eric Smith, to whom the case had been reassigned, issued an order denying Morris's request for a hearing on modification of custody for failure to show "a significant or substantial change of circumstances."¹¹ But the court found the breakdown in communications between the parties showed a "change of circumstances" for purposes of visitation and granted Morris's request for a hearing on that issue. The court reserved Morris's motion to modify child support for the visitation hearing and ordered the parties to file child support guideline affidavits.

Without making a finding as to whether Morris had conveyed his one-half interest in the marital residence to Horn in exchange for her agreement to assume the tax and loan obligations, the court granted Horn's request to enforce the parties' original property agreement and to require Morris to pay the taxes and loan payments. The court did so because it found that Morris agreed to assume those obligations at the 2002 dissolution hearing. It ordered Morris to reimburse Horn for the tax and loan payments she made, to prospectively pay those obligations, and to grant Horn access to the loan information.

In December 2006 Horn moved for both interim and long-term protective orders under AS 25.24.140¹² and AS 18.66.100, submitting another affidavit alleging that Morris physically, verbally, and sexually assaulted and threatened her. The court did not hold a hearing before granting the order on January 18, 2007.

On February 27, 2007, Superior Court Judge Vanessa White, to whom the case had been reassigned, held a hearing on child support and visitation. The hearing did not address the property tax and loan payment issues, and the court did not permit Morris to challenge the order requiring him to pay these obligations. At the hearing Morris presented for the first time some pay stubs and tax returns, dated from 2001 through 2007.¹³ Because of Morris's untimely production of these documents, the court reserved the question of child support.¹⁴ Horn stipulated that she should not receive child support for A.M., one of the parties' daughters, after December 31, 2006.

On the issue of visitation, the court heard Horn testify that Morris physically, verbally, and sexually assaulted and abused her, and that Morris has a substance abuse problem. Two witnesses testified that they observed Morris act verbally or physically aggressive toward Horn or the children; one witness testified she heard Morris verbally threaten Horn and that Morris told her he had sexually assaulted Horn. The court also held a confidential interview with two of the children. Morris denied any domestic violence, alleged Horn was verbally abusive toward him, and denied substance abuse. He testified that, after he left the marital residence around October 2002, he tried to contact the children still living in the home but Horn blocked these efforts by, among other tactics, obtaining restraining orders against him. Horn denied these allegations and testified that Morris failed to show up to four scheduled visits and to events to which he had been invited.

Based on this testimony, the court made an oral finding that at least two instances of domestic violence had occurred: one in October 2003 that led to a domestic violence restraining order, and one based on Morris's threats of bodily harm to Horn. The court concluded that finding two instances of domestic violence created an unrebutted presumption of a history of domestic violence, requiring limited or supervised visitation under AS 25.24.150.¹⁵ In an oral decision on the record, the court ordered that unsupervised visits could occur only after Morris completed an intervention program for batterers at his own expense. The court also ordered Morris to participate in therapeutic visits with the children at his expense.¹⁶

Morris filed his child support guideline...