Cooper v. Cooper

144 P.3d 451 (Alaska 2006) · Supreme Court of Alaska · September 29, 2006 · No. Nos. S-11566, S-11649

Summary

The Alaska Supreme Court reviewed consolidated appeals involving the denial of a domestic violence protective order and the issuance of a mutual restraining order in a divorce proceeding. The court held that merely being in the same public place or appearing within a protected person's sight, without communicative conduct, does not constitute contacting or violating a protective order under the applicable statutes. It affirmed the denial of the protective order and reversed the mutual restraining order for lack of an independent factual basis.

Holdings

  1. The appeal was not moot because, if Hora prevailed, she might still be entitled to a protective order containing provisions similar to those in the expired order.
  2. The superior court did not clearly err in finding that the evidence failed to establish the placing-in-fear element of stalking.
  3. Merely appearing within the sight of a protected person or being in the same public place, without more, is not contacting within the meaning of AS 18.66.100(c)(2). Contacting ordinarily requires physical touching or direct or indirect communication.
  4. AS 11.56.740(a)(1) requires knowing conduct, knowledge of the protective order, and reckless disregard that the conduct violates or would violate the order; it does not require that the defendant act intentionally.
  5. The crime of violating a protective order under AS 11.56.740(a)(1) requires violation of a provision listed in AS 18.66.100(c)(1)-(7); violation of an additional-relief provision under AS 18.66.100(c)(16), such as a prohibition on being in the protected person's physical presence, may be enforceable by contempt or other means but is not itself the crime defined by AS 11.56.740(a)(1).
  6. A court may not issue a mutual restraining order in a divorce action based solely on the parties' presence in the action, generalized animosity, distrust, or expressions of safety concerns; an independent factual basis must support the order against each party.

Questions Presented

  1. Whether the appeal from denial of the long-term domestic-violence protective order was moot.
  2. Whether Cooper's alleged conduct established stalking sufficient to support issuance of a long-term protective order.
  3. Whether merely being in the protected person's presence or sight, without communicative conduct, constitutes contacting under AS 18.66.100(c)(2) and a crime under AS 11.56.740(a)(1).
  4. Whether the superior court applied the correct mental-state requirement for violating a protective order.
  5. Whether the superior court had an independent factual and equitable basis to issue a mutual restraining order in the divorce proceeding.

Disposition

other

Cases Cited (8)

  • Odum v. Univ. of Alaska, Anchorage, 845 P.2d 432, 434 (Alaska 1993)(followed)
  • Williams v. Williams, 129 P.3d 428, 431 (Alaska 2006)(followed)
  • State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1272 n.4 (Alaska 1992)(followed)
  • Kenison v. State, 107 P.3d 335, 342-44 (Alaska App. 2005)(followed)
  • Petersen v. State, 930 P.2d 414, 432 (Alaska App. 1996)(followed)
  • State v. Strane, 61 P.3d 1284, 1286 (Alaska 2003)(followed)
  • State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985), adopted, 723 P.2d 85 (Alaska 1986)(followed)
  • Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987)(followed)

Cited In (0)

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