Opinion
Supreme Court No. S-11339.
February 9, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Morgan Christen, Judge, Superior Court Nos. 3AN-03-3002 Civil, 3AN-03-3023 Civil.
Richard L. Nevitt, pro se, Anchorage. Moshe Calberg Zorea, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This appeal concerns the dissolution of two ex parte domestic violence orders. Richard Nevitt and Diane Provost were each granted an ex parte protective order against the other, and at approximately the same time Nevitt filed a civil action for legal separation. The domestic violence cases were reassigned to Superior Court Judge Morgan Christen, to whom the civil action was also assigned. During a hearing on December 17, 2003, the superior court dismissed both domestic violence cases and issued an interim order in the civil action which included a no-contact order and a child custody order. Nevitt appeals the dismissal of the domestic violence cases, requesting that this court find that the cases were improperly dismissed and that the interim order is void. Because the interim order in the civil action supersedes any relief that might be obtained by our reinstating the orders entered in the domestic violence cases, we conclude that the appeal of the dismissal is moot. Additionally, we conclude that Nevitt may not appeal as of right the interim order in the civil action because no final judgment has been entered.
II. FACTS AND PROCEEDINGS
Nevitt and Provost signed an Oregon License and Record of Marriage on June 30, 1998. Their daughter, Hannah, was born on March 11, 1999. On December 3, 2003, Nevitt petitioned for an ex parte protective order against Provost and filed for legal separation. The district court granted Nevitt a twenty-day protective order finding probable cause that Provost assaulted and recklessly endangered Nevitt. The protective order granted Nevitt temporary custody of Hannah and ordered Provost not to come within 500 feet of Nevitt's residence. Nevitt requested a long-term order, and a hearing was scheduled for December 18, 2003. On December 5, 2003, Provost, on behalf of her son, David, was granted an ex parte protective order against Nevitt based on probable cause that Nevitt assaulted David. The protective order prohibited Nevitt from contacting David and from going within 100 feet of the home of George Provost, David's father. Provost requested a long-term order and her hearing was also scheduled for December 18. On December 11, 2003, both domestic violence hearings were rescheduled and reassigned to Judge Christen, to whom Nevitt's civil action for legal separation had also been assigned. On December 17 a hearing on the requests for modification of the protective orders occurred. After meeting with both parties, Judge Christen dismissed the domestic violence cases and entered an interim order, which included a no-contact order and an interim custody order granting Provost primary custody of Hannah in the civil action.
Nevitt now appeals the superior court's dismissal of the domestic violence cases, arguing that the court failed to "hear and rule" on the issue of probable cause and that the interim custody order is void. Nevitt asks this court to find that the domestic violence cases were improperly dismissed and to reinstate temporary custody under the protective order originally granted pursuant to Nevitt's domestic violence petition.
III. DISCUSSION
A. Appeal of the Domestic Violence Issue Is Moot Because the Interim Order in the Civil Case Supersedes Any Relief Granted Under the Ex Parte Orders.
Under ordinary circumstances, we "refrain from deciding questions where events have rendered the legal issue moot." An issue is moot if the party raising the issue on appeal cannot be given or has already obtained the relief it is seeking.
Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1195 (Alaska 1995)).
Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).
Nevitt appeals the dismissal of the domestic violence cases and requests the court reinstate the relief granted by the protective orders in those cases. Nevitt cannot be given the relief he is seeking in this appeal because the interim order in the civil action supersedes any relief granted in the ex parte protective orders.
"Domestic violence proceedings and custody modification proceedings are distinct proceedings." Domestic violence orders award temporary custody based solely on a finding that probable cause exists to believe that domestic violence occurred. Child custody orders, on the other hand, are based on the best interest of the child. The superior court has the authority to issue an interim custody order at any time during the pendency of a legal separation action under AS 25.24.150. In this case, the superior court properly exercised this power. This valid interim order supersedes any prior grant of custody contained in the ex parte protective order.
Lashbrook v. Lashbrook, 957 P.2d 326, 329 (Alaska 1998).
See id.
See AS 25.24.150.
Under AS 25.24.150(a) the trial court may, during the pendency of the action, "make, modify, or vacate an order for the custody of or visitation with the minor child that may seem necessary or proper."
B. The Interim Child Custody Order May Not Be Appealed as of Right Because a Final Judgment Has Not Been Entered.
Nevitt may not appeal the interim child custody order as of right because a final judgment has not been entered. Only final judgments are subject to appeal as of right. A judgment is final if it ends the litigation on the merits and leaves nothing for the court to do other than execute the judgment. "In determining whether an order is `final' for appeal purposes, we look to `the substance and effect, rather than the form, of the rendering court's judgment,' focusing primarily on operational or `decretal' language." Interim child custody orders are not final judgments as they are inherently temporary. Such orders are appealable as a matter of right only after a final judgment has been entered and only if the issue is not moot.
See Alaska R. App. P. 202(a); D.L.M. v. M.W., 941 P.2d 900, 902 (Alaska 1997).
Matanuska Maid, Inc. v. State, 620 P.2d 182, 184-85 (Alaska 1980).
D.L.M., 941 P.2d at 902 (quoting Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 634 (Alaska 1993)).
See Conservatorship Estate of K.H. v. Continental Ins. Co., 73 P.3d 588, 595 (Alaska 2003) (finding interim order not appealable); Bradley v. Bradley, 32 P.3d 372 n. 4 (Alaska 2001) (noting that the purpose of the finality rule is to ensure that there is a full factual and legal setting for proper appeal and to prevent litigation of non-final orders that may become moot); Municipality of Anchorage v. Anderson, 37 P.3d 420, 421 (Alaska 2001) (dismissing appeal of non-final order); Glasen v. Glasen, 13 P.3d 719, 723 (Alaska 2000) (finding that a separation decree was not a final judgment, but was an interim order because parties had viewed separation decree as temporary).
IV. CONCLUSION
This appeal is DISMISSED.