Nevittv.Provost

Supreme Court of AlaskaJul 23, 2008
Supreme Court No. S-12603. (Alaska Jul. 23, 2008)

Supreme Court No. S-12603.

July 23, 2008.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Morgan Christen, Judge, Superior Court Nos. 3AN-06-3396 CI and 3AN-06-3476 CI.

Appearances: Richard L. Nevitt, pro se, Anchorage. Diane Provost, pro se, Anchorage.

Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.


NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.


MEMORANDUM OPINION AND JUDGMENT

Entered pursuant to Appellate Rule 214.

I. INTRODUCTION

Richard Nevitt filed two petitions for domestic violence protective orders against Diane Provost during the pendency of their divorce proceedings. The first petition contained allegations of harm to their daughter; the second petition repeated those allegations and further alleged custodial interference and violations of orders entered earlier in the divorce proceedings. After a consolidated hearing, the superior court denied the first petition and granted relief on the non-duplicative portions of the second petition, including the extension of an existing "limited contact" order for one year and a requirement that Provost pay Nevitt for missed visitation and allow make-up visitation. Nevitt appeals from these rulings, arguing that he should have been granted more relief, including modified custody of the parties' daughter.

The allegations in Nevitt's first petition were discussed at length when the superior court later entered its final findings of fact and conclusions of law in the divorce proceedings, and the court ultimately awarded Provost sole legal custody and primary physical custody of the parties' daughter. The specifically tailored relief granted on Nevitt's second petition expired in December 2007. Because Nevitt has already had a thorough review of the issues raised in his first petition and because all of the specifically tailored relief granted in connection with his second petition already has expired, we dismiss Nevitt's appeal as moot.

II. FACTS AND PROCEEDINGS

Nevitt and Provost married in 1998, and their daughter was born in 1999. Since 2003, Nevitt and Provost have been involved in contentious litigation concerning their divorce, allegations of domestic violence, and custody of their daughter. Their divorce was finalized in 2008.

In March 2006 Superior Court Judge Craig F. Stowers conducted a hearing on Provost's petition for a long-term domestic violence protective order. Judge Stowers recommended that the parties not contact each other except in limited circumstances. Specifically, Judge Stowers recommended that Nevitt serve non-expedited pleadings on Provost by mail and expedited pleadings only between certain hours at a given business; that the parties not appear at each other's residences or workplaces; that Nevitt "keep away from Ms. Provost to the maximum extent reasonably possible" at their daughter's school functions; that neither parent disparage the other in their daughter's presence; that the parties not contact one another by telephone except in a "true emergency" involving their daughter; that the parties e-mail each other "only concerning logistical matters" involving their daughter; and that the parties otherwise have no contact with one another. The parties expressly agreed to the recommended order, and Judge Stowers dismissed the domestic violence case. Superior Court Judge Morgan Christen was presiding over the parties' pending divorce case and adopted the recommended order in April 2006.

On December 1, 2006, Nevitt filed an ex parte petition for a temporary domestic violence protective order and temporary physical custody of the parties' daughter, and also requested a long-term protective order. Nevitt alleged that Provost had threatened to "drive [their daughter] and herself to heaven" if she were "ever backed into a corner" and he expressed concern about their daughter being sexually abused in connection with a highly publicized child abuse case. A magistrate denied the ex parte request for a temporary order and scheduled a December 13 hearing before Judge Christen to decide whether a long-term order was appropriate.

On December 9, Nevitt filed another ex parte petition for a temporary domestic violence protective order, and again requested temporary custody of the parties' daughter. Nevitt repeated the allegations of the first petition and also alleged that Provost had committed custodial interference and violated the existing "limited contact" order. A magistrate denied this ex parte request for a temporary order, indicating that a hearing would be held by Judge Christen on December 13 to decide whether to issue a long-term order.

Specifically, Nevitt asserted that Provost had violated existing divorce proceeding orders by (1) failing to return their daughter to him on December 8 and keeping her until December 11; (2) sending him a letter "disguised" as a pleading; and (3) calling him on the phone multiple times on December 15. Provost contended at the hearing that (1) she did not return their daughter until December 11 because she feared for the daughter's well-being while in Nevitt's care; (2) she sent the written communication because she did not yet understand the distinction between her role and that of her attorney; and (3) she properly called Nevitt regarding an emergency situation concerning the daughter.

The hearing before Judge Christen began on December 13 and carried over to December 20, with Nevitt requesting sole custody of the daughter and supervised visitation for Provost. Judge Christen noted that "many of the allegations" in the two petitions were "the same, or overlap[ped]." Judge Christen declined to issue any protective orders in response to the December 1 petition, finding insufficient evidence that the daughter was "the victim of domestic violence as defined in AS 18.66.990(3)" and that "it was not shown Ms. Provost failed to protect" the daughter. Judge Christen therefore closed that case. As to the December 9 petition, Judge Christen found that Provost had violated the existing interim custody order in the divorce proceedings by failing to return the daughter to Nevitt on December 8 and that the daughter had been "subjected to an extremely disruptive and emotionally abusive transition" on December 11. Judge Christen required that Provost pay Nevitt $200 for missed visitation. Nevitt received three days of make-up visitation and his request for an extended protective order was granted.

Nevitt moved for reconsideration and Judge Christen denied the motion. Nevitt then appealed from both orders, noting that although the second petition had been granted, "the restraints petitioned for were not granted and in fact no `restraints' of any kind were granted and in fact the petition was in reality, in substance — denied."

The divorce proceedings progressed and on June 30, 2007, Judge Christen entered lengthy findings of fact and conclusions of law regarding custody and visitation for Nevitt and Provost's daughter. On February 6, 2008, Judge Christen granted Provost sole legal and primary physical custody of the daughter, effective June 30, 2007. On February 12, 2008, Judge Christen issued a divorce decree.

III. STANDARD OF REVIEW

This court generally "refrain[s] from deciding questions where events have rendered the legal issue moot." An issue is moot where a party cannot be given relief or has already obtained adequate relief. Whether an issue is moot is a question of law that this court resolves using its independent judgment.

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).

Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 525 n. 13 (Alaska 1993) (citing Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096 (Alaska 1988)).

IV. DISCUSSION

A few months before considering Nevitt's December 2006 domestic violence petitions, Judge Christen held final custody and visitation hearings in the parties' divorce proceedings; she issued findings of facts and conclusions of law in those proceedings on June 30, 2007. The findings, based on court-ordered investigations by the Office of Children's Services and the Custody Investigation Office, were dismissive of Nevitt's allegations of possible sexual abuse of Nevitt and Provost's daughter by certain third parties. Based on her findings and conclusions, Judge Christen awarded Provost sole legal and primary physical custody of the daughter. Because Judge Christen already has delved deeply into the allegations of harm raised in Nevitt's first domestic violence petition and has issued comprehensive findings and conclusions on all issues related to custody and visitation, nothing would be gained by our consideration of Judge Christen's denial of Nevitt's first petition.

As to Nevitt's second petition, Judge Christen entered a form order effective December 21, 2006, the first paragraph of which generally required that Provost not commit or threaten to commit acts of domestic violence, stalking, or harassment, "effect[ive] indefinitely, until dissolved by court order." The rest of the specifically tailored relief, including the continuing limitation of contact between Provost and Nevitt, was "effect[ive] for one year unless modified or dissolved earlier by court order." Assuming that Nevitt was entitled to additional specifically tailored relief, and further assuming that his claim for additional relief was not considered by the superior court during the final hearings in the divorce trial, any additional relief would have expired December 21, 2007. Nevitt has not demonstrated any good reason why we now should consider the merits of an already expired order, especially in light of the intervening final divorce hearings and the entry of final orders on custody and visitation.

V. CONCLUSION

For the foregoing reasons, we DISMISS this appeal as moot.