McAlpine v. PACARRO
262 P.3d 622
Alaska2011Background
- D 1999 domestic violence assault by Shaun; Shauns conviction later suspended, with probation and DV program.
- D 2000 Kalindi and Shaun married; 2001 conviction set aside upon conditions.
- D 2004 Kalindi obtained ex parte DV protective order; court found domestic violence by Shaun by preponderance.
- D 2005 and 2006 custody settlement agreements; Kalindi had primary custody, Shaun visitation; pro se proceedings.
- D 2007 Kalindi moved with children to Florida; 2007–2008 interim orders favored Shaun custody and Kalindi visitation.
- D 2009 Kalindi sought to modify interim custody with evidentiary hearing; 2010 court denied without hearing; 2011 Supreme Court remanded for evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mother is entitled to an evidentiary hearing on custody modification based on DV history | McAlpine seeks hearing to introduce DV evidence | Pacarro contends no hearing necessary given prior orders | Remand for evidentiary hearing on modification |
| Whether AS 25.24.150(g) presumption applies to modification | Presumption may require consideration of DV history | Presumption may be rebutted or not applicable at this stage | Remand to address applicability of AS 25.24.150(g) in context |
| Whether res judicata bars the modification petition | Change in circumstances justifies reopening | Finality should bar relitigation | Res judicata does not bar modification; modification may be based on change in circumstances |
| Whether collateral estoppel should apply to prior DV findings | 2005–2007 findings may bind later proceedings | Findings may be unfair or fair depending on circumstances | Remand to assess fairness of applying collateral estoppel in this case |
| Whether the case should be remanded for an evidentiary hearing | Evidence of DV history requires hearing | Record insufficient for ruling without full hearing | Remand for an evidentiary hearing on Kalindi's custody modification petition |
Key Cases Cited
- Barile v. Barile, 179 P.3d 944 (Alaska 2008) (standard for modification and related procedures in custody)
- Williams v. Barbee, 243 P.3d 995 (Alaska 2010) (presumption under AS 25.24.150(g) applicability in DV context)
- Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008) (need to address history of domestic violence findings in custody)
- Latham v. Palin, 251 P.3d 341 (Alaska 2011) (collateral estoppel framework and fairness considerations)
- Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105 (Alaska 2002) (elements for collateral estoppel application)