Whalen v. Whalen, 425 P.3d 150

Background

Sarah and Sean Whalen are former spouses with a history of domestic violence; Sarah previously obtained multiple domestic violence protective orders, the most recent issued in September 2014.
In late 2015 Sarah sought to extend/renew the expiring long‑term protective order and later filed a new petition for ex parte and long‑term protective orders after recounting a recent lake incident and other post‑2014 events.
The superior court instructed that a new long‑term protective order may be granted only if there was a new incident of domestic violence after the prior order, and limited the hearing evidence to post‑2014 events.
At the December 2015 hearing the court found no new domestic‑violence incident: it rejected the tampering claim, concluded Sean had permission to enter the garage to retrieve property (so no second‑degree criminal trespass), and accepted that the lake incident did not constitute new domestic violence.
The superior court denied the petition; Sarah appealed, arguing that (1) AS 18.66.100 does not require a new incident to obtain a subsequent protective order and (2) Sean committed second‑degree criminal trespass. Amici supported Sarah on the statutory/renewal issue. Sean did not participate in the appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a petitioner may obtain a new long‑term protective order based solely on past incidents already the basis of a prior protective order	Whalen: statute and policy permit courts to issue additional orders based on continued need; res judicata shouldn’t bar renewed protection	Court/State: statute prescribes durations and requires a new incident (or violation) to support a subsequent order; prior protective order is claim‑preclusive	Court held res judicata and AS 18.66.100 bar issuance of a new order based on the same past incidents absent a new domestic‑violence incident
Whether AS 18.66.100’s text and purpose allow multiple successive orders without a new incident	Whalen/amici: statute’s purpose and § (e) prevent denial due to lapse of time; cyclical abuse supports renewal without a new incident	State: statute unambiguously sets time limits and omits any renewal mechanism; legislature could have provided renewal but did not	Court held the statute unambiguously limits durations and does not authorize additional orders for the same incident; remedy lies with the legislature
Whether Sean committed second‑degree criminal trespass by entering Sarah’s garage to retrieve belongings	Whalen: even if invited generally, the scope of permission was limited and entry was unlawful	Sean: he had permission (email indicated belongings under tarp); superior court credited his testimony the garage door was open	Court affirmed: no clear error in superior court’s factual finding that Sean had permission, so no second‑degree trespass
Whether tort principles about scope of permission should inform criminal trespass analysis	Whalen: scope‑of‑consent tort principles apply and could show unlawful entry	State: criminal trespass is statutory; importing tort rules not appropriate without briefing	Court declined to import tort law and found the argument waived for inadequate briefing

Key Cases Cited

Girdwood Mining Co. v. Comsult LLC, 329 P.3d 194 (Alaska 2014) (res judicata/claim‑preclusion principles)
McComas v. Kirn, 105 P.3d 1130 (Alaska 2005) (change in circumstances can permit later protective relief where prior petition was not granted on merits)
Arabie v. State, 699 P.2d 890 (Alaska App. 1985) (entry into part of building open to public not unlawful for burglary/trespass analysis)
Alyeska Pipeline Serv. Co. v. State, 262 P.3d 593 (Alaska 2011) (courts should not rewrite unambiguous statutes to effect policy goals)
Patterson v. Infinity Ins. Co., 303 P.3d 493 (Alaska 2013) (res judicata bars claims that were or could have been litigated)