Darren M. v. Destiny D.Darren M. v. Destiny D.
O P I N I O N
No. 7820 - July 24, 2026
Appeal from the Superior Court of the State of Alaska, First Judicial District, Sitka, Amanda L. Browning, Judge.
Appearances: Jason M. Owens, Law Offices of Blake Fulton Quackenbush, Anchorage, for Appellant. Alicia Porter, Law Office of Alicia Porter, Sitka, for Appellee.
Before: Cаrney, Chief Justice, and Borghesan, Henderson, Pate, and Oravec, Justices.
PATE, Justice.
I. INTRODUCTION
A father represented by an attorney filed a divorce and custody action in superior court, alleging that the mother had committed acts of domestic violence. The mother, representing herself, failed to attend the custody hearing. After the hearing, the court awarded sole legal and primary physical custody to the father.
The father appeals, arguing that the superior court abused its discretion and clearly erred by amending the written findings. We are not persuaded by these arguments. We observe that the court corrected a clerical error made by another judge earlier in the same proceedings, an error engendered by the failure of the father‘s attorney to honor his obligation to accurately memorialize the cоurt‘s oral findings. We hold that the court had authority under
II. FACTS AND PROCEEDINGS
Darren M. and Destiny D. were married in April 2023 and have one child.1 The couple had an altercation at their residence in July 2023. Destiny pushed and shoved Darren several times, but did not cause any injuries. She also broke a bowl or dish belonging to Darren. Darren decided to leave the residence, and Destiny asked
Darren subsequently filed a petition for a domestic violence protective order (DVPO) and a complaint for divorce. Acting in a pro tem capacity, superior court judge Michael McConahy granted a long-term DVPO in August 2023. The DVPO included a finding that Destiny had committed two acts of domestic violence: assault or reckless endangerment, associated with Destiny pushing and shoving Darren, and criminal mischief, associated with Destiny breaking the bowl.
Judge McConahy subsequently held an informal divorce trial in November 2023. Darren testified at trial; Destiny, then unrepresented, did not appear. After taking testimony from Darren, the court issued its custody determination by analyzing the best interests factors2 orally, on the record. When discussing the faсtor pertaining to domestic violence,3 Judge McConahy acknowledged that earlier in the DVPO proceeding he had made findings that there had been two acts of domestic violence. But he explained that, ultimately, the additional testimony in the divorce proceeding supported a finding that Destiny‘s conduct constituted only “one instance of domestic violence” under
Judge McConahy awarded Darren primary physical and sole legal custody and granted Destiny weekly visitation. After stating his findings and explaining that he would be exiting his pro tem judgeship soon, Judge McConahy asked Darren‘s attorney — Jason M. Owens — to submit a draft decree and findings of fact and conclusions of law based on the oral rulings. Owens responded that he would be “happy” to do so. He later submitted his draft findings, which contained the following description of domestic violence:
[Destiny] committed at least one act of assault, having physically attacked [Darren] and having discharged a firearm in his presence, which did recklessly place him in fear of imminent physical injury. This is an act of domestic violence. [Destiny] committed an act of criminal mischief by intentionally destroying an item precious to [Darren] in his presence, which is also an act of domestic violence.
Although Owens was responsible for accurately memorializing findings on the record, his draft differs from Judge McConahy‘s oral findings in several important respects. Most significantly, the attorney‘s draft includes findings that Destiny committed two acts of domestic violence. By contrast, Judge McConahy found that Destiny committed a single act of domestic violence. Further, the attorney‘s draft added a finding that Destiny‘s discharge of the firearm was an act of domestic violence, whereas Judge McConаhy explicitly stated on record that discharge of the firearm did not constitute assault or reckless endangerment, and thus was not an act of domestic violence.
Owens did not alert the court to the fact that his draft deviated from McConahy‘s oral findings.
About a month later, Destiny — who by that time was represented by counsel — moved for modification of custody. Darren requested the court to require Destiny to complete a batterer‘s intervention program before exercising visitation. The
Superior court judge William Carey issued an order in April 2024 outlining the steps that would constitute a substantial change in circumstances, including requirements for Destiny to obtain a mental health assessment and therapy, treatment for drugs and alcohol, and proof of sobriety. The court again declined a request by Darren to include a requirement for Destiny to complete а batterer‘s intervention program.
Darren moved for reconsideration of the court‘s April 2024 order, arguing in part that the court was mandated by statute to include the batterer‘s intervention program as a prerequisite to modifying custody and visitation. In line with Judge Carey‘s written findings, Darren asserted that Destiny had committed two acts of domestic violence, which would trigger the rebuttable presumption against awarding her custody under
Darren moved for reconsideration. Judge Browning denied his motion and directly addressed Darren‘s assertions regarding domestic violence, reaffirming Judge McConahy‘s oral finding that Destiny had committed only a single act of domestic violence. Judge Browning noted that the written findings signed by Judge Carey were in conflict with Judge McConahy‘s explicit oral finding thаt Destiny had committed only one act of domestic violence.
Judge Browning reasoned that Judge McConahy‘s oral findings controlled because Judge Carey was not put on notice that there were discrepancies between Judge McConahy‘s oral findings and the findings drafted by Owens. She was unable to conclude that Judge Carey “consciously made or endorsed” the changes to Judge McConahy‘s findings. Expressing concern that the attorney had “unilaterally reversed Judge McConahy‘s on-the-record findings in violation of his responsibility to the court and to the оpposing party to memorialize the court‘s judgement,” Judge Browning amended the written findings to specify that Destiny had committed only a single act of domestic violence and, thus, the presumption under
III. STANDARD OF REVIEW
“Interpretations of court rules, including whether a judgment or court order can appropriately be corrected under Rule 60, are questions of law.”8 We apply our independent judgment to questions of law, “adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy.”9 “After resolving any legal issues, ‘we review the trial сourt‘s decision to amend the judgment under Rule 60(a) for an abuse of discretion.’ ”10 We only find an abuse of discretion “when we are ‘left with a definite and firm conviction on the whole record that the trial judge has made a mistake.’ ”11
“We may affirm the superior court on any basis supported by the record, even if that basis was not considered by the court below or advanced by any party.”12
[Destiny] committed only one act of domestic violence on July 14, 2023. The court finds that the argument between [Destiny] and [Darren] that night, which involved [Destiny] pushing and shoving [Darren] and [Destiny] smashing a bowl that was dear to [Dаrren], was one cumulative and ongoing event that constitutes a single act of violence for the purposes of
AS 25.24.150(h) . Therefore, the presumption of domestic violence does not apply to custody matters in this case.
Darren argues that the superior court abused its discretion by amending the written findings to reflect that Destiny committed only one act of domestic violence. He additionally appears to argue that it was clear error for the court to find that there was only one instance of domestic violence. Neither of these arguments are persuasive. First, we hold that the court did not abuse its discretion by amending the findings: The court had authority under Civil Rule 60(a) to correct a clerical error engendered by the failure of Darren‘s attorney to accurately memorialize the court‘s oral findings. Second, we hold that any argument alleging clear error is barred by the law of the case. In light of the attorney‘s failure to honor his obligation to serve as a faithful scribe, we apply the doctrine of the law of the case sua sponte13 so as to serve the ends of justice.
A. The Superior Court Did Not Abuse Its Discretion By Amending The Findings Of Fact And Conclusions Of Law.
For the reasons explained below, we hold that Judge Browning had authority under Civil Rule 60(a) to correct the clerical error that was directly attributable to attorney Owens‘s failure to honor his obligation to accurately transcribe Judge McConahy‘s oral findings.
1. Owens failed to honor his obligation to accurately transcribe Judge McConahy‘s oral findings.
It is standard practice for counsel representing the prevailing party in a civil case to prepare proposed findings of fact and conclusions of law, as well as judgments and orders.14 Attorneys entrusted with this responsibility are expected to act
Generally, it is the best practice for a judge to listen to the courtroom audio to ensure that an attorney‘s representations are accurate before signing the findings and conclusions drafted by the attorney.19 However, we have previously explained that the responsibility for accuracy primarily lies with the attorney:
Counsel cannot expect the court to compare the tape of its oral findings and conclusions with the proposed written findings and conclusions; the court is entitled to assume that counsel will scrupulously comply with the court‘s request to prepare findings and conclusions that are “consistent” with the court‘s oral findings and conclusions.[20]
Attorney Owens accepted responsibility for drafting findings of fact and conclusions of law consistent with Judge McConahy‘s oral findings. As an attorney, Owens had a heightened “burden of accuracy” because Destiny was unrepresented22 and did not appear at trial. These circumstances limited her ability to effectively challenge the proposed findings. Owens‘s burden was further heightened because he was on notice that Judge McConahy was leaving his judicial position and, consequently, it was likely that the draft findings would be reviewed by a newly assigned judge who was not present for the testimony and oral findings. Satisfying this burden was not onerous, especially given that Judge McConahy fully announced his oral findings in less than ten minutes.
However, instead of acting аs a faithful scribe of the court, Owens deviated from Judge McConahy‘s factual findings in several important respects. First, he wrote that Destiny had “committed at least one act of assault, having physically attacked [Darren] and having discharged a firearm in his presence, which did recklessly place him in fear of imminent injury.” (Emphasis added.) The attorney‘s
Secоnd, Owens wrote that Destiny “committed an act of criminal mischief by intentionally destroying an item precious to [Darren] in his presence, which is also an act of domestic violence.” Thus, the attorney‘s draft included findings that Destiny committed more than one act of domestic violence. Yet Judge McConahy specifically stated in his oral findings that he considered the pushing, shoving, and breaking of the bowl to be “cumulative and ongoing events” that provided the basis for only one instance of domestic violence.
Even if Owens believed there was some ambiguity in thе oral findings, he had the responsibility to bring that perceived ambiguity to the court‘s attention.23 He failed to do so. Instead, he submitted draft findings that deviated from the oral findings in a manner that favored his client and created additional hurdles for an unrepresented mother to have custody of her child. Judge Browning‘s decision is best understood as a proper correction of a clerical error under Civil Rule 60(a).
With this context in mind, we turn to Darren‘s argument that Judge Browning abused her discretion by overruling findings made by both Judge McConahy and Judge Carey. He cites McCavit v. Lacher for the propоsition that the power of a newly assigned judge to overrule erroneous factual findings made by another judge earlier in the proceedings is “not to be used lightly.”24 This argument is unpersuasive under the circumstances here.
Rule 60(a) provides that clerical errors in orders “may be corrected by the court at any time of its own initiative.”27 We have previously clarified that for the purposes of Rule 60(a), clerical errors include “objectively ascertainable errors in form
Here, Judge Browning amended the findings after engaging in a careful examination of the objective record without making additional factual findings or legal conclusions beyond those made by priоr judges. Judge Carey‘s written finding that there were two acts of domestic violence is clearly and objectively inconsistent with Judge McConahy‘s oral findings that there was only one act. This error — writing that there were two acts when in fact there was one — was clerical in nature and therefore curable under Rule 60(a).
Second, even assuming that Judge Carey consciously adopted the deviations that Owens made, we would still hold that Judge Browning did not abuse her discretion or run afoul of McCavit. Rather, under those circumstances, it would have been Judge Carey who ignored our guidance from McCavit by overruling Judge McConahy‘s findings without providing any explanation for why the findings were clearly erroneous.31 This is because Judge Carey was not the original finder of fact with regard to the acts of domestic violence; he did not take the testimony or have the
For the reasons explained above, we hold that Judge Browning‘s amendment to the findings was an appropriate exercise of her discretion under Civil Rule 60(a) to correct a clerical error.
B. Darren‘s Arguments That The Court Clearly Erred In Its Factual Findings Are Barred By The Law Of The Case.
Underlying Darren‘s arguments on appeal is the assertion that both Judge McConahy and Judge Browning committed clear error by finding that Destiny committed only one act of domestic violence. He also appears to argue that it was clearly erroneous to find that Destiny‘s disсharge of the firearm was not a crime of assault. We hold that any such arguments are barred by the law of the case.
“The law of the case doctrine, which is ‘grounded in the principle of stare decisis’ and ‘akin to the doctrine of res judicata,’ generally ‘prohibits the reconsideration of issues’ ”33 that were adjudicated “earlier in the same lawsuit.”34 The law of the case applies “to issues that were fully litigated resulting in a final order which was not timely appealed” in addition to those litigated on appeal.35 It is “a doctrine of
Darren alleges that Judge Browning committed clear error by amending the written findings of fact and conclusions of law. He appears to suggest that even if the written findings drafted by his attorney deviated from the oral findings, the deviations were justified because the oral findings made by Judge McConahy were clearly erroneous. He also argues in his reply that Judge Browning “never considered that the error might have been in what [she] perceived as the oral findings.”
The allegation that Judge Browning clearly erred fails because she did not make any factual findings regarding the number of acts of domestic violence; rather, as discussed above, Judge Browning appropriately amended the written findings to correct the clerical error that created inconsistencies between the written findings and Judge McConahy‘s oral findings. Further, Judge Browning was not under any obligation to consider whether Judge McConahy‘s orаl findings were clearly erroneous. If Darren wanted to challenge Judge McConahy‘s oral findings as clearly erroneous, he should
Allowing Darren to challenge the oral findings at this point would effectively circumvent the appellate process and legitimize his attorney‘s failure to meet his obligation under the law. Therefore, although Destiny did not specifically raise an argument regarding application of the law of the case in her briefing on appeal, we apply it here sua sponte because it serves the ends of justice.40 We hold that Darren‘s arguments that the court‘s factual findings were clearly erroneous are barred by the law of the case.
V. CONCLUSION
We AFFIRM the superior court‘s ruling.