Adam F. v. Caitlin B.

551 P.3d 553

ADAM F., Appellant,

v.CAITLIN B., Appellee.

Supreme Court No. S-18519

Supreme Court of Alaska.

July 12, 2024

Appeal from the Superior Court of the State of Alaska, First Judicial District, Sitka, M. Jude Pate, Judge. Superior Court No. 1SI-20-00108 CI

Taylor R. Thompson, Thompson Law Group, Anchorage, for Appellant.

James W. McGowan, Sitka, for Appellee.

Before: Maassen, Chief Justice, and Borghesan and Henderson, Justices. [Carney and Pate, Justices, not participating.]

OPINION

HENDERSON, Justice.

I. INTRODUCTION

A mother sought to modify visitation between her child and the child’s father based upon allegations of domestic violence between the father and his new romantic partner. On the day of the court hearing about the mother’s request, the father’s attorney withdrew from the case, and a different attorney took over representing the father. The court allowed the substitution of counsel, but denied the father’s request for a continuance to give his new attorney additional time to prepare. The court proceeded with the hearing, which continued into a second day six days later. At the conclusion of the hearing, the court found that the father had committed five acts of domestic violence: two that constituted assault or reckless endangerment and three violations of domestic violence protective orders. It also found that the father was not engaged in a previously ordered domestic violence intervention program. Initially the court declined to modify the father’s visitation, but two days later it reconsidered its order and temporarily suspended the father’s visitation pending his demonstration of engagement with a domestic violence intervention program.

The father appeals the court’s denial of his request for a continuance, its findings of domestic violence, and its temporary suspension of his visitation. Observing no clear error or abuse of discretion, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

1. Divorce and long-term domestic violence protective orders

Caitlin B. and Adam F. were married in 2016 and had one child together in 2017. In September 2020, Caitlin filed for divorce and was granted long-term domestic violence protective orders (DVPOs) against Adam, on behalf of both herself and the child. Among other terms the DVPOs denied Adam visitation with the child.¹ A couple of months later Adam hired an attorney to represent him in the divorce and custody proceeding.

In July 2021 the superior court issued a divorce decree and custody and visitation order deciding all contested issues. The court found that both parties had "a history of domestic violence" that triggered the rebuttable presumption against custody and unsupervised visitation,² but it found that Caitlin was less likely to perpetuate domestic violence and awarded her sole legal and primary physical custody of the child. In a separate order the court awarded Adam supervised visitation for two hours, twice a week, noting Adam had begun, but not completed, a domestic violence intervention program (DVIP) that would rebut the presumption against custody and unsupervised visitation.³ The court also modified the DVPOs that had been previously issued to allow for supervised visitation, but ordered that Adam could not be "within sight or sound" of Caitlin during custody exchanges.⁴

2. Caitlin’s motion to modify visitation

In December 2021 Caitlin filed a request to suspend Adam’s visitation with the child, asserting a change in circumstances because he had disengaged from his DVIP program and committed a new act of domestic violence against his romantic partner Mackenzie. Several months later additional acts of domestic violence came to light when Mackenzie filed for a DVPO against Adam. Adam’s attorney was not able to represent him in the context of the DVPO litigation because the attorney had represented Mackenzie in a previous unrelated criminal matter, so Adam secured a different attorney to represent him in the DVPO case. Meanwhile, the hearing on Caitlin’s motion to modify visitation was delayed in part by Adam’s noncompliance with discovery, and the hearing was eventually scheduled for August 2022. Adam moved to modify the DVPO held by the child so that he could wave to her if he was driving past her, and this motion was scheduled to be considered along with Caitlin’s during the parties’ upcoming hearing. In the meantime, Adam continued to have supervised visitation.

B. Proceedings

1. Denying Adam’s requested continuance

On the day of the parties’ hearing, Adam’s attorney moved to withdraw from the case. The attorney cited an unwaivable conflict in light of the fact that Mackenzie, also her current client, had been subpoenaed to testify in the custody hearing.⁵ In spite of the fact Caitlin’s visitation motion was based largely upon violence between Adam and Mackenzie, the attorney stated that she had not been certain an unwaivable conflict existed until Mackenzie was actually subpoenaed to testify in the visitation-related proceedings.⁶ The attorney did not explain why she did not seek to withdraw at that time. Adam sought to have the attorney who had represented him in his DVPO case against Mackenzie step in to represent him in this visitation litigation as well. That attorney was present at the hearing and willing to take over the representation.

Caitlin disagreed with the assertion that a conflict existed, and contended that Adam’s motion "appear[ed] to be a manipulative effort to avoid" that day’s hearing. After hearing evidence on the nature of the conflict the court agreed that the attorney seeking to withdraw appeared to have a conflict that "fit within 1.7(a)(2),"⁷ but expressed dismay over the attorney’s failure to identify and act on the conflict in a timely way. The court permitted the withdrawal and substitution of new counsel, who was present.

Adam’s new attorney immediately sought a continuance. She stated, "[T]here’s no way I could be ready to go today" and asserted that conducting the hearing that same day would not allow her to "zealously advocate" for Adam. Caitlin objected to any continuance. She noted that Adam’s discovery-related conduct had already delayed the hearing, that he had long been on notice of the conflict that caused his first attorney to withdraw, and that the new attorney should be prepared to litigate about allegations of domestic violence between Adam and Mackenzie because she had represented Adam in the related DVPO proceeding.

The court granted a continuance with respect to litigation over discovery and child support issues, of which Adam’s new attorney lacked knowledge, but denied the request to continue litigation about the allegations of domestic violence between Adam and Mackenzie and whether a change in visitation or modification of the child’s DVPO would be in the child’s best interests. The court cited previous delay in the case and also reasoned that Adam’s new attorney had represented him in related DVPO proceedings and that she should be "ready to go forward on those issues." The court observed that the two grounds for Caitlin’s motion to modify visitation were: (1) Adam’s alleged "new acts of domestic violence," and (2) his alleged failure to remain engaged in a DVIP program. The court decided both were time-sensitive.

2. The August 11 and continued August 17 trial days

The evidentiary hearing then began with Caitlin putting on her case, including calling Adam and Mackenzie as witnesses. The court routinely paused the hearing to permit Adam’s counsel to attend other scheduled hearings "to be sensitive, … to [the] degree [it] can, to [Adam]’s ability to have an attorney." Ultimately the parties and the court ran out of time at the end of the court day and had to schedule a second hearing, six days later.

At the continued hearing on August 17, Adam completed his cross-examination of Mackenzie, put on his witnesses, and also testified. During closing argument, Adam nonetheless asserted that he had not had the "opportunity to … prepare" his case.⁸

During the two hearing days, the court heard testimony about Adam’s physical altercations with Mackenzie, as well as about Adam’s violations of the protective orders held by Caitlin and the parties’ child. Regarding the physical altercations, Mackenzie testified about an incident earlier that summer in which she had returned to her father’s home late one night after she and Adam had argued. She said Adam came to the home and somehow got into the locked house. Mackenzie testified that she quietly told Adam to leave and that he refused, speaking loudly enough that she believed her brother in the next room could hear him "wanting [Mackenzie] to go back home with him." She testified that Adam then "picked [her] up from the chair" she was sitting in, and she fell on the ground "because .. [she] was wiggling around … trying to get out." After Mackenzie hit the ground, she said Adam held her down. Mackenzie testified that Adam then picked her up again, this time aggressively, and threw her down on her upper back. After he stopped, she said she felt unwell and checked for bruising and saw none. She also said that "when [she] did fall on [her] upper back, it was not like intentional. It’s how [she] wiggled out and how [she] just landed."

Mackenzie also testified about a second recent incident during which Adam entered her father’s home without permission, this time while she was preparing for her second day of work at a new job. Mackenzie indicated that Adam was there because he wanted her to work at his shop instead of her new job, and that she did not want to talk to him. She said he became frustrated and eventually became loud enough "where people possibly could hear outside," so she told him to stop and leave. Mackenzie testified that Adam then lifted her from behind by the waist while she was "crouched down on the ground … getting ready for work," and threw her on her bed, an act that both startled and shocked her. She said that she was not hurt, but...