Opinion
No. 5975
2013-10-02
CHRISTOPHER J. DEATER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John Page, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
Court of Appeals No. A-10947
Trial Court No. 3KO-09-391 CR
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Kodiak, Steve W. Cole, Judge.
Appearances: John Page, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge ALLARD.
Christopher J. Deater appeals his conviction for violating a domestic violence protective order. Deater argues that the judge issued an oral protective order that conflicted with the terms of the written protective order, and that the terms of the oral protective order should control. He also argues that the district court lacked jurisdiction over him to issue the protective order. For the reasons described below, we affirm Deater's conviction.
Facts and Procedural History
Jason Tandler and Rhonda Palmer are the parents of a four-year-old girl, H.T. In 2009, Tandler alleged that Palmer's boyfriend, Deater, had sexually abused H.T. On April 7, 2009, Tandler applied for and was granted an ex parte 20-day domestic violence protective order on behalf of H.T. The ex parte order prohibited Deater from having contact with H.T. and from being places where she might be, including Tandler's place of employment and home.
The superior court set a hearing concerning a long-term protective order for April 9, 2009. The court combined the hearing with other hearings involving Tandler, Deater, and Palmer, including Deater's petition for a stalking protective order against Tandler, an on-going custody dispute between Tandler and Palmer, and Palmer's petition for a domestic violence protective order against Tandler. Tandler, Deater, and Palmer attended and testified at the April 9 hearing.
After hearing from the parties, Superior Court Judge pro tem Peter G. Ashman addressed the different requests and announced he was going to grant the protective orders: "It is my intention to grant each of the protective orders; that is, Mr. Deater's against Mr. Tandler, Mr. Tandler's on behalf of [H.T.] against Mr. Deater, and Ms. Palmer's against Mr. Tandler. The orders will be no threats of violence. No contact of any kind." Judge Ashman issued written orders, which were served on the parties at the end of the hearing.
The order against Deater prohibited him from communicating directly or indirectly with H.T. and Tandler. Deater did not appeal the order. He later unsuccessfully moved to dismiss it, arguing that the order was not necessary because he had agreed to a safety plan with the Office of Children's Services and the district attorney was not pursuing charges.
On September 17, 2009, Deater was working for a construction company. While driving a roller through an area with other vehicle traffic, Deater saw Tandler stopped on the side of the road, standing near Tandler's truck. Tandler's mouth and hands were moving, but Deater could not hear him because of the construction noise. Deater responded, "Yeah, I'll kick your F-in' ass, too." Tandler reported the incident to the police, and the State charged Deater with violating the protective order.
Deater filed a motion to dismiss the charge on the ground that the written protective order was void. He argued that the written order was inconsistent with the court's oral statement, and that the court only had authority to grant a protective order for Tandler's daughter, H.T., but did not have the authority to include Tandler in the terms of the protective order.
Superior Court Judge Steve W. Cole issued a written decision denying Deater's motion to dismiss. Judge Cole concluded that Judge Ashman's oral statement and the written protective order were consistent and did not conflict. Specifically, he found that Judge Ashman's oral comments were "unambiguously directing that Jason Tandler, Rhonda Palmer and Chris Deater were to not have any contact with each other, and this included Mr. Deater not contacting Jason Tandler." Judge Cole also concluded that the court had the authority to order Deater to have no contact with Tandler.
A jury subsequently convicted Deater of violating the protective order. Deater appeals his conviction.
Did the trial court lack authority to order Deater to have no contact with Tandler?
Deater concedes that the superior court had the authority to issue the no-contact order on behalf of H.T. He argues, however, that the court lacked the authority to include a provision prohibiting contact with Tandler because the no-contact provision was sought only on behalf of H.T.
But the domestic violence protective order statute, AS 18.66.100(c)(16), grants superior court judges the authority to "order other relief the court determines necessary to protect the petitioner or any household member." Because Tandler qualified as a "household member," the trial court had the statutory authority to include terms related to Tandler as part of the protective order issued on behalf of H.T.
See AS 18.66.990(5) (defining "household member" to include adults or minors who live together or who have lived together and adults or minors who are related to each other up to the fourth degree of consanguinity).
Deater also argues that the court lacked personal jurisdiction over him to issue the portion of the protective order that prohibited contact with Tandler. Relying on this Court's decision in Olson v. State, Deater asserts that this portion of the order is void because he never received notice and an opportunity to be heard on whether a no-contact provision involving Tandler should be included in the protective order.
Olson v. State, 77 P.3d 15 (Alaska App. 2003).
But Deater's argument conflates personal jurisdiction with an opportunity to be heard on a particular issue. In Olson, the defendant never received notice of the hearing on the long-term petition and never had an opportunity to participate in the hearing or to otherwise be heard before the long-term order was issued. This Court held that although Olson was later served with a copy of the long-term order, the trial court had never acquired personal jurisdiction over him and the long-term protective order was therefore void.
Olson, 77 P.3d at 16-17.
Id. at 17.
Here, in contrast, Deater received notice of the hearing on the long-term order and fully participated in the hearing. The superior court therefore established personal jurisdiction over Deater in this action (a fact that Deater directly conceded in his filings to the trial court). Deater's true complaint in this case is not that the superior court lacked personal jurisdiction over him regarding this action, but rather that he believes he did not receive adequate notice that Tandler would be included in the relief the court ordered. But Deater had an opportunity to address this complaint in the proceedings below and failed to do so. He acknowledges that he received a copy of the protective order immediately after the hearing and that he was well aware that it included a provision prohibiting any contact with Tandler. Under these circumstances, if Deater believed the no-contact provision with Tandler was not justified by the facts presented at the hearing or that he had not had a full opportunity to contest those facts, he was required to challenge the terms of the order through the legal process and to comply with the no-contact order until it was otherwise vacated or reversed.
See Matthews v. Matthews, 739 P.2d 1298, 1299 n.1 (Alaska 1987) (when a party appears and defends an action, the party cannot later argue lack of personal jurisdiction).
See Fletcher v. State, 258 P.3d 874, 877 (Alaska App. 2011)(personal jurisdiction may be acquired by waiver or consent of the defendant).
Jacko v. State, 981 P.2d 1075, 1077 (Alaska App. 1999).
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Did the terms of the oral order conflict with the written order?
At the end of the hearing, the superior court stated "it is my intention to grant each of the protective orders, that is Mr. Deater's against Mr. Tandler, Mr. Tandler's on behalf of [H.T.] against Mr. Deater, and Ms. Palmer's against Mr. Tandler. The orders will be no threats of violence. No contact of any kind." Deater argues that this statement constituted an oral order prohibiting Deater from having contact with H.T. and that the terms of this oral order should control over the written order that the judge issued and distributed immediately after the hearing prohibiting Deater from having contact with both H.T. and Tandler.
The State argues that Deater is reading the judge's statement out of context and that the judge's statement was merely an indication that he intended to grant the various protective orders before him. The State points out that the judge made other statements indicating that the no-contact order would apply to all the parties (Deater and Tandler included) because of the high level of tension and "implicit threats of violence" that were present in this situation. Having reviewed the record, we agree that the judge's oral statements did not conflict with the written order that was issued immediately after the hearing. We therefore affirm the trial court's ruling that the terms of the written protective order were valid.
Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.