McAlpine v. PACARRO, 262 P.3d 622 (Alaska 2011). · Go Syfert
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McAlpine v. PACARRO, 262 P.3d 622 (Alaska 2011). Cases Citing This Book View Copy Cite
63 citation events (63 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 2012 → 2026 · click a year to view as-of
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Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) Antonnette N. v. Torey M.
Alaska · 2024 · confidence medium
While we have relaxed this rule in cases where allegations of domestic violence were “not adequately addressed at the initial custody determination or subsequent proceedings,” McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011), Antonnette’s allegations of domestic violence were adequately addressed in the initial custody determination.
cited Cited as authority (rule) Richard Green v. Phuong Hoang Dinh
Alaska · 2023 · confidence medium
From the record before us, however, we cannot determine whether the 14 Edna K. v. Jeb S., 467 P.3d 1046, 1051 (Alaska 2020) (quoting McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011)). 15 Id.
discussed Cited as authority (rule) State of Alaska v. Alaska State Employees Association/American Federation of State, County and Municipal Employees Local 52, AFL-CIO
Alaska · 2023 · confidence medium
Alaska 2020) (quoting Belgau v. Inslee, 975 F.3d 940, 951 (9th Cir. 2020)). 30 See McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (listing four elements of collateral estoppel and noting that “existence of those elements provides only the underlying basis for the trial court’s exercise of discretion to apply or not apply collateral estoppel, and that ‘this discretion must be tempered by principles of fairness in light of the circumstances of each particular case’ ” (quoting Misyura v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010))).
discussed Cited as authority (rule) Marybeth J. v. Troy T.
Alaska · 2023 · confidence medium
It then considered whether to apply the statutory presumption against awarding custody to a parent who had engaged in domestic violence.3 The court concluded the presumption against awarding custody applied to both MaryBeth and Troy and that neither had rebutted the 1 Bagby v. Bagby, 250 P.3d 1127, 1128-29 (Alaska 2011) (affirming that custodial parent’s move out of state amounts to substantial change in circumstances “as a matter of law”) (quoting Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001)). 2 McAlpine v. Pacarro, 262 P.3d 622, 626-27 (Alaska 2011) (holding that court was permitted …
discussed Cited as authority (rule) Julie I. Husby and Gregory L. Husby v. Jennifer M. Monegan and Scout A. Monegan
Alaska · 2022 · confidence medium
Oregon does 17 AS 25.20.110(a) (“If a parent opposes the modification of the award of custody or visitation with the child and the modification is granted, the court shall enter on the record its reasons for the modification.”). 18 McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (quoting Peterson v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009)). 19 Richard Montes, Harold J.
examined Cited as authority (rule) Jessica P. v. Gary P. (3×) also: Cited "see"
Alaska · 2021 · confidence medium
The “principle of finality” applies to custody cases, and parties are not allowed to relitigate custody orders “in the hope of gaining a more favorable position.”15 For that reason, a party “must generally demonstrate ‘a substantial change in circumstances since the last custody order was entered’ ” before the court may modify that order.16 But “we have relaxed this rule in custody matters involving domestic violence, directing the superior court to look back to events that occurred before the initial custody order if not adequately addressed at the initial custody determinat…
discussed Cited as authority (rule) John B. v. Alisa B.
Alaska · 2021 · confidence medium
And the boy’s medical records — which Jay submitted to the court before the hearing — have always shown that he “denied reasons for his hospitalization.” The superior court already considered Alisa’s “repeated misinformation 23 McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (noting that although “res judicata does not apply to custody modification motions, . . . the principle of finality does — parties should not be allowed to relitigate ‘in the hope of gaining a more favorable position’ ” (quoting Bunn v. House, 934 P.2d 753, 758 (Alaska 1997))). -11- 1816 and mi…
discussed Cited as authority (rule) Robert A. v. Tatiana D. (2×)
Alaska · 2020 · confidence medium
The superior court, observing that the investigative materials existed at the time of the 2011 trial, assumed that Robert’s then attorney should have done more to 15 McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (quoting Misyura v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010)). 16 State, Commercial Fisheries Entry Comm’n v. Carlson (Carlson V), 270 P.3d 755, 760 (Alaska 2012) (quoting State, Commercial Fisheries Entry Comm’n v. Carlson (Carlson III), 65 P.3d 851, 859 (Alaska 2003)). -8- 7486 acquire them and that the attorney’s performance may have fallen short in other respects.
discussed Cited as authority (rule) Edna K. v. Jeb S. (2×) also: Cited "see, e.g."
Alaska · 2020 · confidence medium
We addressed the application of collateral estoppel to child custody decisions in McAlpine v. Pacarro.16 There we held that “res judicata does not apply to custody modification motions, although the principle of finality does.”17 While “parties should not be allowed to relitigate ‘in the hope of gaining a more favorable position,’ ”18 we recognized that the rules are “relaxed . . . in custody matters involving domestic violence,” and the superior court must “look back to events that occurred before the initial custody order if not adequately addressed at the initial custody d…
discussed Cited as authority (rule) Uphues v. Law Offices of William R. Satterberg, Jr.
D. Alaska · 2019 · confidence medium
In Alaska, “[r]es judicata, or claim preclusion, bars relitigation of a claim when there is “(1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action.”44 And under Alaska law, “issue preclusion prohibits a party from relitigating an issue where: (1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was…
discussed Cited as authority (rule) Kelly D. v. Anthony K.
Alaska · 2018 · confidence medium
P. 77(k)(4). 7 “A custody modification motion is not a new action, but rather a request to reopen the final judgment in the same case.” McAlpine v. Pacarro, 262 P.3d 622, 625-26 (Alaska 2011). 8 See Griswold v. City of Homer, 252 P.3d 1020, 1027 (Alaska 2011). 9 Conitz v. Alaska State Comm’n for Human Rights, 325 P.3d 501, 506 (Alaska 2014) (quoting Alaska R.
discussed Cited as authority (rule) Vince B. v. Sarah B.
Alaska · 2018 · confidence medium
Servs. , 21 P.3d 357 , 359 (Alaska 2001) ). "[R]ipeness turns on 'the fitness of the issues for judicial decision' and 'the hardship to the parties of withholding court consideration.' " Brause , 21 P.3d at 359 (alteration in original) (quoting 13A Charles Alan Wright , et al ., Federal Practice & Procedure § 3532, at 112 (2d ed. 1984) ). 18 McAlpine v. Pacarro , 262 P.3d 622 , 625 (Alaska 2011) (quoting Angleton v. Cox , 238 P.3d 610 , 614 (Alaska 2010) ). 19 AS 11.41.270(a) (emphasis added). 20 AS 11.41.270(b)(1). 21 See McComas v. Kirn , 105 P.3d 1130 , 1135-36 (Alaska 2005) (holding res j…
discussed Cited as authority (rule) Ruerup v. Ruerup
Alaska · 2018 · confidence medium
But modification of these implementation provisions will not undercut the order’s factual 15 See McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (quoting Bunn v. House, 934 P.2d 753 , 757 n.12 (Alaska 1997)). 16 AS 18.66.100(b)(1) (emphasis added). 17 AS 18.66.100(b)(2) (emphasis added). -9- 7216 basis, as did the modification at issue here.
cited Cited as authority (rule) State, Department of Revenue v. BP Pipelines (Alaska) Inc.
Alaska · 2015 · confidence medium
McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (quoting Misyura v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010)) (internal quotation marks omitted). 58 .
discussed Cited as authority (rule) Kenneth S. v. Beulah E.
Alaska · 2015 · confidence medium
Pursuant to AS 25.24.150(h): 5 AS 25.20.110(c). 6 Heather W. v. Rudy R., 274 P.3d 478, 485-86 (Alaska 2012); McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (this rule of law is particularly important where one or both of the parties are pro se and issues of domestic violence have not been previously litigated); Williams v. Barbee, 243 P.3d 995, 1002-03 (Alaska 2010). 7 See Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007). 8 See id.
discussed Cited as authority (rule) Foondle v. O'Brien
Alaska · 2015 · confidence medium
Issue preclusion, or collateral estoppel, "bars the relitigation of issues actually determined in earlier proceedings." McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (citations and alterations omitted). 30 .
discussed Cited as authority (rule) Nimer Azzam v. Carley Mortensen, Carley Mortensen v. Nimer Azzam (2×)
Alaska · 2015 · confidence medium
But as in McAlpine v. Pacarro,10 the parties’ earlier custody order was the product of a stipulated 7 See Green v. Parks, 338 P.3d 312, 314 (Alaska 2014) (“We grant particular deference to the trial court’s factual findings when they are based primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.”) (citations and internal quotation marks omitted). 8 See T.M.C. v. S.A.C., 858 P.2d 315, 319 (Alaska 1993) (noting that a “continued lack of cooperation” between parents may be a change in circumstances s…
discussed Cited as authority (rule) Stacey S. Provost v. Shannon F. Dooley
Alaska · 2015 · confidence medium
But we have previously said that “in custody matters involving domestic violence,” a superior court should “look back to events that occurred before the initial custody order if not adequately addressed at the initial custody determination or subsequent proceedings.” McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011).
discussed Cited as authority (rule) Graham R. v. Jane S. (2×)
Alaska · 2014 · confidence medium
Servs., Office of Children's Servs., 233 P.3d 597, 600 (Alaska 2010) (alteration in the original) (quoting Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997)) (internal quotation marks omitted). 11 . 262 P.3d 622, 625 (Alaska 2011). 12 .
examined Cited as authority (rule) Graham R. v. Jane S. (3×) also: Cited "see"
Alaska · 2014 · confidence medium
We explained some of the differences in Lashbrook v. Lashbrook.14 The issue was whether a father’s due process right to a hearing on a motion to modify custody was satisfied by the fact that he had earlier attended a hearing on a domestic violence petition, addressing some of the same factual issues.15 We held that the proceedings were too different.16 We also noted that “the ultimate focus of the custody modification statute is the best interests of the children,” which requires consideration of nine statutory factors, only one of which is 11 262 P.3d 622, 625 (Alaska 2011). 12 Id. at 6…
discussed Cited as authority (rule) Heber v. Heber
Alaska · 2014 · confidence medium
McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (citing Williams v. Barbee, 243 P.3d 995, 1001, 1002-03 (Alaska 2010); Michele M. v. Richard R., 177 P.3d 830, 831, 835-36 (Alaska 2008)). 20 .
discussed Cited as authority (rule) Kristen L. v. Benjamin W.
Alaska · 2014 · signal: cf. · confidence medium
Cf. McAlpine v. Pacarro, 262 P.3d 622, 625-26 (Alaska 2011) (setting out grounds for reversing superior court decision to deny custody modification motion without holding an evidentiary hearing). -3- 1502 After the hearing, the superior court concluded that there had been a substantial change of circumstances affecting the children because of Kristen’s “domestic violence and inability to deal with her child’s transgender issue.” The court determined that a custody change was warranted under two different analyses, one involving the statutory presumption arising from domestic violence3 …
discussed Cited as authority (rule) Hugh J. Wade v. Fe T. Eddie
Alaska · 2014 · confidence medium
It must only discuss those factors that it considers actually relevant in light of the evidence presented.”). -7- 1493 Hugh also argues that “[t]he trial court incorrectly prevented Hugh from testifying about incidents in which Fe had hit him in the past.” The superior court did refuse to hear testimony on this issue, reasoning that because the alleged incidents occurred before the 2009 custody order was issued, Hugh could not “go back and re- litigate everything in the past. [We’re] only dealing with substantial change in circumstances since the order was entered.” In Kenai Chrysl…
discussed Cited as authority (rule) Lucius Weeks v. David Houston
Alaska · 2013 · confidence medium
Even assuming Luke were able to demonstrate that Keila and Houston filed the motion for an ulterior purpose, he would still need to identify a willful act by Keila and Houston that is distinct from the filing of a motion in the ordinary course of litigation.13 Luke fails to assert such a “willful act” in his complaint, and motions for supervised visitation are regular occurrences in divorce and custody disputes,14 as are motions for interim awards of attorney’s fees.15 Although the standard of review for a motion to dismiss requires us to make inferences in favor of the non-moving party,…
discussed Cited as authority (rule) Patrawke v. Liebes
Alaska · 2012 · confidence medium
Generally, "[rles judi-cata, or claim preclusion, bars relitigation of a claim when there is (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action." McAlpine v. Pacarro, 262 P.3d 622, 625 (Alaska 2011) (quoting Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010)) (internal quotation marks omitted).
cited Cited "see" Ruerup v. Ruerup
Alaska · 2018 · signal: see · confidence high
See McAlpine v. Pacano, 262 P.3d 622, 626 (Alaska 2011) (quoting Bunn v. House, 934 P.2d 753 , 757 n.12 (Alaska 1997)). 16 .
discussed Cited "see" Kalindi McAlpine v. Shaun Pacarro
Alaska · 2014 · signal: see · confidence high
See id. at 627 . 7 AS 25.24.150(g) states: “There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child.” A history of domestic violence is defined as either more than one instance of violence or a single instance resulting in serious physical injury.
discussed Cited "see" Harris v. Governale
Alaska · 2013 · signal: see · confidence high
See McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011) (holding that "it may be unfair to apply collateral estoppel if the stakes in the first proceeding did not warrant a full and vigorous contest of the issue" (citing Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1250, n. 29 (Alaska 2001))). 18 .
Retrieving the full opinion text from the archive…
Kalindi McALPINE, Appellant,
v.
Shaun PACARRO, Appellee
S-13903.
Alaska Supreme Court.
Oct 21, 2011.
262 P.3d 622
Kalindi McAlpine, pro se, Alachua, Florida, Appellant., Herbert A. Viergutz, Law Office of Herbert A. Viergutz, P.C., Anchorage, for Appel-lee.
Carpeneti, Fabe, Winfree, Christen, Stowers.
Cited by 29 opinions  |  Published
Pinpoint authority: bottom 45%

OPINION

WINFREE, Justice.

I. INTRODUCTION

A mother appeals the superior court's denial of an evidentiary hearing for her motion to modify child custody. Because the mother was entitled to an evidentiary hearing in this case, we remand for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

In December 1999, while Kalindi McAlpine and Shaun Pacarro were living together, Shaun assaulted Kalindi. Shaun pleaded guilty to, and was convicted of, domestic violence assault. In 2000 Kalindi and Shaun married. Shaun's conviction was set aside in early 2001 after he met conditions of a suspended imposition of sentence.

In 2004 Kalindi petitioned for an ex parte domestic violence protective order against Shaun, asserting that Shaun abused her throughout their entire relationship even after he was arrested in 1999. 'The district court granted the petition after finding by a preponderance of the evidence that Shaun committed a crime involving domestic violence against Kalindi.

Kalindi and Shaun divorced in 2005. Proceeding pro se, they entered into a court-approved custody settlement agreement: they agreed to joint legal custody of their three minor children, two daughters and one son, with Kalindi having primary physical custody and Shaun having visitation. In October 2006, again proceeding pro se, Kalindi and Shaun entered into a second court-approved custody settlement agreement. This agreement allowed Kalindi to move with the children to Florida and gave Shaun visitation with the children during the summer. There is no indication in the record that the parties mentioned the 1999 and 2004 (or any other) incidents of domestic violence during these proceedings. Kalindi moved with the children to Florida in July 2007.

B. Proceedings

1. 2007 motions, December 2007 hearing, and December 2007 interim order

In October and November 2007, after Kal-indi moved to Florida with the children, Shaun filed motions asserting his visitation was denied. Kalindi later filed, in Alaska, a petition for ex parte and long-term domestic violence protective orders against Shaun; her ex parte motion was granted on December 8.

Kalindi and Shaun appeared pro se at a December 11 hearing on the visitation motion and long-term domestic violence petition. Kalindi acknowledged that she had not let Shaun see the children, but asserted this was because Shaun had threatened her and the children and had abused the children.

The superior court questioned Shaun about his 1999 conviction. Shaun confirmed that he pleaded guilty and was convicted of domestic violence assault against Kalindi. The court noted that Shaun's conviction resulted in a suspended imposition of sentence, probation for one year, and a condition that Shaun attend and complete a domestic violence intervention program. Shaun asserted that he[*624] completed the required program in July 2000.

The superior court noted that Kalindi had petitioned for a domestic violence protective order against Shaun in 2004. The court pointed to the 2004 petition as one example of how Kalindi is "familiar with the system [and] ... knows how [domestic violence] protective orders work." The court did not question Shaun or Kalindi about the events underlying the 2004 petition and order.

The éuperior court vacated the ex parte domestic violence protective order and denied the petition for a long-term protective order, finding Kalindi's "testimony regarding her allegations of domestic violence by [Shaun] against her and the children to be false" and that there was "no credible evidence of domestic violence by [Shaun] in the 2005-2007 time period." The court granted Shaun primary physical custody of the children because of Kalindi's interference with Shaun's custodial rights and because the factors pertaining to the children's best interests under AS 25.24.150(c) clearly weighed in favor of the children being in their father's custody. The court indicated that its custody modification "should be understood to be an interim order, effective from the date of the hearing until another hearing is conducted . in the summer of 2008. If no hearing is requested, then the interim order will become permanent." (Emphasis omitted.)

Neither parent sought appellate review of the interim order.

2. 2008 motions, August 2008 hearing, and October 2008 order

In early 2008 Kalindi and Shaun each retained counsel. In May Shaun filed a motion seeking supervision of Kalindi's visitation with the children. Kalindi opposed the motion and filed a cross-motion asserting Shaun denied her visitation. The superior court held a hearing on August 22 and issued a written order on October 20, which the clerk distributed on November 8: Kalindi was granted continued unsupervised visitation contingent on her following certain conditions, and Shaun retained primary physical custody.

Neither parent moved to modify physical custody in 2008. [1] Neither parent sought appellate review of the October 2008 order.

3. October 2009 motion and May 2010 order

In October 2009 Kalindi filed a motion seeking to modify "interim" eustody and visitation, to establish "final child eustody orders," and to determine the rule of law regarding the effect of Shaun's prior domestic violence on the custody decision. [2] Kalindi sought sole legal and primary physical eusto-dy of the children and requested an eviden-tiary hearing.

In early 2010 the case was reassigned to Superior Court Judge Eric A. Aarseth. Kal-indi again requested an evidentiary hearing on her motion. In May the superior court denied her motion without a hearing, stating that the August 2008 hearing had resulted in a "final order" and concluding that Kalindi was "barred by the doctrines of res judicata and collateral estoppel from attempting to re-litigate legal and factual matters that existed prior to the August 22, 2008 hearing," including "factual issues that were known or should have been known to" her at the hearing.

4. Appeal

Kalindi appeals pro se from the May 2010 order; we understand Kalindi's primary ar[*625] gument to be that the superior court erred by denying her a custody modification hearing to present evidence of Shaun's history of domestic violence. [3]

Kalindi also presents arguments that the superior court erred in December 2007 by: (1) denying her due process by not giving her notice that custody was at issue at the December hearing; (2) modifying custody; and (3) finding that she "has a blatant disregard for the father." We decline to reach the merits of these arguments because Kalindi did not timely seek review of the December 2007 order. A party must appeal a "final judgment for custody of children" within 15 days of the clerk's distribution certificate [4] The December 2007 order indicated that the court's interim eustody modification would become permanent unless a hearing was requested in the summer of 2008. Kalindi did not seek interlocutory review of that order, and neither Kalindi nor Shaun requested a custody hearing to prevent the interim order from becoming final. After the August 2008 visitation hearing, the court issued a written order in October indicating that Kalindi would continue having unsupervised visitation and Shaun would retain primary physical custody. The clerk distributed that order in early November. Certainly by that point the December 2007 order had become a final judgment effectively ending the 2007 custody dispute. Kalindi did not appeal the October 2008 order, but instead filed a new motion in the superior court a year later in October 2009. That motion resulted in the May 2010 order. We limit our review to Kalindi's appeal from that order.

IH. STANDARD OF REVIEW

We review de novo a moving party has made out a prima facie showing sufficient to justify a custody modification hearing." [5] We will affirm the denial of a custody modification motion without a hearing if "the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conclusory, and so convincingly refuted by competent evidence, as to create no genuine issue of a material fact requiring a hearing." [6]

IV. DISCUSSION

Kalindi contends the superior court erred in denying her a custody modification hearing to present evidence of Shaun's domestic violence history. Kalindi further contends the court erred by denying her modification motion without considering whether AS 25.24.150(g)'s rebuttable presumption applied. Kalindi also asserts the court erred by ignoring: (1) evidence submitted at the December 2007 hearing; (2) new evidence that Shaun committed domestic violence between 2005 and 2007; and (3) new evidence that Shaun committed domestic violence after taking custody of the children in December 2007. These arguments bring to bear different and competing policy concerns regarding finality of judgments, child custody modification, and domestic violence as a factor in child custody determinations.

Res judicata, or claim preclusion, bars relitigation of a claim when there is "(1) a final judgment on the merits, (2) from a court of competent jurisdiction, (8) in a dispute between the same parties (or their privies) about the same cause of action. [7] But AS 25.20.110 provides an exception to the general principle that final judgments should not be disturbed-it allows parents to seek modification of child custody based on a change of circumstances if modification is in the best interests of the child. A custody modification motion is not a new action, but rather a request to reopen the final judgment[*626] in the same case. [8] Consequently res judicata does not apply to custody modification motions, although the principle of finality does-parties should not be allowed to reliti-gate "in the hope of gaining a more favorable position." [9] Our cases demonstrate that the change in cireumstances requirement for custody modification "is intended to discourage continual relitigation of custody decisions, a policy motivated by the judicial assumption that finality and certainty in custody matters are critical to the child's emotional welfare." [10]

Although a party moving for custody modification must generally demonstrate "a substantial change in cireumstances since the last custody order was entered," [11] we have relaxed this rule in custody matters involving domestic violence, directing the superior court to look back to events that occurred before the initial custody order if not adequately addressed at the initial custody determination or subsequent proceedings." [12] Taking prior domestic violence into consideration is particularly important in cases where a settlement agreement deciding custody was made by pro se parties with a history of domestic violence." [13]

In this case Shaun and Kalindi, proceeding pro se, entered into divorce-related custody settlement agreements in 2005 and 2006. The 1999 and 2004 instances of domestic violence by Shaun were not raised in these proceedings. Although the 1999 and 2004 incidents were mentioned at the December 2007 hearing, they were not sufficiently considered nor were relevant findings made at that time." [14] And because the August 2008 hearing involved only visitation motions, Kal-indi was not required to raise all of her custody-related claims, even if she knew or should have known about them." [15]

[*627] Taking the competing policy considerations into account, we conclude that res judicata does not bar Kalindi's 2009 motion to modify eustody. Nor does the finality principle bar Kalindi from basing her 2009 motion on the 1999 and 2004 domestic violence incidents, any new claims of domestic violence occurring between 2005 and 2007, or claims of domestic violence occurring after the December 2007 hearing, because none of these undisputed or alleged incidents have been addressed by the superior court in its custody determinations. We also conclude that the 1999 and 2004 domestic violence incidents alone are sufficiently serious to provide a prima facie case for modification, and therefore a hearing is required." [16]

Kalindi, however, may be collaterally estopped from relitigating domestic violence allegations actually raised and adjudicated at the December 2007 hearing-"[elollateral estoppel, or issue preclusion, 'bars the relitigation of issues actually determined in [earlier] proceedings'" [17] We require four elements before collateral es-toppel may be applied: (1) the party against whom preclusion is sought was a party or privy to the first action; (2) the issue is identical to the issue previously decided; (8) a final judgment on the merits was issued; and (4) the determination of the issue was essential to the final judgment." [18] Those elements are present as to the 2005 to 2007 domestic violence allegations that were actually raised at the December 2007 hearing. We have noted that existence of those elements provides only the underlying basis for the trial court's exercise of discretion to apply or not apply collateral estoppel, and that "this discretion must be tempered by principles of fairness in light of the cireumstances of each particular case." [19] For example, it may be unfair to apply collateral estoppel if the stakes in the first proceeding did not warrant a full and vigorous contest of the issue" [20] or if the party against whom collateral estoppel is sought was otherwise precluded from fully and fairly contesting the issue." [21]

In its May 2010 order the superior court did not express any consideration of the fairness of applying collateral estoppel to the findings made in the December 2007 hearing and order, and the briefing before us does not adequately address the question. We therefore leave it to the superior court on remand to consider whether, under the facts of this case, applying collateral estoppel to the December 2007 findings regarding specific allegations of domestic violence in the 2005 to 2007 time frame would be fair to Kalindi.

v. CONCLUSION

We REMAND to the superior court for an evidentiary hearing consistent with this opinion on Kalindi's motion to modify custody.

STOWERS, Justice, not participating.
1

. - Kalindi asserts that she moved to modify custody at the August 2008 hearing, but this is not reflected in the record. At a June 2008 hearing Kalindi's attorney stated that he was planning to prepare a modification motion and asked how the court would respond and whether such a motion would affect the upcoming August visitation hearing. The court responded that it was up to the parties to decide whether to file motions, a modification motion would not affect the visitation hearing, and, if a modification motion were filed and a hearing warranted, the court would likely have to schedule the hearing for the fall. This discussion did not constituie a motion to modify custody.

2

. See AS 25.24.150(g): 'There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child."

3

. See Romero v. Cox, 166 P.3d 4, 8 (Alaska 2007) ("[We judge a pro se litigant's [appellate] briefing by a less demanding standard." (internal quotation marks omitted)).

4

. Alaska R.App. P. 218.

5

. Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008) (citing Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)).

6

. - Id. (citing Harrington, 984 P.2d at 3).

7

. Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith v. C.S.K. Auto, Inc., 132 P.3d 818, 820 (Alaska 2006)).

8

. See Bunn v. House, 934 P.2d 753, 757 n. 12 (Alaska 1997) (holding same in child support modification case).

10

. Peterson v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009) (quoting Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982)) (internal quotation marks omitted).

11

. Bagby v. Bagby, 250 P.3d 1127, 1129 (Alaska 2011).

12

. See Williams v. Barbee, 243 P.3d 995, 1002-03 (Alaska 2010) (holding in part that application of AS 25.24.150(g)'s rebuttable presumption was necessary in custody modification case where initial custody settlement agreement was made without addressing presumption and where parties had history of domestic violence during marriage); Michele M. v. Richard R., 177 P.3d 830, 831, 835-38 (Alaska 2008) (holding in 2006 custody dispute between unmarried parties that it was plain error for superior court not to determine whether father's actions in previous relationship amounted to "history of perpetrating domestic violence" even though court had alluded to domestic violence in findings from 2001 custody trial); see also Williams, 243 P.3d at 1001 (noting purpose of rebuttable presumption is to protect children from "severe and long-lasting effects" of domestic violence and "to decrease the likelihood that children would be placed in the custodial household where domestic violence exists").

13

. See Williams, 243 P.3d at 997, 1003 (noting application of AS 25.24.150(g)'s rebuttable presumption is "especially necessary" under such circumstances).

14

. See id. at 1004 ("If pro se parties make allegations of domestic violence the superior court must inquire into the allegations and allow the parties to present evidence regarding the allegations."); id. ("'We hold today that where a superior court finds that domestic violence occurred, it must make express findings regarding whether the incident or incidents of domestic violence constitute a 'history of perpetrating domestic violence' under AS 25.24.150(h)."); Michele M., 177 P.3d at 837 (holding it was plain error for superior court not to make findings whether father's previous acts constituted history of domestic violence); see also AS 25.24.150(h) (defining 'history of perpetrating domestic violence" for purposes of AS 25.24.150(g)'s rebuttable presumption).

15

. We note that at a June 2008 hearing the superior court discussed the upcoming August visitation hearing, urging the parties to focus on issues in the supervised visitation motion and stressing that the hearing was "not going to turn into a hearing for all purposes."

We also note that such a requirement might put victims of domestic violence in a particularly difficult position because violence may be continuing, victims may "be afraid to confront {the] abuser in court, [and may] suffer from psychological effects such as post-traumatic disorder, anxiety, [and] depression." See Lisa Bolotin, Note, When Parents Fight: Alaska's Presumption Against Awarding Custody to Perpetrators of Domestic Violence, 25 Auraska L.Rev. 263, 269, 290 (2008) (citations omitted).

16

. See Barile, 179 P.3d at 946-47.

17

. Latham v. Palin, 251 P.3d 341, 344 (Alaska 2011) (quoting Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 n. 11 (Alaska 1979).

18

. Id. (citing Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1110 (Alaska 2002)).

19

. Misyura v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010).

20

. Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1250 n. 29 (Alaska 2001) (considering application of collateral estoppel to administrative findings and noting that difference in amount at stake in proceedings could affect incentive to litigate issue (citing Restatement (SEeconp) or June-mEnts § 28(5) (1982))).

21

. See, eg., Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 908 & n. 17 (Alaska 1991) (considering application of collateral es-toppel to administrative findings and noting that application requires fairness determination, which entails whether prior proceeding met essential elements of adjudication, including adequate notice and right to present and rebut evidence and argument (citing ResraremEnt (Seconp) or JupemEnts § 83(2) (1982))).