Jacqueline B. v. Beau C

Opinion

2026 WL 2656372

Only the Westlaw citation is currently available.

NOTICE: UNPUBLISHED OPINION

NOTICE Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).

Supreme Court of Alaska.

JACQUELINE B., Appellant,

v.

BEAU C., Appellee.

Supreme Court No. S-19115

September 9, 2026

Superior Court No. 4FA-23-01027 CI

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Thomas I. Temple, Judge.

Attorneys and Law Firms

Appearances: Kristin Farleigh, Jason Weiner & Associates, P.C., Fairbanks, for Appellant. No appearance by Appellee Beau C.

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

MEMORANDUM OPINION AND JUDGMENT^*

INTRODUCTION

Star page 1*1 A wife filed for divorce from her husband after living for a few years on a remote homestead. Her complaint sought full custody over their child. Ten months later, she filed a separate domestic violence case against her husband. A magistrate judge granted the wife a short-term protective order, but this order eventually expired without a motion to extend. At trial, the wife raised allegations that the husband had made sexual contact with her while she was sleeping. These allegations were not part of the initial protective order proceedings. The wife contended that this conduct constituted domestic violence that should be considered in the custody determination. Following multiple days of trial, the superior court found that there were no instances of domestic violence and awarded the husband unsupervised visitation out of state. The superior court also determined that a house the wife acquired in Fairbanks during the marriage was a marital asset, and that a homestead the wife purchased before the marriage transmuted into marital property. The wife appeals.

We affirm the classification of the Fairbanks house as marital property, but we vacate the finding that the homestead transmuted to part of the marital estate. We further vacate the finding that the husband committed no domestic violence, as his admitted sexual contact with his sleeping wife is conduct that would constitute third-degree sexual assault. However, we affirm the finding that the husband did not recklessly disregard the wife's lack of consent to sexual contact. We remand for further proceedings consistent with this opinion.

A. Background Facts

Jacqueline B. and Beau C. married in December 2018.¹ The parties share one daughter.

Prior to marrying Beau, Jacqueline purchased a homestead off the road system (in “the bush”) in pursuit of what she considered a more “traditional” lifestyle. The property included a cabin in a state of disrepair. The parties moved into the homestead in 2018 while Jacqueline was pregnant. There, they also raised Jacqueline's son from a previous relationship. The parties made improvements to the homestead over the course of their marriage.

During the marriage, Jacqueline homeschooled the children at the homestead and earned money breeding dogs and cats. Beau worked seasonally as a hunting guide. Beau's work required him to live away from the family for a couple of months at a time.

The parties experienced marital difficulties living in the bush. In addition to absences from the home for work, Beau struggled with the isolation and would leave the state for extended periods. The parties did not live together for much of 2022, although Beau visited Jacqueline at the homestead in February of that year and returned to Alaska for his hunting guide job that fall. Around this time, Jacqueline negotiated to buy a house in Fairbanks. She entered the purchase agreement for the Fairbanks property in mid-September, moved into the property in October, and signed the deed in early November.

Star page 2*2 Jacqueline and the children initially lived in the Fairbanks home without Beau, but he moved in sometime in October. After a couple of months, Beau moved out when the parties separated near the end of December 2022. Jacqueline filed for divorce in January 2023. Beau moved out of state.

B. Proceedings

The superior court granted Jacqueline primary interim custody of the parties’ daughter in May 2023. The interim custody order allowed Beau in-person visitation in the Fairbanks area, but it required Beau to provide Jacqueline 30 days’ notice of his intent to visit. The order also provided for three phone/video calls with the child per week and required Beau to provide the dates and times ahead of the calls. However, in early November of 2023, Jacqueline stopped facilitating calls. Later in November, and ten months after she initially filed for divorce, Jacqueline filed a separate case for a domestic violence protective order (“DVPO”).

Jacqueline alleged numerous incidents of domestic violence by Beau in the DVPO case. She obtained a 20-Day DVPO from a magistrate judge based on those allegations. The superior court began presiding over the DVPO case in late December 2023 and extended the short-term DVPO until February 2024, but the short-term DVPO eventually expired without a motion to extend.

Trial in the divorce and custody case took place over eight days in February and April, 2024. Both parties testified.

1. Property testimony and findings

a. The Fairbanks property

The court found that the parties separated on December 19, 2022, the date identified by Jacqueline in her complaint. Testimony reflected that the parties were still open to reconciliation in the fall of 2022, but Beau did not participate in the Fairbanks property transaction and deliberately did not co-sign the loan. In a handwritten document Beau submitted at the beginning of proceedings, Beau wrote that “Jacqueline bought [the house] on her own so I think it should be hers ... I did not cosign and I don't want a house in Fairbanks.” At trial, however, Beau contended that the property qualified as marital.

Beau testified that he put “all [his] money into the property and into fixing the house,” seeking “to fix it up to make it livable, and to provide for the family.” This included helping to replace a section of wall, and buying counters, heating oil, a toilet, a stove, and linoleum for the bathroom floors.

In addressing whether the property was marital, the court noted the couple had separated after the home was purchased and referenced the presumption that property acquired during the marriage is marital. The court recognized that the “parties had had many short separations and discussions of divorce,” and that Beau “did not want to be on the title or cosign or be on the hook” for the property. However, the court did not find it “significant” that Beau did not agree to the purchase or sign on the note. It highlighted the fact that Beau “sunk significant energy and resources into the home, as it was to be the parties’ marital home.” The court deemed the funds Beau spent on the home a “significant investment” in light of his annual income. The court concluded that the property was marital.

b. The homestead

Trial testimony established that both parties invested substantial resources and effort into improving the homestead. Together, the parties repaired the main cabin roof, put up plastic windows, installed a wood stove, and built a guest cabin. Individually, Beau improved the property by clearing land, building a woodshed for fuel and tool storage, installing a solar power system, wiring the cabin for lighting, and installing a sink and water pump. Jacqueline testified that at the time the parties moved out to the homestead, she intended for them to live there as a marital unit and eventually referred to the property as “our homestead” to others. However, she never added Beau to the title.

Star page 3*3 The court found that Beau sold his assets to relocate with Jacqueline to remote Alaska “for the purpose of living, developing a marital property and a marital home together, [and] spending the rest of their lives together.” Citing Beau's improvements to the homestead and the “intent of the parties to live there together and that be their – their home because they raised a family in the wilds of Alaska,” the court concluded that Jacqueline's separate homestead transmuted into marital property.

2. Domestic violence findings

Jacqueline's DVPO petition raised numerous allegations of domestic violence, including that Beau harassed her or failed to “respect [her] boundary” by contacting her to schedule court-ordered calls with their daughter. At trial, Jacqueline raised additional domestic violence allegations against Beau not contained in her DVPO petition. These included allegations that Beau would grope her in front of family members and that Beau touched her vagina, touched her breasts, and “reached his fingers down into [her] vagina” while she slept. Jacqueline testified that Beau would try to initiate sex through this contact and that she had repeatedly told him not to do so because she needed her sleep. Beau denied all of the domestic violence allegations except Jacqueline's assertion that he touched her in her sleep. When asked whether he “sexually touched” Jaqueline while she slept, Beau confirmed the allegations.

The court did not find Jacqueline's allegations about domestic violence credible. It provided a lengthy explanation for this credibility determination. It also declined to credit Beau's testimonial admissions to sexual contact with Jacqueline while she slept, finding that Beau “gave different testimony at ... different times on this issue.” Accordingly, the court determined that Jacqueline failed to prove that Beau “touched her sexually” while she was sleeping or that Beau knew she was sleeping when he touched her that way. The court concluded that Jacqueline failed to prove any acts of domestic violence by a preponderance of the evidence.

The court awarded Jacqueline primary legal and physical custody of the child, but it also awarded Beau out-of-state visitation from June 1 through August 31 of each year. In addition, the court maintained the telephone contact schedule from the interim custody order.

Jacqueline appeals.

STANDARD OF REVIEW

When determining what property is available for distribution, we review for clear error the “[u]nderlying factual findings as to the parties’ intent, actions, and contributions to the marital estate....”² However, “[w]hether ‘the trial court applied the correct legal rule in exercising its discretion is a question of law that we review de novo using our independent judgment.’ ”³

“Superior courts have broad discretion in child custody decisions, and we will reverse only if findings of fact are clearly erroneous or the superior court abused its discretion. Whether the court's findings on domestic violence are supported by the record is a question of fact which we review for clear error.”⁴ “A finding is clearly erroneous when our review of the entire record leaves us with a definite and firm conviction that a mistake has been made.”⁵ “The trial court's factual findings enjoy particular deference when they are based primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.”⁶ In making a credibility determination, “[f]act finders generally may discount all or part of a witness's testimony.”⁷ We “ordinarily will not reweigh evidence, especially oral testimony,”⁸ and we “ ‘ordinarily will not overturn a trial court's finding based on conflicting evidence’ or ‘re-weigh evidence when the record provides clear support for the trial court's ruling.’ ”⁹ Further, we “ ‘will generally accept the determination[s] of witness credibility that are made by the [superior] court ... [because] the court heard and observed the witness first hand.’ ”¹⁰

DISCUSSION

Star page 4*4 Jacqueline appeals the marital classifications of the Fairbanks property and the homestead. She also appeals the finding that Beau did not commit acts of domestic violence against her, and the related determination that the domestic violence presumption under AS 25.24.150(g) did not apply, which meant that Beau could have unsupervised visitation with the child. Jaqueline centers the domestic violence argument on her allegations that Beau would make sexual contact with her while she slept and that this sexual contact was not consensual. She does not appeal any of the court's findings on her other domestic violence allegations. Beau did not participate in this appeal. We address Jacqueline's arguments in turn.

A. The Superior Court Correctly Classified The Fairbanks Property As Marital.

“The equitable division of marital assets involves three steps: (1) determining what property is available for distribution, (2) finding the value of the property, and (3) dividing the property equitably.”¹¹ “Generally, ‘all assets acquired by the parties during their marriage are marital property’ except for gifts and inheritances.”¹² Meanwhile, “[a]s a general rule, ‘property acquired after separation is properly excluded from the category of marital property.’ ”¹³ Where parties contest the classification of property purchased around the time of separation, the superior court must first pinpoint the parties’ separation date to determine whether assets were marital property.¹⁴

We have defined the date of separation as “the point at which ‘the marriage has terminated as a joint enterprise’ or when a couple is no longer ‘functioning economically as a single unit.’ ”¹⁵ Although the date of separation has legal effect, “we have expressly rejected defining the date of separation as a matter of law, and have instead granted the superior court the discretion to identify the date of separation according to the facts before it.”¹⁶ The superior court undertakes “analysis of the parties’ objective and subjective intent to terminate the relationship,”¹⁷ and considers whether the parties have “objectively separated and ‘live physically apart from one another,’ ” and “whether at least one party subjectively intended to separate.”¹⁸ In doing so, the court may consider, among other things, “sexual relations, economic support, commingled assets, joint tax returns, joint liability, a manifested desire to continue the marriage, and one party's physical act of re-keying locks.”¹⁹

Jacqueline argues that the superior court erred by including the Fairbanks property in the marital estate. She claims that she and Beau had been largely separated for two years prior to the purchase and only briefly attempted reconciliation without resuming the joint economic enterprise of marriage. She argues that the parties had not resumed a joint economic enterprise when she purchased the Fairbanks home. She further argues that it is not fair or equitable to include the entire property in the marital estate given Beau's deliberate actions to exclude himself from ownership of the property. These arguments are unavailing.

Star page 5*5 The record supports the superior court's determination of the date of separation. At trial, the parties agreed that in the fall of 2022 they were open to making the marriage work and that both of them thought the house in town might improve their relationship by reducing time spent in the bush. Beau testified that he put all of his money into fixing the property²⁰ and Jacqueline testified that he contributed his labor to the property's improvement. Beau bought food and heating oil for the house and purchased a vehicle at Jacqueline's insistence. Beau resided at the property for roughly two months, and the parties resumed sexual relations during that period. The parties did not physically separate for the final time until December. The superior court did not abuse its discretion when it adopted the date of final separation as December 19, 2022, the day Jacqueline listed in her complaint for divorce.

Jacqueline ascribes error to these findings, arguing that she and Beau had ceased functioning as a single unit because Beau deliberately did not participate in the property transaction and declined to be on the mortgage or the title of the home. But the superior court found that it was not “significant” that Beau did not agree to or want to be part of the purchase, citing Beau's “legitimate concerns” about not wanting to buy a house, and that Beau nonetheless put all of his money into the home. And we observe that the parties still treated the house as a joint endeavor, with Beau paying for repairs, upgrades, and ongoing costs. Based on this record, the superior court did not err by concluding that the property was marital.²¹

The court did not clearly err in finding that the parties were not separated when the Fairbanks home was purchased and that the property was marital and should be divided as part of the marital estate.²²

B. It Was Error To Conclude That Jacqueline's Homestead Transmuted To Marital Property.

Jacqueline argues that the superior court incorrectly analyzed whether the homestead that she owned prior to the marriage was separate or marital. She contends that the superior court did not make the required findings regarding transmutation, that the homestead remained her separate property, and therefore that the doctrine of active appreciation should have been applied instead.

Separate property can “transmute” into marital property through an implied gift from one spouse to another.²³ This implied gift occurs “when one spouse intends to donate separate property to the marital estate and engages in conduct demonstrating that intent.”²⁴ Thus, the intent of the owning spouse determines whether separate property transmuted to marital property, not the intent of the married couple.²⁵ Simply sharing property during the marriage is not enough to support transmutation.²⁶ The appropriate inquiry is whether the owning spouse intended to “donate” or “convey” separate property to the marital unit or marital estate, not whether the couple intended to “treat ... separate property as marital property.”²⁷

Star page 6*6 We have previously explained that courts may consider the “Cox factors” to find donative intent: “(1) the use of property as the parties’ personal residence, ... (2) the ongoing maintenance and managing of the property by both parties, ... (3) placing the title of the property in joint ownership and (4) using the credit of the non-titled owner to improve the property.”²⁸ However, we clarified in Kessler v. Kessler that these “factors” are “merely specific facts that may, in particular cases, serve as evidence of the owning spouse's donative intent.”²⁹ To that end, we explained that “the presence or absence of [any] Cox factor is not a proxy for the ultimate question: did the owning spouse intend to donate his or her separate property to the marital estate?”³⁰

In this case, the superior court made findings about the use of the property, specifically, that the parties intended to “live there together and [the homestead to] be their – their home because they raised a family in the wilds of Alaska ....” But the superior court found transmutation primarily through Beau's contributions to the homestead, noting that he “invested substantial time, energy, labor and financial resources” into the property. The court highlighted how Beau built a woodshed, installed a power system and lighting, hooked up a pump, made roof repairs, cut lumber, cleared land, tilled the soil, and built shelves. Although management and maintenance by the non-owning spouse can help indicate donative intent from the owning spouse, it is “only relevant to the extent it illuminates [the owning spouse's] intent whether to donate the [property] to the marital estate.”³¹ Such efforts help indicate donative intent if they are “significant” and “evidence an intent to operate jointly.”³² While Beau's efforts may have been substantial, especially when performed at a remote homestead, the court was still required to explain how they demonstrated Jacqueline's intent. The court did not do so.

The court's findings did not address whether Jacqueline intended to donate her separately owned homestead to the marital estate, and the intent that it did find – intent to share – is not enough to support transmutation of separate property to marital property.³³ Although the court referenced factors for finding donative intent – the parties’ shared usage, Beau's monetary contribution, and Beau's ongoing management and maintenance – the court did not explain how these facts demonstrated Jacqueline's donative intent. Thus, the court did not answer the ultimate question: did Jacqueline intend to donate her homestead to the marital estate?³⁴ Without analysis and an answer to that question, the court cannot find transmutation.³⁵ We therefore vacate this determination.

C. One Of The Domestic Violence Findings Was Clearly Erroneous.

Jacqueline argues that the superior court clearly erred by finding that Beau did not commit any instances of domestic violence. She argues that Beau did commit domestic violence, which means that the court erred by not applying the domestic violence presumption under AS 25.24.150(g) when addressing custody and visitation. As explained below, Jacqueline disputes two of the court's domestic violence findings. We agree that the superior court did clearly err in one of those findings; it clearly erred by discounting Beau's testimonial admissions to making sexual contact with Jacqueline while she slept. We vacate the superior court's finding on this basis. We therefore further vacate the court's dependent finding that there were no acts of domestic violence. We separately hold that the trial court did not clearly err in finding that Beau did not recklessly disregard Jacqueline's consent to sexual contact.

Star page 7*7 A finding that a parent has a history of domestic violence creates a rebuttable presumption against granting that parent custody or unsupervised visitation.³⁶ This finding “is a critical one since it will often control the court's ruling on custody and visitation.”³⁷ Because of the importance of the decision, “[s]pecific findings are especially crucial when the superior court makes a determination as to a parent's history of perpetrating domestic violence.”³⁸

“A parent has a history of perpetrating domestic violence under [AS 25.24.150(g)] if the court finds that ... the parent has engaged in more than one incident of domestic violence.”³⁹ The statutory definition of “domestic violence” includes crimes under Alaska Statute 11.41.⁴⁰ In part, this chapter criminalizes sexual assault.⁴¹

A person commits sexual assault in the third degree if the person engages in sexual contact with someone whom the person knows is incapacitated, regardless of consent.⁴² Evidence that a victim was sleeping is generally sufficient for a jury to reasonably conclude that they were incapacitated.⁴³ Although the statute previously provided a spousal defense to this charge, the legislature removed that defense in 2019.⁴⁴ By statute, then, such conduct is domestic violence.

Until amended in December 2022, a person committed sexual assault in the second degree by “engag[ing] in sexual contact with another person without consent of that person.”⁴⁵ The perpetrator must act with a “reckless disregard” of the other's lack of consent.⁴⁶

Star page 8*8 For purposes of both sexual assault in the third degree and sexual assault in the second degree, “sexual contact” means “knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast.”⁴⁷

Jacqueline cites Alaska Statute 11.41.425(a)(1)(B) – sexual assault in the third degree – and argues that Beau admitted every element of the offense during his testimony. Jacqueline argues that Beau committed third-degree sexual assault by touching her sexually in her sleep, and she asserts that the superior court erred by finding otherwise.

Jacqueline also argues that Beau committed a crime of domestic violence by recklessly disregarding her lack of consent to the sexual contact, and that the court erred by finding otherwise. This argument remains focused on the same instances of sexual contact while she was sleeping.

We first address Jacqueline's argument that Beau made sexual contact with her while she was asleep. Such contact, if proven, would constitute third-degree sexual assault under AS 11.41.425(a)(1)(B), for which consent is not an element.⁴⁸ We then address her argument that Beau recklessly disregarded her lack of consent by making this contact. This argument, where consent is at issue, is governed by the former second-degree sexual assault statute.⁴⁹

1. The alleged third-degree sexual assault

Jacqueline argues that Beau admitted every element of sexual assault in the third degree in his testimony.⁵⁰

At trial, Jacqueline testified that Beau touched her breasts and vagina while she slept at the homestead. She testified that Beau would wake her up by touching her sexually, even after she had told him multiple times “that I do not want him to wake me up for sex” because “I really need my sleep.” Jacqueline testified that Beau would try to initiate sex by touching her breasts and vagina while she slept and that this happened “[p]robably more than ten [times], bare minimum.” She testified that most of the time she would tell Beau “no,” at which point he would stop. Sometimes, however, she “gave in” because she thought it would be “better to just give him what he wanted so that [she] could go back to sleep and he would stop waking [her] up all night long.” Jacqueline testified that when she told Beau “no,” he would “mope” and be “despondent” the next day.

Beau repeatedly confirmed Jacqueline's allegation that he made such contact while he knew she was asleep:

Q. Turning back to the allegations of sexual assault, were there times that you would -- well, did you try to wake up your wife at night to initiate sex?

A. (Beau) Yes.

Q. And how would you do that sometimes?

A. Rub her shoulder, rub her belly, rub her crotch. You know, rub her butt. Try to turn her on. You know, try -like, so that she'd wake up and maybe be a little bit turned on.

Star page 9*9 Q. And sometimes did that lead to consensual sex?

A. Yeah.

Q. And sometimes did she tell you “No”?

A. Yeah. Usually more often I would get “No,” but once in a while we would --

Q. And when you were told “No,” did you keep going or did you stop?

A. I would stop. And then, you know, maybe if -- an hour or two later, you know, I might, like, touch her, like, “please, maybe,” but it was usually “No.”

...

Q. As to the sex during sleep -- again, if I'm understanding your correctly -- your testimony correctly, you would sexually touch her while she was asleep and tried to turn her on in the hopes of getting sex?

A. Right. And I would not use penetration or anything, even with my fingers while she was sleeping. That's just awkward. It's --

Q. But you had --

A. -- I would rub her, yeah. I would rub her and try to turn her on and try to wake her up, yes.

Q. Okay. And you agree that she had told you that she didn't want you to do that?

A. Yep.

Q. And you did it anyways?

A. Sometimes I did.

Q. Multiple times?

A. Yes.

Q. And you did this when -- and she was asleep? I want to be very clear here. She was asleep when you did this?

A. Right. I would touch her shoulder or rub her belly. And sometimes, you know, grope her a little bit. Try to get her in the mood. Sometimes she would wake up and we would have sex. Most of the time we wouldn't, but sometimes we did. And it was -

Q. And but -

A. -- consensual.

Q. -- you would touch her on the breasts and the butt and the vagina?

A. Yes.

Q. And you did that while she was asleep?

A. Yes.

Q. And you did that multiple times after she told you not to do that when she is asleep?

A. Yeah. And she was -- yesterday she was saying I was penetrating her when she was sleeping. That's wrong. I never did that. I would wake her up.

Q. And I think you said also that you had a hard time being next to her and not having sex; is that correct?

A. Yes. A hard time sleeping.

Q. A hard time sleeping because you hadn't had sex?

A. Right.

Q. So you tried to have sex with her anyways?

A. I would ask or try to get her turned on, yes.

...

Q. The same with in the middle of the night, you don't dispute that [you] would wake her up and try to initiate sex by touching her breasts and her -- her bottom; correct?

A. Right. And when she told me to stop, I'd stop.

Q. And sometimes she didn't tell you to stop, though?

A. That's right.

Despite Beau's testimony, the superior court found that Jacqueline failed to prove that Beau touched her sexually while she was sleeping or that Beau knew she was sleeping when he touched her that way. Jacqueline appeals this finding, arguing that the court clearly erred by discounting Beau's testimonial admissions.

The superior court discounted Beau's admissions of sexual contact while sleeping because:

[Beau] gave different testimony at – at different times on this issue, at one point denying it, on another point acknowledging that he would touch [Jacqueline] to awaken her in order to have sex.

However, as I've read to the parties, when the Court considers the credibility, the Court need not believe a witness, even if the witness's testimony is uncontradicted. But we have different statements at different times, and the Court has to figure out exactly which one is correct.

Star page 10*10 Did [Beau] touch [Jacqueline] sexually while she's sleeping, or did he not? I looked to the exhibits, which provide – these exhibits weren't prepared for trial – these texts, and they provide some insight.

Thus, the court disregarded Beau's admissions because it found that he “gave different testimony at ... different times on this issue.” But the court did not cite any specific statement, and we could not locate any contradictory statement in the record. Instead, the court apparently relied entirely on an email from Beau to Jacqueline during a period of physical separation. There, Beau wrote:

I'd wake you up to try to touch you intimately. You'd get so pissed off at me and some times [sic] push me away or you'd just move away and say get on your own side of the bed and just stop.... I told you I'd love to be woken up by sex or for sex. I think you did it very very few times. You hated it and I tried to do that to you like all the time.

Based on Beau's statement in that email that “I'd wake you to try to touch you intimately,” the court found that Jacqueline failed to prove third-degree sexual assault because Beau would wake her before making sexual contact.

In summary, the court found that Jacqueline failed to prove that Beau knowingly made sexual contact with her while she slept by discounting Beau's repeated testimonial admissions to doing so. The court discounted those repeated admissions by finding that Beau gave “different testimony” on this issue because at “one point” he denied doing it. The court framed this finding as a credibility determination.

While we ordinarily will not overturn domestic violence findings based on conflicting evidence, we will do so when they are directly contradicted by the record. In Bruce H. v. Jennifer L., a mother and her ex-boyfriend both provided uncontroverted testimony that they had a physical altercation in 2013.⁵¹ Despite this testimony, the superior court found that “there is no time frame associated with this alleged incident and no testimony in support of the allegation....”⁵² We vacated this finding as clearly erroneous because “it was the principal issue in [the ex-boyfriend's] testimony, and [the mother] also testified about it.”⁵³ We remanded for the superior court to revisit its domestic violence findings and reconsider the father's motion to modify custody based on that reconsideration.⁵⁴

Here, as in Bruce H., the record directly contradicts the superior court's domestic violence finding. Beau did not give “different testimony” about making sexual contact with Jacqueline while she slept. Although Beau denied Jacqueline's other domestic violence allegations, and explicitly denied penetrating Jacqueline while she slept, he never denied touching Jacqueline's breasts and genitals. Instead, when given the opportunity to deny, he repeatedly confirmed the allegation. As described above, Beau testified that he touched Jacqueline on the breast, buttocks, and vagina while he knew she was asleep. Beau confirmed that he knew Jacqueline was asleep when he did this. Beau even drew a distinction between the sexual contact he engaged in and penetration, testifying that the latter did not happen and would be “awkward.”

Star page 11*11 Aspects of Beau's testimony complicate the matter, but they do not amount to “different testimony” as described by the superior court. Instead, they align with Beau's testimony that he sometimes would wake Jacqueline before touching her. For example, when questioned whether he tried to have sex despite Jacqueline's requests not to touch her in her sleep, Beau testified that “I would ask or try to get her turned on.” While this supports a view of the facts where Beau sometimes asked Jacqueline for sex before touching her, it still clearly shows that Beau would alternatively try to “turn her on” in her sleep.

Likewise, during cross-examination, when Beau's attorney asked “the same with the middle of the night, you don't dispute that [you] would wake her up and try to initiate sex by touching her breasts and her – her bottom; correct?” Beau answered, “right. And when she told me to stop, I'd stop.” Because of the compound question, this answer could be ambiguous and open to interpretation. It could possibly be interpreted as Beau confirming that he would first wake Jacqueline up and then he would try to initiate sex by touching her. However, the more obvious interpretation is that Beau knew Jacqueline was asleep and would wake her by making sexual contact. When viewed in light of his repeated and clear admissions to the conduct – especially when Beau made the admissions in response to clarifying questions designed to clear up any such ambiguity – it does not make sense to read ambiguity into this answer. Further, insofar as this answer is ambiguous, it still only supports an interpretation that Beau would sometimes wake Jacqueline up before touching her sexually. Beau did not deny that he sexually touched Jacqueline in her sleep.

Even the email relied on by the court shows that Beau would make sexual contact with Jacqueline while she slept.⁵⁵ Like his testimony, the email at best supports an interpretation that Beau would sometimes wake Jacqueline before touching her and sometimes would touch her in her sleep. Although Beau did write that “I'd wake you up to try to touch you intimately,” he also wrote that “I told you I'd love to be woken up by sex or for sex. I think you did it very very few times. You hated it and I tried to do that to you like all the time.” Thus, in this email, Beau admitted that he knew Jacqueline hated to be woken “by sex” yet he nevertheless “tried to do that to you like all the time.”

On review, the record provides no support for the superior court's finding that Beau gave “different testimony” or denied Jacqueline's allegations of sexual contact while she was asleep. Instead, the record clearly shows that Beau confirmed making sexual contact with Jacqueline while he knew she was asleep.

Although the court referenced witness credibility in making its finding, we do not understand the court to have actually made a credibility determination about Beau. A trial court generally makes credibility findings based on courtroom observations like demeanor and vocal inflections.⁵⁶ We grant significant deference to the trial court on such decisions because of this first-hand knowledge.⁵⁷ Here, the court did not discount Beau's testimony due to its “unique ability” to assess his credibility.⁵⁸ Instead, the court made a finding based on reasoning which we are equally capable of performing on review – the simple fact of whether a witness made certain statements in their testimony. This is not a credibility determination; this is a finding of fact of a more ordinary sort. Having reviewed the record, we conclude that the superior court clearly erred in factually finding that Beau gave “different testimony” when his testimony was entirely consistent. We vacate this finding accordingly. On remand, the superior court must consider Beau's testimonial admissions to making sexual contact with Jacqueline while he knew she was sleeping.⁵⁹ Because the court's reconsideration may require it to apply the domestic violence presumption, we also vacate the finding that there were no acts of domestic violence during the marriage.

2. The alleged reckless disregard of lack of consent to sexual contact

Star page 12*12 Jacqueline argues that the superior court clearly erred by finding that Beau did not recklessly disregard her lack of consent to sexual contact in bed.⁶⁰ We hold that the superior court did not clearly err in finding that Beau did not “recklessly disregard” her lack of consent; there was some evidence in the record that could support the court's conclusion. But in so holding, we note that the definition of acting “without consent” has changed since the time of this alleged conduct.⁶¹

The court found that Jacqueline occasionally consented to sex when Beau woke her up. The court further found that Beau ceased contact when Jacqueline told him no, and that this “is an example of consent.” The court concluded that because the sex was consensual, Jacqueline failed to prove by a preponderance of the evidence that Beau recklessly disregarded her lack of consent to the preceding sexual contact. The court explained that for “reckless disregard” a person must “disregard a substantial and unjustifiable risk” in a manner that is a “gross deviation from the way a reasonable person would act.”⁶² The court explained that the evidence would need to show that Beau thought to himself “ ‘I'm going to touch [Jacqueline] in this way. And I believe that there is a substantial and unjustifiable risk that she will not want this act of touching [her] in this way, when it's led to sex many times over many years of marriage.’ ” The court found that Jacqueline failed to make this showing.

The record includes some evidence that Beau knew Jacqueline did not want the sexual contact while they were in bed. For example, Beau testified that even after Jacqueline had told him no, “I would stop. And then, you know, maybe if – an hour or two later, you know, I might like, touch her, like, ‘please, maybe,’ but it was usually ‘No.’ ” Thus, Beau was aware that Jacqueline often did not want sexual contact. However, the record also supports the court's finding that Beau did not think the sexual contact itself was nonconsensual. Although Jacqueline testified that she told Beau not to wake her for sex, this testimony indicates that the main point of contention in those conversations was waking her up, not the sexual nature of the contact. To that end, Beau testified that he thought the groping was consensual but that the main problem was waking Jacqueline up, saying “she didn't like to be woken up. But sometimes I would wake her up.”

Yet it was possible for the superior court to draw a factual inference that Beau did not “grossly deviate” from the way that a reasonable person would act. Although Jacqueline testified that “I don't know if you'd call [the sex] consensual.... I just wanted some relief from not being able to sleep,” she did say that “he may have seen [the sex] as consensual, him getting his way.” Where the contact did occasionally lead to sex, and Beau testified he believed the contact was consensual, a fact-finder could conclude that the person making contact did not recklessly disregard a lack of consent to the initiating contact.

Star page 13*13 Because we give particular deference to factual findings based on oral testimony⁶³ and “ordinarily will not overturn a trial court's findings based on conflicting evidence,”⁶⁴ we will not overturn the court's “reckless disregard” finding based on this conflicting testimony. We therefore affirm the finding that Beau did not recklessly disregard Jacqueline's lack of consent to sexual contact.

CONCLUSION

For the foregoing reasons, we AFFIRM the superior court's classification of the Fairbanks home, and the finding that Beau did not recklessly disregard Jacqueline's lack of consent to sexual contact. We VACATE the court's determination that the homestead transmuted to marital property, its finding that Beau did not make sexual contact with Jacqueline while he knew she was sleeping, and its finding that there were no acts of domestic violence. We REMAND for further proceedings.

Footnotes

*

Entered under Alaska Appellate Rule 214.

1

We use initials in lieu of the parties’ last names to protect the family's privacy.

2

Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (alteration in original) (quoting Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013)).

3

Id. (quoting Beals, 303 P.3d at 459).

4

Angelica C. v. Jonathan C., 459 P.3d 1148, 1155 (Alaska 2020) (first quoting Geldermann v. Geldermann, 428 P.3d 477, 481 (Alaska 2018), then quoting Bruce H. v. Jennifer L., 407 P.3d 432, 436 (Alaska 2017)) (internal quotation marks omitted).

5

Limeres, 320 P.3d at 296 (internal citations and quotation marks omitted).

6

Id. (quoting Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011)) (internal quotation marks omitted).

7

Gavora, Inc. v. City of Fairbanks, 502 P.3d 410, 418 (Alaska 2021) (citing Vezey v. Green, 171 P.3d 1125, 1132 (Alaska 2007) (upholding trial court's decision despite inconsistency in witnesses’ testimony because it “involve[d] the credibility of witnesses and interpretations of their testimony”); Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002) (upholding trial court's decision despite witness's partially inconsistent testimony because “the trial court did not adopt these portions of [the witness's] testimony” and “this court consistently grants deference to trial courts where credibility is at issue”)).

8

Adam F. v. Caitlin B., 551 P.3d 553, 563 (Alaska 2024) (quoting Rosemarie P. v. Kelly B., 504 P.3d 260, 266 (Alaska 2021) (internal quotation marks omitted)).

9

Gavora, 502 P.3d at 418 (quoting Dara v. Gish, 404 P.3d 154, 159 (Alaska 2017).

10

Id. (alterations in original) (quoting Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)).

11

Limeres, 320 P.3d at 296 (citing Beals v. Beals, 303 P.3d 453, 458 (Alaska 2013)).

12

Beals, 303 P.3d at 460 (quoting Johns v. Johns, 945 P.2d 1222, 1225 (Alaska 1997)); see Gambini v. Hamilton, 440 P.3d 184, 191 (Alaska 2019).

13

Richter v. Richter, 330 P.3d 934, 939-40 (Alaska 2014) (quoting Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992)).

14

Faris v. Taylor, 444 P.3d 180, 185 (Alaska 2019) (upholding finding that home was marital because it was acquired before date of separation).

15

Id. (quoting Fletcher v. Fletcher, 433 P.3d 1148, 1152 (Alaska 2018)).

16

Id.

17

Fletcher, 433 P.3d at 1152.

18

Faris at 184-85 (quoting Fletcher, 433 P.3d at 1152-53).

19

Fletcher, 433 P.3d at 1153 (quoting Dundas v. Dundas, 362 P.3d 468, 473 (Alaska 2015)).

20

Beau testified this amounted to somewhere between $6,000-7,000.

21

Jacqueline also argues for the first time on appeal that she used the children's permanent fund dividends (PFDs) for the down payment on this house, that this means the house was purchased with non-marital funds, and therefore the house should be excluded from the marital estate. But Jacqueline did not argue that the children's PFDs were separate funds when their use was addressed at trial. Instead, she only argued the house was separate property because of the timing of the purchase. We therefore deem this argument waived. Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (deeming argument waived when not raised in trial court).

22

See Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014).

23

Kessler v. Kessler, 411 P.3d 616, 618-19 (Alaska 2018).

24

Id. at 619.

25

Id. (citing Sparks v. Sparks, 233 P.3d 1091, 1094, 1096 (Alaska 2010); Thomas v. Thomas, 171 P.3d 98, 107 (Alaska 2007)).

26

Id.

27

Id. (first citing Sparks, 233 P.3d at 1094, then quoting Schmitz v. Schmitz, 88 P.3d 1116, 1125 (Alaska 2004)); see also Pasley v. Pasley, 442 P.3d 738, 751 (Alaska 2019) (“At all times the relevant inquiry is whether the spouse who owned the property ... intended to donate it to the marital estate”).

28

Kessler, 411 P.3d at 619-20 (citing Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994)) (internal quotation marks omitted).

29

Id. at 620 (emphasis in original).

30

Id.

31

Pasley, 442 P.3d at 751.

32

Kessler, 411 P.3d at 622 (quoting Abood v. Abood, 119 P.3d 980, 988 (Alaska 2005)) (internal quotation marks omitted).

33

Id. at 619.

34

Id. at 620.

35

See, e.g., Brennan v. Brennan, 425 P.3d 99, 109 (Alaska 2018) (reversing trial court's determination that individual fishing quotas transmuted when trial court only found “intent to treat the [quotas] as marital” and not the intent required by Kessler); Hall v. Hall, 426 P.3d 1006, 1009-10 (Alaska 2018) (reversing trial court transmutation finding which “focused on whether the married couple intended to treat the property as marital property, rather than on whether the owning spouse intended to donate the property to the marital estate”).

36

AS 25.24.150(g), (j).

37

Solomon v. Solomon, 420 P.3d 1234, 1242 (Alaska 2018).

38

Id. (citing Bruce H. v. Jennifer L., 407 P.3d 432, 439 n.34 (Alaska 2017) (“We generally require detailed domestic violence findings when a party alleges that the domestic violence presumption should apply.”); see also Sarah D. v. John D., 352 P.3d 419, 429 (Alaska 2015) (“The superior court must make detailed findings on alleged incidents of domestic violence.”), Faye H. v. James B., 348 P.3d 876, 879-80 (Alaska 2015) (“[W]here 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).”) (quoting Williams v. Barbee, 243 P.3d 995, 1004 (Alaska 2010)).

39

AS 25.24.150(h).

40

AS 25.90.010 adopts the definition used in AS 18.66.990, and AS 18.66.990(3)(A) references AS 11.41.

41

AS 11.41.420 (sexual assault in the second degree); AS 11.41.425 (sexual assault in the third degree).

42

Logan v. State, 551 P.3d 1148, 1151-52 (Alaska App. 2024) (citing former AS 11.41.425(a)(1)(B)).

43

Id. at 1152. Even if the evidence establishes that a person was asleep, the fact finder must still carefully determine whether the person met the definition for “incapacitation.” Id.

44

H.B. 49, 31st Leg., 1st Spec. Sess. (Alaska 2019) (repealing AS 11.41.432(a)(2) (2013)). By removing the former spousal defense, the legislature made clear that marriage does not exempt this conduct from the sexual assault statutes. We apply these statutes as written. However, we recognize that constitutional privacy concerns may be implicated in circumstances where domestic partners have consented to sexual contact during sleep. The parties did not raise such concerns in this case and we do not resolve those questions here.

45

AS 11.41.420 (2019). Sexual contact without consent is now codified as third-degree sexual assault under AS 11.41.425(a)(7). Nonconsensual sexual contact by force or threat of force remains a second-degree violation under the new AS 11.41.420(a)(1)(A)(i).

46

Jill Y. v. Casey Y., 463 P.3d 833, 840 (Alaska 2020) (citing State v. Mayfield, 442 P.3d 794, 798 & n.8 (Alaska App. 2019)).

47

AS 11.81.900(63)(A)(i).

48

Sexual contact with an incapacitated person was third-degree sexual assault at the time of the alleged conduct. AS 11.41.425(a)(1)(B) (2019).

49

AS 11.41.420(a)(1) (2019). Although Jacqueline did not cite the source of her “reckless disregard” argument, we infer from the transcript that the reference was to this version of second degree sexual assault based on the law in place at the time of the alleged conduct.

50

AS 11.41.425(a)(1)(B).

51

407 P.3d 432, 436-37 (Alaska 2017).

52

Id. at 436.

53

Id. at 436-37.

54

Id. at 437.

55

Because it is an exhibit, this email does not fit the superior court's justification for discrediting Beau due to “different testimony.”

56

See Solomon v. Solomon, 420 P.3d 1234, 1241 (Alaska 2018).

57

Gavora, Inc. v. City of Fairbanks, 502 P.3d 410, 419 (Alaska 2021).

58

See Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136 (Alaska 2001) (holding that where tribunal must make credibility judgment, individual must be given opportunity to appear in person).

59

We note that even if a parent has a “history of perpetrating domestic violence,” the court has discretion to award unsupervised visitation so long as it makes the appropriate findings. AS 25.24.150(j).

60

AS 11.41.420 (2019).

61

Compare AS 11.41.470(10)(2022) (“without consent” meant that a victim “with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone”; or “is incapacitated as a result of an act of the defendant”), with AS 11.41.470(10) (2023) (“ ‘without consent’ means that, under the totality of the circumstances surrounding the offense, there was not a freely given, reversible agreement specific to the conduct at issue; in this paragraph, ‘freely given’ means agreement to cooperate in the act was positively expressed by word or action.”)

62

AS 11.81.900(a)(3).

63

Adam F. v. Caitlin B., 551 P.3d 553, 563 (Alaska 2024).

64

Gavora, Inc., 502 P.3d at 419.

End of Document