Brennan Grubb v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRENNAN ADAM GRUBB,
Court of Appeals No. A-13074
Appellant, Trial Court No. 3AN-14-09600 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2722 — February 25, 2022
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Donald Soderstrom, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge WOLLENBERG.
Brennan Adam Grubb pleaded guilty to one count of second-degree sexual
abuse of a minor after a series of incidents involving nine-year-old M.M. The superior
court ordered Grubb to pay $216,307.55 in restitution, the majority of which
compensated M.M.’s mother, T.R., for future lost wages and benefits after she resigned
from her job as a public school teacher to care for M.M.
Grubb challenges, on a number of grounds, the portion of the restitution
judgment awarding future lost wages and benefits. Principally, he contends that his
criminal conduct was not the proximate cause of T.R.’s future lost wages and benefits.
Stated differently, he asserts that T.R.’s losses resulted from a number of discretionary
decisions that T.R. made and are therefore too attenuated from his criminal conduct to
be compensable.
Because Alaska law establishes that the lost wages and benefits incurred
under the circumstances of this case are not recoverable in a civil suit, and because
restitution is not intended to allow for greater recovery in a criminal case than a victim
would otherwise be entitled to recover under tort law, we conclude that the challenged
portion of the restitution order awarding future lost wages and benefits must be vacated.
Underlying facts and proceedings
In October 2014, Brennan Grubb was charged with five counts of attempted
first-degree sexual abuse of a minor for engaging in multiple sexual acts with nine-year­
old M.M.1 Grubb, who was sixteen years old at the time of the offenses, was
automatically charged as an adult pursuant to AS 47.12.030.
Pursuant to an agreement with the State, Grubb ultimately pleaded guilty
to a single count of second-degree sexual abuse of a minor.2 The court sentenced him
to 30 years with 20 years suspended (10 years to serve) and a 10-year term of probation.
1
AS 11.41.434(a)(1) & AS 11.31.100.
2
AS 11.41.436(a)(2).
–2– 2722
As part of his plea agreement, Grubb also agreed to pay restitution in an amount to be
determined by the court within ninety days of sentencing.
Almost a year later, after two extension requests, the State submitted a
proposed restitution judgment of $20,700.35 — which included reimbursement of
approximately $9,000 to the State of Alaska Violent Crimes Compensation Board for
payments to T.R., as well as restitution of approximately $11,000 to T.R. for the
installation and maintenance of a security system at her home and M.M.’s future
counseling costs. Grubb’s attorney filed a partial objection to the proposal, asserting that
portions of it were too speculative or not compensable in restitution. The attorney also
requested an evidentiary hearing.
Prior to the hearing, the State filed an amended proposal, increasing its
request from just over $20,000 to a total of $216,307.55. This amount included the
restitution previously sought as reimbursement to the Violent Crimes Compensation
Board ($6,575.43 of which compensated T.R. for her salary lost to date, as she had
scaled back her teaching responsibilities to care for M.M. during the 2014-15 school
year), as well as restitution to T.R. for the home security system ($5,233.04), M.M.’s past
counseling costs ($2,364), and a portion of T.R.’s past lost wages that had not been
compensated by the Violent Crimes Compensation Board. The State no longer sought
restitution for M.M.’s future counseling costs.
The bulk of the amended proposal — $197,038 — was related to a new
request for T.R.’s future lost wages and benefits: $52,144 for T.R.’s estimated
diminished future salary and $144,894 for T.R.’s corresponding diminished retirement
benefits. Included with the proposed judgment was a document prepared by T.R.
outlining how she had calculated her future losses.
At the evidentiary hearing, T.R. testified that she resigned from her position
as a public school teacher at the end of the 2014-15 school year, after sixteen years of
–3– 2722
service, so that she could better support M.M. T.R. testified that, following the abuse,
M.M. was diagnosed with post-traumatic stress disorder, had trouble feeling safe at
home, and struggled with school. M.M.’s needs were time-consuming, and T.R.
explained that attending to them often disrupted her teaching and caused her to be late
for work. After being reprimanded for tardiness by her supervisor, T.R. ultimately felt
unable to balance M.M.’s needs with her teaching responsibilities and her own well­
being. Although T.R. could have taken a leave of absence instead of resigning, she
explained why she chose not to do so: she was told that district policies prohibited her
from pursuing her part-time job as a realtor while on leave, and she would have had no
control over the time frame of her return or the position to which she returned.
T.R. stated that, at the time of her resignation, she had planned to teach for
at least four more years, as she would be eligible for basic retirement after twenty years
of service. According to T.R., her resignation impacted her progress along the school
district’s salary scale, which in turn affected the amount of her retirement benefits. If she
returned to teaching, she would receive some credit for her previous experience, but she
would not be restored to her former pay grade.
T.R. testified that she calculated the amount she was requesting for future
lost wages — $52,144 — by estimating the difference between what she believed she
would have earned over a four-year period if she had not resigned, and what she believed
she would earn over a four-year period if she returned to teaching at a reduced salary and
received a 2.5 percent pay raise each year thereafter.3 As for her retirement benefits, T.R.
3
T.R. testified that she used “the most recent contract” that she found online to
estimate her projected base salary upon return. T.R. explained that she anticipated an annual
raise of 2.5 percent based on information she received from the Anchorage Education
Association about the average annual salary increase, although she acknowledged that the
pay scale was sometimes frozen in place.
–4– 2722
testified that, had she continued teaching, she would have been able to retire at age forty-
two, and — based on her estimate that women in Alaska have an average life expectancy
of eighty years — she calculated that she “could be losing out on as much as $144,894
over [her] lifetime.”
On cross-examination, T.R. explained why she believed that Grubb should
pay her restitution for lost wages and benefits, stating, “I can say with 100 percent
certainty that I left teaching because of Mr. Grubb’s actions.” But she acknowledged
that nobody forced her to resign and that she had the option of taking a leave of absence
to care for M.M. instead of resigning.4
At the time of the hearing, T.R. felt that M.M. had improved enough for her
to return to teaching. She had applied for a position but, because the school district was
experiencing layoffs, she did not receive an interview.
Grubb’s attorney opposed the amended proposal on numerous grounds. He
argued, inter alia, that Grubb’s conduct was not the proximate cause of T.R.’s future
losses and that her future losses were too speculative to be compensable.
The superior court rejected Grubb’s challenges and, crediting T.R.’s
calculations and testimony, entered a judgment of restitution in the full amount requested
by the State.
Grubb now appeals.
4
T.R. testified that she had a shared custody arrangement with M.M.’s father such
that they alternated weeks of having M.M. in their care. According to T.R., M.M. continued
attending school after the incident with Grubb and was never home-schooled. After T.R.
resigned from her teaching position, T.R. made herself available to M.M. as needed; for
example, she would have lunch with him and “tried to spend a lot of time in [his] classroom.”
–5– 2722
Why we vacate the restitution judgment and remand for entry of an
amended judgment that does not include T.R.’s estimated future wage and
benefit losses
On appeal, Grubb raises a number of challenges to the portion of the
restitution judgment awarding $197,038 to T.R. for her future lost salary and benefits.
Chief among Grubb’s challenges to T.R.’s lost wages and benefits are
Grubb’s contentions that these losses were too speculative to be compensable — and
that, although the trial court could properly find that Grubb’s conduct was the “but for”
cause of T.R.’s losses, the trial court failed to properly evaluate whether Grubb’s
criminal conduct was the legal cause (i.e., the proximate cause) of the particular losses
challenged. Grubb also argues that the trial court failed to consider whether the award
to T.R. for future losses should be offset by the mitigating effect of T.R.’s real estate
earnings and reduced to present value. Finally, Grubb asserts that, in the event T.R.’s
future lost wages and benefits are validly subject to a restitution order under state law,
this portion of the restitution judgment violates the prohibition on excessive fines under
the United States and Alaska Constitutions.5
Alaska’s restitution statutes provide that, unless a victim declines
restitution, a court shall order restitution for the actual damages or loss caused by the
conduct for which the defendant was convicted.6 In particular, AS 12.55.045(a)
authorizes restitution, as a direct component of a sentence, “to the victim or other person
5
U.S. Const. amend. VIII; Alaska Const. art. I, § 12.
6
See AS 12.55.045; Welsh v. State, 314 P.3d 566, 567-68 (Alaska App. 2013)
(recognizing that, under Alaska’s restitution statutes, restitution “should be assessed
according to the damages or loss arising from the defendant’s crime”); see also Peterson v.
Anchorage, 500 P.3d 314, 317 (Alaska App. 2021) (reversing restitution judgment because
of the absence of “any indication in the record that the losses were caused by [defendant]’s
criminal conduct, as opposed to her negligence”).
–6– 2722
injured by the offense[.]”7 And AS 12.55.100(a)(2)(B) authorizes restitution, as a
condition of probation, “to aggrieved parties for actual damages or loss caused by the
crime for which conviction was had[.]”8
The purpose of the restitution statutes is to “make full restitution available
to all persons who have been injured as a result of criminal behavior, to the greatest
extent possible.”9 At the same time, because restitution is intended to allow crime
victims and others who have suffered losses as a result of a defendant’s criminal conduct
to recover monetary damages that would otherwise be subject to recovery only in a civil
suit, we have recognized that a person injured by a defendant’s criminal conduct may not
recover more than the person could recover in a civil case based on the same conduct.10
Indeed, the legislature has declared that a restitution order is “a civil judgment for the
7
By statute, T.R. — as M.M.’s mother — qualifies as a “victim.” AS 12.­
55.185(19)(B) (defining “victim,” for purposes of sentencing, as including a parent of the
direct victim, if the direct victim is a minor).
8
At the time of Grubb’s offense, this provision was codified at AS 12.55.100(a)(2).
9
Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005) (quoting Lonis v. State, 998
P.2d 441, 447 n.18 (Alaska App. 2000)); see also Alaska Const. art. I, § 24 (providing that
crime victims have “the right to restitution from the accused”).
10
Ned, 119 P.3d at 446-47. We have not previously held that the recovery available
in restitution is entirely coextensive with recovery available in tort, nor do we purport to do
so here. For instance, although criminal restitution is limited by the damages available in a
civil case, in that a victim in a criminal case cannot recover restitution greater than what is
available under tort law, a plaintiff in a civil suit may be entitled to additional damages —
such as punitive damages — that go beyond the actual loss or damages that would be
recoverable as restitution in a criminal case. See Noffsinger v. State, 850 P.2d 647, 650
(Alaska App. 1993) (differentiating criminal restitution from civil liability on several
grounds, including that criminal restitution is limited by actual damages and losses).
–7– 2722
amount of restitution” that can be enforced “through any procedure authorized by law
for the enforcement of a civil judgment.”11
Accordingly, we employ a test of proximate causation in evaluating
restitution claims in criminal cases — the same test for causation used in civil lawsuits.12
As we explained in Ned v. State, “if a defendant’s liability for restitution extended to any
and all expenses that could be traced causally to the defendant’s wrongful act — then the
scope of restitution in a criminal case would exceed the scope of damages that could
lawfully be awarded in a [civil] lawsuit based on the same conduct.”13
Thus, in order to obtain a restitution order for particular losses or damages,
the State must establish two facets of causation: (1) that a defendant’s criminal conduct
was a cause-in-fact (a “but for” cause) of the losses incurred, and (2) that the losses were
a natural and proximate result of the criminal conduct to which liability should attach —
i.e., that the losses were not so attenuated from the wrongful conduct as to negate
11
AS 12.55.045(l); see also Hodges v. State, 158 P.3d 864, 865-66 (Alaska App.
2007) (recognizing that restitution is no longer statutorily limited by a defendant’s ability to
pay and that, in eliminating the court’s ability to consider a defendant’s ability to pay in
setting restitution, “the legislature wanted to carry out the policy of making restitution orders
the equivalent of a civil judgement entered against the defendant in favor of the victims”).
12
See Ned, 119 P.3d at 446.
13
Id.–8– 2722
responsibility.14 Stated differently, the State needed to show that Grubb’s criminal
conduct was a “substantial factor” in bringing about the damages sought.15
Grubb does not contest that his criminal conduct was the cause-in-fact of
T.R.’s resignation (and the losses that she incurred as a result). But, as we noted, it was
not enough for the State to show that, but for Grubb’s conduct, T.R. would not have
resigned from her job or incurred certain future losses. As we declared in Ned, “[S]ome
expenses are simply too indirectly related to the wrongful [conduct] to qualify for
reimbursement.”16 Thus, in Ned, we held that the travel costs of all family members and
friends to attend the victim’s funeral — while “real and verifiable” and undoubtedly the
“but for” result of the defendant’s act of homicide — were not a “sufficiently direct result
of the defendant’s crime to qualify for restitution.”17
The question we must confront here is whether Grubb’s criminal conduct
is the proximate cause of T.R.’s future lost wages and retirement benefits — i.e., whether
14
See id.; see also Paroline v. United States, 572 U.S. 434, 446, 449-50 (2014)
(recognizing that “[p]roximate cause is a standard aspect of causation in criminal law and the
law of torts” and discussing the need for the government to establish both causation-in-fact
and proximate causation with respect to a federal restitution statute); Howarth v. State, Pub.
Def. Agency, 925 P.2d 1330, 1333 (Alaska 1996) (explaining that “legal cause encompasses
two concepts” — actual (“but for”) causation and causation grounded in legal policy, which
asks “whether the conduct has been so significant and important a cause that the defendant
should be legally responsible” (internal quotations and citations omitted)).
15
See State v. Malone, 819 P.2d 34, 36 (Alaska App. 1991) (“A criminal defendant
can be held responsible only for injuries that ‘result from’ or are ‘caused by’ his conduct.
But the defendant’s conduct need not be the sole factor in producing the injury. Rather, the
test is whether the defendant’s conduct was a ‘substantial factor’ in bringing about the
result.”).
16
Ned, 119 P.3d at 446.
17
Id. at 446-47.
–9– 2722
these losses were a reasonably foreseeable consequence of Grubb’s criminal conduct, or
whether those losses are too attenuated from Grubb’s conduct to satisfy the test of legal
causation.18
We have previously recognized that Alaska law permits victims to recover
for income lost as a result of a defendant’s criminal conduct.19 At the same time, we
have been more cautious about restitution awards based on estimates of losses projected
to occur in the future. For example, although we have recognized the court’s authority
to award restitution for the costs of future counseling resulting from a defendant’s
criminal conduct, we have said that there must be evidence in the record “firmly
establish[ing]” the need for, and the amount of, such expenses.20 Here, T.R.’s estimated
18
Cf. Johnson v. State, 224 P.3d 105, 111 (Alaska 2010) (“A defendant is
responsible for the natural consequences of his or her act or failure to act. Natural
consequences are those reasonably foreseeable in light of ordinary experience. The
defendant need not have foreseen the specific manner of resulting harm so long as (1) the
general type of harm was foreseeable, and (2) the actual harm falls within the scope of risk
hazarded by the defendant’s conduct and is not too remote or accidental in occurrence.”).
19
See, e.g., W.S. v. State, 174 P.3d 256, 258-59 (Alaska App. 2008) (upholding
award of restitution to child victim’s aunt — who was the victim’s custodian — for the past
hours she missed from work to care for the victim following the charged assault); see also
Yannello v. State, 2014 WL 1691542, at *3 (Alaska App. Apr. 23, 2014) (unpublished)
(upholding award of restitution to assault victim for wages he lost while he was physically
unable to work and to the victim’s parents for the cost of their flight to Alaska to care for him
in the immediate aftermath of the assault).
Since the time of Grubb’s offense in the summer of 2014, the legislature has
amended the restitution statute, AS 12.55.045, to include express references to a victim’s lost
income. See SLA 2015, ch. 17, §§ 1-3. These provisions apply to an order of restitution for
an offense committed on or after the effective date of August 9, 2015.
20
See Lawrence v. State, 764 P.2d 318, 322 (Alaska App. 1988) (expressing concern
about “the problem of awarding restitution for unliquidated damages which arose from the
offense” and expressing the need for the amounts of such losses to be “firmly established”);
(continued...)
– 10 – 2722
future wage and benefits are more attenuated from Grubb’s criminal conduct, as the
losses were occasioned by T.R.’s consequent decision to resign from her teaching
position.
The Alaska Supreme Court — applying the same proximate cause standard
that we apply to restitution claims — has held that these types of losses, which hinge on
a sense of personal obligation that is difficult to quantify, are too uncertain and
attenuated from the underlying harm to be compensable in a civil suit.
In Heritage v. Pioneer Brokerage & Sales, Inc., the supreme court
considered whether, in a civil lawsuit, a husband could recover wages lost as a result of
his decision to provide nursing care to his injured wife after she was exposed to toxic
fumes in a mobile home they had purchased.21 The husband asserted that he had suffered
economic losses because he left a lucrative job on the North Slope for a lesser-paying job
in Juneau to provide medical and psychological care to his wife, who suffered a variety
of medical problems from the fumes.22 But the supreme court rejected the notion that the
plaintiffs were entitled to recovery of the husband’s lost wages.
In reaching its conclusion, the court distinguished the circumstances in
Heritage from its earlier decision in State v. Stanley, where the court upheld an award
of lost income to a fisherman whose vessel was damaged by the defendant.23 The court
20
(...continued)
see also Peratrovich v. State, 903 P.2d 1071, 1078 (Alaska App. 1995) (recognizing that,
under the restitution statute, a defendant may be required to compensate the victim for future
counseling expenses, but explaining that restitution for such expenses “must be based on
substantial evidence of monetary loss or expense, not mere speculation”).
21
Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059, 1060 (Alaska 1979).
22
Id. at 1064.
23
Id. (discussing State v. Stanley, 506 P.2d 1284, 1293 (Alaska 1973)).
– 11 – 2722
noted that, unlike the plaintiff in Stanley, the husband in Heritage was not directly
prevented from pursuing the more lucrative employment on the North Slope.24
Moreover, the court held that “[e]ven if [the husband]’s job change was
directly occasioned by the injury to his wife from the defective mobile home, “recovery
of his lost wages is foreclosed.”25 In particular, the court held that the economic damages
caused by a spouse’s decision to switch jobs in order to care for their injured spouse
were too attenuated from the underlying harm:
We are not persuaded that damages based on this . . . theory
should be awarded, however, since a determination of when
the support of a close family relationship is necessary to the
medical and psychological comfort of the injured individual
is always an uncertain inquiry, and the extent of such
damages attributable to an injury is, in our view, too
speculative to be made part of the general recovery of tort
victims.[26]
The supreme court reaffirmed this principle more recently in Glamann v.
Kirk.27 In Glamann, the court held, based on Heritage, that the wage losses caused by
a wife’s decision to transport her husband to his medical appointments after a car
accident were not compensable in a lawsuit based on the driver’s negligence.28 In doing
so, the court reiterated its previous holding in Heritage that “a determination of when
24
Id.25
Id.26
Id. at 1065. The court also noted its concern about the possibility of “double
recovery,” recognizing that while an injured plaintiff is entitled to recover the reasonable
costs of home nursing care, a family member who elects to provide this care is not also
entitled to recover earnings lost as a result of that decision. Id. at 1064-65.
27
Glamann v. Kirk, 29 P.3d 255 (Alaska 2001).
28
Id. at 264-65.
– 12 – 2722
support is necessary in a close family relationship is ‘too speculative to be made part of
the general recovery of tort victims.’”29
A majority of courts appear to have reached a similar conclusion. In
Hutchings v. Childress, for example, the Ohio Supreme Court stated that it was following
the majority rule when it rejected a damages claim for income lost by a husband while
caring for his wife, the injured plaintiff.30 The court held that “[d]amages are measured
not by the lost income of the supporting spouse but by the market value of the services
he or she renders”31:
A spouse’s choice to take a break from employment to
provide care is only indirectly attributable to a tortfeasor’s
actions. That choice is caused by a sense of obligation rather
than by the accident.[32]
The court characterized the issue as “one of causation and foreseeability”: “[A]
tortfeasor would expect to pay the market rate for the care provided to the injured party,
[but] not the wages of a stockbroker who provided that care.”33 Because the plaintiffs
in Hutchings had not sought to introduce any evidence of the economic value of the
29
Id. at 265 (quoting Heritage, 604 P.2d at 1065). The court implicitly rejected the
plaintiff’s suggestion that his wife’s lost wages should be recoverable because they could
have been reframed in terms of his own costs for transportation to his medical appointments.
Id. at 264-65.
30
Hutchings v. Childress, 895 N.E.2d 520 (Ohio 2008) (citing 2 Jacob A. Stein, Stein
on Personal Injury Damages § 7:11, at 7-30 (3d. ed. 1997)).
31
Id. at 521.
32
Id. at 526.
33
Id.
– 13 – 2722
nursing care the husband provided but framed their request solely in terms of lost wages
incurred by the husband in providing that care, the court rejected the wife’s claim.34
Grubb’s case presents the same issue that confronted the Heritage and
Hutchings courts — i.e., whether a defendant can fairly be held liable for wages lost as
a result of an individual’s decision to resign from work to care for a family member.
T.R. resigned from her position as a public school teacher in order to provide emotional
support for her son. While T.R.’s decision to resign in order to care for M.M. was
certainly understandable, and the trial court reasonably credited T.R.’s testimony that her
decision was driven by the substantial impact of Grubb’s criminal conduct on M.M., we
conclude that T.R.’s decision involved too many indeterminate variables to render the
resulting wage and benefit losses recoverable as a matter of law.
For instance, T.R.’s projected wage and benefit losses hinged on a number
of factors unconnected to Grubb’s conduct — for example, the flexibility of her job, her
supervisor’s diminished willingness to accommodate her scheduling needs, and her
decision to resign rather than take a leave of absence.35 T.R. acknowledged that her
supervisor initially afforded her some flexibility in the mornings by allowing her to drop
her first class, but eventually “[t]here was very little support at [her] job . . . for [her]
situation,” and she felt she “couldn’t be there for [M.M.],” her students, and herself.36
While T.R. no doubt made decisions that she felt best for her and her son, those types of
34
Id.
35
According to T.R., her husband told her that they would be secure financially if
she left her teaching position. T.R. also testified that she continued to make money from her
separate work as a real estate agent.
36
T.R. testified that she would only return to teaching if she were offered the right
position — a position in which she would both be beneficial to the program and have the
flexibility to still address M.M.’s needs.
– 14 – 2722
personal decisions hinge on indeterminate factors and preferences that make assigning
legal damages an inherently uncertain task. And the Alaska Supreme Court has made
clear that determining the extent of such damages is “too speculative” to be made part
of the general recovery of tort victims.37 We likewise conclude that T.R.’s losses were
“too speculative” and attenuated from Grubb’s conduct to be made part of restitution.38
The difficulty of calculating potential losses far into the future supports this
conclusion. While the State argues that T.R. was a tenured teacher four years away from
retirement under a defined benefit plan established by statute, such that her future losses
were ascertainable, her testimony during the hearing suggests that, even so, she
encountered difficulties in estimating her projected future earnings. Other similarly
situated parents may be in even less quantifiable situations. And it is not reasonably
foreseeable that a defendant would have to bear the costs of diminished pay for a
caretaker, particularly when the loss of income is extreme as in the case of a particularly
high-paying job. Indeed, the award of restitution in a case might hinge on whether the
victim had a relative who was in a position to take an extended leave from work at all.
The State argues that it is foreseeable that an abuse victim’s need for extra
support and care would result in financial hardship for the family and that a parent
37
Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059, 1065 (Alaska 1979).
38
Other courts have reached a similar conclusion in the restitution context. See State
v. Baker, 177 A.3d 1093, 1098, 1103-04 (Vt. 2017) (reversing a restitution award for wages
lost by a husband after he left work to travel to the scene of his wife’s car accident; the court
held that the husband’s decision to leave work to deal with the non-immediate repercussions
of the defendant’s crime was not a reasonably foreseeable consequence of the defendant’s
negligent vehicle operation); see also Wiredu v. State, 112 A.3d 1014, 1024 (Md. App. 2015)
(holding that restitution for wages lost by a wife in caring for her husband — the victim of
the defendant’s assault — was improper under Maryland statute and declining State’s request
on appeal to reframe restitution request for lost wages as medical expenses incurred while
wife was caring for her husband).
– 15 – 2722
leaving their job to care for their child is not highly extraordinary. But ultimately, while
T.R. made an understandable decision to leave her job, she acknowledged that this
decision was voluntary, and our law does not allow for compensation for lost financial
benefits under these circumstances.
We therefore reverse that portion of the restitution order attributable to
T.R.’s future lost wages and retirement benefits resulting from her resignation. Because
T.R.’s future lost salary and benefits were not compensable under Alaska law, we need
not reach Grubb’s other challenges to the award of these costs — including that the
award violates the constitutional prohibition on excessive fines, and that T.R. had a legal
duty to mitigate her losses if she wished to recover for them.
Conclusion
We VACATE the restitution judgment and REMAND to the superior court
to enter a revised restitution judgment consistent with this decision. Those portions of
the restitution order that Grubb did not contest remain in place.
– 16 – 2722