Opinion
No. 57835-9-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-2-00191-3, James H. Allendoerfer, J., entered March 3, 2006.
Affirmed by unpublished per curiam opinion.
Todd Hodgen petitioned for a domestic violence protection order, alleging that he was being stalked by his former wife. The trial court found that Hodgen had failed to satisfy his burden of proof. Finding no abuse of discretion, we affirm.
FACTS
Todd Hodgen and Dawn Lano dissolved their marriage in 1994. In August 2004, Hodgen obtained an antiharassment protection order under RCW 10.14 that prohibited Lano from, among other things, coming within 100 yards of Hodgen's home or place of employment. The protection order expired in August 2005 and was not renewed. On February 3, 2006, Hodgen petitioned for a permanent domestic violence protection order under RCW 26.50.030. A temporary protection order was entered and a hearing set for February 17, 2006. Among other things, Hodgen alleged that he was living in terror as the result of various acts of domestic violence committed by Lano and her agents since the prior protection order had expired, including hang-up telephone calls, trespass, and stalking.
Lano appeared pro se for the hearing on February 17, 2006. Hodgen was not present, but appeared through counsel. Upon acknowledging the evidentiary disadvantage that petitioner faced if Lano were to testify without Hodgen's presence, Hodgen's counsel accepted the commissioner's offer to continue the hearing to March 3, 2006. Both sides were also permitted to submit additional declarations. When the hearing resumed on March 3, 2006, the trial court considered extensive argument from the parties and Hodgen's counsel. The court concluded that Hodgen had failed to satisfy his burden of proof and dismissed the petition.
DECISION
Hodgen contends the trial court erred in dismissing his petition for a permanent domestic violence protection order. He argues that Lano's stalking activities constituted domestic violence and that he was therefore entitled to a protection order.
Chapter 26.50 RCW authorizes a domestic violence victim to petition the court for a protection order. RCW 26.50.030; see generally Spence v. Kaminski, 103 Wn. App. 325, 330, 12 P.3d 1030 (2000). The petition must allege domestic violence and be supported by a sworn affidavit "stating the specific facts and circumstances from which relief is sought." RCW 26.50.030(1). Where, as here, the petitioner is seeking a permanent protection order, the trial court is also required to find that the respondent is likely to resume acts of domestic violence when the initial order expires. RCW 26.50.060(2).
For purposes of RCW 26.50, "domestic violence" is defined as (1) physical harm or the infliction of fear of immediate physical harm between family or household members; (2) sexual assault of one family or household member by another; or (3) stalking as defined in RCW 9A.46.110. Because he relies solely on the stalking alternative, Hodgen bore the burden of establishing the following elements: (1) that Lano intentionally followed or harassed him on two or more occasions; (2) that Hodgen feared physical injury; (3) that a reasonable person in the same situation would also experience fear; and (4) that Lano intended to frighten, intimidate, or harass Hodgen or knew or reasonably should have known that Hodgen was afraid, intimidated, or harassed. See RCW 9A.46.110. We review the trial court's decision to grant or deny a protection order for an abuse of discretion. See Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002).
In support of his petition, Hodgen alleged, among other things, that he was receiving numerous "hang-up" calls, that Lano appeared repeatedly at his office and peered into the windows, that Hodgen's wife had seen Lano "apparently following her" on certain unspecified occasions, that Lano had been seen driving by Hodgen's house, and that "unidentified individuals" had trespassed at Hodgen's residence and rattled the doorknobs. Hodgen expressed fear that Lano "may try to assault me either with a weapon or try to run me over with her car as I leave my office or home." But it is apparent from the questioning at the hearing that the commissioner was greatly concerned about the vague and conclusory nature of many of Hodgen's allegations. Despite repeated questions from the court, neither Hodgen nor his counsel could identify any evidence in the record suggesting when many of the alleged acts of stalking occurred or how they could reasonably be attributed to Lano.
Moreover, many of Hodgen's allegations of domestic violence were directed at the actions of an individual named Dan Marcott, who was not a party to this action. Lano acknowledged that Marcott was an acquaintance, but flatly denied knowing anything about his alleged acts of domestic violence. Hodgen repeatedly characterizes Marcott as Lano's agent, but failed to submit any evidence to support this characterization.
Hodgen also relies heavily on two specific incidents. On February 4, 2006, Lano was present in the parking lot outside Hodgen's office for about 30 minutes, attempting to assist Marcott in serving Hodgen with process for a child support enforcement proceeding. Although Hodgen had obtained the temporary protection order on February 3, 2006, Lano was unaware of the order, which had not yet been served. When police officers informed her of the order, she left. At the hearing, Hodgen's counsel acknowledged that Lano had a legitimate right to ensure that Hodgen was served with process for the support enforcement proceeding.
Hodgen also points to Lano's presence in the waiting room on February 7, 2006, when he attended a therapy session with one of the couple's sons. But as the trial court learned, Lano customarily brought the son to this appointment, and Hodgen's presence was arranged at the last minute by the judge in a King County parenting proceeding, who was not informed of the Snohomish County temporary protection order. Lano explained that contrary to the parties' agreement, she was not informed that Hodgen would be attending the session.
Hodgen correctly states that there is no statutory requirement to specify the dates and times of stalking incidents. But the nature and quality of the evidence is necessarily relevant to the trial court's assessment of the parties' credibility and whether a reasonable person would experience fear under the same circumstances. See RCW 9A.46.110(1)(b). Hodgen repeatedly asserts that the commissioner should have questioned the credibility of Lano's explanations. But credibility determinations are not subject to appellate review. See State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996). Given the nature of the evidence and the significance of the trial court's assessment of credibility, we cannot say that the trial court abused its discretion in denying a protection order at this time.
Affirmed.