Opinion
No. 64027-5-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-2-03559-8, Leonid Ponomarchuk, J. Pro Tem., entered July 20, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Cox and Ellington, JJ.
A domestic violence protection order is warranted if the petitioner demonstrates a current fear of harm based on past domestic violence. Because the record in this case contains substantial evidence of these elements, and because appellant's due process challenges to the protection order issued below are not supported by adequate argument and authority, we affirm.
FACTS
Eleanor Doermann and Susan River Ione have been domestic partners for over twenty years. On June 15, 2009, Doermann petitioned the court for a domestic violence protection order. She alleged in supporting declarations that River Ione had engaged in specific acts of domestic violence and that she feared for her safety. Her initial declaration alleged in part:
The incidents of physical abuse have started to add up since September, 2008. At that time we had an argument and she threw a glass of ice water in my face, ripped the sleeve off my shirt as I sat there, and threw a ceramic bowl across the room where it shattered. In December of 2008 she threw across the kitchen and shattered an entire set of ceramic dishes. I was standing in the doorway at the time, and she shoved me backward out the door down 2 concrete steps and locked me out. . . . She took shards of the dishes and cut her arms with them. . . . In May (last month) she hit me hard on the buttocks, and when I made it clear it was not okay, her response was not an apology but that I deserved it. She then brought up a time when she had slapped me several years earlier to tell me that I had deserved that as well.
. . . [T]he last week of May [2009, she] was agitated, arguing with me, family, friends, neighbors, and strangers. . . . She heard sounds in the night on Saturday, May 30 that she thought were the neighbors taking down [no trespassing] signs and again tried to insist that I go out and see. I refused, which was the subject of an argument the next day, May 31. She filed a police report on the neighbors that morning. That afternoon she killed our dog. We had previously discussed the problem of the dog's biting behavior, but [River Ione] suddenly decided to put the dog down herself, in an agitated and upset state, immediately following our argument about the neighbor situation. [She] said she couldn't take the frustration any more. . . . She mixed sedatives in the dog's food. As the dog started to stagger around she told me get everyone else out of the house . . . and told me to return to the house on my own, at which time I found the dog hanging by the neck. She told me to take the dog down and bury her. It hit me as an implied threat that I not cross some undefined line of frustrating her. That night . . . she went out driving around the city, and came back to tell me she had stood on the Aurora Bridge contemplating suicide. She then proceeded to cut herself with razor blades in front of me.
. . . .
. . . I have been told by my own therapist and other professionals that I was right to interpret the sequence of events, including the buildup in tension culminating in killing the dog (especially the way in which the dog was killed by hanging), followed by suicide threats and cutting behavior as escalation towards a serious physical threat to me as her primary partner. . . . I continue to stay at an undisclosed location and believe that when [River Ione] realizes that I am not coming back, that I again have reason to fear for my safety. I care about her . . . but I am afraid of her losing control, and therefore request a protection order to prevent her from harassing or harming me.
Clerk's Papers at 6-7.
In supplemental declarations, Doermann alleged that on the day before she killed the dog, River Ione threatened Doermann to keep quiet about her brother's life sentence for murder. Doermann further alleged that River Ione had attempted to hit her on multiple occasions and repeatedly violated the court's temporary protection order by phoning her and her employer.
River Ione disputed most of these allegations in her responsive declaration. She alleged she euthanized the dog only after she and Doermann agreed that it had to be done and that they could not afford a veterinarian. In a supporting declaration, River Ione's ex-husband, Paul Allen, alleged that he was present when Doermann and River Ione agreed that the dog had to be euthanized due to its dangerous behavior.
On July 20, 2009, the parties appeared for a hearing on the petition. Doermann did not testify. Instead, her counsel summarized the allegations in her declarations and asked the court to find that River Ione had committed domestic violence against Doermann, and that Doermann currently feared bodily harm. Counsel noted that River Ione had recently violated the court's temporary restraining order by twice making threatening phone calls to Doermann. River Ione did not object to the court's consideration of the alleged violations.
River Ione testified and again denied most of Doermann's allegations. She admitted contacting Doermann but denied threatening her. She also admitted killing the family dog, but said she did so only after the parties agreed that it needed to be euthanized and that they could not afford a veterinarian.
In its oral ruling granting the petition, the court commissioner noted that River Ione admitted violating the temporary order and that Doermann's version of the dog's death made more sense. The written order included the following preprinted language:
The court summarized Doermann's version as "the dog was basically destroyed as a weapon to impact the petitioner." Report of Proceedings (July 20, 2009) at 14-15.
The Court Finds Based Upon the Court Record:
. . . .
Respondent committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner; the court concludes as a matter of law the relief below shall be granted.
Clerk's Papers at 118 (emphasis in original).
River Ione appeals.
DECISION
River Ione first contends the commissioner erred in failing to enter written findings of fact supporting the protection order. She concedes that written findings are statutorily required only when a protection order is denied. She argues, however, that entry of a protection order without written findings "is a violation of our Washington and US Constitutions['] guarantees of due process." We reject this argument for two reasons.
RCW 26.50.060(7), .070(6).
Appellant's Br. at 11-12.
First, River Ione cites no authority in her opening brief and offers little more than a conclusory declaration that the absence of findings violates due process. We will not consider fleeting or unsupported constitutional claims, and argument and authority raised for the first time in a reply brief comes too late.
State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992); Meyer v. University of Wash., 105 Wn.2d 847, 855, 719 P.2d 98 (1986).
King v. Rice, 146 Wn. App. 662, 673, 191 P.3d 946 (2008) (argument and authority raised for first time in reply brief comes too late).
Second, although the court did not enter written findings on specific disputed facts, it did enter a finding as to the ultimate facts. The order states that the court "finds based upon the record" that "[r]espondent committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner." This finding, together with the court's oral ruling, is sufficient to indicate the factual basis for the court's order.
Clerk's Papers at 118.
See Spence v. Kaminski, 103 Wn. App. 325, 331-33, 12 P.3d 1030 (2000).
River Ione next contends the commissioner improperly considered violations of the temporary restraining order "without proper notice of all the discovery and allegations . . . in violation of Appellant's Washington and US Constitution due process rights." River Ione did not raise this claim below and offers no basis for us to review it for the first time on appeal. In any event, she fails to cite any authority supporting this claim. For the reasons set forth above, we will not consider it.
Appellant's Br. at 13.
RAP 2.5(a).
Last, River Ione contends the commissioner's oral and written findings are not supported by the evidence and the protection order was therefore an abuse of discretion. We review the court's findings for substantial evidence and its decision to issue a protection order for abuse of discretion. We defer to the trier of fact on the persuasiveness of the evidence, witness credibility, and conflicting testimony. Applying these principles here, we conclude the commissioner's finding is supported by substantial evidence and supports the issuance of the protection order.
Scott v. Trans-Sys., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003) (citing Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986)).
RCW 26.50.060(1); Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002).
State v. Ainslie, 103 Wn. App. 1, 6, 11 P.3d 318 (2000); Spence, 103 Wn. App. at 333 (demeanor and credibility of petitioner in protection order proceedings "not reviewable" by appellate court).
Chapter 26.50 RCW authorizes issuance of a protection order if the party seeking it alleges "the existence of domestic violence[] and . . . [declares] the specific facts and circumstances from which relief is sought." Domestic violence includes "[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members." A petitioner seeking a protection order need not allege recent domestic violence or a recent violent act; evidence demonstrating a present fear based on past violence is sufficient.
RCW 26.50.030(1).
RCW 26.50.010(1)(a).
Spence, 103 Wn. App. at 334.
Muma v. Muma, 115 Wn. App. 1, 6-7, 60 P.3d 592 (2002).
Here, it is clear from the order and oral ruling that the court found River Ione had committed domestic violence and that Doermann currently feared for her safety. Substantial evidence supports these findings. The evidence of physical assaults, threats, violations of the temporary order, the circumstances surrounding the killing of the dog, and Doermann's fear support the oral and written findings. Significantly, the court expressly rejected River Ione's version of the dog's death as not credible. We defer to the trial court's credibility determinations.
In short, the court's findings are supported by substantial evidence. Those findings, in turn, support the commissioner's protection order The court did not abuse its discretion in issuing the order.
See Muma, 115 Wn. App. at 6-7 (past violence and recent violation of parenting plan gave rise to current fear and supported protection order; a petitioner need not "wait [for] further acts of violence . . . in order to seek an order of protection"); Spence, 103 Wn. App. at 332-33 (parties' continuing contact while they struggled over custody issues, together with evidence that petitioner continued to be afraid of the respondent, was sufficient to support protection order); Hecker v. Cortinas, 110 Wn. App. 865, 870, 43 P.3d 50 (2002) (recent acts of pounding on walls, threats of physical harm, and prior fistfight with petitioner's wife supported permanent protection order; court noted that "the Act does not require infliction of physical harm; rather, the infliction of 'fear' of physical harm is sufficient").
Doermann requests fees on appeal under RCW 26.50.060(1)(g). RAP 18.1(a) allows this court to award a party its reasonable attorneys' fees if an applicable law grants a party the right to recover them at trial. RCW 26.50.060(1)(g) gives Doermann that right. We grant Doermann fees on appeal, subject to her compliance with RAP 18.1.
RCW 26.50.060(1)(g) provides that the trial court may "[r]equire the respondent to pay the administrative court costs and service fees . . . and to reimburse the petitioner for costs incurred in bringing the action, including reasonable attorneys' fees."
In re Gourley, 124 Wn. App. 52, 59, 98 P.3d 816 (2004).
Affirmed.
WE CONCUR: