Opinion
No. 35315-6-II.
May 6, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-3-02124-8, Katherine M. Stolz, J., entered August 4, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Hunt, JJ.
James Bahr appeals the trial court's denial of his motion to modify or vacate a permanent restraining order in effect since the dissolution of his marriage. He argues that the order's requirement that he stay 500 feet away from his ex-spouse Andrea Bahr (now Forsberg) too broadly infringes on his constitutional rights of freedom of travel and movement. We affirm.
FACTS
Bahr and Forsberg married in May 1998, and dissolved their marriage in August 2002. Forsberg received domestic violence-related restraining orders against Bahr several times during their marriage and, after dissolution, she obtained the permanent restraining order that is at issue on appeal.
Restraining Orders During Marriage
Forsberg owned as separate property the residence that she and Bahr shared during their marriage. Bahr had a workshop in a detached building on the property where he operated a heating and air conditioning repair business, Jim Dandy Construction.
In April 1999, Forsberg obtained a restraining order against Bahr but, according to him, she asked him to move back into their home the afternoon of the order's entry. In May 1999, she sought a second restraining order. According to her, she refused to sign a postnuptial agreement that he presented to her that would change the character of her residential property from separate to community. She claimed that he flew into a rage because she refused to sign the agreement and "destroyed almost every single room in my home." I Clerk's Papers (CP) at 12. During a hearing regarding the restraining order, she said that he had earlier "sweet-talked" his way back into her good graces. I CP at 12.
In August 1999, Forsberg sought another domestic violence-related restraining order. According to her, Bahr did not appear at a hearing related to the May incident and instead came home "drunk and violent." I CP at 12. A couple of days later, according to her, he violently attacked her 21-year-old son. She claims Bahr later cut wires to the electrical pump that supplied her home with well water. According to her, Bahr became increasingly violent, continued to pressure her to sign the postnuptial agreement, and threatened to "destroy" her should she seek an attorney's advice. CP at 13.
Forsberg also stated that after entry of the August 1999 domestic violence restraining order, Bahr vandalized her water system and disabled her heat pump. Later, in April 2001, he hit her, spat in her face several times, stole several of her belongings, and threatened further violence if she "touched 'his' money." I CP at 14.
In July 2001, as the couple moved toward the eventual dissolution of their marriage, Forsberg sought to make the August 1999 restraining order permanent after Bahr acted violently. She claimed that he had not completed an evaluation "required by the domestic violence court in Buckley and has refused to comply with any of the conditions that have been set up by the probation department there." I CP at 15. The trial court made the order permanent and enjoined him from contacting her or entering her property, but it did not include a minimum distance requirement from her home or work location. The order did require him to leave any location where she was present.
According to her petition, in May 2001, Bahr had smashed her hair dryer and dumped his cologne on her hair and back. In July, he pushed her against a wall, scraping her arm, and further threatened her if she should take any money from their joint account. He also warned her not to seek the advice of an attorney with respect to the dissolution action.
The record shows a domestic violence special project violation report from the Pierce County District Court Probation Office, stating that Bahr had missed earlier probation appointments and he had not completed his domestic violence evaluation.
Dissolution Restraining Order
After Forsberg sought to make the restraining order permanent, Bahr filed a dissolution action and temporary restraining order against her on July 6, 2001. On February 25, 2002, as part of the dissolution case, she again moved the trial court for a permanent restraining order. In the Page 4 preceding several months, according to her, he had made dozens of threatening phone calls, removed a section of her fence, vandalized her heat pump, called a utility provider and had her utilities turned off, and filed false police reports. Additionally, Forsberg and her attorney alleged that Bahr physically and verbally threatened Forsberg during a settlement conference in her attorney's office, forcing the attorney to call 911 dispatch to have him removed from the premises after he refused to leave.
According to Forsberg's affidavit attached to the motion, the lines between the domestic violence restraining order and dissolution restraining order were "blurred at the various hearings which were held in July and August [2001]." I CP at 31. In this appeal, Bahr assigns error to the one-mile distance related to the dissolution case restraining order, originally entered by the trial court as a restriction in a temporary restraining order dated March 13, 2002. Regardless of any blurring between the two parallel cases, the modified restraining order at the heart of this appeal (the one retaining a 500-foot distance requirement) amended the domestic violence restraining order to conform to the dissolution restraining order.
The trial court heard argument on Forsberg's motion for a restraining order on March 13, 2002. It temporarily restrained Bahr from "knowingly coming within or knowingly remaining within one mile of the home or work place of the other party." I CP at 58.
On May 28, 2002, Bahr moved for reconsideration of the temporary restraining order, in particular the one-mile distance requirement. He argued that in order to visit his parents he would have to drive 22 miles out of his way and that he had three separate friends living within a mile of Forsberg's property. He also claimed that he needed access to the shop in order to revive his "defunct" business. I CP at 63. He argued that her attorney had prepared the order to include a distance requirement that he believed was not actually part of the trial court's order. The trial court denied the motion.
The record contains an affidavit from Forsberg with maps indicating that Bahr need only travel an additional 0.2 miles to comply with the one-mile distance requirement.
The trial court dissolved the marriage on August 16, 2002. The decree of dissolution granted Forsberg a permanent restraining order against Bahr and maintained the one-mile distance requirement. The trial court found that "[a] continuing restraining order against the husband is necessary because: husband has demonstrated threats against wife and there is an outstanding warrant for the husband's arrest for violation of the protective order obtained by the wife." III CP at 561.
According to Forsberg, in November 2002, Bahr was found guilty of four of five counts in a criminal trial related to violations of the earlier July 2001 domestic violence-related permanent restraining order.
Almost four years later, on May 31, 2006, Bahr moved to vacate, terminate, and/or modify the restraining order entered in the dissolution. He challenged the veracity of Forsberg's prior statements.
At a hearing on the motion, the trial court initially decreased the distance requirement to one-half mile. After Bahr's further protestations that he would not be able to visit a nearby lake to water ski or otherwise live "normally," the trial court finally ordered a 500-foot distance restriction. Report of Proceedings (RP) (Aug. 4, 2006) at 15. After the trial court refused to restore his hunting rights and awarded Forsberg $250 in attorney fees, Bahr abruptly left the hearing before its completion. As he left the courtroom, he said, "Don't ask me to sign that because we're appealing this decision. We're going to spend thousands." RP (Aug. 4, 2006) at 18.
Bahr moved for reconsideration, again challenging the distance requirement. He asked the trial court to eliminate the distance requirement from its restraining order or, alternatively, allow him to drive the main streets around Lake Tapps. The trial court denied Bahr's motion. When asked by Bahr's counsel for findings related to the 500-foot requirement, the trial court stated, "Well, obviously, Counsel, there is a concern regarding Mr. Bahr's behavior; and he, personally, just demonstrated that when he was in court the last time before a number of witnesses. I reduced it to 500 feet because it is a small town, and I'm trying to allow him to have some normalcy in his life, but I'm not going to drop it any further." RP (Aug. 25, 2006) at 11.
Forsberg filed a declaration with printouts from MapQuest indicating alternate routes that allow Bahr to go wherever he needed and still remain more than 500 feet from her home and business.
Bahr appeals the trial court's refusal to vacate the 500-foot distance requirement.
ANALYSIS
Bahr first contends that the restraining order infringes on his fundamental constitutional rights of travel and movement. He asserts that the 500-foot distance requirement imposed in the modified restraining order is not the least restrictive means of satisfying the state's interest in this case. In addition to his freedom of travel, he argues that the restraining order makes his freedom of movement subject to Forsberg's "whim and caprice." Appellant's Br. at 15. He asserts that "[a]lthough he is free at any time to going to any public place other than her business, she can virtually chase him from such locations by her mere presence." Appellant's Br. at 15.
Forsberg counters that we should not entertain any objection to a distance requirement in this case because, as some form of that requirement has been in place since 2002, Bahr's appeal on this point is no longer timely. RAP 5.2(a). Under the facts here, we will analyze the distance restriction.
"The right to travel, including the right to travel within a state, is a fundamental right subject to strict scrutiny under the United States Constitution." City of Seattle v. McConahy, 86 Wn. App. 557, 571, 937 P.2d 1133 (1997). "Where fundamental rights are involved, regulations limiting these rights may be justified only by a compelling state interest." Halsted v. Sallee, 31 Wn. App. 193, 196, 639 P.2d 877 (1982).
Bahr provides no argument against the constitutionality of the statute authorizing restraining orders in Washington, chapter 26.50 RCW. He limits his argument to the 500-foot distance restriction as burdening his individual rights.
Here, the compelling state interest is Forsberg's safety and welfare. As noted by our Supreme Court, "A state law implicates the right to travel when it actually deters such travel and impeding the travel is its primary objective. There is an acknowledged constitutional right to be free from governmental interference, but the United States Constitution does not create a right for any person to interfere with the rights of other persons." State v. Lee, 135 Wn.2d 369, 389-90, 957 P.2d 741 (1998) (footnotes omitted).
Additionally, the record shows that Bahr need only travel a mere 0.2 miles further from his professed regular routes of travel to Sumner to stay beyond 500 feet from Forsberg's home and business. And Forsberg's affidavit shows there is an alternate route from Auburn that bypasses her home and business that is also only 0.2 miles longer. Such minimal distances do not reasonably impose an unconstitutional burden on his freedom of travel. Moreover, Bahr's reference to the trial court's concern with an overbroad protective order in Halsted does not persuade us. In Halsted, the court found "unnecessarily broad" an order that kept a husband and father from traveling north of the city of Omak. 31 Wn. App at 197. The 500-foot distance requirement in the modified restraining order in this case does not compare with the broad prohibition of travel in the order the court overturned in Halsted.
With respect to Bahr's freedom of movement, "[c]itizens have a fundamental right of free movement, 'historically part of the amenities of life as we have known them.'" Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972)). But as Division Three noted, "the protection order of RCW 26.50 curtails an abuser's right to move about when such movement is harmful or illegal and interferes with the victim's right to be free of invasive, oppressive and harmful behavior." Spence v. Kaminski, 103 Wn. App. 325, 336, 12 P.3d 1030 (2000).
Bahr is free to move about as he pleases, and the restraining order only burdens his freedom of movement by occasionally requiring him to leave a public establishment in the Lake Tapps area when Forsberg happens to be in the same location. As he points out, "he is free at any time to going to any public place other than her business." Appellant's Br. at 15. Although Lake Tapps may be a small community, and however "inevitable" it may be that he occasionally will be required to leave a local establishment when she arrives, an order that occasionally forces him to leave a location earlier than he would prefer does not burden his fundamental freedom of movement in a constitutional sense. Appellant's Br. at 16.
Further, even assuming that Bahr's rights to movement and travel are actually implicated here, the State may curtail those rights to protect Forsberg from any "invasive, oppressive and harmful behavior" by him. Spence, 103 Wn. App. at 336. The record shows that he has acted with violence toward her and her adult son, has harassed and threatened her, and has violated a prior restraining order involving her. He has also displayed his temper in front of her attorney. He has most recently displayed these aggressive tendencies to the trial court itself by interrupting and walking out of the hearing even after the trial court agreed to reduce the distance requirement from one mile to 500 feet. In light of the record before us, the distance requirement in this case is an appropriate least restrictive means to achieve the state's compelling interest in protecting Forsberg's safety and welfare.
Bahr further argues that the distance requirement was inserted into the initial order without his knowledge. He also asserts that the trial court inappropriately entered it without findings and without valid reasons. Again, his argument does not persuade us.
Because we affirm the 500-foot distance requirement, we do not reach Forsberg's arguments in support of the trial court's decision that rely on theories of res judicata or collateral estoppel, or on Bahr's failure to pay attorney fees in contravention of prior court order.
First, as we previously noted, any appeal regarding the 2002 initial restraining order's justification or lack thereof is no longer timely. See RAP 5.2(a) (requiring notice of appeal to be filed in the trial court within 30 days of entry of decision). Further, the statute authorizing protective orders requires written "particular reasons" from the trial court only when it "declines to issue an order for protection or declines to renew an order for protection. . . ." RCW 26.50.060(7) (emphasis added). Also, after reviewing the evidence, in entering the initial 2002 restraining order in the dissolution, the trial court found that Bahr had "demonstrated threats against his wife and there is an outstanding warrant for the husband's arrest for violation of the protective order obtained by the wife." III CP at 561.
Finally, regarding the restraining order before us, the trial court stated, in response to Bahr's concern as to why the distance requirement was being maintained, that "there is a concern regarding Mr. Bahr's behavior; and he, personally, just demonstrated that when he was in court the last time before a number of witnesses." RP (Aug. 25, 2006) at 11. We review the entry of a domestic violence restraining order for abuse of discretion. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Qwest Corp. v. City of Bellevue, 161 Wn.2d 353, 369, 166 P.3d 667 (2007). In view of Bahr's multiple instances of violent and threatening behavior toward Forsberg reflected in the record before us, the trial court had sufficient evidence to maintain a 500-foot distance requirement. The trial court did not abuse its discretion in modifying the restraining order to ensure that Bahr stays at least 500 feet from Forsberg at all times.
ATTORNEY FEES
Forsberg requests attorney fees and costs on appeal because she, as the petitioner in seeking the original order, is "further pursuing protection from domestic violence by Bahr." Resp't's Br. at 75. According to the applicable statute, after notice and hearing a 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." RCW 26.50.060(1)(g). She has complied with RAP 18.1(a) and (b), and we award her fees and costs on appeal upon her compliance with RAP 18.1(d).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Armstrong, J. and Hunt, J., concur.