AT Di WASOGIOS
TATE OF
2018 JUL 23
fkli 10: 16
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GAM THI HONG NGO, )
) No. 76767-4- I
Respondent, )
) DIVISION ONE
v. )
)
) UNPUBLISHED OPINION
THOAI GIA PHAN, )
)
Appellant. ) FILED: July 23, 2018
)
LEACH, J. — Thoai Gia Phan appeals an order on revision granting Gam Thi
Hong Ngo's petition for a domestic violence protection order (DVPO) against him. He
claims that on revision the superior court used the wrong standard of review and denied
him due process. We disagree and affirm.
FACTS
Phan and Ngo married in Vietnam in 2015. They have no children. In 2016,
Phan brought Ngo to Seattle to live with him and his father.
In September 2016, Phan consulted a divorce lawyer while Ngo was temporarily
back in Vietnam. According to Phan, his father warned Ngo that she needed to return
to the United States because a divorce might affect her immigration status.
No. 76767-4/2
In October 2016, shortly after Ngo returned from Vietnam, Seattle police
responded to a 911 call from Ngo. She was "crying hysterically" and said the following
through an interpreter,
She stated that PHAN has pushed her down towards the ground and has
made threats to take away her Green Card, so that she would be forced to
go back to Vietnam when she returned back to the US. NGO stated that
she never called 911 to report those incidents, because of her limited
English.
NGO stated that today, she and PHAN got into a verbal argument and that
PHAN yelled and screamed at her telling her that when he comes back
home after work, if she is still here (at the house) he would kill her. She
stated that she feared for her safety and believes that he could car[ry] out
his threats to kill her.
Phan's father told police he heard Phan screaming and threatening to kill Ngo. Phan
told police that the couple had not been getting along but said that "nothing physical
occurred" and "they were only arguing." Police arrested Phan and charged him with
domestic violence harassment.
On November 29, 2016, Ngo filed an amended petition in superior court for a
DVPO against Phan. Under penalty of perjury, Ngo described Phan's October 2016
threats to kill her:
[My husband] brought me to the U.S. in July 2016. Since that time, my
husband has called me names and insulted me many times. He would get
drunk and come home at 2 or 3 a.m. and call me a prostitute, or worse
than a prostitute. He would say go back to Vietnam.
The worst incident was about a month after I arrived. We were in the car,
he insulted me and said, "you're not my wife." He stopped the car and
said Get Out. I got out, but he got out and followed me on foot. He was
yelling at me, cursing with the "F" word. He got close to me, and pushed
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me into a nearby fence. My shoulder was hurt, dislocated. A stranger
saw us, and tried to help me. I was afraid.
Ngo also stated, "I am afraid he will come after me. He is being charged in a criminal
case and I am in hiding from him." She believed Phan was "mad about the criminal
case" and being arrested.
Phan's counsel filed a response denying Ngo's allegations. Counsel alleged that
Ngo did not love Phan and only married him to get to the United States. Counsel further
alleged that Ngo and Phan's father were working together to stop the divorce
proceedings. Counsel attached a copy of the October 2016 police report to his
response. Phan did not file a responsive declaration.
A superior court commissioner issued a temporary protection order and set the
matter for hearing on February 6, 2017.
In January 2017, Phan's counsel submitted an amended response. Counsel
noted that a no-contact order already existed and argued that Ngo had contradicted
some of the details in her amended petition during a recent defense interview. Counsel
alleged that, contrary to her previous assertions, Ngo was not hiding from Phan.
Instead, she was posting her activities and whereabouts daily on Facebook. Counsel
further alleged that while Ngo previously said a stranger tried to help her after Phan
assaulted her, in the defense interview she said "there was nobody else to witness."
But nothing in the amended response or attached interview transcript indicates that Ngo
contradicted the substance of her prior domestic violence allegations.
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The DVPO hearing scheduled for February 6, 2017, did not occur due to snow.
The following day, only Ngo appeared in court, and the court granted her petition "by
default."
Phan asked for reconsideration. He explained his absence from the prior hearing
and requested a new hearing. The court granted reconsideration and held a full
evidentiary hearing on March 6, 2017. Ngo testified that Phan "threaten to kill me, and I
am very scared. There are time he using force on me. Shove me and dislocate my
shoulder." Later, she testified that on October 6, 2016, "[H]e kick me out of the house
and . . . if I wasn't get out, then he will kill me. He will kill me." Ngo requested a five-
year protection order.
Phan did not testify, but his counsel told the court that Phan denied the
accusations. Counsel noted that the only other person with knowledge of the alleged
threats and assaults was Phan's father and that he had not appeared to testify.
Counsel argued that Phan's father also lacked credibility due to his close relationship
with, and financial support of, Ngo. Counsel requested a protection order to stop Ngo
from harassing Phan. According to counsel, Ngo was using Phan's father to persuade
Phan to drop the divorce in exchange for her recanting her allegations in the criminal
proceeding.
When the court asked about the criminal case against Phan, Phan's counsel said
that case would be dismissed in one year if Phan followed certain conditions, including
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a one-year no-contact order.1 The commissioner then gave his oral ruling, stating in
part as follows:
THE COURT: [I]n the divorce proceeding you can ask for a
restraining order. You do have a criminal no contact to 2018. I think
the testimony is conflictual, and I'm going to dismiss your [default]
protection [order]. But I'm not aligning the parties. There is no evidence
here that she poses any threat to him. There is a question he poses
any threat to her. However, he has agreed to a no contact order, and
it keeps him away from her, and if he violates that order the subject is
immediate arrest and criminal prosecution.
THE COURT: So—so you have protection until then. Court's
going to dismiss the [default protection] order.
(Emphasis added.)
Ngo asked a superior court judge to revise the commissioner's ruling. Shortly
before the hearing, Phan filed an "Affidavit regarding all documents submitted to the
Court" in which he acknowledged his failure to previously file any sworn statements with
his various filings. He claimed this was "an oversight on the part of my counsel" and
swore that all allegations in the prior filings were his and were reviewed and approved
by him before filing.
On March 31, 2017, the superior court judge heard Ngo's revision request. The
court stated it had reviewed the parties' filings and listened to a recording of the hearing
1 The court requested documents confirming the status of the criminal
proceedings. The court then received, without objection, copies of the police report
regarding the October 2016 incident and other documents from the criminal proceeding.
These documents were formally filed with the court several days after the hearing. The
police report is apparently the same report submitted with Phan's earlier response to the
amended petition.
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No. 76767-4/6
before the commissioner. Ngo's counsel recounted Ngo's testimony at the prior hearing
and noted that Phan had not testified. Counsel also summarized Ngo's statements in
the 2016 police report and pointed out that Phan had never provided a sworn statement
addressing the allegations and evidence in the case.
Phan's counsel maintained that the standard of review on revision was whether
the court commissioner's findings were supported by substantial evidence. Counsel
stated in part,
The Commissioner found that the Petitioner gave inconsistent testimony,
and the Commissioner ruled that there was no preponderance of the
evidence to grant the Petitioner a protection order. ...
In this case the Commissioner did not find by a preponderance of
the evidence that the Petitioner's testimony was credible.
Ngo's counsel countered that the commissioner did not mention credibility and
simply noted that the testimony was conflicting. Counsel also pointed out that the
commissioner improperly considered Ngo's existing one-year no-contact order in the
criminal case and the possibility that she could get a restraining order in the dissolution
action.
The superior court revised the court commissioner's ruling and granted Ngo a
two-year protection order. In its oral ruling, the court stated in part,
What I heard the Commissioner say,... [h]e heard conflictual
testimony. I'm not sure how he could have heard conflictual testimony, if he
didn't hear anything from the Respondent. I didn't hear him making any
credibility determinations either. It could have been that it was the
recantation of the petition for the police. But, you know, this Commissioner is
a very experienced domestic violence Commissioner. So I believe that he
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No. 76767-4/7
would not have thought that in the context of a domestic violence case.
Recantation is not unusual, and I know he knows that.
So I'm not sure what he meant by conflictual testimony, but the
issue is whether or not at the March 6th hearing did the Petitioner provide
sufficient evidence to establish by a preponderance of the evidence that the
Respondent engaged in an act of domestic violence against her, specifically
threats to kill or harm, and that she would be entitled to a protection order.
As I said, the Commissioner had the testimony of the Petitioner, and
he had the police reports that counsel has gone over pretty much line by line
in terms of what she told the police, and what the father-in-law told the police.
He did, the Commissioner, did say in addition to saying that he was not
granting the order because of the conflictual testimony. He did say that
you can ask for a restraining order in a divorce proceeding, and the
Respondent has agreed to a no contact order. Agreed to a no contact
order in the SOC, and a violation will subject him to arrest. So it seems
clear to me that the Commissioner relied on the fact that there was a no
contact order in the SOC case even though it expires in January. And
that also the Commissioner thought in context of getting a dissolution
that Petitioner can ask the Court for a restraining order.
RCW 26.50.025 provides that relief should not be denied on the
grounds of relief is available in another action. So I believe it was error
for the Commissioner to rely on the fact that other orders were available
to her, and that he should have granted the protection order. Because
the only evidence he had before him was her testimony, and the
testimony, and the police reports.
So I'm going to order the protection order be granted.
(Emphasis added.)
In its protection order, the court found that Phan "committed domestic violence as
defined in RCW 26.50.010" and was "a credible threat to the physical safety of[Ngo]."
Phan appeals.
STANDARD OF REVIEW
On a motion to revise, the superior court reviews the commissioner's findings of
fact and conclusions of law de novo based on the evidence and issues presented to the
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commissioner.2 The superior court "is not required to defer to the fact-finding discretion
of the commissioner" but "is authorized to determine its own facts based on the record
before the commissioner."3 This is true even if the commissioner heard live testimony.4
On appeal, we review the superior court's ruling, not the commissioners.6 When
reviewing the issuance of a protective order, we review any contested findings for
substantial evidence, questions of law de novo, and the issuance and scope of the
order for abuse of discretion.6
ANALYSIS
Deference to Commissioner's Findings
Phan challenges the superior court's revision of the commissioner's ruling that
found Ngo's testimony "conflictual" and not credible. He claims the superior court had
to defer to those findings and had "no authority to substitute its decision for that of the
trial court, reassess the credibility of witnesses, or resolve conflicts in the evidence." He
contends deference is particularly important when, as in this case, the commissioner
heard live testimony. We disagree.
2State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004)(citing In re Marriage
of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999)).
3 In re Marriage of Dodd, 120 Wn. App. 638, 644-45, 86 P.3d 801 (2004).
4 In re Marriage of Lyle, 199 Wn. App. 629, 632, 398 P.3d 1225 (2017) (citing
Ramer, 151 Wn.2d at 113, 116-17).
5 Ramer, 151 Wn.2d at 113; In re Marriage of Fairchild, 148 Wn. App. 828, 831,
207 P.3d 449 (2009); RCW 2.24.050.
6 Trummel v. Mitchell, 156 Wn.2d 653, 668-69, 131 P.3d 305 (2006).
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RCW 2.24.050 provides that when a superior court reviews a commissioner's
ruling on a motion to revise, lap of the acts and proceedings of court
commissioners hereunder shall be subject to revision by the superior
court.... Such revision shall be upon the records of the case, and the findings of fact
and conclusions of law entered by the court commissioner." (Emphasis added.) The
superior court reviews all findings of the commissioner de novo regardless of whether
the commissioner took live testimony or made credibility determinations.7 De novo
review is particularly appropriate when, as here, the court on revision received and
reviewed a recording of the live testimony before the commissioner. 8
The superior court did not err in reviewing the commissioner's findings de novo
and owed no deference to the commissioner's findings.
Hearing and Testimony on Revision
Phan next contends the superior court erred by failing to conduct a hearing to
determine credibility before revising the commissioner's ruling. Citing In re Marriage of
Griffin,9 he states,
7 Lyle, 199 Wn. App. at 632 (citing Ramer and holding "de novo standard applied
even when commissioner heard live testimony"); 14 KARL B. TEGLAND, WASHINGTON
PRACTICE: CIVIL PROCEDURE § 3.13, at 42 (2d ed. 2009) (citing Ramer as holding that
the superior court always reviews a commissioner's decision de novo "regardless of the
nature of the evidence considered by the commissioner." (Emphasis added.)).
8 Contrary to Phan's assertions, it is not clear that the commissioner made a
credibility determination. The commissioner never mentioned "credibility" or "veracity"
and instead focused on the sufficiency of Ngo's "conflictual" testimony. We also note
that Ngo alleges, and Phan does not dispute, that the recording of the commissioner's
hearing contained both audio and video.
p 114 Wn.2d 772, 779, 791 P.2d 519(1990)
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[I]f the Superior Court suspects or has any doubts that the trial court was
incorrect in its ruling. . . , then a hearing should be held, witnesses placed
under oath, testimony taken, witnesses questioned, the demeanor and
responses of the witnesses weighed, credibility measured, documentary
evidence reviewed and the law applied... before a reversal of the Family
Law Commissioner be rendered.
Nothing in Griffin or any other authority cited by Phan supports this statement. To the
extent Phan cites these cases for the proposition that the standard of review on revision
is abuse of discretion, he is wrong. The cases he cites address the standard of review
that this court applies to lower court rulings. They do not address the standard a
superior court applies on revision. For the reasons discussed above, the superior
court's review was limited to the record produced at the commissioner's hearing
regardless of whether the commissioner took live testimony or made credibility
determinations.
Due Process
Phan claims de novo review of the commissioner's decision violated his due
process rights under the state and federal constitutions because "no witnesses were
called to testify and cross-examine" and "he was not afforded an opportunity to cross
examine Ms. Ngo." Recent decisions of this court and the Washington State Supreme
Court control this claim.10 Phan offers no persuasive basis to distinguish those
decisions.
10 Aiken v. Aiken, 187 Wn.2d 491, 503, 387 P.3d 680 (2017)(applying balancing
test in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)
and holding that commissioner's hearing on protection order without cross-examination
did not violate due process and that the "guarantee that a person must be heard at a
meaningful time and in a meaningful manner is protected by the procedures in chapter
26.50 RCW"); Gourley v. Gourley, 158 Wn.2d 460, 467-68, 145 P.3d 1185 (2006)
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Phan's complaint that "he was not afforded an opportunity to cross examine Ngo"
and that "no witnesses were placed under oath" at the revision hearing ignores the fact
that these procedures were available at the commissioner's hearing. Ngo and Phan
were both placed under oath at that hearing. Ngo testified, but Phan chose not to.
Phan also chose not to cross-examine Ngo. Phan received all the procedural
safeguards required by due process at the hearing before the commissioner. In
addition, the superior court's review included a recording of the commissioner's hearing.
There was no due process violation.
Attorney Fees on Appeal
Citing RCW 26.50.060(1)(g) and RAP 18.1, Ngo requests an award of attorney
fees on appeal. RCW 26.50.060(1)(g) authorizes the trial court in DVPO proceedings to
require a respondent to pay administrative court costs and service fees incurred by the
county or municipality "and to reimburse the petitioner for costs incurred in bringing the
action, including reasonable attorneys' fees." Ngo is represented by the Northwest
Justice Project, a nonprofit legal services corporation. She is not paying for their
services. But a nonprofit legal services corporation that wins an appeal for a party
entitled to attorney fees is entitled to recover reasonable fees, even when its client has
(hearing before commissioner on DVPO satisfied due process and Mathews despite
absence of live testimony and cross-examination); Smith v. Smith, 1 Wn. App. 2d 122,
142, 404 P.3d 101 (2017) (citing Aiken for proposition "that chapter 26.50 RCW, the
DVPA [Domestic Violence Prevention Act], satisfies the respondent's constitutional right
to due process").
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not incurred any expenses in the litigation.11 And RAP 18.1 authorizes an award of fees
to the prevailing party on appeal, if attorney fees are allowable to that party at trial. We
grant Ngo's request for fees, subject to compliance with RAP 18.1(d).
Affirmed.
WE CONCUR:
-AL ,
11 Tofte v. Dep't of Soc. & Health Servs., 85 Wn.2d 161, 165, 531 P.2d 808
(1975).
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