FILED
DIV
OtiRT OF APPEALS
WAStitHGTOft
STATE OF
10113 OCT 15 Ali 8:56
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DARLA K. PADGETT,
No. 76543-4-1
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
JOSEPH PADGETT,
Appellant. FILED: October 15, 2018
CHUN, J. — During the acrimonious marriage dissolution between Darla
and Joseph Padgett, the court entered mutual restraining orders, including a
prohibition against the possession of weapons. After the State charged Josephl
with possession of depictions of minors engaged in sexually explicit conduct, the
court imposed additional restraints on him. The dissolution decree, entered in
August 2014, lifted the restraints as to Darla, but continued the restraints against
Joseph. The court allowed Darla to keep Joseph's weapons until the conclusion
of the criminal proceedings. The State dismissed the criminal charges on
procedural grounds in December 2015.
In December 2016, Joseph filed a CR 60(b)(6) motion to vacate the
restraining order and protection order provisions in the decree. He argued that
the prospective application of the order was inequitable. The trial court denied
1 For convenience, this opinion refers to the parties by their first names. We mean no
disrespect.
No. 76543-4-1/2
the motion to vacate and Joseph appeals. Because the CR 60(b)(6) motion to
vacate was an improper attempt to circumvent the statutory process to terminate
the protection and restraining orders, we affirm.
1.
BACKGROUND
Darla and Joseph married on February 6, 1998, in California. The parties
separated on November 8, 2010. A superior court commissioner granted Dada's
request for an ex parte temporary restraining order against Joseph. The order
restrained Joseph from contact with Darla and their minor son.
On November 29, 2010, another commissioner denied entry of a full
domestic violence protection order, finding "[a] preponderance of the evidence
has not established that there is domestic violence." The court entered mutual
restraining orders. The orders stated the parties should not have direct or
indirect contact, except through counsel. A later modification of the mutual
restraining order allowed for Joseph to have limited e-mail contact with Dada.
In January 2011, the State charged Joseph with one count of possession
of depictions of minors engaged in sexually explicit conduct. The court entered
an order in the criminal case prohibiting Joseph from contact with Dada and all
minor children. On February 22, 2011, the court released Joseph on his own
personal recognizance on the condition he not possess weapons and have no
contact with Darla or any minors.
On September 26, 2011, a superior court commissioner entered a new
temporary restraining order imposing mutual restraints on Joseph and Darla.
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The commissioner noted a "substantial change in circumstances" since the
temporary restraining order entered in November 2010: "Respondent is now
charged with a crime that requires consideration of RCW 26.09.191 as to contact
with a child and is in fact subject to a no contact order that prohibits contact with
any child at this time." The new order restrained Joseph from coming within one
thousand feet of Dada and their minor son. The order also prohibited both Dada
and Joseph from disturbing the other party and possessing firearms or
ammunition.
On October 10, 2011, the trial court entered a dissolution decree, but
reserved resolution of the property distribution and parenting plan pending trial.
The decree specified the September 26, 2011 restraining order remained in
effect pending trial.
The trial on the property distribution and the parenting plan occurred on
August 25, 2014. Despite proper notification, Joseph did not appear. Darla
explained she wanted the restraining order maintained until resolution of the
criminal case because she and their child were considered witnesses. Darla
addressed the family court restraining order, which stated she was in potential
danger and increased the physical scope of the restraining order against Joseph
to one thousand feet. She also testified about the role Joseph played in the
destruction of her business.
The findings of fact and conclusions of law and final dissolution decree
entered after trial maintain many of the provisions of the September 26, 2011
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restraining order. The conclusions of law state: "Mr. Padgett appeared in court
and signed the restraining order entered. .. on September 26, 2011. This order
and decree continues those exact same restraints on Mr. Padgett. It ends the
restraints on Ms. Padgett." In the final dissolution decree, the trial court imposed
additional restraints on Joseph in section 1.1 entitled "Restraining Order
Summary." This section included several restrictions:
Respondent is restrained from knowingly remaining within 1000
feet of the home, work place of Darla Padgett or [their minor son]
as long as he is a minor.
Respondent is restrained from going onto the grounds or entering
the home, workplace, or school of Darla or [their minor son].
Joseph Padgett is restrained and enjoined from molesting,
assaulting, harassing, or stalking Dada Padgett and [their minor
son].
Darla may continue to store Joseph Padgett's firearms until such
time as all criminal proceedings and [sic] him are terminated and he
is allowed to possess firearms.
In section 3.9, entitled, "Protection Order," the trial court provided, "Joseph
Padgett should not contact Dada Padgett in any way. Joseph Padgett should not
contact [their minor son] in any way as long as he is a minor."
The State dismissed the criminal charges against Joseph after the court
granted a motion to suppress.
In December 2016, Joseph moved under CR 60(b)(6) to vacate the
restraining and protection order sections of the August 2014 dissolution decree.
He argued the ambiguity and unknown duration of the terms of the restraining
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order and protection order in the decree and the dismissal of the criminal charges
against him made the prospective application of the orders inequitable.
At the hearing on the motion to vacate, Darla argued Joseph used the
court system to abuse her by intentionally filing frivolous actions, thereby forcing
her to expend time and money. Darla also raised concerns about Joseph's
mental instability and his willingness to place her in danger. She told the court
she was "scared to death of this man." Darla told the court:
That restraining order is the only tool that I have to protect myself.
That is the only thing that's given us any peace of mind for the last
years. Now my son has turned 18... He's going off to college.
And now this will escalate because Mr. Padgett won't be able to
use him to harass me; he'll find some other way.
The court denied Joseph's motion to vacate. It maintained the prospective
application of the judgment, stating,"Ms. Padgett provided evidence at the time
of trial as to why it was appropriate to have such an order and that she was
fearful of Mr. Padgett. She remains fearful of Mr. Padgett today, and it is
equitable .. . for the order to remain in place."
Joseph appeals.
II.
ANALYSIS
A. CR 60(b)(6) Motion to Vacate
Joseph contends the trial court abused its discretion by declining to vacate
the protection and restraining orders. He argues the trial court erred by failing to
find the prospective application of the protection and restraining orders to be
inequitable. He claims the dissolution decree's language is ambiguous language
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No. 76543-4-1/6
and points to the court's dismissal of all criminal charges, the early finding he had
not committed domestic violence, and the lack of findings to support the
restraining and protection orders. We disagree with his argument.
CR 60(b)(6) allows relief from judgment when "[t]he judgment has been
satisfied, released, or discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application." The rule "deal[s] with problems arising
under a judgment that has continuing effect, where a change in circumstances
after the judgment is rendered makes it inequitable to enforce the judgment."
Metro. Park Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 438, 723 P.2d 1093
(1986). A vacated judgment has no effect, leaving the parties as though the
judgment had never been entered. In re Marriage of Leslie, 112 Wn.2d 612,618,
772 P.2d 1013(1989).
On review of an order denying a motion to vacate, "only 'the propriety of
the denial not the impropriety of the underlying judgment' is before the reviewing
court." State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832(quoting Bjurstrom v.
Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533(1980)). As a result, "an
unappealed final judgment cannot be restored to an appellate track by means of
moving to vacate and appealing the denial of the motion." Gaut, 111 Wn. App. at
881.
An appellate court will not overturn a trial court's decision on a motion to
vacate a judgment under CR 60(b)(6) absent an abuse of discretion. Gustafson
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No. 76543-4-1/7
v. Gustafson, 54 Wn. App. 66, 69-70, 772 P.2d 1031 (1989). "Discretion is
abused when exercised on untenable grounds or for untenable reasons."
Scanlon v. Witrak, 110 Wn. App. 682,686,42 P.3d 447(2002).
Here, Joseph argues the trial court failed to make the requisite finding of
domestic violence necessary for a protection order under RCW 26.50.060. His
argument challenges the legal justification for the original order. A CR 60(b)
motion does not allow a litigant to challenge the underlying judgment. "The
exclusive procedure to attack an allegedly defective judgment is by appeal from
the judgment, not by appeal from a denial of a CR 60(b) motion." B"urstrom, 27
Wn. App. at 451. Therefore, any defects in the legal justification for the original
order should have been addressed on appeal of that order. Because Joseph did
not appeal the order, he cannot now raise these untimely arguments.
Furthermore, the Domestic Violence Protection Act(DVPA) provides
specific procedures for modification or termination of a permanent order of
protection. RCW 26.50.130. Under the DVPA,the respondent must make a
motion to modify or terminate in order to obtain relief from a protection order's
terms. RCW 26.50.130. The motion must include a declaration setting forth the
facts supporting the request, which the court will deny unless the declaration
establishes adequate cause for a hearing. RCW 26.50.130(2). By attempting to
collaterally attack the protection order through a CR 60(b) motion to vacate,
Joseph did not comply with the DVPA filing requirements for a motion to modify
or terminate.
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No. 76543-4-1/8
Joseph cannot meet the legal requirements for modification or termination
of the protection order under the DVPA. The court may not modify a permanent
protection order "unless the respondent proves by a preponderance of the
evidence that the requested modification is warranted." RCW 26.50.130(4). The
court may not terminate a permanent order of protection "unless the respondent
proves by a preponderance of the evidence that there has been a substantial
change in circumstances such that the respondent is not likely to resume acts of
domestic violence against the petitioner or those persons protected by the
protection order if the order is terminated." RCW 26.50.130(3)(a).
For termination of the protection order, "[t]he relevant analysis" includes
consideration of whether the Joseph can prove "an unlikelihood of committing
future acts of domestic violence and whether the facts support a current
reasonable fear of imminent harm." In re Marriage of Freeman, 169 Wn.2d 664,
674, 239 P.3d 557(2010)(emphasis omitted). The petitioner bears no burden of
proving current reasonable fear of imminent harm by the respondent.
RCW 26.50.130(3)(a). But the facts must support a finding that the petitioner's
fear of imminent harm is reasonable. Freeman, 169 Wn.2d at 674. "The facts
supporting a protection order must reasonably relate to physical harm, bodily
injury, assault, or the fear of imminent harm. It is not enough that the facts may
have justified the order in the past. Reasonable likelihood of imminent harm
must be in the present." Freeman, 169 Wn.2d at 674(emphasis omitted).
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The record does not support Joseph's claim that Dada's fear stems from
conduct related to the dismissed criminal charges. Darla testified about her fear
of Joseph and his ongoing attempts to harass her. The trial court's oral ruling
reflected its consideration of the standards for termination of a restraining order.
The court found Dada had demonstrated her continuing fear. This finding
resulted in the denial of the motion to vacate and maintenance of the restraining
order. Given the evidence presented, the trial court did not abuse its discretion
by retaining the provisions of the restraining order.
Because Joseph attempts to collaterally attack the legal basis for the
original restraining and protection orders and to circumvent the termination
requirements stipulated by the DVPA,the trial court did not abuse its discretion in
denying the motion to vacate.
B. Second Amendment Right to Bear Arms
Joseph contends the trial court's failure to vacate the restraining order
infringes on his Second Amendment Right to bear arms. Specifically, he asserts
that, because there is no pending criminal charge or evidence of domestic
violence, the public-interest justification for restraining him from bearing arms is
absent. He argues the restraining order amounts to a permanent ban on his right
to bear arms.
The Second Amendment "elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth and home."
District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L.Ed.2d
No. 76543-4-1/10 ,
637(2008). A valid restraining order does not violate the Second Amendment
right to bear arms. Under 18 USC 922(g)(8), a person may not possess firearms
or ammunition if subject to a court order that:
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that would
place an intimate partner in reasonable fear of bodily injury to the
partner or child; and (C)(i) includes a finding that such person
represents a credible threat to the physical safety of such intimate
partner or child; or (ii) by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force against such
intimate partner or child that would reasonably be expected to
cause bodily injury.
The September 2011 restraining order included a provision based on 18 USC
922(g)(8), "[e]ffective immediately and continuing as long as this restraining order
is in effect, the restrained person may not possess a firearm or ammunition."
The dissolution decree continued this restraint. As discussed, the protection and
restraining orders remain in effect until properly challenged through a motion to
modify or terminate under the DVPA. Joseph cannot regain his right to own
weapons by evading this procedure through a motion to vacate. Because a valid
restraining order exists against Joseph, his right to bear arms is not violated.
C. Due Process
Joseph also argues denial of the motion to vacate violates due process
because the orders are too vague and inadequate to give notice of prohibited
conduct. But Joseph signed the restraining order in September 2011, and he did
not appeal it. He failed to appear at his dissolution proceedings and, again, he
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No. 76543-4-1/11
did not appeal the terms of restraint and protection entered in the dissolution
decree in 2014.
We affirm the denial of the CR 60(b) motion to vacate.
...C.•
, 441.01
WE CONCUR:
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Darla Padgett v. Joseph Padgett
Combined Opinion