IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JENNIFER WILEY, ) %
No. 74818-1-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINIOrt-
o
DAVID WILEY,
c
Appellant. FILED: November 14, 2016
Appelwick, J. — David Wiley appeals a domestic violence protection order
issued to protect his former spouse, Jennifer Wiley. He argues that the court's
findings are not supported by substantial evidence, the court erred in allowing
hearsay testimony, the court violated his due process rights, the doctrines of
judicial and equitable estoppel bar Jennifer from making contradictory statements,
and the court erroneously questioned him about his religious beliefs. Jennifer
requests attorney fees on appeal. We affirm.
FACTS
Jennifer Wiley and David Wiley were married in 2004. They have three
children together.
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The parties separated on July 31, 2015, when Jennifer1 filed for dissolution.
Under an agreed temporary order filed on August 31, 2015, David and Jennifer
agreed to continue cohabitating in the family home. They agreed not to monitor
the other concerning e-mails, text messages, and telephone calls. The order also
stated that neither parent shall use corporal punishment on any of the children.
On January 6, 2016, Jennifer filed a petition for an order of protection. She
requested emergency temporary protection on the grounds that if David had notice
of a hearing, he may try to hurt her before it happened. Jennifer alleged that David
had committed specific acts of domestic violence. She stated that on December
29, 2015, David began harassing her about the locks that she had installed on the
bedroom door she shared with their son. Jennifer alleged that in November, David
placed two bullet-riddled shooting targets in front of her closet. She also stated
that David had slapped their son in the face.
Jennifer presented the petition to an ex parte commissioner. The
commissioner expressed concern over the fact that Jennifer sought to change the
orders previously entered in the dissolution case. The commissioner directed
Jennifer to file a motion in the family law matter and set a hearing.
A hearing on the protection order was held on February 1, 2016. The court
found by a preponderance of the evidence that there was a threat of domestic
violence. The court entered an order of protection, effective until February 1, 2017.
David appeals the issuance of the protection order.
1 We refer to the parties by their first names for clarity. No disrespect is
intended.
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DISCUSSION
I. Abuse of Discretion
David essentially argues that the court's findings are not supported by
substantial evidence. He argues that there was no evidence to support the finding
that he injured any of the children—instead, the evidence showed that dangerous
conditions occurred while the children were in Jennifer's custody. And, he argues
that Jennifer's photographs of the paper targets are not credible.
This court reviews a trial court's decision to grant a protection order for an
abuse of discretion. In re Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d 607
(2016). We will not disturb such a decision on appeal, unless the court's discretion
was manifestly unreasonable, exercised on untenable grounds, or for untenable
reasons. Id. Where the trial court has weighed the evidence, this court's role is to
determine whether substantial evidence supports the findings of fact and whether
the findings in turn support the conclusions of law. In re Marriage of Greene, 97
Wn. App. 708, 714, 986 P.2d 144 (1999). Substantial evidence is evidence in
sufficient quantum to persuade a fair-minded person of the truth of the stated
premise. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 819, 828 P.2d
549 (1992). We will not substitute our judgment for that of the trial court, weigh the
evidence, or determine witness credibility. Greene, 97 Wn. App. at 714.
Under chapter 26.50 RCW, a victim of domestic violence may petition the
court for an order of protection. RCW 26.50.030. The petition must allege the
existence of domestic violence. RCW 26.50.030(1). And, it must be supported by
an affidavit made under oath which states the specific facts and circumstances
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supporting relief, jd. "Domestic violence" is defined in part as, "[pjhysical harm,
bodilyinjury, assault, or the infliction of fear of imminent physical harm, bodily injury
or assault, between family or household members." RCW 36.50.010(3)(a).
The trial court found that based on the facts presented, there was a threat
of domestic violence. It ruled,
In terms of domestic violence, I think the preponderance of
the evidence is there; and I think that one thing that really kind of tips
the balance, besides the [injjury to the child, to [T.], but I think these
targets are really concerning. Maybe I'm missing the boat or
something like that, but when somebody puts targets in a closet with
bullet holes in it rather than put it in some notebook or something or
hang it up in the garage—
David asked if he could explain the targets, but the court stated that it had already
ruled.
We conclude that the trial court's finding that there was a threat of domestic
violence is supported by substantial evidence. Jennifer supported the petition for
a protection order with her own statement, certified under penalty of perjury under
the laws of Washington to be true and correct. In this statement, Jennifer alleged
that David slapped their son in the face when he was not brushing his teeth
correctly. She attached a report from the school nurse, which provided that
Jennifer brought the son in to see the nurse and reported that his father slapped
him on the cheek with an open hand. She also attached a declaration from her
son's pediatrician, who discouraged corporal punishment and spanking as means
of disciplining the child. And, she attached a declaration from her son's counselor,
who recommended that the child not be spanked.
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Jennifer also stated that she had recently put a lock on the door of the
bedroom she now shares with their son. She explained that she put the lock on
the door, because David broke down their bedroom door when she hid in the room
after becoming afraid of him during an argument. She claimed that David had
begun "harassing" her about the newly installed lock on the bedroom door, and his
behavior had become increasingly more threatening as the dissolution
proceedings went on. She expressed her belief that David would physically hurt
her if he could figure out a way to do so without leaving a mark, and that he would
have done so on prior occasions if the children had not been present. She stated,
"I have essentially been using my kids as shields because I don't think he will
seriously harm them or me in their presence. However, I am terrified to be alone
with David."
Jennifer also described and attached pictures of the paper targets
she found. She stated that David placed bullet-riddled shooting targets in front of
her closet, which terrified her when she went to get clothes from the closet. She
interpreted the placement of the targets as an intentional threat.
David argues that the photographs of the paper targets do not support
Jennifer's contention that the targets were hung up on a closet. He contends that
the photographs show the paper targets displayed on a bed and in the air, with
sharp fold marks on one of the targets. As a result, David argues that the trial
court's finding that these targets were in a closet is not supported by the evidence.
David also argues that the trial court's consideration of evidence that was found in
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David's private space violated his right to privacy. And, he alleges that Jennifer
stalked him when she discovered these targets.
But, this court does not make credibility determinations on appeal. Greene,
97 Wn. App. at 714. Nor does it reweigh the evidence submitted to the trial court.
Id. David essentially asks us to do just that by reexamining the photographs and
balancing David's and Jennifer's statements concerning the paper targets. We will
not do so. The evidence submitted to the trial court was such that a reasonable
person could conclude that the paper targets were in front of Jennifer's closet, a
place where she would be expected to see them.
Nor can David establish a privacy violation due to the court's consideration
of the paper targets. The Fourth Amendment applies only to actions of government
officials. Kalmas v. Wagner, 133 Wn.2d 210, 216, 943 P.2d 1369 (1997). It
extends to private persons only if government officials affirmatively facilitate or
encourage an unreasonable search performed by a private person. Id, at 218.
Here, Jennifer discovered the paper targets in the bedroom where her clothes were
stored. Though David slept there and she did not, he did not establish that she
had no right to be there. He recognized that Jennifer's belongings were still stored
in a closet in their previously shared bedroom. Nor did David establish that the
paper targets were not in the open to be seen.2 Jennifer took photographs of the
targets. She described the targets in her statement in support of the petition for a
2 David argued below that the paper targets were rolled up and placed in
the corner of his room. He asserted that Jennifer would have had to search
through his belongings to find the targets. But, the trial court weighed this
evidence. We will not make credibility determinations or reweigh the evidence on
appeal. Greene, 97 Wn. App. at 714.
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protection order, and she attached the photographs to the petition. No government
actor was involved in the discovery of these targets. David's claim of a privacy
violation must fail.
And, the trial court's findings that a threat of domestic violence was proven
by a preponderance of the evidence support the conclusion that a protection order
is proper. We have previously held that a history of ongoing abuse and the trial
court's belief that the petitioner feared future abuse were sufficient to persuade a
rational person that the petitioner had been put in fear of imminent physical harm.
Spencev.Kaminski, 103 Wn. App. 325, 333,12 P.3d 1030 (2000); see also Hecker
v. Cortinas, 110 Wn. App. 865, 870, 43 P.3d 50 (2002). The same is true here.
The evidence of the injury to the child, the escalating threatening behavior, and the
paper targets together presented a threat of an infliction of imminent physical harm
that was sufficient to support the issuance of the protection order. We hold that
the trial court did not abuse its discretion in granting Jennifer a protection order
against David.
II. Hearsay Evidence
David argues that the trial court erred in permitting hearsay evidence. He
argues that the rules of evidence should have applied. During the hearing on the
protection order, Jennifer referred to an instance where David called the police on
Jennifer. She stated that when the police investigated the incident, they told
Jennifer that they would not continue to assist David in harassing her. David
objected to these statements as hearsay.
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ER 1101(c)(4) provides that the rules of evidence need not be applied in
protection order proceedings under chapter 26.50 RCW. Accord, Gourlev v.
Gourlev, 158 Wn.2d 460, 467, 145 P.3d 1185 (2006); Hecker, 110 Wn. App. at
870. Therefore, the court did not err in considering hearsay evidence.
III. Due Process
David alleges multiple due process violations. He argues that the trial court
violated his due process rights by issuing the temporary order of protection after
an ex parte hearing. He contends that the trial court's extension of time for oral
argument violated his due process rights, because time was not divided equally
amongst the parties. And, he alleges that his due process rights were violated
when the trial court based the protection order on an injury to the child, when no
such injury had occurred or even been alleged.
Due process fundamentally requires the opportunity to be heard at a
meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319,
333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The concept of due process is flexible,
requiring procedural protections tailored to the particular situation. ]d, at 334.
Our Supreme Court has held that the procedures provided in chapter 26.50
RCW protect the due process requirements of being heard at a meaningful time
and in a meaningful manner. Gourlev, 158 Wn.2d at 468. The court described
those procedures as:
(1) a petition to the court, accompanied by an affidavit setting forth
facts under oath, (2) notice to the respondent within five days of the
hearing, (3) a hearing before a judicial officer where the petitioner
and respondent may testify, (4) a written order, (5) the opportunity to
move for revision in superior court, (6) the opportunity to appeal, and
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(7) a one-year limitation on the protection order if it restrains the
respondent from contacting minor children.
Id at 468-69.
These procedures were met here, and David does not contend otherwise.
Therefore, we conclude that David's due process rights were not violated by the
issuance of the ex parte temporary protection order.
Nor did the trial court violate David's due process rights by extending the
amount of time for oral argument. The local rules allow the court to extend the
time for oral argument. Snohomish County Local Court Rules (SCLCR)
7(b)(2)(D)(10)(c). And, the record does not show, as David claims, that the court
granted additional time to Jennifer but not David. Instead, the court stated that
each party would receive ten minutes: five to address the protection order and five
to address the issues raised in the dissolution case. David was given an
opportunity to present his arguments and address questions from the court. We
conclude that any uneven distribution of time did not violate his right to due
process.
David also argues that the court violated his due process rights by issuing
the protection order based on an injury to the child, where no injury was alleged.
The record does not support this claim. As discussed above, Jennifer alleged this
injury in the petition for the protection order, and substantial evidence supports this
finding. See supra section I.
We conclude that the trial court did not violate David's due process rights in
issuing the protection order.
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IV. Estoppel Doctrines
David contends that Jennifer has asserted contradictory positions in the
dissolution proceedings and the protection order proceedings. He argues that the
doctrines of judicial estoppel and equitable estoppel prohibit her from doing so.
Judicial estoppel is an equitable doctrine. Arkison v. Ethan Allen, Inc., 160
Wn.2d 535, 538, 160 P.3d 13 (2007). It prevents a party from taking one position
in a court proceeding and then later seeking an advantage by asserting a clearly
inconsistent position, jd. The purpose of the judicial estoppel doctrine is to
promote respect for judicial proceedings, and to avoid inconsistency. Id. This
court reviews a trial court's application of the doctrine for an abuse of discretion.
Bartlev-Williams v. Kendall, 134 Wn. App. 95, 98, 138 P.3d 1103 (2006).
In determining whether to apply this doctrine, courts examine: (1) whether
a party's later position is clearly inconsistent with an earlier position, (2) whether
judicial acceptance in a later proceeding would create the appearance that the
party had misled the court, and (3) whether the party seeking to assert an
inconsistent position would gain an unfair advantage or impose an unfair
disadvantage on the opposing party. Arkison, 160 Wn.2d at 538-39.
Here, David alleges that Jennifer's statements in the dissolution
proceedings cannot be aligned with her later statements in the protection order
proceedings. He alleges that in the dissolution proceedings, Jennifer stated that
David is physically and sexually abusive toward the children. Such a position, he
contends, is inconsistent with her position in the protection order proceedings, that
she has been abused and feels safe only when the children are present.
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No. 74818-1-1/11
The record does not support this contention. Instead, the record shows that
Jennifer raised concerns of David's manipulative and controlling behaviors when
she first filed for dissolution. And, she raised similar concerns in December 2015,
in response to David's motion to amend the temporary orders in the dissolution
case. In the petition for the protection order, Jennifer described how David had
become increasingly hostile and that she had become afraid to be alone with him.
Judicial estoppel does not bar Jennifer from describing how David's behavior
changed over time.
Equitable estoppel is premised on the principle that a party should be held
to a representation previously made where inequitable consequences would
otherwise result to a party who has justifiably and in good faith relied on it.
Kramarevckv v. Dep't of Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535
(1993). This doctrine has three elements: (1) a party's admission, statement, or
act inconsistent with a later claim, (2) action by another party in reliance on that
admission, statement, or act, and (3) injury that would result to the relying party if
the first party is permitted to contradict or repudiate the prior admission, statement,
or act. Id. A party asserting equitable estoppel must prove each element with
clear, cogent, and convincing evidence, jd. at 744.
David alleges that Jennifer's characterization of the living spaces within the
family home violates the doctrine of equitable estoppel. He argues that she has
misled the court by not clearly distinguishing between the room she shared with
her son and the room she previously shared with David.
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No. 74818-1-1/12
These allegations do not present clear, cogent, and convincing evidence
that David justifiably relied on representations previously made by Jennifer.
Jennifer has stated that after moving out of the bedroom she shared with David,
she shared a bedroom with her son. She has maintained that she kept a closet in
the bedroom she used to share with David. David has not identified an inconsistent
statement or articulated his reliance on a prior representation. Thus, the doctrine
of equitable estoppel does not apply.
V. Religious Beliefs
David argues that the trial court erred in raising his religious beliefs. He
argues that the trial court's questions on this topic violated ER 610 and his
constitutional rights. David asserts that the court demonstrated bias toward him
by asking these questions, and this bias warrants sanctions.
During the hearing, the court asked several questions to clarify whether
David was contending that his religious freedom permitted corporal punishment of
the children. Jennifer argued that David was angry after mediation and learning
that a judge was not likely to sign an order allowing him to exercise corporal
punishment on his children, which he believed violated his constitutional freedom
of religion. To that, the court asked, "Freedom of religion to, what, beat your kids?"
The court later asked David to clarify whether he was claiming that spanking the
children was a freedom of religion issue. David clarified that he was no longer
arguing that.
ER 610 provides, "Evidence of the beliefs or opinions of a witness on
matters of religion is not admissible for the purpose of showing that by reason of
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No. 74818-1-1/13
their nature the witness' credibility is impaired or enhanced." The Washington
constitution also protects religious freedom in the context of the courtroom. Wash.
Const, art 1, § 11. It provides, in part, "No religious qualification shall be required
for any public office or employment, nor shall any person be incompetent as a
witness or juror, in consequence of his opinion on matters of religion, nor be
questioned in any court of justice touching his religious belief to affect the weight
of his testimony." Id.
Neither the evidentiary rules nor the constitution prohibit the questions
asked below. David had previously maintained that prohibiting corporal
punishment violated his religious beliefs. The court's questions were clarifying
questions as to whether David had abandoned that position. The court did not ask
any questions that suggested that David's credibility was impaired due to his
religious beliefs or that David's statements would be given less weight. And,
nothing in the record indicates that the court was biased against David as a result
of David's religious beliefs. Instead, the court stated that its decision regarding the
protection order was based on the evidence, particularly the injury to the son and
the targets. We conclude that the trial court did not improperly consider David's
religious beliefs or demonstrate bias against him.
VI. Attorney Fees
Jennifer requests attorney fees on appeal under RCW 26.50.060 and RAP
18.1. Attorney fees may be awarded when authorized by a contract, statute, or
recognized ground in equity. Mellorv. Chamberlin, 100 Wn.2d 643, 649, 673 P.2d
610 (1983). Where attorney fees are permitted at trial, the prevailing party may
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No. 74818-1-1/14
recover them on appeal. RAP 18.1; Landberg v. Carlson, 108 Wn. App. 749, 758,
33 P.3d 406 (2001). RCW 26.50.060(1 )(g) permits the petitioner to recover
reasonable attorney fees. Jennifer is the prevailing party on appeal. Therefore,
she is entitled to appellate attorney fees.
We affirm.
WE CONCUR:
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