Jennifer Wiley, And David Wiley

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UNPUBLISHED OPINIOrt-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.
No. 74818-1-1/2

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.
No. 74818-1-1/3

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.
No. 74818-1-1/5

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
No. 74818-1-1/6

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.
No. 74818-1-1/7

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.
No. 74818-1-1/8

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
No. 74818-1-1/9

(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.
No. 74818-1-1/10

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

13
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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