Allegations of domestic violence can affect a Washington custody case. A Washington appeals court recently considered whether a child could pursue a Domestic Violence Protection Order (“DVPO”) against his mother after another court denied his father’s petition to modify custody based on the same domestic violence allegations.
Walla Walla County Proceedings
When the parents divorced in 2016 or 2017, the parenting plan named the mother as primary parent and gave the father visitation.
According to the unpublished opinion of the appeals court, the father petitioned for an immediate restraining order protecting him and the child from the mother in Walla Walla County in June 2022. At the same time, he petitioned for modification of the parenting plan, alleging the mother had been verbally and physically abusive toward the child and that the child refused to go back to her home. He attached a large number of text messages between the mother and the child. The trial ultimately found there was “no substantial change of circumstances” and denied the father’s modification petition and awarded the mother attorney’s fees.
Benton County Proceedings
While the modification case was pending, the child petitioned for a DVPO against the mother in Benton County. The child also attached the same text messages to his declaration that the father had attached in the modification proceeding. The trial court granted a temporary protection order.
At the hearing on the DVPO, the mother argued the child should be precluded from arguing she committed acts of domestic violence against him because the Walla Walla court had denied the father’s modification petition based on the same allegations. The commissioner declined to hear this argument of issue preclusion because the mother had not filed a memorandum in support of the argument.
The commissioner granted the DVPO, acknowledging it was “a very close call.”
The Mother’s Appeal
The mother appealed, arguing collateral estoppel precluded the son from arguing she committed domestic violence against him. Collateral estoppel precludes relitigation of an issue that has already been litigated and finally determined in a prior proceeding in which the other party had a full and fair opportunity to litigate it.
To successfully argue collateral estoppel applied, the mother had to show the issue decided in the modification case was identical to the one in the DVPO case, the modification case resulted in a judgment on the merits, the son was a party to or in privity with a party to the modification proceeding, and application of collateral estoppel would not result in an injustice against the son.
Parity
The appeals court considered whether there was parity between the issues in each case. The appeals court noted the DVPO petition was based on allegations of domestic violence and whether the mother committed domestic violence against the child was the dispositive issue in the modification proceeding. The appeals court stated that by denying the modification motion for adequate cause, the court had “necessarily concluded” the father did not prove domestic violence by the mother against the child. Additionally, the child’s DVPO petition was based on the same evidence as the modification petition.
The appeals court concluded the issues were identical and met the first element of collateral estoppel.
Judgment on the Merits
The trial court had considered multiple exhibits and declarations in the modification proceeding. Although there were no transcripts from that case in the record, a transcript in the child’s DVPO hearing referenced a hearing in the Walla Walla County Case. The appeals court pointed out the court dismissed the modification petition after considering the evidence, and therefore rendered judgment on the merits.
Party or in Privity to a Party
The appeals court then considered whether the parties in the DVPO proceeding were parties to or in privity with a party to the modification matter. The mother argued the child and father were in privity or that the child was barred from relitigating the issue by the virtual representation doctrine.
The father and mother were the parties to the action in Walla Walla County, and the mother and son were the parties to the Benton County DVPO petition. Although the child was a subject to the Walla Walla County matter, he was not a party. Similarly, the father was just a witness in the Benton County case. The appeals court concluded there was not sufficient mutuality of interests in the same subject matter.
The virtual representation doctrine, however, allows collateral estoppel to apply to a nonparty when a party to the previous litigation had substantial identity of interest with that nonparty. The most significant factor is whether the nonparty participated in the previous litigation. Additionally, the issue must have been fully and fairly litigated and the evidence must be identical. Furthermore, the doctrine requires some evidence separate litigation “was the product of some manipulation or tactical maneuvering.”
Although the child was not a party in the Walla Walla County case, he was involved as the subject of the petition. The evidence din the two cases was the same. Furthermore, the father and child had a shared interest in the child living with the father. The record showed the child wanted to live with the father. In the DVPO petition, the child alleged the mother screamed and hit him for wanting to live with his father. The father alleged in his case that the child refused to go back to the mother’s. The appeals court concluded the father and child “were intrinsically involved in each other’s litigation and sought the same objective.”
The appeals court concluded the modification proceeding was fully and fairly litigated. The evidence and testimony in both cases was the same. The record showed the father and child wanted the same relief. The child filed his DVPO petition after the modification petition was denied. Additionally, the Benton County court offered a venue change to Walla Walla County, but the child declined it. The appeals court concluded it appeared the separation “was the product of some ‘manipulation or tactical maneuvering.’” The appeals court concluded the virtual representation doctrine applied and that the third element of collateral estoppel was met.
No Injustice
The appeals court then considered whether applying the doctrine would result in an injustice. The appeals court noted there was a full and fair hearing on the domestic violence issue in the Walla Walla County case. The child was the subject of that case and a witness in it. Additionally, the appeals court concluded that public policy supported the result. Not applying collateral estoppel would encourage parents to seek a remedy in a different jurisdiction.
The appeals court concluded all of the elements of collateral estoppel were met and the child was barred from litigating the domestic violence issue. The appeals court remanded with instructions to vacate the order and dismiss the child’s petition.
This case illustrates how family law and civil protection orders can be related and the importance of seeking counsel knowledgeable in both when family violence may be an issue. Blair & Kim, PLLC, has experienced Washington civil protection order, family law, and criminal defense attorneys and is able to assist where these areas of law intersect. Call (206) 622-6562 to set up a consultation.