In a petition for a Washington domestic violence protection order (“DVPO”), the court shall issue the protection order if it finds “the petitioner has been subjected to domestic violence by the respondent.” RCW 7.105.225. Domestic violence includes unlawful harassment. Unlawful harassment is “[a] knowing and willful course of conduct . . . that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful purpose.” The course of conduct must cause actual substantial emotional distress and must be conduct that would cause substantial emotional distress to a reasonable person. RCW 7.105.010. The definition statute identifies the factors to be considered in determining if a course of conduct has a legitimate or lawful purpose, including: who initiated contact, whether there has been clear notice contact is unwanted; whether the “course of conduct appears designed to alarm, annoy, or harass the petitioner”; whether the respondent is acting under statutory authority; whether the course of conduct’s purpose or effect is to unreasonably interfere with the privacy of the petitioner or “creating an intimidating, hostile or offensive living environment”; and whether a previous court order has limited the respondent’s contact with the petitioner or their family. RCW 7.105.010(6).
In a recent unpublished opinion, an ex-wife challenged a DVPO protecting her former husband. The former wife had remarried, and according to the former husband, the parties began having difficulty co-parenting in 2021.
The ex-husband sought a DVPO in May 2023. He attached texts and emails, alleging the former wife had been abusively targeting him electronically. His fiancée stated in her declaration that the ex-wife had chased them through a parking lot when they were leaving an event for the child. The ex-husband asked that the ex-wife be required to surrender her firearms.
The ex-husband subsequently amended his petition, seeking order of protection for their son. He alleged there was a protective order against the ex-wife arising from harassing texts she had sent her mother-in-law at the time and provided evidence she had faced criminal charges for violating it. He also claimed that he received another message threatening to take full custody of the child in violation of the temporary order. The ex-husband also submitted a declaration from the ex-wife’s second husband stating the she had a number of high-capacity rifles and expressing concern she was evading the temporary order to surrender her weapons. The husband’s attorney filed a declaration with an email from a detective in the Regional Firearms Unit of the Prosecuting Attorney’s Office stating the ex-wife owned six guns and had “blatantly” refused to follow the order.
The ex-husband stated he was afraid for his son because of new information. He alleged the ex-wife’s ex-husband told him friends had seen the ex-wife driving drunk with the child. He also alleged the child told him the ex-wife had punched him. His mother also provided a declaration stating the child told him the ex-wife had punched him.
A commissioner granted the amended DVPO petition, protecting the ex-husband and the child. A judge partially granted the ex-wife’s motion on revision, striking the portions of the protection order relating to the child. The court noted there were “limited details” about the alleged physical harm to the child and it had “credibility questions” based on the timing and nature of the relief the ex-husband sought. The court did not revise the order as to the ex-husband, finding he had provided sufficient evidence that the ex-wife had committed domestic violence through unlawful harassment.
Adequacy of Findings
The ex-wife appealed. The appeals court rejected her argument that the trial court erred by not specifically identifying which communications were unlawful harassment. The court noted that the statute requires a court to state the particular reasons when it denies a protection order, but does not require the court to state specific facts or reasons for granting one. RCW 7.105.225.
The appeals court also concluded the trial court’s orders were adequate either standing alone or because they allowed the appeals court to identify the legal basis for granting the DVPO and the determinative factual matters, pursuant to In re Det. Of LaBelle. The trial court’s order stated the procedural history and discussed the difference in the level of detail in the allegations related to the child and the alleged harassment of the ex-husband. The trial court had identified that the determinative factual issues were the allegations of abuse against the ex-husband. The court had also stated that the “totality of the evidence is sufficient to establish” the ex-wife’s communication with the ex-husband demonstrated harassment.
The appeals court held there was sufficient factual and legal basis for the DVPO.
Sufficiency of Evidence
The ex-wife argued the court abused its discretion in finding she committed domestic violence because the court’s decision was based on an incorrect legal standard and that there was not substantial evidence supporting the finding. She argued that speech alone is legally insufficient to support a DVPO.
The appeals court disagreed that the only evidence in the record was speech. The court pointed out that the ex-husband had submitted evidence she had chased him through a parking lot and – had “blatantly” refused compliance with the order to surrender her firearms. There was also evidence she had violated another antiharassment order. Additionally, there were declarations from multiple witnesses that she drank to excess and endangered the child. The appeals court concluded that the trial court’s decision was based on the totality of the evidence before it.
Furthermore, the appeals court noted that, even based on the written communications alone, it could not conclude there was an abuse of discretion. The appeals court concluded that a reasonable person could find the texts from the ex-wife constituted harassment. Additionally, she had specifically stated in one series of texts, “this is a threat. . .” The appeals court determined a reasonable person could conclude the texts sent to the ex-husband and his fiancée “were intended to demean” how they looked, their faithfulness to each other, and their sincerity,
The appeals court also noted that the ex-husband had presented evidence that he had responded to the ex-wife in a way that a reasonable person could conclude was clear notice that contact was unwanted, but she continued to send messages that a reasonable person could consider “alarming.”
The ex-wife argued her contact was made in the context of parenting issues, but the appeals court noted that did not automatically give them a lawful purpose. The trial court had found that the totality of her communications with the ex-husband demonstrated a knowing and willful course of conduct intending to alarm, annoy, or harass him, even if related to parenting.
The appeals court also found sufficient evidence supporting a finding that the conduct cause the ex-husband substantial emotional distress. He attested that he had experienced fear, headaches, insomnia and fatigue for which he had sought professional help.
The appeals court affirmed the trial court’s order.
Seek Skilled Representation
Whether you are seeking or opposing a civil protection order, a knowledgeable Washington civil protection order attorney can help. At Blair & Kim, PLLC, we are also experienced in family law and criminal defense and are able to assist in those areas when a civil protection order could affect custody issues or a divorce, or when there are related criminal charges. Call us at (206) 622-6562 to set up a consultation.