Melissa Anderson v. Eric Anderson ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MELISSA ANDERSON,
DIVISION ONE
Respondent,
No. 78326-2-1
V.
UNPUBLISHED OPINION
ERIC ANDERSON,
Appellant. FILED: June 24, 2019
DWYER, J. — Eric Anderson appeals from a trial court ruling renewing an
order for protection. Ericl contends that the trial court erred by finding that he did
not prove by a preponderance of the evidence that he will not resume acts of
domestic violence when the protection order expires. He also asserts that the
trial court abused its discretion by considering hearsay and unauthenticated
evidence in reaching its decision. Finding no error, we affirm.
I
Eric and Melissa Anderson are estranged siblings. Eric is a California
resident. Melissa lives in Washington with their elderly mother, over whom she
shares power of attorney with her other brother, Mark.
On March 1, 2017, Melissa petitioned the King County Superior Court for
a temporary order of protection against Eric. Melissa's reasons for requesting an
1 Since the parties, Eric and Melissa, share the same last name, we use their first names
in the interest of clarity.
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order of protection were death threats that Eric had made against her through
their mother and brother, along with her knowledge that Eric possessed a
collection of firearms, and her belief that Eric was emotionally unstable. After a
hearing on March 15, 2017, the court granted a one-year protection order. Over
the following year, Eric and Melissa had some indirect contact though various
family members.
On March 7, 2018, Melissa filed a petition for the renewal of the protection
order based on a threat by Eric to visit her residence after the year-long
protection order lapsed. A hearing to determine the outcome of Melissa's
request was held on March 21, 2018. At the renewal hearing, a commissioner
heard testimony from both parties and reviewed evidence including transcriptions
of voice mails left by Eric on Melissa's telephone and a signed letter from the
parties' younger brother, Mark.
The trial court found that Eric did not prove by a preponderance of the
evidence that there would not be future acts of domestic violence were the order
to lapse. The court granted Melissa's petition to renew the protection order and
extended it for two additional years. Eric appeals from this order.
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Eric asserts that the trial court erred by granting Melissa's request to
extend the protection order. To support this, he first avers that he proved by a
preponderance of the evidence that he will not resume any acts of domestic
violence when the order expires. We disagree.
When a petitioner applies for the renewal of a protection order,
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[t]he court shall grant the petition for renewal unless the respondent
proves by a preponderance of the evidence that the respondent will
not resume acts of domestic violence against the petitioner or the
petitioner's children or family or household members when the
order expires. The court may renew the protection order for
another fixed time period or may enter a permanent order as
provided in this section.
RCW 26.50.060(3). Whether to grant, modify, or terminate a protection order is a
matter of judicial discretion. In re Marriage of Freeman, 169 Wash. 2d 664, 671,
239 P.3d 557(2010). When the decision of the trial court is a matter of judicial
discretion, we review it for clear abuse of that discretion, "'that is, discretion
manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons." In re Parentage of T.W.J., 193 Wash. App. 1, 6, 367 P.3d 607(2016)
(quoting State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971)).
Eric avers that he proved by a preponderance of the evidence that he
would not carry out any acts of domestic violence because 7 of the 11 factors set
forth in the Supreme Court's opinion in Freeman, 169 Wash. 2d at 673, weigh in his
favor. The Freeman factors are an analytical framework adopted from a New
Jersey decision. Our Supreme Court referenced the 11 factors to guide
decisions on motions for termination of permanent protection orders. Eric's
argument fails because it incorrectly interprets Freeman as establishing a factor-
counting doctrinal test that is dispositive in deciding whether a restrained party
has met its burden of proof. No such test exists.
The Freeman factors are:
(1) whether the victim has consented to lift the order;(2) the
victim's fear of the restrained party;(3) present nature of the
relationship between parties;(4) whether the restrained party has
any contempt convictions for violating the order;(5) the restrained
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party's alcohol and drug involvement, if any;(6) other violent acts
on the part of the restrained party;(7) whether the restrained party
has engaged in domestic violence counseling;(8) age and health of
the restrained party;(9) whether the victim is acting in good faith to
oppose the motion;(10) whether other jurisdictions have entered
any protection orders against the restrained party; and (11) other
factors deemed relevant by the court.
Freeman, 169 Wash. 2d at 673(footnote omitted)(citing Carfacino v. Carfagno, 288
N.J.Super. 424, 435, 672 A.2d 751 (1995)).
Eric contends that he met his burden of proof because 7 of the 11 factors
are in his favor: he has not been charged with a protection order violation; there
is no evidence that he abuses drugs or alcohol; there is no evidence that he has
engaged in violent acts; there is no evidence that the court ordered or compelled
him to undergo domestic violence counseling; he is physically healthy and
mentally competent; no other jurisdictions have entered protection orders against
him; and the court considered the geographical distance between Eric and
Melissa as a relevant factor diminishing the likelihood that Eric would commit
acts of domestic violence against Melissa. In contrast, he contends that Melissa
only has four of the Freeman factors in her favor: she has not consented to lifting
the protection order; she maintains that she is afraid of Eric; the parties lack a
relationship; and she asserts her actions are in good faith. Eric concludes that
the positive balance of the Freeman factors in his favor proves, by a
preponderance of the evidence, that he will not commit future acts of domestic
violence absent the protection order.
Eric's reliance on Freeman is unpersuasive. In Freeman, our Supreme
Court referenced the factors as constituting "a sensible framework for analyzing
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whether the preponderance of the evidence suggests a restrained party will
commit a future act of domestic violence." 169 Wash. 2d at 673. The court's
language indicates that the factors in Freeman are tools to guide courts in
assessing the likelihood of restricted parties committing future acts of domestic
violence. 169 Wash. 2d at 673. Indeed, in Freeman, the balance of the factors was
not the dispositive element in the outcome of the case. See 169 Wash. 2d at 675-
76 (holding that it was more likely than not that the restricted party would refrain
from future acts of domestic violence based on his testimony, deeds, relocation,
career ambition, and compliance with a protection order for 10 years).
Additional language in Freeman further implies that a proper Freeman
analysis is not a mechanical factor-adding test, but, rather, a guiding framework
subject to judicial discretion. Indeed, factor 11 grants the court leeway to
consider "other factors deemed relevant by the court." Freeman, 169 Wash. 2d at
673. This, in essence, renders infinite the number of factors that can be properly
considered.
Eric also asserts that Melissa's evidence supporting renewal was
insufficient. In a protection order proceeding, a petitioner need only show
threatened abuse plus a present fear of the abuser. Barber v. Barber, 136 Wn.
App. 512, 515, 150 P.3d 124 (2007)(citing Spence v. Kaminski, 103 Wash. App.
325, 332-33, 12 P.3d 1030 (2000)). Eric avers that Melissa's assertions of her
fear were unfounded because she failed to establish any instance where Eric
committed or was likely to commit an act of domestic violence; she did not
provide the court sufficient facts to justify her fear of Eric as reasonable, and Eric
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disputed the underlying facts of the alleged domestic violence at the hearing.
Eric is, again, incorrect.
As stated above, a trial court decision to grant a protection order is
reviewed for abuse of discretion. T.W.J., 193 Wash. App. at 6. Here, the trial
court's decision to renew the order was not "'manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons." T.W.J., 193 Wn.
App. at 6 (quoting Junker, 79 Wash. 2d at 26). The trial court had tenable grounds
to find that Eric did not prove that he would not engage in future acts of domestic
violence, absent a protection order, based on the testimony and evidence
presented at the protection order renewal hearing. Eric made death threats
against Melissa through other family members and owns a cache of deadly
weapons. Evidence presented at the hearing supported Melissa's assertion that
Eric had an unstable temperament. The record shows continuous indirect
contact and hostility between the parties.
We defer to the trier of fact on the persuasiveness of the evidence and the
credibility of the witnesses and conflicting testimony. State v. Ainslie, 103 Wn.
App. 1,6, 11 P.3d 318 (2000). Viewing the evidence in the light most favorable
to Melissa, as we must view it in deciding a sufficiency challenge, Structurals
Nw., Inc. v. Fifth & Park Place, Inc., 33 Wash. App. 710, 716, 658 P.2d 679(1983),
the court did not err. Here, based on the record, we cannot say that the trial
court abused its discretion in granting renewal of the protection order.
Eric's argument that he has proved his burden as a matter of law because
he does not wish to have further contact or a relationship with Melissa fails
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because it is based on his own assertions. The trial court was not required to
believe or credit his testimony. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115
Wash. 2d 364, 369-70, 798 P.2d 799(1990)(citing Davis v. Dep't of Labor & Indus.,
94 Wash. 2d 119, 124, 615 P.2d 1279 (1980)).
The trial court credibly found that Eric did not prove by a preponderance of
the evidence that he would not engage in future acts of domestic violence absent
a protection order. Thus, the trial court did not abuse its discretion by renewing
the protection order.
III
Eric next contends that the trial court erred by admitting Mark's letter as
evidence at the hearing. This is so, he avers, because the rules of evidence
should have barred its admission as the letter constituted inadmissible hearsay
under ER 802 and its authorship was not properly authenticated, violating ER
901. This argument is without merit.
The rules of evidence do not apply in protection order proceedings. ER
1101(c)(4); Hecker v. Cortinas, 110 Wash. App. 865, 870, 43 P.3d 50 (2002). We
review a trial court's decision to admit evidence for abuse of judicial discretion.
State v. Darden, 145 Wash. 2d 612, 619, 41 P.3d 1189(2002). A trial court abuses
its discretion if its decision is manifestly unreasonable or based on untenable
grounds. Darden, 145 Wash. 2d at 619.
Eric asserts that Mark's letter is inadmissible hearsay evidence pursuant
to ER 802. He argues that the trial court improperly relied on this evidence when
it considered the letter, which contained an out-of-court statement, to prove the
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truth of Mark's assertions. This argument fails because the rules of evidence
need not be applied in protection order hearings. ER 1101(c)(4).
ER 1101 discusses the applicability of the evidence rules in various
proceedings, including those involving protection orders:
(c)... The rules (other than with respect to privileges. . .)
need not be applied in the following situations:
(4) Applications for Protection Orders. Protection order
proceedings under Chapters 7.90, 7.92, 7.94, 10.14, 26.50 and
74.34 RCW. Provided when a judge proposes to consider
information from a criminal or civil database, the judge shall
disclose the information to each party present at the hearing; on
timely request, provide each party with an opportunity to be heard;
and, take appropriate measures to alleviate litigants' safety
concerns. The judge has discretion not to disclose information that
he or she does not propose to consider.
ER 1101(c)(4).
"ER 1101(c)(4) allows courts to consider hearsay in. . . protection order
proceeding[s]." Gourley v. Gourley, 158 Wash. 2d 460, 466, 145 P.3d 1185 (2006);
accord Blackmon v. Blackmon, 155 Wash. App. 715, 722, 230 P.3d 233(2010)
("[C]ompetent evidence sufficient to support the trial court's decision to grant or
deny a petition for a domestic violence protection order may contain hearsay or
be wholly documentary."). In Gourley, the Supreme Court held that the
commissioner did not err when he considered hearsay evidence at a protection
order proceeding. 158 Wash. 2d at 467.
The trial court properly exercised its discretion in determining that the
statements in the letter were likely those of Mark and that their truth was helpful
to a resolution of the dispute. Given that hearsay evidence is not barred in such
proceedings, this was a proper exercise of discretion by the trial court.
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Eric also contends that the trial court improperly relied on inadmissible
evidence when it considered Mark's letter because its authorship was not
properly authenticated, violating ER 901.
As discussed herein, the rules of evidence do not apply in protection order
proceedings. Gourley, 158 Wash. 2d at 467. Instead, a trial court's admission of
evidence is reviewed for abuse of discretion. Darden, 145 Wash. 2d at 619. Here,
the trial court's decision to admit the letter was not "'manifestly unreasonable or
based upon untenable grounds or reasons." Darden, 145 Wash. 2d at 619 (quoting
State v. Powell, 126 Wash. 2d 244, 258, 893 P.2d 615 (1995)). The trial court could
credibly find that the letter was likely authored by Mark, given that Mark's
signature was on the letter, and that it was presented to the trial court by his
sister(who would be both familiar with Mark and his handwriting). Furthermore,
there is nothing in the record and nothing in Eric's brief to suggest that Mark is
not, in fact, the author of the letter, other than an unsupported denial of this fact
made by Eric at the hearing. We therefore reject Eric's contention that the trial
court erred by admitting the letter.
Affirmed.
We concur:
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