Lori Darlene Shavlik, V. Jolene Marie Jovee ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LORI SHAVLIK,
No. 81889-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
JOLENE JOVEE,
Respondent.
CHUN, J. — Lori Shavlik appeals an order extending a one-year civil
antiharassment protection order against her and an order denying her motion for
revision. Representing herself, Shavlik contends that the antiharassment order
must be vacated because (1) the superior court lacked jurisdiction, (2) the
petition for the order was based on false information, and (3) the court was
biased against her. For the reasons discussed below, we affirm.
I. BACKGROUND
Jolene Jovee and her ex-husband Nathan Jovee are the parents of three
boys: L.J., S.J., and B.J.1 Nathan’s mother, Lori Shavlik, is the paternal
grandmother of the boys. Jolene and her significant other, Brandon Huber, are
the parents of one boy, L.H.
1
We refer to Jolene Jovee and Nathan Jovee by their first names for clarity. We
intend no disrespect.
No. 81889-9-I/2
Nathan and Jolene divorced in Oklahoma in 2018. The Oklahoma divorce
decree and parenting plan awarded custody to Jolene and granted visitation to
Nathan on every other weekend and certain holidays.
On March 1, 2019, Jolene petitioned in superior court for a civil
antiharassment protection order against Shavlik based on an incident that took
place on February 16, 2019. S.J. (age 7) and B.J. (age 4) needed to go to Fife
High School that afternoon to weigh in for their wrestling tournament. Jolene
said Nathan knew and agreed that she and Huber would be there even though it
was Nathan’s visitation weekend. Jolene expected Nathan to transport the boys
to the weigh in, so she was surprised to discover that Shavlik brought them
instead. Jolene alleged that when she walked into the gym and approached the
boys to greet them and ask where their father was, Shavlik became frantic,
aggressive, and enraged. Jolene said that B.J. reached for her and began to cry,
but when she tried to comfort him, Shavlik angrily pushed her away and tried to
take the boys outside even though they were not fully dressed. Jolene said both
boys cried and told her they were scared of Shavlik. Jolene asked Huber to call
the police.
When police arrived, Jolene showed them the Oklahoma divorce decree
and parenting plan and said she did not feel safe allowing Shavlik to transport the
boys back to Nathan’s house. According to the police report, Shavlik claimed
that Jolene was interfering with Nathan’s visitation time and Jolene believed
Nathan violated the parenting plan by not being present at the event. Based on
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No. 81889-9-I/3
language in the parenting plan that reasonable accommodation be made to get
the children to activities, police allowed Shavlik to take the boys back to Nathan’s
house.
A hearing on the petition took place on March 1, 2019, with Jolene
represented by counsel. Shavlik did not appear. When the superior court
commissioner asked whether Jolene was supposed to have custody of the
children at the weigh in, counsel said, “[A]t that sporting event, yes.” At the
conclusion of the hearing, the commissioner entered a temporary order of
protection against Shavlik. Minors addressed by the order included Jolene and
Nathan’s three children and Jolene and Huber’s child. The order restrained
Shavlik from making any attempts to contact or keep under surveillance Jolene
or any of Jolene’s four children. The order further specified that Shavlik was
“restrained from any contact whatsoever, no phone, mail, email, texting or third
party contact, or through social media.” The court reissued the temporary order
on March 15, 2019 to allow Jolene additional time to serve Shavlik.
On March 29, 2019, the superior court held a hearing to determine
whether Shavlik had committed unlawful harassment. Jolene and her counsel
were present; Shavlik was not. Jolene requested a three-year order restraining
Shavlik from any contact with all four children, even when Shavlik’s grandchildren
had visitation with Nathan. Although the court ruled that it “does not find it
reasonable to restrain the respondent from exchanges of the children and other
times when the children are in their father’s care,” it issued a final order that
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No. 81889-9-I/4
restrained Shavlik from making any attempts to contact or surveil Jolene and all
four children, “directly or indirectly, or through third parties.” The order further
specified as follows:
No contact in public places, no contact with the youngest minor. No
contact with the minors at exchanges. . . . No contact at sporting and
school events of the minors addressed in this petition, court matters
involving the petitioner and the minors addressed in this order, no
contact through email, texting, or social media.
On April 21 and April 28, 2019, Jolene alleged in police reports that
Shavlik violated the order by being at Nathan’s house while L.J, S.J., and B.J.
were present. A prosecutor charged Shavlik, but later dismissed the charges
without prejudice.
At a hearing on May 24, 2019, the superior court granted Shavlik’s motion
to vacate the March 29, 2019 protection order on the ground that it was void for
lack of service. The court concurrently entered a new temporary order. Unlike
the previous temporary order, it did not restrain Shavlik from contacting her
grandchildren. Rather, the order restrained Shavlik from making any attempts to
contact Jolene and L.H. and from being within 100 yards of the exchange
location of Jolene and Nathan’s children for visitation. The order further specified
that Shavlik’s contact with them “is limited to [Nathan’s] visitation and she [is]
excluded from sporting events.”
On June 18, 2019, the court again held a hearing on the antiharassment
petition. Jolene was represented by counsel and Shavlik appeared pro se.
Following the hearing, the court entered a final one-year order of protection that
restrained Shavlik from making any attempts to contact Jolene and from being
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No. 81889-9-I/5
within 100 yards of the exchange location of Jolene and Nathan’s children for
visitation with Nathan. The order further specified that Shavlik’s contact with her
grandchildren is limited to Nathan’s visitation “except not at any scheduled
events at which [Jolene] is present.” The order reserved ruling on attorney fees
“as well as to findings of vexatious litigant.”
On May 13, 2020, Jolene contacted police to report that Shavlik had
violated the order of protection by e-mailing her in an apparent attempt to
accomplish service of court documents. Jolene responded to the e-mail, stating,
“I am not sure what this is because no attachments will open. I did not consent
to service by email.” Shavlik still sent 13 more e-mails to Jolene. Jolene
reported the additional e-mail incidents to police.
On June 15, 2020, Jolene petitioned for renewal of the June 18, 2019 final
order of protection based on Shavlik’s unwanted e-mails and on the alleged April
2019 violations of the temporary protection order. Shavlik responded, stating
that she intended to serve Jolene by e-mail. Shavlik also moved for contempt
against Jolene.
A hearing took place on August 26, 2020. Both parties appeared at the
hearing pro se. The superior court commissioner denied Shavlik’s motion for
contempt and granted Jolene’s petition for renewal, finding that Shavlik “has not
shown by a preponderance of the evidence that acts of unlawful harassment will
not continue.” The renewed order was essentially identical in its terms to the
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No. 81889-9-I/6
June 18, 2019 order. The order expired on August 26, 2021, one year after it
issued.2
Shavlik moved to revise the August 26, 2020 order, which the superior
court denied on September 17, 2020. Shavlik now appeals the August 26, 2020
renewed protection order and the order denying her motion for revision.3
II. ANALYSIS
Preliminarily, we observe that a pro se litigant is bound by the same rules
of procedure and substantive law as a licensed attorney. Holder v. City of
Vancouver, 136 Wn. App. 104, 106, 147 P.3d 641 (2006).
“The scope of a given appeal is determined by the notice of appeal, the
assignments of error, and the substantive argumentation of the parties.” Clark
County v. W. Wash. Growth Mgmt. Hr’gs Review Bd., 177 Wn.2d 136, 144, 298
P.3d 704 (2013) (citing RAP 5.3(a); 10.3(a), (g); and 12.1). “‘Only issues raised
in the assignments of error . . . and argued to the appellate court are considered
on appeal.’” Weyerhauser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654,
2 No issue is raised on appeal about whether Shavlik’s appeal was rendered
moot when the renewed order expired on August 21, 2021. “Generally, we will dismiss
an appeal where only moot or abstract questions remain or where the issues raised in
the trial court no longer exist.” Price v. Price, 174 Wn. App. 894, 902, 301 P.3d 486(2013). A case is not moot if a court can still provide effective relief. Hough v.
Stockbridge, 113 Wn. App. 532, 537, 54 P.3d 192 (2002), reversed on other grounds,
150 Wn.2d 234, 76 P.3d 216 (2003) (noting that the stigma of an expired antiharassment
order may be removed by a favorable decision). We decline to dismiss Shavlik’s appeal
on this basis.
3
Jolene did not file a respondent’s brief. “A respondent who elects not to file a
brief allows [their] opponent to put unanswered arguments before the court, and the
court is entitled to make its decision based on the argument and record before it.”
Adams v. Dep't of Labor & Indus., 128 Wn.2d 224, 229, 905 P.2d 1220 (1995).
6
No. 81889-9-I/7
693, 15 P.3d 115 (2000) (alteration in original) (quoting State v. Kalakosky, 121
Wn.2d 525, 540 n.18, 852 P.2d 1064 (1993)).
A. Jurisdiction
Shavlik says that, under RCW 10.14.150, district courts have exclusive
original jurisdiction to hear antiharassment claims. She contends that the district
court is empowered to transfer such an action to superior court only if certain
statutory conditions are met. Because Jolene initiated the action in superior
court without going to district court first, Shavlik contends that the antiharassment
orders are void because the superior court never acquired jurisdiction to hear the
case. Shavlik is incorrect.
We review de novo questions of subject matter jurisdiction. Dougherty v.
Dep’t of Labor & Indus., 150 Wn.2d 310, 314, 76 P.3d 1183 (2003). In 1993, the
Washington Constitution was amended to vest both superior courts and district
courts with original jurisdiction in cases of equity. See W ASH. CONST. art. IV, § 6
(“Superior courts and district courts have concurrent jurisdiction in cases in
equity.”). An action under chapter 10.14 RCW is an action in equity. Hough v.
Stockbridge, 150 Wn.2d 234, 236, 76 P.3d 216 (2003). The vesting of original
jurisdiction in the superior courts does not prevent the legislature from granting
concurrent jurisdiction to district courts in the same class of cases. McIntosh v.
Nafziger, 69 Wn. App. 906, 911, 851 P.2d 713 (1993). The superior court retains
original jurisdiction unless the legislature vests exclusive jurisdiction in another
court. Ledgerwood v. Lansdowne, 120 Wn. App. 414, 419, 85 P.3d 950 (2004).
7
No. 81889-9-I/8
It is well established that RCW 10.14.150 does not vest exclusive
jurisdiction over antiharassment cases in the district court. McIntosh, 69 Wn.
App. at 912 (“[W] e construe RCW 10.14.150 as providing the district and
superior courts with concurrent original jurisdiction, thereby allowing civil anti-
harassment actions to be brought either in the district or superior courts”);
Ledgerwood, 120 Wn. App at 422 (holding that the superior court has original
jurisdiction to hear antiharassment petitions). The superior court did not lack
subject matter jurisdiction over the proceedings in this case.
B. Unlawful Harassment
Shavlik contends that Jolene failed to show that her actions constituted
“unlawful harassment” as defined by RCW 10.14.020. We review the trial court's
decision to grant or deny a protection order for an abuse of discretion.
RCW 10.14.080(6); State v. Noah, 103 Wn. App. 29, 43, 9 P.3d 858 (2000). A
trial court abuses its discretion if its ruling is “manifestly unreasonable or is based
on untenable grounds or reasons.” State v. Rapozo, 114 Wn. App. 321, 323, 58
P.3d 290 (2002). A court’s decision stems from untenable grounds “if it is based
on an incorrect standard or the facts do not meet the requirements of the correct
standard.” In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
We review the trial court’s findings for substantial evidence. In re
Marriage of Rideout, 150 Wn.2d 337, 351, 77 P.3d 1174 (2003) (where court
holds a hearing and weighs contradictory evidence before entry of a protection
order, the proper standard of review is substantial evidence). “Substantial
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No. 81889-9-I/9
evidence” exists if the evidence is sufficient to persuade a fair-minded rational
person of the truth of the evidence. In re Estate of Jones, 152 Wn.2d 1, 8, 93
P.3d 147 (2004). We defer to the trier of fact on the persuasiveness of the
evidence, witness credibility, and conflicting testimony. In re Vulnerable Adult
Petition of Knight, 178 Wn. App. 929, 937, 317 P.3d 1068 (2014).
A superior court may enter a civil antiharassment protection order if it finds
by a preponderance of the evidence that “unlawful harassment” exists.
RCW 10.14.080(3); Noah, 103 Wn. App. at 38. “Unlawful harassment” is “a
knowing and willful course of conduct directed at a specific person which
seriously alarms, annoys, harasses, or is detrimental to such person, and which
serves no legitimate or lawful purpose.” RCW 10.14.020(2). A “course of
conduct” is “a pattern of conduct composed of a series of acts over a period of
time, however short, evidencing a continuity of purpose.” RCW 10.14.020(1).
A petitioner may seek to renew a civil antiharassment order prior to its
expiration. RCW 10.14.080(5). The petition for renewal must state the reasons
why the petitioner seeks to renew the protection order. Id. The court must then
renew the order “unless the respondent proves by a preponderance of the
evidence that the respondent will not resume harassment of the petitioner when
the order expires.” Id.
Shavlik contends that the superior court’s antiharassment orders stemmed
from fraud. This is so, she contends, because Jolene’s counsel misled the court
when he said Jolene was authorized to take custody of the children at the
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No. 81889-9-I/10
wrestling weigh-in. Shavlik also says that her behavior at the weigh-in cannot
constitute “unlawful harassment” because it served the legitimate and lawful
purpose of seeking to prevent Jolene from interfering with Nathan’s visitation
time.
Regardless of the merit of these assertions, they have no bearing on the
matter at issue in this appeal, which is whether the superior court erred in
entering a renewed order of protection on August 26, 2020. Pursuant to
RCW 10.14.080(5), Jolene petitioned for renewal along with a declaration stating
the reasons why she sought to renew the petition. Jolene stated that her counsel
withdrew on April 29, 2020 because she could not pay accumulated charges of
more than $30,000. Before counsel withdrew, he and Shavlik had an agreement
to serve documents by e-mail. After counsel withdrew, Jolene responded to
Shavlik by e-mail and included a mailing address at which she agreed to accept
service. Shavlik then e-mailed court documents to Jolene. Jolene responded
that she did not consent to service by e-mail. Shavlik still e-mailed Jolene 13
more times. Jolene also pointed to Shavlik’s alleged violations in April 2019.
Shavlik’s response asserted that Jolene failed to explain or document with
evidence any course of conduct that violated the order. Shavlik also stated that
she intended to keep serving Jolene by e-mail. But the June 18, 2019 order
plainly restrains Shavlik from attempting to contact her. “Course of conduct”
includes “the sending of an electronic communication.” RCW 10.14.020(1).
Jolene submitted evidence documenting that Shavlik e-mailed her repeatedly,
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No. 81889-9-I/11
despite being informed that Jolene would only accept service by mail. We
conclude that the superior court did not err by ruling that Shavlik “has not shown
by a preponderance of the evidence that acts of unlawful harassment will not
continue.”4
C. Disqualification
Shavlik states that the superior court commissioner who entered the
August 26, 2020 renewed protection order should have been disqualified for
showing actual bias and prejudice against her.
“Due process, the appearance of fairness, and Canon 3(D)(1) of the Code
of Judicial Conduct require disqualification of a judge who is biased against a
party or whose impartiality may be reasonably questioned.” Wolfkill Feed and
Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000). We
presume a trial court to regularly and properly perform its functions without
prejudice or bias. West v. Wash. Ass’n of County Officials, 162 Wn. App 120,
136, 252 P.3d 406 (2011). “The test for determining whether a judge's
impartiality might reasonably be questioned is an objective one that assumes the
reasonable person knows and understands all the relevant facts.” In re Estate of
4
Shavlik also contends that the March 1, 2019 and May 24, 2019 temporary
orders should be vacated based on fraud. And she asserts that the June 18, 2019 final
order should be vacated because Jolene is the one who engaged in unlawful
harassment. But the temporary orders became moot when the superior court entered
the final order on June 18, 2019. See Ferry County Title & Escrow v. Fogle’s Garage,
Inc., 4 Wn. App. 874, 881, 484 P.2d 458 (1971) (a final judgment renders the propriety of
a temporary order moot). And Shavlik did not timely appeal the final order as required
by RAP 5.2(a). In any case, the minute entry for the June 18, 2019 hearing shows that
the court carefully considered Shavlik’s arguments and entered a final order that was far
less restrictive than the temporary orders.
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No. 81889-9-I/12
Hayes, 185 Wn. App. 567, 607, 342 P.3d 1161 (2015) (citing Sherman v. State,
128 Wn.2d 164, 206, 905 P.2d 355 (1995)). The party claiming bias or prejudice
must support the claim with evidence. An appearance of fairness doctrine claim
requires evidence of the judicial officer's actual or potential bias. State v. Dugan,
96 Wn. App. 346, 354, 979 P.2d 885 (1999). “[M]ere speculation is not enough.”
Estate of Hayes, 185 Wn. App. at 607.
Shavlik contends that the superior court commissioner demonstrated
actual bias and prejudice against her because the August 26, 2020 renewed
order of protection contained a notation indicating that judgment was reserved
“as to findings of vexatious litigation.”5 Shavlik contends that the superior court
commissioner never provided notice that a vexatious litigation finding was being
contemplated or gave her an opportunity to argue against it, thereby
demonstrating actual bias by restricting Shavlik’s access to the courts without
due process.
We disagree. Shavlik’s speculative claim is not enough to demonstrate
actual bias or prejudice. Moreover, the record does not support it. The minute
entry for the June 18, 2019 hearing, at which Shavlik was present, notes that
“petitioner’s motion for a finding of vexatious litigation is reserved.” The June 18,
2019 order reflects this. Shavlik expressly acknowledged receipt of a copy of the
5
“[I]n Washington, trial courts have the authority to enjoin a party from engaging
in litigation upon a ‘specific and detailed showing of a pattern of abusive and frivolous
litigation.’” Yurtis v. Phipps, 143 Wn. App. 680, 693, 181 P.3d 849 (2008) (quoting
Whatcom County v. Kane, 31 Wn. App. 250, 253, 640 P.2d 1075 (1981)).
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No. 81889-9-I/13
order. She had notice of the matter more than a year before the August 26, 2020
hearing.
We affirm.
WE CONCUR:
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