Sunhee Lee, V Suk Hui Bonbrake ( 2014 )

D
OUf?T OF
PPEA S
J.
2014 FES - 4
AM 9: 1
STrUE OF V}'ASliliGT
IN THE COURT OF APPEALS OF THE STATE OF Mi ON
DIVISION II
SUK HUI BONBRAKE,
Respondent, I No. 43989 -1 - II
V. UNPUBLISHED OPINION
SUNHEE LEE,
Appellant.
MAxA, J. — Sunhee Lee appeals the trial court' s orders granting Suk Hui Bonbrake' s
motion for a domestic violence protection order and denying Lee' s motion for revision of that
order, motion for a new trial, and motion to vacate the protection order. -Lee argues that the trial
court abused its discretion when it granted Bonbrake' s motion for a protection order because she
and Bonbrake were not family or household members as required by the Domestic Violence
Prevention Act (DVPA), chapter 26. 50 RCW. She also argues that the trial court abused its
discretion when it awarded attorney fees and entered a $ 2, 000 judgment for attorney fees
because she did not receive proper notice
We hold that ( 1) the trial court had authority to grant the motion for a domestic violence
protection order because there was sufficient evidence to support the conclusion that Lee and
Bonbrake were family or household members under the DVPA, (2) the trial court properly
exercised its discretion to award attorney fees to Bonbrake for time spent preparing for the
hearing on the domestic violence protection order.because Lee failed to present any evidence at
the hearing and for time spent responding to the motion to terminate the protection order because
No. 43989 -1 - II
it was the second motion brought on the same issue within two months, and ( 3) the trial court did
not abuse its discretion when it entered the $ 2, 000 attorney fee award because the record shows
that Lee had notice of the hearing but failed to appear. Accordingly, we affirm.
FACTS
In 2008, Walter Lee and his wife Sunhee Lee ( hereafter " Lee ") separated, and Sunhee
Lee moved to Colorado. Walter Lee continued to live in their Olympia home. In 2011,
Bonbrake moved into the Lees' house. On January 31, 2012, Lee returned to Olympia. The
testimony was unclear about whether Lee moved back into the house or into a shed on the
property. Lee stated that she stayed in the house with Walter Lee' s permission and that she had a
bed in the house. Bonbrake stated that Lee stayed in a shed behind the house and used the
house' s bathroom and kitchen, but that she never saw Lee stay in the house overnight.
On February 3, Lee and Bonbrake had a physical altercation at the house. Police officers
arrested Lee and the State charged her with second degree domestic violence assault. Lee
ultimately was acquitted after trial in June 2012.
On March 21, 2012, Bonbrake petitioned for a domestic violence protection order against
Lee, claiming that she and Lee were cohabitants. On May 30, a court commissioner heard
argument on the motion. Because Lee had a pending criminal matter, she did not testify or
present any other evidence at the hearing. She argued that because there was already a no-
contact order issued as a result of the pending criminal matter, it was an abuse of process for
Bonbrake to seek a domestic violence protection order against her.
The commissioner granted the motion for a domestic violence protection order and issued
an order effective for one year. The commissioner found that the parties " were roommates for a
period in the home" and therefore concluded that they were "[ fJamily or household members" to
2
No. 43989 -1 - II
which the DVPA applied under RCW 26. 50. 010( 2). Clerk' s Papers ( CP) at 82. Bonbrake
requested fees for her attorney' s time preparing for the hearing because Lee did not present any
evidence. The commissioner granted the request for fees, stating, " I too am unclear as to why an
hour plus of the court' s time was taken with a hearing where no defense was presented to the
court." CP at 84. Lee moved for revision of the commissioner' s decision to issue the protection
order. The trial court denied the motion.
In August, Lee made three related motions regarding the domestic violence protection
order. First, she moved for a new hearing, claiming that because the hearing on the domestic
violence protection order took place before the resolution of the criminal matter, she was forced
to either waive her right not to testify in the criminal trial or forgo presenting a defense at the
protection order hearing. She requested a new hearing at which she could testify. Second, she
moved to vacate the protection order, arguing that her due process rights were violated because
she was deprived of her rights to her house and her career by declining to testify at the domestic
violence protection order hearing. Third, she moved to terminate the protection order under
RCW 26. 5 0. 13 0( l), arguing that she did not have a history of domestic violence, that she was
acquitted of the criminal charges against her, and that she was unable to obtain employment as a
registered nurse while subject to the domestic violence protection order.
The trial court denied all three motions at an August 23 hearing. Regarding Lee' s
assertion that she was required to remain silent at the domestic violence protection order hearing,
the court noted that the hearing had been continued several times and that the trial court never
told Lee that she could not seek additional motions to continue the matter pending resolution of
the criminal case against her. The trial court also stated that it likely would have granted such
motions, had they been made. Therefore, the trial court concluded that Lee' s constitutional
No. 43989 -1 - II
rights were not infringed because she was not required to testify while the criminal trial was
pending. The court stated that instead, Lee' s attorney had made a tactical decision not to present
a case.
The trial court also awarded attorney fees to Bonbrake under RCW 26. 50. 060 for having
to prepare for the hearing because it was the second time within two months that the matter was
argued. The court scheduled a hearing for September 6 to determine the amount of the attorney
fee award. Lee' s counsel did - ot appear for the hearing, and the trial court awarded $2, 000 in
n
attorney fees.
On September 17, Lee moved for reconsideration of the attorney fee award. She stated
that her counsel did not receive a fee affidavit from Bonbrake until the day the fee order was
entered. She argued that the fee award related only to the motion to terminate the protection
order, but that Bonbrake failed to segregate the time she spent responding to the three motions.
The trial court denied the motion. The trial court recognized that Bonbrake failed to timely
provide Lee with a fee affidavit, but also noted that both parties were on notice that the trial court
intended to award fees on September 6 and that Lee' s counsel failed to appear.
Lee appeals ( 1) the domestic violence protection order, ( 2) the order denying her motion
for revision of the domestic violence protection order, ( 3) the order denying her motion for a new
1
trial and her motion to vacate the protection order, and ( 4) the order denying her motion for
reconsideration of the attorney fee award.
1
Lee does not appeal the portion of this order denying her motion to terminate the domestic
violence protection order under RCW 26. 50. 130( 1).
4
No. 43989 -1 - II
ANALYSIS
A. AUTHORITY TO ISSUE DOMESTIC VIOLENCE PROTECTION ORDER
Lee argues for the first time on appeal that the trial court did not have authority to enter
the protection order against her because she and Bonbrake were not family or household
members as required by RCW 26. 50. 010. We disagree.
1. Failure To Preserve Challenge
Under RAP 2. 5( a), we generally will not review claims raised for the first time on appeal,
unless the party claiming the error can show the presence of an exception to that rule. State v.
Robinson, 171 Wash. 2d 292, 304, 253 P.3d 84 ( 2011). We may elect to review an issue where the
asserted error concerns the trial court' s authority to act. Neilson ex rel. Crump v. Blanchette, 149
Wn. App. 111, 115, 201 P.3d 1089 ( 2009) ( citing RAP 2. 5( a)( 1)), In Neilson, Division Three of
this court chose to review for the first time on appeal whether the trial court had authority to
issue a domestic violence protection order because the parties were not family or household
members under RCW 26. 50. 010. 149 Wash. App. at 115 -17
Lee asks this court to review her claim that she and Bonbrake were not family or
household members for the first time on appeal. As in Neilson, we choose to review whether the
trial court had authority under the facts of this case to issue a domestic violence protection order.
2. Standard of Review
We review the trial court' s decision to grant or deny a domestic violence protection order
for an abuse of discretion. See RCW 26. 50. 060; Hecker v. Cortinas, 110 Wash. App. 865, 869, 43
P.3d 50 ( 2002). And we review a trial court' s denial of a motion for reconsideration for abuse of
discretion. Rivers v. Wash. State Conference ofMason Contractors, 145 Wash. 2d 674, 685, 41
5
No. 43989 -1 - II
P. 3d 1175 ( 2002). A trial court abuses its discretion when its decision is based on untenable
grounds or reasons. In re Marriage of Cota, _ Wn. App. _, 312 P.3d 695, 699 ( 2013).
We review a trial court' s findings of fact for substantial evidence. In re Marriage of
Fahey, 164 Wn. App. 42, 55, 262 P.3d 128 ( 2011), review denied, 173 Wash. 2d 1019 ( 2012).
Substantial evidence exists if the record contains sufficient evidence to persuade a fair -
minded,
rational person of the finding' s truth. Fahey, 164 Wash. App. at 55. The party challenging a
finding bears the burden of showing that it is not supported by the record. Standing Rock
Homeowners Ass' n v. Misich, 106 Wn. App. 231, 243, 23 P.3d 520 ( 2001). Unchallenged
findings are verities on appeal, and challenged findings are also binding on appeal if they are
supported by substantial evidence. Standing Rock, 106 Wash. App. at 238, 243.
Evidence may be substantial even if there are other reasonable interpretations of the
evidence. Sherrell v. Selfors, 73 Wn. App. 596, 600 - 01, 871 P.2d 168 ( 1994). We defer to the
trial court' s determinations on the persuasiveness of the evidence, witness credibility, and
conflicting testimony. Snyder v. Haynes, 152 Wash. App. 774, 779, 217 P.3d 787 ( 2009).
Therefore, we will not disturb a trial court' s finding of fact if substantial, though conflicting,
evidence supports the finding. Merriman v. Cokeley, 168 Wash. 2d 627, 631, 230 P.3d 162 ( 2010).
3. Family or Household Members
Under the DVPA, a victim of domestic violence may petition for a protection order.
RCW 26. 50. 030; Spence v. Kaminski, 103 Wn. App. 325, 330, 12 P.3d 1030 ( 2000). The DVPA
defines "[ d] omestic violence" as "[ p] hysical harm, bodily injury, assault, or the infliction of fear
of imminent physical harm, bodily injury or assault, between family or household members."
RCW 26. 50. 010( 1)( a) ( emphasis added). The DVPA defines "[ f]amily or household members"
rel
No. 43989 -1 - II
as " adult persons who are presently residing together or who have resided together in the past."
RCW 26. 50. 010( 2).
Here, the trial court entered a finding of fact stating that Lee and Bonbrake were
roommates." CP 143. Lee does not assign error to this finding. Therefore, it is a verity on
appeal. Standing Rock, 106 Wash. App. at 238. Although the trial court did not make a specific
finding that Lee and Bonbrake were " residing together," roommates necessarily reside together.
Accordingly, this finding supports the trial court' s conclusion that the DVPA applies because
Lee and Bonbrake were household members.
Even if Lee had assigned error to this finding, it was supported by substantial evidence.
In support of her contention that she and Bonbrake did not live together, Lee notes that Bonbrake
testified that she never saw Lee spend the night in the home and that she had not seen Lee before
February 3, 2012. However, Bonbrake also stated that Lee lived in a shed behind the house and
used the house' s bathroom and kitchen. Lee told officers that she had been staying in the house
with Walter Lee' s permission and that she had a bed in the house. This is evidence that could
persuade a rational person that Lee and Bonbrake resided together on the property. Because we
do not evaluate the credibility of witnesses or re -weigh the evidence, the existence of
contradictory evidence is of no consequence to our determination. Snyder, 152 Wash. App. at 779.
Substantial evidence supports the trial court' s finding that Lee and Bonbrake were " roommates."
B. ATTORNEY FEES
Lee argues that the trial court abused its discretion when it awarded attorney fees to
Bonbrake because Lee had no option but to remain silent at the domestic violence protection
order hearing. She also argues that the trial court abused its discretion when it entered the
7
No. 43989 -1 - II
judgment on the amount of attorney fees because she did not receive adequate notice under CR
54. We disagree.
1. Decision To Award Fees
We review a trial court' s decision to grant or deny attorney fees for abuse of discretion.
Roats v. Blakelv Island Maint. Comm' n, Inc., 169 Wn. App. 263, 28' )- 84, 279 P.3d 943 ( 2012).
Under RCW 26. 50. 060( 1)( g), the trial court may require the respondent to a motion for a
domestic violence protection order to pay reasonable attorney fees.
At the May 30 hearing on the motion for a domestic violence protection order, the
commissioner awarded attorney fees under RCW 26. 50.060 because Lee did not present a
defense and therefore the hearing was an unnecessary use of the court' s time. The trial court also
awarded attorney fees under RCW 26. 50. 060 on Lee' s motion to terminate the domestic violence
protection order because it was the second time within two months that Lee had brought the
same matter before the court.
Lee argues that the trial court abused its discretion when it awarded fees for the hearing
on the domestic violence protection order and on the motion to terminate the protection order
because Lee " could not testify at' the hearing on May 30, 2012, without waiving important
constitutional rights." Br. of Appellant at 13. But the record shows that Lee was not required to
choose between presenting a defense and exercising her right to remain silent. The trial court
granted all of her motions to continue and stated that if she had moved to continue again because
of the criminal trial, it would have granted the motion because the court had a policy of allowing
a criminal defendant to first address related issues in the criminal context. Therefore, we hold
that the trial court did not abuse its discretion when it decided to award attorney fees.
No. 43989 -1 - II
2. Entry of Attorney Fee Judgment
Lee argues that the trial court abused its discretion when it entered the order awarding
2, 000 in attorney fees and denied her motion for reconsideration because she presented
evidence that Bonbrake failed to comply with the notice requirement in CR 54. We disagree.
CR 54( f)(
2) provides that "[ n] o order or judgment shall be signed or entered until
opposing counsel have been given 5 days' notice of presentation and served with a copy of the
proposed order or judgment" unless there is an emergency, opposing counsel has approved of the
proposed order or judgment or waived notice, or presentation is made after entry of a verdict and
while opposing counsel is in open court. " The purpose of the rule is to give opposing counsel an
opportunity to object to the form or content of the judgment before it is entered." 4 KARL B.
TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE: CR 54 author' s cmts. at 318 ( 6th ed.
2013).
Initially, the record refutes Lee' s assertion she had no notice of the September 6 hearing
at which the trial court determined the amount of the attorney fee award. At the August 23
hearing the trial court denied Lee' s motion for a new trial, motion to vacate, and motion to
terminate the protective order and also awarded attorney fees to Bonbrake for responding to
Lee' s motion to terminate. The trial court expressly told the parties that the presentation of the
orders would occur in two weeks. The trial court further stated that counsel for Bonbrake would
prepare a fee affidavit and send it to Lee' s counsel, and that the affidavit would be considered at
the presentation hearing.
Bonbrake' s service of the fee affidavit and proposed orders on the day before the attorney
fee hearing failed to comply with CR 54. However, Lee waived her right to object because she
failed to appear at the hearing. The court pointed out that it reviewed the late -provided affidavit
0
No. 43989 -1 - II
only after waiting for over an hour for Lee' s counsel to appear. Had Lee appeared at the hearing,
she could have contested the content or of the fee affidavit and the purposes of CR 54 would
have been satisfied. See 4 TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE: at 318. Her
failure to do so should not enable her to later challenge entry of the award.
Accordingly, we hold that the trial court did not abuse its discretion when it entered the
judgment on the fee award and denied Lee' s motion for reconsideration.
C. COSTS ON APPEAL
Lee also requests her costs on appeal under RAP 14. 2. RAP 14. 2 provides that an
appellate court " will award costs to the party that substantially prevails on review." Because Lee
does not prevail on any appealed issues, we deny her request.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
MAXA, J.
We concur:
10