Patrick J. D'abbracci, V. Dana F. D'abbracci ( 2022 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    In the Matter of the Marriage of:                  )      No. 82638-7-I
    )
    PATRICK JOHN D’ABBRACCI,                           )      DIVISION ONE
    )
    Respondent,                )      UNPUBLISHED OPINION
    )
    v.                                 )
    )
    DANA F. D’ABBRACCI,                                )
    )
    Appellant.                 )
    )
    HAZELRIGG, J. — Dana D’Abbracci challenges the trial court’s entry of a
    permanent restraining order protecting her former spouse, Patrick D’Abbracci, and
    his children.1 Dana does not establish the trial court abused its discretion by
    entering the order or denying Dana’s motion to reconsider it. Therefore, we affirm.
    FACTS
    Dana and Patrick married in August 2017. They have no children together,
    though Patrick has three children from a prior relationship. In December 2019,
    Patrick petitioned for dissolution of the parties’ marriage and requested a fair and
    equitable distribution of property and debts, as well as a restraining order.
    A dissolution trial took place over two days in November 2020. Disputed
    1Because the parties share a last name, we refer to them by their first names for clarity.
    We intend no disrespect.
    Citations and pinpoint citations are based on the Westlaw online version of the cited material.
    No. 82638-7-I/2
    issues included the distribution of various financial accounts and personal
    property, valuation of the parties’ Edmonds home, and Dana’s request for spousal
    maintenance. Specifically, Dana requested $6,000 per month in maintenance for
    12 months, arguing in her trial brief that she could not find a job because of a
    domestic violence protection order (DVPO) “that was entered related to events on
    December . . . 7, 2019 and a criminal prosecution that was eventually dismissed.”
    She also claimed that her ability to work was limited because of injuries she
    sustained during the December 7, 2019 incident.
    At trial, testimony as to the December 7, 2019 incident was conflicting.
    Patrick claimed that Dana had assaulted him. Meanwhile, Dana testified that she
    called the police because Patrick had assaulted her.         In any case, it was
    undisputed that responding officers ultimately arrested Dana and booked her into
    the Snohomish County Jail. It was also undisputed that Patrick later petitioned for
    and obtained a DVPO protecting himself and his children from Dana.            And,
    although the charges were later dismissed, Dana was charged with fourth degree
    assault, alleged as a crime of domestic violence.
    Dana attested that while she was in jail following her arrest, she noticed
    bruises on her body. When she was released two days later, she went to the
    hospital, where she was examined by a registered nurse, Stephanie Wahlgren,
    who also testified at the dissolution trial. Wahlgren testified that she observed
    bruising on Dana’s legs, right arm, flank, and buttock area. When asked what
    Dana told her about how she received these injuries, Wahlgren responded, “She
    told me that she was in an altercation with her spouse.” On cross-examination,
    2
    No. 82638-7-I/3
    Wahlgren testified that Dana also reported, with regard to the underlying incident,
    that she thought someone had slipped a drug into her drink while she was at a bar
    earlier, and she had a memory lapse from the time she got home until she woke
    up in the back seat of a police car.        Wahlgren described Dana’s injuries as
    “unexplained” and confirmed that Wahlgren herself had no personal knowledge of
    how Dana received them. Dana, through counsel, attempted to admit Wahlgren’s
    report into evidence; however, the trial court excluded it as hearsay. But, the court
    admitted numerous photographs Wahlgren took of Dana’s injuries.
    Dana testified that after the December 7, 2019 incident, she took a domestic
    violence leave from her job as an emergency room (ER) nurse. She testified that
    her employer later terminated her because of her arrest and the DVPO.
    Dana also testified that the DVPO had been hindering her ability to find
    another job, and she believed replacing it with a restraining order would help. She
    testified that Patrick cooperated at her request to have the DVPO dismissed and
    replaced with a temporary restraining order (TRO) in this dissolution proceeding.
    The TRO, which was entered on June 15, 2020 and admitted as an exhibit at trial,
    protected Patrick and his children. The TRO stated that it would end “in 12 months
    or on . . . entry of final divorce order.” (Underlining omitted). It also contained the
    following stipulation: “The parties stipulate that the provisions of this order shall be
    included in a final divorce order unless the parties agree other wise [sic] in
    settlement of the case.” Dana, Patrick, and their respective attorneys each signed
    the TRO, and Dana confirmed at trial that she authorized its entry. Dana also
    testified that although she believed signing the restraining order would help her
    3
    No. 82638-7-I/4
    find work, it was still a problem because “[i]f you have . . . anything mentioned
    about . . . restraints against children, you’re excluded from working with children
    [and] any individuals that would be mentally incapacitated basically, which
    frequently I do as an ER nurse.”
    The trial court issued an oral decision regarding the parties’ dissolution on
    January 22, 2021. After distributing property and assets, it denied Dana’s request
    for maintenance, explaining that among other factors, it “doesn’t find by a
    preponderance of the evidence that [Dana] is unable to work.” Dana, through
    counsel, urged the trial court to reconsider its ruling. Counsel argued that the
    criminal matter, though dismissed, continued to be a “pollutant type of influence on
    [Dana’s] ability to get a job,” and that this “does tie in with the restraining order
    issue.” The trial court adhered to its ruling denying maintenance, indicating it was
    unpersuaded that the restraints were preventing Dana from securing employment
    and that it “just can’t reason with” requiring a person protected under a restraining
    order to pay maintenance based on a claim that the order was denying the
    restrained person the opportunity to work. The court also observed that the parties
    had stipulated to continuing restraints.      It expressed that while it might be a
    “generous gesture” for Patrick to agree that a restraining order not be made part
    of the final dissolution decree, the court was “not in a position to order that that
    take place” given the parties’ stipulation.
    On February 12, 2021, the trial court entered a dissolution decree (decree),
    in which it approved Patrick’s request for a restraining order, and written findings
    of fact and conclusions of law (findings and conclusions). Among these was a
    4
    No. 82638-7-I/5
    conclusion that “[t]he court should approve a Restraining Order because the
    parties stipulated that the provisions of a temporary restraining order entered on
    June 15, 2020 would be included in the Final Divorce Order.” (Emphasis omitted).
    The court simultaneously entered a permanent restraining order prohibiting Dana
    from contacting Patrick and his children.
    Dana, proceeding pro se, moved for reconsideration of the restraining order.
    Dana argued that the order “was entered without [her] permission or consent” and
    that all restraints should have terminated upon entry of the decree. On April 12,
    2021 the trial court denied her motion for reconsideration, stating,
    Petitioner’s Exhibit 7 admitted without objection at trial contained a
    stipulation signed by the parties and their attorneys, that the
    provisions of the [TRO] shall be included in a final Divorce Order
    unless the parties agree otherwise in the settlement of the case.
    [Dana] testified at trial that she signed the stipulation because she
    believed the restraining order, unlike the DVPO, would help her get
    employment.
    Dana appeals.
    ANALYSIS
    I.     Decisions Under Review
    We note at the outset that in her notice of appeal, Dana designated not only
    the trial court’s April 12, 2021 order denying her motion for reconsideration, but
    also (1) the trial court’s February 12, 2021 decisions (the findings and conclusions,
    the decree, and the permanent restraining order), (2) the June 15, 2020 TRO, and
    (3) a June 15, 2020 order, entered in a separate proceeding, terminating the
    DVPO. Before addressing the merits of Dana’s appeal, we must determine which
    of these decisions are properly before us for review.
    5
    No. 82638-7-I/6
    Dana filed her notice of appeal on May 11, 2021. A notice of appeal is
    timely if it is filed in the trial court within 30 days after the entry of the decision that
    the party filing the notice wants reviewed or denial of a timely motion for
    reconsideration. RAP 5.2(a), (e); see also Stedman v. Cooper, 
    172 Wn. App. 9
    ,
    14, 
    292 P.3d 764
     (2012) (“[A] timely motion for reconsideration in the trial court will
    extend [the time to file a notice of appeal] until 30 days after entry of the order
    deciding that motion.”).
    Dana’s notice of appeal was not timely with regard to either the TRO or the
    order terminating the DVPO, each entered almost a year earlier. Furthermore, the
    record does not show that any notice of appeal was filed in the separate
    proceeding in which the DVPO was entered, and a TRO is not, in any event, a final
    judgment appealable as a matter of right. See RAP 2.2(a) (listing the types of
    superior court decisions that are appealable as a matter of right); see also State
    ex. rel. Carroll v. Simmons, 
    61 Wn.2d 146
    , 149, 
    377 P.2d 421
     (1962) (temporary
    order merges into the final judgment, rendering any challenge to the temporary
    order moot). For the foregoing reasons, the June 15, 2020 orders are not properly
    before us for review.
    Dana’s notice of appeal also was not filed within 30 days of the trial court’s
    entry of the February 12, 2021 decisions, i.e., the findings and conclusions, the
    decree, and the restraining order. However, Dana’s notice of appeal was filed
    within 30 days after the trial court entered its order denying Dana’s timely motion
    for reconsideration of the restraining order. So, Dana’s notice of appeal was timely
    with regard to both the restraining order and the order denying reconsideration.
    6
    No. 82638-7-I/7
    And although Dana’s notice of appeal was not timely with regard to the findings
    and conclusions and the decree, these decisions convey the trial court’s
    determination that a restraining order should be approved. We may review this
    determination because it prejudicially affects the restraining order. See RAP 2.4(b)
    (appellate court will review a trial court order or ruling if it “prejudicial affects” the
    decision designated in the notice of appeal and is made before the appellate court
    accepts review); Adkins v. Alum. Co. of Am., 
    110 Wn.2d 128
    , 134, 
    750 P.2d 1257
    (1988) (ruling prejudicially affects a decision if the decision would not have
    occurred absent the ruling).
    In sum, the only trial court decisions properly before us for review are the
    permanent restraining order, the order denying reconsideration of that order, and
    the trial court’s determination, conveyed in the decree and the findings and
    conclusions, that a restraining order should be approved. To the extent Dana
    challenges other aspects of the decree and the findings and conclusions, entry or
    termination of the DVPO, or the TRO, we do not consider those challenges.
    II.    Restraining Order
    Dana contends that the trial court erred by entering the permanent
    restraining order. We disagree.
    We review a trial court’s decision to impose a restraining order for abuse of
    discretion. In re Marriage of Freeman, 
    169 Wn.2d 664
    , 671, 
    239 P.3d 557
     (2010).
    “‘A trial court abuses its discretion if its decision is manifestly unreasonable or
    based on untenable grounds or untenable reasons,’” or if it bases a discretionary
    ruling on an error of law. In re Marriage of Muhammad, 
    153 Wn.2d 795
    , 803, 108
    7
    No. 82638-7-I/
    8 P.3d 779
     (2005) (quoting In re Marriage of Littlefield, 
    133 Wn.2d 39
    , 46–47, 
    940 P.2d 1362
     (1997)); Lopez-Stayer ex. Rel. Stayer v. Pitts, 
    122 Wn. App. 45
    , 51, 
    93 P.3d 904
     (2004).
    As a pro se litigant, Dana is held to the same standard as an attorney and
    must comply with all procedural rules on appeal. In re Marriage of Olson, 
    69 Wn. App. 621
    , 626, 
    850 P.2d 527
     (1993). Among these rules is RAP 10.3(a)(4), which
    requires the appellant to assign error to “each error [the appellant] contends was
    made by the trial court.” RAP 10.3(a)(6) further requires an appellant to provide
    “argument in support of the issues presented for review, together with citations to
    legal authority and references to relevant parts of the record.”
    Here, Dana argues that the restraint provisions of the TRO should have
    terminated upon entry of the decree.          But this argument ignores the parties’
    stipulation—as expressly set forth in the TRO and signed by both the parties and
    their attorneys—that the TRO’s provisions would be included in the decree. And
    as Patrick points out, Dana does not assign error to the trial court’s conclusion that
    it should approve a restraining order based on this stipulation.
    Furthermore, Dana provides no legal authority or meaningful analysis to
    support the proposition that the trial court either misinterpreted or should have
    ignored the stipulation. Cf. Baird v. Baird, 
    6 Wn. App. 587
    , 589, 
    494 P.2d 1387
    (1972) (agreement signed by the parties or their attorneys is generally binding on
    the parties). Similarly, to the extent Dana asserts as she did below that she
    entered into the agreement based on an incorrect belief that it would help her find
    employment, she cites no authority for the proposition that the trial court abused
    8
    No. 82638-7-I/9
    its discretion by not setting the stipulation aside on that basis, particularly where
    the court was unpersuaded that the restraints rendered Dana unable to work. Cf.
    Stevenson v. Hazard, 
    152 Wash. 104
    , 109, 
    277 P. 450
     (1929) (decision whether
    to relieve a party from a stipulation is in the trial court’s discretion); Lavigne v.
    Green, 
    106 Wn. App. 12
    , 20, 
    23 P.3d 515
     (2001) (declining to set aside settlement
    agreement based on party’s assertion that settlement amount turned out to be
    wholly insufficient to meet obligations associated with settled claim). Dana does
    not establish that the trial court abused its discretion by entering the permanent
    restraining order based on the parties’ stipulation.
    Dana raises a number of additional arguments in support of reversal,
    several of which are premised on an assertion that Patrick “brutally assaulted”
    Dana, who was the “actual abuse victim[],” and that the trial court erred to the
    extent that it did not so find. But as discussed, there was conflicting testimony as
    to the December 7, 2019 incident, including testimony that Dana herself had no
    memory of the alleged assault. It was within the exclusive province of the trial
    court to evaluate witness credibility, weigh the evidence, and determine that the
    evidence did not support a finding that Patrick assaulted Dana. That determination
    will not be disturbed on appeal. See Ives v. Ramsden, 
    142 Wn. App. 369
    , 382,
    
    174 P.3d 1231
     (2008) (“[W]e do not weigh evidence or render judgments regarding
    witness credibility; that is the exclusive province of the trier of fact.”).
    Also, Dana largely fails to cite relevant legal authorities or provide
    meaningful analysis in support of her various arguments on appeal. She further
    fails to explain why a number of the trial court’s alleged errors require reversal of
    9
    No. 82638-7-I/10
    the restraining order given that the court based its entry of the order entirely on the
    parties’ agreement. The foregoing failures are fatal to Dana’s appeal. See Cook
    v. Brateng, 
    158 Wn. App. 777
    , 794, 
    262 P.3d 1228
     (2010) (“Appellate courts need
    not consider arguments that are unsupported by pertinent authority, references to
    the record, or meaningful analysis.”); see also Brown v. Spokane County Fire Prot.
    Dist. No. 1, 
    100 Wn.2d 188
    , 196, 
    668 P.2d 571
     (1983) (“[E]rror without prejudice
    is not grounds for reversal.”).      Nevertheless, we address Dana’s individual
    arguments to the extent they are adequately briefed.
    A.     Trial Court’s Oral Ruling
    Dana first asserts that the trial court erred by entering the restraining order
    because it contradicted the trial court’s oral ruling stating, “with regards to the
    restraining order, I’m not going to consider that.”
    Dana takes the trial court’s statement out of context. On the final day of
    trial, the court requested an accounting of jewelry that Dana claimed was still in
    Patrick’s possession. Later, when issuing its oral ruling, the court observed that
    although Patrick had provided the requested accounting, Patrick had also
    submitted information that the court “didn’t ask for,” including an “exhibit regarding
    the restraining order.” When asked to address this, Patrick’s counsel stated, “[I]f
    you want to disregard the information beyond specifically what you requested, I
    don’t . . . think there’s any problem with that . . . . We were just trying to give you
    some . . . more up-to-date information on the status of . . . the restraining order
    issue.” The court then stated, “[W]ith regards to the restraining order, I’m not going
    to consider that; I haven’t even considered that as part of my decision. My decision
    10
    No. 82638-7-I/11
    regarding any issues of the restraining order is solely based on the evidence that
    came up in trial. So I’m disregarding that information.”
    It is clear from the context that the trial court was declining to consider the
    additional information Patrick submitted after trial, not declining to consider the
    restraining order altogether. Dana does not establish any contradiction between
    the trial court’s statement and its entry of the restraining order.
    B.     Evidence of the DVPO
    Dana next contends that because it was later terminated with prejudice, the
    trial court erred by admitting evidence of the DVPO. In support, Dana relies on CR
    41(d) and ER 904. CR 41(d) authorizes an award of costs “[i]f a plaintiff who has
    once dismissed an action in any court commences an action based upon or
    including the same claim against the same defendant.” ER 904 deems certain
    categories of documents admissible if disclosed as provided under that rule.
    Neither of these rules renders evidence of the DVPO inadmissible merely because
    it was terminated with prejudice.
    Dana also argues that Patrick’s filing of a copy of the DVPO in this
    proceeding violated “US Code 1324c.” This appears to be a reference to 8 U.S.C.
    § 1324c, which penalizes document fraud in connection with federal immigration
    proceedings. That statute does not apply to this proceeding. Dana does not
    establish that the trial court erred by admitting evidence of the DVPO.
    11
    No. 82638-7-I/12
    C.        Reliance on Dismissed Criminal Charge
    Next, Dana argues that the trial court erred because it “relied upon
    DISMISSED criminal Domestic Violence 4 charge in Oral Verdict, labeling [Dana]
    as the perpetrator of DV.” (Emphasis in original).
    But contrary to Dana’s assertion, the trial court did not label Dana as the
    perpetrator of domestic violence. The remarks Dana takes issue with were made
    as the court explained its reasoning for not ordering Patrick to pay Dana’s criminal
    defense fees. The trial court observed, accurately, that it was undisputed that
    Dana was the one arrested following the December 7, 2019 incident and that
    charges were later filed against her. The court explained that if there had been
    proof by a preponderance of the evidence that Patrick had assaulted Dana, it might
    be inclined to order Patrick to pay Dana’s criminal defense fees. But, it explained,
    under the evidence presented, that outcome would not be fair or equitable. In
    short, contrary to Dana’s assertions, the trial court was not labeling Dana as the
    perpetrator or finding that she committed domestic violence.                    Instead, it was
    explaining why it could not find that Patrick had committed domestic violence so
    as to justify ordering him to pay Dana’s criminal defense fees.
    D.        Exclusion of Examining Nurse’s Report
    Dana next contends that the trial court erred when it deemed Wahlgren’s
    report inadmissible under ER 8032 and then “negated” Dana’s and Wahlgren’s
    “extensive testimony” regarding Dana’s injuries.
    2   ER 803 sets forth exceptions to the general rule that hearsay is inadmissible.
    12
    No. 82638-7-I/13
    But an evidentiary error does not require reversal unless it is prejudicial, i.e.,
    unless “the error, within reasonable probability, materially affected the outcome.”
    State v. Stenson, 
    132 Wn.2d 668
    , 709, 
    940 P.2d 1239
     (1997). Even assuming the
    trial court erred in concluding that Wahlgren’s report was not admissible under any
    of the ER 803’s hearsay exceptions, reversal is not required because any such
    error would not be prejudicial for three reasons.
    First, although the trial court excluded Wahlgren’s report, it admitted
    Wahlgren’s photographs and allowed Wahlgren to testify as to the injuries she
    observed, as well as what Dana reported to her as to who caused those injuries.
    Therefore, Wahlgren’s report was not prejudicial because it was merely cumulative
    of her testimony. Brown, 100 Wn.2d at 196. Indeed, even Dana acknowledges
    that Wahlgren’s testimony “corresponds with” Wahlgren’s report stating that Dana
    indicated Patrick was her assailant, and that Wahlgren “went into great detail about
    [Dana]’s extensive bruising . . . and the nurse reviewed the 40 pictures she took of
    the extensive bruising to [Dana]’s body.”
    Second, although Dana argues that Wahlgren’s report would have
    contradicted the trial court’s remark that “it is unclear” what caused Dana’s injuries,
    that remark was based on the court’s accurate observation that Wahlgren, who
    had no personal knowledge of the events of December 7, “couldn’t testify as to the
    cause . . . of the injury.” The court’s observation would not have been any less
    accurate had Wahlgren’s report been admitted.
    Finally, as previously discussed, the trial court’s decision to enter the
    restraining order was based on the parties’ stipulation. Consequently, Dana does
    13
    No. 82638-7-I/14
    not establish that there is any reasonable probability that the trial court would have
    ruled any differently regarding the restraining order had it admitted Wahlgren’s
    report.
    E.    Judicial Bias
    Dana argues the trial court “demonstrated clear bias and a presumption of
    [Dana]’s criminal guilt, which was not the subject before the court, when [it]
    repeatedly focused on [Dana]’s arrest the night [Dana] was assaulted.” In support,
    Dana points out that during its oral ruling, the trial court observed that this case
    was a dissolution case, not a domestic violence case. Dana asserts that the trial
    court was biased because despite this observation, the court later referred to the
    undisputed evidence that Dana was the one arrested for the December 7, 2019
    incident “despite the multitude of evidence” detailing Dana’s injuries.
    But again, the trial court’s observations about the undisputed evidence of
    Dana’s arrest and the charges against her were accurate. And as explained
    above, the trial court did not find that Dana had committed domestic violence, but
    made its observations in explaining why it could not find that Patrick had. As also
    explained above, the trial court was within its province to weigh the evidence and
    determine that despite the testimony about Dana’s injuries, the evidence did not
    support a finding that Patrick caused them. The trial court’s observations and
    determinations do not constitute bias. See In re Pers. Restraint of Davis, 
    152 Wn.2d 647
    , 692, 
    101 P.3d 1
     (2004) (“Judicial rulings alone almost never constitute
    a valid showing of bias,” and a party asserting bias must provide “specific facts
    establishing that the trial judge had a personal bias against [that party].”).
    14
    No. 82638-7-I/15
    F.      Cause of Injuries
    Dana next contends that the trial court erred when it “drew conclusion[s]” as
    to how Dana sustained her injuries “absent any evidence to support [its]
    conclusion.”
    Dana’s argument mischaracterizes the trial court’s remarks. While issuing
    its oral ruling, the trial court explained why it could not find by a preponderance of
    the evidence that Patrick was the cause of Dana’s injuries, as Dana claimed. After
    summarizing the testimony indicating that Dana herself had no memory of the
    underlying incident and observing that Wahlgren “couldn’t testify . . . as to the
    cause of the injury,” the trial court stated, “So the evidence before the Court is
    [Dana] sustained some injury, but it is unclear whether that was from a slip-and-
    fall or whether that was from being physically escorted to the ground or removed
    from the property by law enforcement.” Dana asserts these remarks constituted
    unsupported findings by the trial court as to the cause of her injuries.
    But viewed in context, it is clear the trial court was not making a finding as
    to the cause of Dana’s injuries. Instead, the trial court was pointing out that the
    evidence was insufficient to show that Patrick—as opposed to something or
    someone else—caused Dana’s injuries. Dana does not establish that the trial
    court “wrongly” stated that Dana’s injuries resulted from a slip and fall or her
    interaction with law enforcement.
    G.      Representation of Counsel
    As a final matter, Dana claims that her trial counsel “failed in representation”
    with regard to counsel’s performance at trial. But Dana cites no authority for the
    15
    No. 82638-7-I/16
    proposition that in a family law proceeding, an attorney’s alleged “ineffective
    assistance” is a basis for reversal. Cf. Seventh Elect Church In Israel v. Rogers,
    
    34 Wn. App. 105
    , 120, 
    660 P.2d 280
     (1983) (constitutional right to effective
    assistance of counsel applies to criminal proceedings, and “[n]o similar right is
    given to parties in civil actions”).
    Dana also argues that reversal is required because she did not authorize
    her attorney to sign the permanent restraining order and because her attorney
    failed to “correct” the provisions of the findings and conclusions and the decree
    stating that a restraining order should be approved. These arguments fail because
    they are based on flawed premises. First, Dana’s assertion that the findings and
    conclusions and decree required “correction” is based on her assertion that the
    trial court orally ruled that it would not consider the restraining order. But as
    discussed, Dana’s assertion mischaracterizes the import of the trial court’s
    remarks.
    Second, Dana appears to believe that the trial court would not have entered
    the restraining order had her attorney not signed it. But the restraining order was
    an order of the court, entered based on its determination that the parties had
    stipulated to its entry. Although Dana’s attorney’s signature appears on the order,
    Dana does not persuade us that her attorney’s signature was required or that the
    trial court would not have entered the order had Dana’s attorney refused to sign.
    16
    No. 82638-7-I/17
    III.   Motion for Reconsideration
    In addition to arguing that the trial court erred in entering the permanent
    restraining order, Dana asserts that the trial court erred by denying her motion for
    reconsideration of that decision. We disagree.
    “Motions for reconsideration are addressed to the sound discretion of the
    trial court and a reviewing court will not reverse a trial court’s ruling absent a
    showing of manifest abuse of discretion.” Wilcox v. Lexington Eye Inst., 
    130 Wn. App. 234
    , 241, 
    122 P.3d 729
     (2005).
    Here, Dana does not address the standards for reconsideration,3 much less
    establish that the trial court abused its discretion under those standards.
    Additionally, Dana’s arguments regarding the trial court’s denial of reconsideration
    repeat many of her arguments as to why the trial court erred by entering the
    3 Under CR 59, a motion for reconsideration may be granted for the following reasons:
    (1) Irregularity in the proceedings of the court, jury or adverse party, or any order
    of the court, or abuse of discretion, by which such party was prevented from having
    a fair trial;
    (2) Misconduct of prevailing party or jury; and whenever any one or more of the
    jurors shall have been induced to assent to any general or special verdict or to a
    finding on any question or questions submitted to the jury by the court, other and
    different from the juror's own conclusions, and arrived at by a resort to the
    determination of chance or lot, such misconduct may be proved by the affidavits
    of one or more of the jurors;
    (3) Accident or surprise which ordinary prudence could not have guarded against;
    (4) Newly discovered evidence, material for the party making the application, which
    the party could not with reasonable diligence have discovered and produced at the
    trial;
    (5) Damages so excessive or inadequate as unmistakably to indicate that the
    verdict must have been the result of passion or prejudice;
    (6) Error in the assessment of the amount of recovery whether too large or too
    small, when the action is upon a contract, or for the injury or detention of property;
    (7) That there is no evidence or reasonable inference from the evidence to justify
    the verdict or the decision, or that it is contrary to law;
    (8) Error in law occurring at the trial and objected to at the time by the party making
    the application; or
    (9) That substantial justice has not been done.
    17
    No. 82638-7-I/18
    restraining order in the first instance. Because these arguments do not establish
    the trial court erred by entering the restraining order for reasons already discussed,
    they also do not support a conclusion that the trial court abused its discretion by
    denying Dana’s motion for reconsideration.
    In support of her motion for reconsideration, Dana also submitted copies of
    email correspondence between Dana and her attorney, and between the parties’
    respective attorneys, related to the DVPO and the TRO. Dana contends that the
    correspondence shows the DVPO was improperly entered. But the propriety of
    the DVPO was not before the trial court.               Furthermore, much of the
    correspondence on which Dana relies consists of statements made during the
    parties’ unsuccessful efforts to reach a negotiated resolution regarding the DVPO
    and, later, continuing restraints. Dana does not establish that the trial court abused
    its discretion inasmuch as it declined to consider this new evidence. See Martini
    v. Post, 
    178 Wn. App. 153
    , 162, 
    313 P.3d 473
     (2013) (“The decision to consider
    new or additional evidence presented with a motion for reconsideration is squarely
    within the trial court’s discretion.”); see also ER 408 (evidence of conduct or
    statements made in compromise negotiations not admissible to prove liability for
    or invalidity of a claim).
    Dana also requested, on reconsideration, a DVPO protecting her from
    Patrick, alleging that Patrick was stalking her via social media and making false
    claims against her. Dana argues that the trial court erred by ignoring that request.
    But a motion for reconsideration of the restraining order protecting Patrick from
    Dana was not a proper avenue for requesting a DVPO protecting Dana from
    18
    No. 82638-7-I/19
    Patrick, particularly where it does not appear Dana made any such request during
    trial. Cf. Wilcox, 130 Wn. App. at 241 (“CR 59 does not permit a [party] to propose
    new theories of the case that could have been raised before entry of an adverse
    decision.”).4
    We affirm.
    WE CONCUR:
    4   Nothing in our opinion precludes Dana from seeking such an order by appropriate means.
    19