Maria G. Osorio Mendoza v. Nicholas Denchel ( 2023 )


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  •                                                           FILED
    NOVEMBER 28, 2023
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    MARIA G. OSORIO MENDOZA,                     )          No. 38968-5-III
    )
    Respondent,             )
    )
    v.                             )          UNPUBLISHED OPINION
    )
    NICHOLAS DENCHEL,                            )
    )
    Appellant.              )
    LAWRENCE-BERREY, J. — Nicholas Denchel appeals the superior court’s “Order
    on Motion for Revision.” We affirm.
    FACTS
    Nicholas Denchel and Maria Osorio Mendoza were intimate partners. Ms. Osorio
    Mendoza filed for a domestic violence protection order (DVPO) against Mr. Denchel on
    March 2, 2022. Ms. Osorio Mendoza indicated in the petition that she was a victim of
    domestic violence committed by Mr. Denchel. She requested a temporary and permanent
    DVPO restraining him from contact with herself and her two children.
    In support of the temporary DVPO, Ms. Osorio Mendoza alleged that Mr. Denchel
    threatened to find her and her children and that he would “shoot himself” if she did not go
    No. 38968-5-III
    Osorio Mendoza v. Denchel
    with him. Clerk’s Papers (CP) at 4. Her petition further alleged that she had to change
    her telephone number because he continuously called her if she failed to answer the
    phone or respond to his e-mails. She alleged he would show up at her workplace when
    she failed to answer or respond to him and would demand that she talk to him. She
    described an instance where he appeared at her work during her lunch hour and left
    unwanted gifts on her car, then attempted to grab her by the arm as she refused to talk to
    him and attempted to return to work.
    Ms. Osorio Mendoza attached to her petition copies of e-mails from Mr. Denchel
    where he stated: “F[ ] you. . . . You f[ ] me over. You call[ ] the cops I will shoot at their
    cars since they shoot me.” CP at 8. “I will.die. all because I loved you.” CP at 9. “I
    loved you and me killing myself will.make you pay for f[ ] over me . . . . You let the
    devil win. You didnt fight or let the Lord be your guide snd I did. I want home with my
    father.” CP at 10. “You serving God or the devil?” CP at 14. “Also I’m never going
    away.” CP at 15. “That’s how the devil would want u to say good bye. Every time u
    come closer to me again, the devil sends Alvin in to pull u away from God and u can’t
    deny I’ve been asking us for our future to revolve around our relationship with God.”
    CP at 15. “I’m bringing you home to Christ and to our home again.” CP at 16.
    2
    No. 38968-5-III
    Osorio Mendoza v. Denchel
    On March 2, the court issued a temporary DVPO pending a hearing. On
    March 14, the court reissued the temporary DVPO. The next day, Mr. Denchel’s attorney
    filed a notice of appearance.
    The hearing on the petition occurred on March 28, before Commissioner Diana
    Ruff. When the hearing started, Mr. Denchel, through counsel, moved for a two-week
    continuance to prepare and send written discovery to Ms. Osorio Mendoza. When asked
    by the court, Ms. Osorio Mendoza said she opposed the continuance, adding that she had
    missed two days of work already, and all she wanted was to be able to go to work without
    being worried about her safety.
    The commissioner denied Mr. Denchel’s request for a continuance. She noted that
    Mr. Denchel had been served one month earlier, that his attorney had appeared in the case
    two weeks earlier, and yet had filed nothing since that time. Also, she determined that
    Ms. Osorio Mendoza would be prejudiced by a continuance because she had already
    missed work and she should not be required to miss additional work.
    The commissioner asked Ms. Osorio Mendoza if she had anything to say in
    addition to her petition, and Ms. Osorio Mendoza responded that she did not. The
    commissioner then gave Mr. Denchel an opportunity to speak. Through counsel, Mr.
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    No. 38968-5-III
    Osorio Mendoza v. Denchel
    Denchel argued that the petition did not set forth facts supporting the statutory definition
    of domestic violence.
    The commissioner disagreed and explained that the petition included messages
    from Mr. Denchel that showed “a pattern of controlling and abusive messages threatening
    suicide” and that some messages “threatened homicide.” Rep. of Proc. at 9. The
    commissioner noted that there was no official response from Mr. Denchel in the record.
    The commissioner entered a permanent DVPO and an order requiring Mr. Denchel to
    surrender his firearms and dangerous weapons, and prohibiting him from possessing such
    weapons.
    On April 6, Mr. Denchel filed a motion for revision of “the Commissioner’s order
    entered on March 28, 2022 granting Petitioner’s request for a [DVPO].” CP at 33. He
    did not seek revision of the other order of that same date or of the commissioner’s oral
    ruling denying a continuance.
    On May 16, the court entered its order, which stated:
    Motion for Revision is hereby: DENIED without oral arguments.
    Commissioner Ruff correctly found that [Mr. Denchel’s] texts of
    threats to kill and offensive language constated [sic] acts of domestic
    violence as defined by RCW 26.50.010(3). Furthermore, Commissioner
    Ruff’s decision to not allow a continuance [was] within her discretion.
    With [Mr. Denchel’s] text “I’m bringing you home to Christ and to our
    home again” and multiple “F” words, a continuance would not have negated
    [Mr. Denchel’s] own words.
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    No. 38968-5-III
    Osorio Mendoza v. Denchel
    CP at 36.
    Mr. Denchel timely appealed.
    ANALYSIS
    FIRST ARGUMENT: APPLICATION OF IMPROPER STANDARD OF REVIEW
    Mr. Denchel contends the superior court erred by applying the wrong standard of
    review to his motion for revision. We disagree.
    All commissioner decisions are subject to revision by the superior court. WASH.
    CONST., art. IV, § 23. “Such revision shall be upon the records of the case, and
    the findings of fact and conclusions of law entered by the court commissioner . . . .”
    RCW 2.24.050. The superior court reviews commissioner’s decisions de novo. State v.
    Ramer, 
    151 Wn.2d 106
    , 113, 
    86 P.3d 132
     (2004). This right ensures litigants that
    disputed decisions are made by elected judges.
    If the superior court is content with the commissioner’s decision, the court may
    adopt the commissioner’s findings, either expressly or by clear implication from the
    record. In re Dependency of B.S.S., 
    56 Wn. App. 169
    , 170, 
    782 P.2d 1100
     (1989).
    We disagree that the superior court failed to review the commissioner’s decision
    de novo. Appellate courts review trial court findings for substantial evidence. See, e.g.,
    In re Determination of Rights to Use of Surface Waters of Yakima River Drainage Basin,
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    No. 38968-5-III
    Osorio Mendoza v. Denchel
    
    198 Wn.2d 687
    , 722, 
    498 P.3d 911
     (2021). With respect to the DVPO, there is nothing in
    the superior court’s order that applies a substantial evidence standard. Rather, the
    superior court, per its prerogative, expressed its agreement with the commissioner’s
    decision.
    With respect to the commissioner’s denial of the continuance request, the superior
    court’s comments were mere surplusage. Mr. Denchel’s motion for revision did not
    encompass the commissioner’s oral denial of his continuance request.
    SECOND ARGUMENT: DUE PROCESS VIOLATION BY PREDETERMINING CASE
    Mr. Denchel next argues he was deprived of a fair hearing because the superior
    court judge predetermined his case. He cites the judge’s comment, “a continuance would
    not have negated the Respondent’s own words.” CP at 36. We disagree that the superior
    court judge predetermined Mr. Denchel’s case.
    Mr. Denchel’s argument implies a belief that he was entitled to present additional
    evidence to the superior court. If that is his belief, he is mistaken. See Ramer, 
    151 Wn.2d at 113
     (superior court reviews commissioner’s decision based upon evidence and
    issues presented to commissioner).
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    Osorio Mendoza v. Denchel
    The superior court judge’s comment was made after the judge considered all of the
    evidence, in the context of issuing its final order. One can hardly point to a comment
    made in a final order as evidence that the judge improperly predetermined the case.
    FINAL ARGUMENT: INSUFFICIENT EVIDENCE
    Mr. Denchel argues substantial evidence does not support the trial court’s
    conclusion that he committed domestic violence. He raises two arguments in this respect.
    Mr. Denchel first argues he never threatened to kill Ms. Osorio Mendoza. We
    disagree. The evidence in Ms. Osorio Mendoza’s petition paints a picture of a man who
    refused to stop calling or texting her, who showed up at her work uninvited, threatened to
    kill himself to pay her back for f[ ] him over, expressed a desire to go home and be with
    his father, threatened to kill police if she called them, and claimed that the devil
    controlled her. In this context, the text, “‘I’m bringing you home to Christ and to our
    home again,’” might reasonably convey the threat to kill himself and her. CP at 36.
    Mr. Denchel next argues that his profane-laced messages and his text, “‘I’m
    bringing you home to Christ and to our home again,’” constituted constitutionally
    protected speech. CP at 36. He fails to provide any analysis or citation of authority in his
    conclusory argument. We decline to address it.
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    No. 38968-5-111
    Osorio Mendoza v. Denchel
    An appellate court may decline to consider a constitutional issue with respect to
    which it has not been provided with reasoned argument; naked castings into the
    constitutional sea are insufficient to command judicial consideration and discussion.
    Ass 'n of Wash. Bus. v. Dep 't ofRevenue, 
    155 Wn.2d 430
    , 450, 
    120 P.3d 46
     (2005).
    Affirmed.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to
    RCW 2.06.040.
    Lawrence-Berrey, J.            -         )
    WE CONCUR:
    ``-.:r;
    Fearing, C.J:                             Pennell, J.
    8
    

Document Info

Docket Number: 38968-5

Filed Date: 11/28/2023

Precedential Status: Non-Precedential

Modified Date: 11/28/2023