Asking for additional Time considered stalking in WA

[4honor]

DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division I
                               State of Washington

                            Opinion Information Sheet

Docket Number:       56152-9-I
Title of Case:       Saiyin Haggerty, Respondent v. T. Bret Haggerty, Appellant
File Date:           04/17/2006


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      04-3-00375-3
Judgment or order under review
Date filed:     04/20/2005
Judge signing:  Hon. Joan B Allison


                                     JUDGES
                                     ------
Authored by Susan Agid
Concurring: Anne Ellington
            C. Kenneth Grosse


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            T. Bret Haggerty (Appearing Pro Se)
            13222 29th Avenue S.E.
            Mill Creek, WA  98012

Counsel for Respondent(s)
            Karma L Zaike
            Michael W Bugni & Associates
            11320 Roosevelt Way NE
            Seattle, WA  98125-6228


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of    )
                                                 ) No. 56152-9-I
SAIYIN PHASAVATH, f.k.a.           )
SAIYIN HAGGERTY,                     ) DIVISION ONE
                                                 )
             Respondent,                  )
                                                 )
          and                                  )
                                                 )
THOMAS BRET HAGGERTY,          ) UNPUBLISHED OPINION
                                                 )
             Appellant.                      ) FILED: April 17, 2006
                                                 )

     PER CURIAM - The trial court issued a protection order against Bret Haggerty.  He appeals, arguing that insufficient evidence supports the trial court's factual findings and its conclusion that he engaged in domestic violence against his ex-wife, Saiyin.  Although he presents a close question, the evidence is sufficient to support the court's determination that Haggerty stalked Saiyin.  The trial court did not abuse its discretion by issuing the protection order.  We affirm.

FACTS

     On February 1, 2005, Saiyin Phasavath, f.k.a. Saiyin Haggerty,
(Saiyin) filed a petition for an order of protection against her ex-husband
and the father of two of her children, Bret Haggerty (Bret).*1  Saiyin
stated in her petition that Bret relentlessly harassed her by phone and in
person.  She claimed he constantly pressured her for time with the children outside of that provided in the parenting plan, and that he continued to violate the plan by keeping the children longer than allowed or showing up at their schools to see them during the week.*2  She stated that Bret's demeanor intimidated her and that she feared him because of his conduct.  A court commissioner entered a temporary order and set a return hearing for February 15.

     On February 9, Bret filed a motion to dismiss the petition and realign
the parties.  He disputed Saiyin's claims, arguing none of his actions
constituted domestic violence and Saiyin actually caused most of the
conflict.   At the February 15 hearing, the court commissioner dismissed
Bret's motion but considered his declaration supporting his motion as his
response to Saiyin's petition.  As in his declaration, Bret argued at the
hearing that none of his conduct amounted to domestic violence, and he was in fact the victim of domestic violence by Saiyin.  The commissioner issued the protection order and awarded Saiyin $500 in attorney fees.

     Bret moved to revise the order, and the trial court held a hearing on
March 30, 2005.  Judge Michael Spearman denied the motion and awarded Saiyin $500 in attorney fees.  He concluded that a preponderance of the evidence showed Bret engaged in domestic violence against Saiyin by stalking her.

DISCUSSION

I.  Sufficiency of the Evidence*3   Bret argues that the trial court erred
by issuing the protection order because the  evidence was insufficient to
support it.  We review the trial court's decision to grant or deny a
protection order for abuse of discretion.*4  A trial court abuses its
discretion when its decision is manifestly unreasonable or based on
untenable grounds.*5  We determine whether the trial court's findings are supported by substantial evidence in the record, and, if so, whether those findings support the conclusions of law.*6  Substantial evidence is that sufficient to persuade a fair-minded person of the truth of the asserted premise.*7   Substantial evidence may support a finding of fact even if the reviewing court could interpret the evidence differently.*8

     A protection order is a civil remedy.*9  Civil cases require proof of
the statutory elements by a preponderance of the evidence.*10  After notice and a hearing, RCW 26.50.060 authorizes the court to issue a protection order.*11  A party seeking a protection order must "allege the existence of domestic violence() and . . . (declare) the specific facts and circumstances from which relief is sought."*12  Here, the Order for Protection states the trial court "finds that the respondent committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner . . . ."  RCW 26.50.010 defines domestic violence as:

(a) Physical harm, bodily injury, assault, or the infliction of fear of
imminent physical harm, bodily injury or assault, between family or
household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.

     The trial court commissioner issued the protection order because she
found Bret had a pattern of taking "extreme measures to inflict himself" on Saiyin and the children,  based on his multiple harassing phone calls and "at least 11" unfounded referrals to Child Protective Services (CPS).  She also found he failed to comply with the parenting plan and violated the February 1 temporary protection order by having his mother call Saiyin to request visitation.  She ruled that Saiyin had a reasonable fear of Bret's continued "infliction of imminent physical harm or assault on her and the children directly and/or indirectly."

     In denying Bret's motion for revision, Judge Spearman found that the
evidence was "sufficient to conclude by a preponderance of the evidence
that (Bret) did engage in domestic violence against (Saiyin) by committing the act of stalking as it is defined in RCW 9A.46.110."  He cited an April 2004 letter from Saiyin to Bret as putting him on notice that she considered his conduct, particularly his multiple phone calls, to be harassment.  Judge Spearman also cited Bret's failure to follow the
parenting plan and repeated CPS referrals as further proof of harassment.

     Substantial evidence supports the majority of the trial court's
findings.  The parenting plan authorized Bret to talk by phone with the
boys on Sunday and Wednesday evenings from 7:00 to 7:45 p.m.  It granted him visitation rights for one weekend per month, from 4:00 p.m. Friday until 7:00 p.m. Sunday, along with various birthdays, holidays, and school vacations.  Saiyin sent Bret a letter on April 22, 2004, indicating her concerns about the increasing conflict between them and specifically telling him that his frequent phone calls and messages were not welcome.

She told him he could talk to the boys as provided in the parenting plan
and he should not call her more than once a day.  In support of her
petition, she claimed that he ignored this letter and continued to call
outside of the designated times and harass her.  Bret denied making
frequent and harassing calls, but we will not disturb the commissioner's
credibility determinations.*13

     Bret's various letters to Saiyin and/or her attorney between August
2004 and January 2005 establish that he consistently tried to pressure
Saiyin into giving him more time with the children than was provided in the parenting plan.  They also demonstrate his willingness to threaten legal action to get what he wants.  For example, on October 4, 2004, Bret wrote Saiyin telling her that he would be in her area working on his house for most of October and November.  He asked if they could "work out a more appropriate visitation schedule between us or do we need to go before a court.  Every other weekend I feel would be appropriate during this time frame and some time during the week.  What are you willing to work on?"  He then says "Your position that I cannot take TJ and Sam out of school and the daycare during the week for lunch is violating my rights as their father. . . . If you will not take care of this on your own I will have no choice but to take legal action against you."

     The CPS Status Report lists 18 referrals since November 2000.  It
identifies Bret as making nine of the referrals.  Of those nine, four
resulted in investigations or safety assessments, and CPS ultimately deemed only one of those four as unfounded.  CPS took his other five referrals as information only and did not investigate.*14  The evidence does not support the commissioner's specific finding that he made at least 11 unfounded referrals to CPS.  But it does show that he made repeated CPS referrals. We cannot say that the trial court erred by considering the sheer number of referrals along with his other conduct in finding that he harassed Saiyin.

     Substantial evidence does not support the commissioner's finding that
Bret failed to comply with the temporary protection order issued on
February 1, 2005.  The fact that his mother called Saiyin after entry of
the temporary order cannot be imputed to Bret to show that he violated the protection order.  There was no evidence that he instructed his mother to call Saiyin or that he even knew about it ahead of time.  Further, the call his mother made after February 1 was in the course of apparently amicable communications about a possible visit with the grandchildren.  And Saiyin testified that his mother did not call her back after Saiyin told her to contact her attorney from then on.  However, the finding that Bret failed to comply with the temporary protection order was not essential to the ultimate determination that Bret engaged in domestic violence.  Judge Spearman did not even mention the alleged violation of the temporary order in denying Bret's motion for revision.

     Bret contends that his conduct does not satisfy the elements of
domestic violence, specifically, that he "stalked" Saiyin.  RCW 9A.46.110
defines stalking:
(1)  A person commits the crime of stalking if, without lawful authority
and under circumstances not amounting to a felony attempt of another crime:
     (a) He or she intentionally and repeatedly harasses or repeatedly
follows another person; and
     (b) The person being harassed or followed is placed in fear that the
stalker intends to injure the person, another person, or property of the
person or of another person.  The feeling of fear must be one that a
reasonable person in the same situation would experience under all the
circumstances; and
     (c) The stalker either:
     (i) Intends to frighten, intimidate, or harass the person; or
     (ii) Knows or reasonably should know that the person is afraid,
intimidated, or harassed even if the stalker did not intend to place the
person in fear or intimidate or harass the person.

"Harasses" means "unlawful harassment" as defined in RCW 10.14.020. *15

     (1) "Unlawful harassment" means 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.  The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.

     (2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose.  "Course of conduct" includes, in addition to any
other form of communication, contact, or conduct, the sending of an
electronic communication.  Constitutionally protected activity is not
included within the meaning of "course of conduct."

     Bret's knowing and willful conduct, typified by his frequent phone
calls outside the parenting plan's designated times and his constantly
pressuring her for additional time with the children, annoyed and harassed Saiyin such that it qualified as "unlawful harassment."*16  He knew or should have known that she felt harassed by his conduct.  The record indicates that they were in continuous conflict over the last several years, especially concerning the children.  And in her April 2004 letter, Saiyin explicitly told him she was concerned about the increasing conflict and annoyed with the repeated phone calls.

     It is less clear that Bret's conduct placed Saiyin in fear that he
intended to injure her.  While his phone calls, letters, and CPS referrals
constitute harassment, they are not in and of themselves evidence that Bret placed Saiyin in fear of being injured.  However, in a June 2004
declaration, Saiyin said Bret made exchanges of the children as difficult
as possible.  She said that he "regularly invades my personal space during exchanges just to be physically intimidating to me."  Leslie Jones, one of Saiyin's Bank of America co-workers, stated that she and other co-workers noticed Saiyin was "frightened" whenever Bret came to the bank or called or faxed her at the bank about doing something for the children.  Jones stated that Saiyin knew Bret would be mad if Saiyin did not respond to him as quickly as possible.  Further, at the February 15 hearing, Saiyin's attorney stated there was a history of "physical violence which is not referenced in any of the paperwork here because it happe(ned) before the parenting plan was entered."*17  Although the evidence is not overwhelming, it is enough to support the trial court's finding that Saiyin had a fear of injury that a reasonable person would experience under the same circumstances.  We cannot say the trial court erred in finding as it did.*18

     In sum, substantial evidence supports the court's determination that
Bret stalked Saiyin and thus engaged in domestic violence against her.*19 The court did not abuse its discretion by issuing the protection order.*20

II.  Cross-Examination

     Bret also argues that the commissioner denied him his constitutional
right to confront and cross-examine the witnesses against him.  He contends the commissioner erred by cutting short his cross-examination of Saiyin during the February 15 hearing.  Saiyin testified briefly, and only about Bret's mother's calls seeking visitation with the children.  On cross-examination, the commissioner ordered Bret to look at her rather than at Saiyin while he questioned Saiyin in order to prevent intimidation.*21  Bret asked several questions about the calls between his mother and Saiyin.  He elicited that his mother had not called Saiyin after Saiyin told her to call her attorney in the future.  The commissioner then inquired whether the parenting plan provided for visitation between the children and Bret's mother.  When Bret
said no, the commissioner ended his cross-examination.

     We will not disturb the trial court's limitation of the scope of cross-
examination unless it is the result of manifest abuse of discretion.*22
Saiyin's testimony was quite limited.  Bret had already asked her several
questions about his mother's calls.  Apparently the commissioner thought
that further explanation of the calls was irrelevant given that Bret's
mother had no visitation rights under the plan.  Bret had already
established that his mother had not called Saiyin back once she knew Saiyin wanted her to go through her attorney.  He fails to explain why further questioning was necessary.  The commissioner properly limited Bret's cross-examination.

Attorney Fees

     Saiyin requests attorney fees on appeal, citing RAP 18.1, RCW
26.09.140,23 and RCW 26.50.060(1)(g).  Under RAP 18.1, we may award attorney fees "(i)f applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, before either the Court of Appeals or Supreme Court . . . ."  Under RCW 26.50.060(1)(g), we may award fees to a party who obtains a protection order.*24  We grant Saiyin her reasonable attorney fees and costs on appeal.

     The trial court is affirmed.

     For the Court*:

1 On January 31, 2005, Bret obtained an ex parte temporary restraining
order (TRO) against Saiyin. It is unclear exactly what happened to this
order.  Initially a show cause hearing on the TRO was set for February 11, but this was changed to the next day, February 1.  On February 1, the parties appeared in court, and Saiyin petitioned for the order of
protection against Bret.  The trial court commissioner entered a temporary order of protection for Saiyin and apparently dismissed Bret's restraining order, although there is no record showing that the restraining order was even discussed.

2 A parenting plan entered in Montana states that the children will reside
with Saiyin.  It granted Bret various visitation rights.

3 As a preliminary matter, Bret argues that the trial court commissioner
erred by striking as untimely his motion to dismiss the petition and
realign the parties.  But he fails to show how this alleged error
prejudiced him.  The commissioner stated both during the hearing and in the docket judgment that although she struck Bret's motion, she considered his declaration supporting his motion as his response to Saiyin's petition for the protection order.  Judge Spearman stated that he considered Bret's pleadings in denying his motion to revise the protection order.  If his pleadings were insufficient to defeat Saiyin's petition for a protection order, they would not have been sufficient to support his motion to dismiss her petition and realign the parties.

4 RCW 26.50.060(1); Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002).

5 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).

6 Scott v. Trans-Sys., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003) (citing
Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986)).

7 Pilcher v. Dep't of Revenue, 112 Wn. App. 428, 435, 49 P.3d 947 (2002), review denied, 149 Wn.2d 1004 (2003).

8 Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 314 P.2d 622 (1957)).

9 City of Tacoma v. State, 117 Wn.2d 348, 351-52, 816 P.2d 7 (1991).

10 Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995).

11 Spence v. Kaminski, 103 Wn. App. 325, 331, 12 P.3d 1030 (2000).

12 RCW 26.50.030(1).

13 We defer to the trier of fact on the persuasiveness of the evidence,
witness credibility, and conflicting testimony.  State v. Ainslie, 103 Wn.
App. 1, 6, 11 P.3d 318 (2000) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)).

14 Seven of the 18 referrals do not identify the referrer.  Saiyin and a
daycare employee, respectively, made the other two referrals.

15 RCW 9A.46.110(6)(b).

16 Bret claims that he frequently contacted Saiyin because he has a constitutional right to associate with his children and she was not providing him access to them as required in the parenting plan.  But Bret can address this problem through the courts without harassing Saiyin.  And there is no lawful reason for him to insist on spending time with the children beyond what is provided in the parenting plan.  If he wants more time with them he must pursue available legal avenues to amend the parenting plan.

17 Courts may consider Saiyin's attorney's allegations because the rules of evidence need not be applied to protection order proceedings.  ER
1101(c)(4).

18 See Pilcher, 112 Wn. App. at 435.

19 On appeal, Bret continues to focus on Saiyin's actions rather than his
own in arguing against the protection order.  While the record shows that
both parties engaged in inappropriate behavior, we again note that for
purposes of her petition, Saiyin needed only to prove by a preponderance of the evidence that Bret's actions constituted domestic violence.

20 Bret also contends the protection order modifies the parenting plan and eliminates his spring, summer, and winter vacation visitation time.  But the order requires that the parties follow the parenting plan despite the terms of the order.  It explicitly states '(t)his order does not modify or change the parenting plan,' and that '(t)he parenting plan entered in
Montana remains in effect.'  Bret's concerns likely arise from paragraph 15 of the order, which states in part that his 'contact with the children
shall be only as set forth in the parties' Parenting Plan, specifically one
weekend per month, provided that the Mother receives . . . 14 days advance notice from the Father.'  But paragraph 15 mentions the weekend visitation rights not to the exclusion of the plan's other visitation rights, but in order to designate specific methods and drop off/pick up locations for the weekend visitations to prevent contact between the parties.  The order does not modify the parenting plan.

21 Bret cites nothing to support his claim that this requirement violated
his constitutional rights.

22 State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) (citing State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984), review denied, 471 U.S. 1094 (1985)).

23 RCW 26.09.140 does not provide a basis upon which we may award fees in this case.  It states a court may award attorney fees for 'any proceeding under this chapter,' but Chapter 26.09 RCW covers dissolution of marriage. This is a protection order proceeding commenced long after the parties divorced.

24 Gourley v. Gourley, 124 Wn. App. 52, 59, 98 P.3d 816 (2004), review
granted, 154 Wn.2d 1012 (2005).

[FatherTime]

This typifies the gender discrimination issue for me.  
The following would mean that I could get a restraining order to prevent the mother of my daughter moving away.  Proof of prior and continuing acts...PLUS she "ANNOYS" me.  

"Harasses" means "unlawful harassment" as defined in RCW 10.14.020. *15

(1) "Unlawful harassment" means 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. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.

-----------------------
But the court would file a restraining order keeping me from court, because I ANNOY them. I have no lawful or legitimate purpose in court, except to pay child support.

Nothing according to them that I bring to court is legitimate: wrong forum, no significant change of circumstances, not contempt by her (so they take away time with my child to emphasize that I am not supposed to file for contempt), wrong sex to file for custody.  (ranting)

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