FLYGARE-CADE v. FLYGARE, 147 Wn. App. 1007 (2008)

No. 36809-9-II.The Court of Appeals of Washington, Division Two.
October 21, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 07-2-00891-3, Katherine M. Stolz, J., entered August 31, 2007.

Affirmed
by unpublished opinion per Bridgewater, J., concurred in by Houghton and Armstrong, JJ.

BRIDGEWATER, J.

Gary Robert Flygare appeals from the imposition of and denials of motions relating to a one-year protection order. We affirm.

FACTS
On March 30, 2007, Stephanie Flygare-Cade petitioned Pierce County Superior Court for a protection order against Gary Robert Flygare. In the petition, Flygare-Cade identified Flygare as her grandparent. She indicated that Flygare “wrote a lot of text messages calling me a slut, a prostitute, a whore bag, a failure and a loser.” CP at 4. Flygare then quoted specific text messages that Flygare had sent her. She indicated that she felt threatened by some of Flygare’s text messages, alleging that she received one such text message on March 28, 2007, reading, “come on down to the yard slutlets [sic] see who gets fucked slut.” CP at 4. Flygare-Cade also indicated that Flygare gave her address to “a girl who threatens [her] all the time.” CP at 4.

In a hearing before a superior court commissioner on April 13, 2007, Flygare denied sending Flygare-Cade text messages. He instead insisted that he sent the text messages to Flygare-Cade’s live-in boyfriend, Alex Larios. Flygare argued that he was merely responding to Larios’s text messages. At the hearing, Flygare submitted a history of e-mail and text message exchanges that he had with Flygare-Cade.

After hearing from both Flygare-Cade and Flygare, the commissioner granted a one-year protection order. The protection order required Flygare to participate in domestic violence treatment, under RCW 26.50.150. In rendering his decision, the commissioner found that Flygare’s own evidence supported Flygare-Cade’s allegations. When Flygare realized that the commissioner was granting the protection order, he immediately sought a continuance to obtain counsel. The commissioner denied the continuance and explained that Flygare’s legal remedy was to appeal.

Flygare filed a motion for revision in the superior court on April 23, 2007. He sought reversal of the protection order, alleging that the commissioner erred when he found that: (1) he was Flygare-Cade’s blood relative; (2) he should be restrained from causing physical harm, bodily injury, assault, including sexual assault, and from molesting, harassing, threatening or stalking Flygare-Cade; (3) he should be restrained from contacting Flygare-Cade in any way; and (4) he should be required to participate in a domestic violence treatment program. The superior court denied Flygare’s motion for revision on May 4, 2007.

At some point, Flygare also filed a motion to compel Flygare-Cade to answer interrogatories in the superior court.[1] Both Flygare-Cade and Flygare appeared before the superior court on June 8, 2007. Flygare insisted that should the superior court require Flygare-Cade to answer his interrogatories, it would learn that she did not live at the address she listed on her petition for protection order and that she is not related to Flygare by blood. The superior court listened to Flygare’s argument but denied his motion. In doing so, the superior court stated, “this isn’t a lawsuit. You don’t have a discovery period where you serve interrogatories so I’m not going to order her to answer any interrogatories.” RP (June 8, 2007) at 5-6. The superior court also addressed Flygare’s motion for revision during the hearing. It repeatedly stated that based on all of the materials Flygare submitted, it would not revise or reconsider the superior court commissioner’s decision. It found that the court commissioner had adequate reason to issue the protection order.

Nevertheless, Flygare filed a motion for reconsideration, which this court denied.

ANALYSIS I. Protection Order
Flygare’s primary contention is that the superior court erroneously affirmed the protection order. He maintains that no domestic violence occurred and he and Flygare-Cade are not family or household members under the Domestic Violence Prevention Act.[2] These arguments are unconvincing.

We review the superior court’s decision to grant or deny a protection order for abuse of discretion. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002). A superior court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). We determine whether substantial evidence in the record supports the superior court’s findings, and, if so, whether those findings support the conclusions of law. Scott v. Trans-Sys. Inc., 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)). Substantial evidence is that sufficient to persuade a fair-minded person for the truth of the asserted premise. Pilcher v. Dep’t of Revenue, 112 Wn. App. 428, 435, 49 P.3d 947
(2002), review denied, 149 Wn.2d 1004 (2003). Substantial evidence may support a finding of fact even if the reviewing court could interpret the evidence differently. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).

After notice and a hearing, the Domestic Violence Protection Act authorizes the court to issue a protection order. RCW 26.50.060; Spence v. Kaminski, 103 Wn. App. 325, 331, 12 P.3d 1030 (2000). 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.” RCW 26.50.030(1). Here, the protection order states the superior court “finds that [Flygare] committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner.” CP at 8. RCW 26.50.010(1) 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 commissioner issued the protection order based on Flygare’s own evidence, including the hard copies of numerous text messages and e-mails. The commissioner found the content of this evidence “very, very offensive.” CP at 80. He stated, “[a]gain, it’s a situation where the evidence submitted by Gary Flygare concerns me more even though it’s your testimony . . . I don’t have any doubts at all that I want to be entering an order saying there should be no contact. There’s something that’s not right.” CP at 83.

Indeed, substantial evidence supports the superior court’s findings. Nearly all of the text messages submitted refer to Flygare-Cade and/or Larios as “sluts.” See CP at 20-30. And several text messages inquire into the sexual behavior of Flygare-Cade in a derogatory manner. The record includes 43 text messages alone that Flygare sent on March 28 See CP at 20-30.

The e-mails that Flygare sent to Flygare-Cade are disturbing. And in support of her petition for a protective order, Flygare-Cade claimed that Flygare, wrote “a lot of text messages calling me a slut, a prostitute, a whore bag, a failure and loser.” CP at 4. She also indicated that he sent threatening text messages and gave her home address “to a girl who threatens [her] all the time.” CP at 4. Flygare denied that he intended to send the text messages to Flygare-Cade. He insisted that all of the text messages were between him and Larios. But the commissioner found Flygare-Cade’s testimony more credible. And it is well-established that “[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal.” State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
(1990). There is substantial evidence to support the commissioner’s finding that domestic violence occurred.

Likewise, there is substantial evidence to support the commissioner’s finding that the domestic violence occurred between “family or household members.” See RCW 26.50.010(1). The statute defines “[f]amily or household members” to include “persons who have a biological or legal parent-child relationship, including . . . grandparents and grandchildren.”

RCW 26.50.010(2).

The commissioner found that Flygare and Flygare-Cade were related by blood, based on Flygare-Cade’s petition for a protection order, in which she indicated that Flygare was her grandfather; Flygare-Cade’s testimony at the hearing that Flygare was her grandfather; and Flygare’s failure to acknowledge that Flygare-Cade was not his biological granddaughter during the hearing. Furthermore, there is no evidence in the record that Flygare is not related to Flygare-Cade by blood.[3]

And notably, the record includes a petition for a protective order that Flygare filed against Flygare-Cade in King County, in which he referred to Flygare-Cade as “[m]y granddaughter.” CP at 93, 94, 96. He also indicated that Flygare-Cade was “blood relation other than parent or child” on that petition. CP at 90.

Based on the record before us, there is substantial evidence to support the superior court’s finding that Flygare and Flygare-Cade are “[f]amily or household members” under the statute. See RCW 26.50.010(2). Additionally, there is substantial evidence to support the superior court’s finding that Flygare engaged in domestic violence against Flygare-Cade. We hold that the one-year protection order was proper.

II. Motion for Continuance
Flygare next contends that the commissioner violated his Sixth
Amendment right to an attorney when, during the initial hearing, he denied Flygare’s motion for a continuance to obtain counsel. He asserts that his self-representation resulted in ineffective assistance of counsel. But since this is a civil matter, ineffective assistance of counsel is not grounds for reversal. See Nicholson v. Rushen, 767 F.2d 1426
(9th Cir. 1985). And Flygare has cited no legal authority that entitles him to representation at this type of civil proceeding.

Nevertheless, Flygare goes on to imply that he was also denied due process when the superior court denied his motion for a continuance to seek counsel. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976) (internal quotations omitted). Due process, however, is a flexible concept; the particular situation determines its exact contours. Mathews, 424 U.S. at 334.

In determining what process is due in a specific situation generally requires a court to consider (1) the private interest involved, (2) the risk that the current procedures will erroneously deprive a party of that interest, and (3) the governmental interest involved. Mathews, 424 U.S. at 335; Spence, 103 Wn. App. at 335. We have previously held that the statutorily mandated procedural safeguards in the Domestic Violence Protection Act provided notice and a meaningful opportunity to be heard by a neutral decision maker because of its procedural safeguards:

(1) a petition to the court setting forth facts under oath; (2) notice to the respondent; (3) a hearing before a judicial officer where the petitioner and respondent may testify; (4) the opportunity to file a motion to modify a protection order; (5) a requirement that a judicial officer issue any order; and (6) the right to appeal.

State v. Karas, 108 Wn. App. 692, 699-700, 32 P.3d 1016 (2001) (citing Spence, 103 Wn. App. at 334). Here, all the safeguards were present. There was no due process violation.

III. Motion for Revision
Flygare also asserts that the superior court erred when it denied his motion for revision. He contends that because Flygare-Cade did not appear at the revision hearing and did not present evidence to refute Flygare’s claims, he was entitled to revision and reversal of the protection order.

But under the statute and controlling Washington Supreme Court authority, a superior court must review the commissioner’s decision de novo based on the record. RCW 2.24.050; State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). And on appeal, we review the superior court’s decision, not the commissioner’s. Ramer, 151 Wn.2d at 113. If substantial evidence supports the superior court’s ruling, then we will uphold it. The only portions of the record that are relevant to this determination are the materials and evidence submitted to the commissioner, the commissioner’s findings and conclusions, and the superior court’s decision.

Here, Flygare included the motion and materials submitted in support of the motion in the record. Flygare failed to designate the transcript for the motion for revision hearing. The superior court, however, addressed the motion for revision in subsequent hearings that Flygare included in the record. For example, during Flygare’s motion to compel interrogatories, the superior court informed Flygare:

I agree with Commissioner Marshall. In the transcript that you provided, he indicated to you that he had a real concern based upon the stuff that you are filing and I had that same concern when I reviewed the kinds of matter, the stuff that you filed.

RP (June 8, 2007) at 4-5. The superior court later stated, “[w]hen I reviewed the stuff that you filed, I found that he had adequate reason to issue this order and I’m not going to revise that.”

RP (June 8, 2007) at 6. The superior court, during that hearing, engaged in a long conversation with Flygare to explain that the evidence supported the protection order.

Although the record does not include the report of proceedings from the motion for revision, the record does include substantial evidence to support the commissioner’s ruling. We find that the superior court properly denied Flygare’s motion for revision.

IV. Motion for Reconsideration
Next, Flygare contends that the superior court erred when it denied his motion for reconsideration on July 27, 2007. We review a superior court’s ruling on a CR 59 motion under the abuse of discretion standard. In re Marriage of Dugan-Gaunt, 82 Wn. App. 16, 18, 915 P.2d 541 (1996). The record does not show an abuse of discretion here.

To begin, Flygare failed to include his motion for reconsideration in the record on appeal. A party seeking review bears the burden of perfecting the record so that we have all the evidence relevant to the issue. Dash Point Vill. Assoc. v. Exxon Corp., 86 Wn. App. 596, 612, 937 P.2d 1148, 971 P.2d 57 (1997). By failing to include the motion for reconsideration, Flygare has failed to satisfy his burden to provide a record adequate for us to review the issues he raises. See RAP 9.6.

Moreover, it is of no consequence that Flygare included his declaration in support of his motion for reconsideration. His declaration does not specify any relevant legal authority under which the superior court could have granted his motion for reconsideration. See CR 59 (setting forth grounds for new trial or reconsideration). Nor does the report of proceedings from the hearing on the motion for reconsideration include any reference to Flygare’s alleged authority for granting the new trial. During the hearing, Flygare merely states that his evidence supports reversal of the protection order. Following a short interaction with Flygare, during which it stated that it had “taken a very good look at the stuff . . . [Flygare] . . . filed,” the superior court denied his motion. RP (July 27, 2007) at 2. Finally, Flygare fails to cite any relative legal authority in his appellate brief warranting reconsideration.[4]

Accordingly, the record before us on appeal does not support Flygare’s bald contention that the superior court abused its discretion. The order denying reconsideration must stand.

V. Motion Compelling Interrogatories
Finally, Flygare contends that the superior court erroneously denied his motion compelling Flygare-Cade to answer interrogatories. He insists that if Flygare-Cade was required to answer his interrogatories, it would reveal that she lied to the court. This argument has no merit.

CR 33(b) authorizes interrogatories pertaining to any matters within the scope of discovery under CR 26(b). 14 Karl B. Tegland, Washington Practice: Civil Procedure § 15.2, at 432 (2003). The fundamental principle of discovery is that a party “`may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.'” Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991) (quoting CR 26(b)(1)). Within the generalities of the rule, the superior court’s proper function is to exercise its discretion in the control of the litigation before it. Doe, 117 Wn.2d at 777. We will not interfere with discovery rulings unless the superior court has abused its discretion, causing prejudice to a party or person. Doe, 117 Wn.2d at 777.

There was no abuse of discretion here. Flygare has failed to cite any authority, and indeed there is no authority in Washington or otherwise, compelling a superior court to permit discovery when there is no pending trial or litigation, as was the case here. The superior court properly denied Flygare’s motion compelling answers to interrogatories.

Affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON, P.J. and ARMSTRONG, J., concur.

Page 1008