No. 63602-2-I.The Court of Appeals of Washington, Division One.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 09-2-00124-3, Bruce E. Heller, J., entered May 4, 2009.
Reversed and remanded by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
APPELWICK, J.
The trial court issued reciprocal antiharassment protection orders to Holsman against Pope and to Pope against Holsman. Pope appeals the order issued against him. The trial court erred in not entering findings of fact and conclusions of law. We vacate the order and remand.
FACTS
Shannon Holsman and Richard Pope separately filed petitions for an order for protection against each other, pursuant to RCW 10.14.040. The superior court granted temporary restraining orders to both parties and scheduled a hearing for May 4, 2009. At the hearing, the trial court judge heard sworn testimony from Holsman and Pope. Both parties alleged harassment, and brought copies of the substantial electronic correspondence they had exchanged to support their respective allegations. However, Pope stated that there was a lot of stigma attached to an antiharassment order and he would rather not have them entered. The trial court briefly looked at some of the e-mail communications that Holsman brought in, but did not look at the communications Pope presented. Those documents are unavailable on appellate review.
At the conclusion of the hearing, by oral opinion, the trial court stated:
[I]t really would be best for both of you to stop communicating with each other. I’m ordering that, but I think it’s also the right thing to do. It’s caused nothing but problems and it’s now time to just sever the relationship. And I think just both of you move on with your lives. It sounds like that’s what you want, so let’s just go ahead and do that.
The trial court entered orders for protection under RCW 10.14.080, restraining each party from attempting to contact the other for one year. However, no findings of fact or conclusions of law were proposed or entered. Pope timely appealed the order against him and in favor of Holsman.
DISCUSSION
A court may issue an antiharassment protection order if it finds by a preponderance of the evidence that unlawful harassment exists. RCW 10.14.080(3). The court’s determination is to be based on evidence and testimony taken at a full hearing, as provided for in RCW 10.14.080(2). 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 emotion distress to the petitioner.” RCW 10.14.020(1). Here, the trial court conducted such a hearing, without a jury, and concluded that both parties committed unlawful harassment.
CR 52(a)(1) requires that in all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law. Pope contends that the trial court erred when it failed to enter any findings of fact or conclusions of law before granting the antiharassment order against him. We agree. While Pope did not object to the trial court’s failure to enter findings of fact or conclusions of law during the hearing, RAP 2.5(a)(2) allows a party to raise the issue for the first time on appeal where the claimed error is a “failure to establish facts upon which relief can be granted.” Pope additionally points out that under RAP 10.4(c), a party presenting an issue that requires the study of a finding of fact should include that finding as a part of his or her brief. Yet, Pope could not abide by this requirement where no findings were entered.
Court rules provide for vacation absent written findings: “A judgment entered in a case tried to the court where findings are required, without findings of fact having been made, is subject to a motion to vacate within the time for the taking of an appeal. After vacation, the judgment shall not be reentered until findings are entered pursuant to this rule.” CR 52(d). The oral decision cannot supply missing written findings. The Supreme Court has addressed this issue in DGHI Enterprises v. Pacific Cities, Inc., where a predecessor judge, prior to his death, had only entered an oral decision discussing findings of fact and conclusions of law, but had neither signed nor filed findings of fact and conclusions of law or a judgment. 137 Wn.2d 933, 936, 977 P.2d 1231 (1999). The parties disputed whether the oral decision constituted adequate findings of fact and conclusions of law to meet the requirements of CR 52(a) and 63(b).[1] Id. The Court held that where neither a written opinion nor a memorandum decision with findings of fact and conclusions of law was filed by the judge before his death, “[f]ormal findings of fact thus were still required under CR 52(a).” Id. at 946. Here, where the trial court similarly did not enter findings of fact as required by CR 52(a), the record is inadequate to sustain the order.
We vacate and remand.
WE CONCUR: