REYNA v. FRAUSTO, 142 Wn. App. 1013 (2007)

No. 59006-5-I.The Court of Appeals of Washington, Division One.
December 24, 2007.

Appeal from a judgment of the Superior Court for King County, No. 00-5-00502-5, Mary Yu, J., entered September 22, 2006.

Reversed by unpublished per curiam opinion.

PER CURIAM.

An order for protection issued pursuant to Washington’s Domestic Violence Prevention Act (Act)[1] requires a finding of domestic violence as defined by that statute. A protection order based on alleged domestic violence that caused neither bodily injury or physical harm nor the imminent fear of such harm does not meet that definition. We reverse.

FACTS
Stacia Reyna and Joseph Frausto are the parents of one child, N.J.R., seven years of age. Pursuant to their 2001 court ordered parenting plan, Reyna has primary custody and Frausto has regular visitation rights.

On June 12, 2006, Reyna filed a petition in King County Superior Court for an order of protection against Frausto for domestic violence. Under “specific acts of domestic violence and their approximate dates,” Reyna described an incident occurring several months prior, on March 26, 2006, at Larry’s Market in Bellevue where the parties had agreed to meet for an exchange of N.J.R. After the parties verbally argued, Frausto “threw water all over” Reyna (from a cup of water, but not the cup itself). Reyna accused Frausto of verbally abusing her in front of their son and others at the store. Reyna stated that she was afraid for herself and her son. Reyna also listed three other prior allegations in support of her petition: two involved Frausto threatening or trying to run her over in his SUV and in the third, Frausto grabbed Reyna’s neck at a Starbucks while N.J.R. was sitting between them. However, testimony at both the initial hearing and the revision hearing on Reyna’s petition indicate that Reyna’s previous attempts to obtain protection orders on these allegations were unsuccessful.

Reyna filed this petition the same day as a hearing was held on Reyna’s alleged contempt for violating the parties’ 2001 parenting plan. Finding neither party had “clean hands” the court ordered Reyna and Frausto both to fully comply with the terms of their parenting plan.

An attorney advised Reyna to file a police report for the incident at Larry’s Market. After an investigation, the police determined that

an argument did take place at Larry’s Market w[h]ere Frausto either threw or poured a glass of water on Reyna’s head. Both involved parties told [the officer] that nothing physical or threatening took place. At this time, an arrest or summons for the assault will not take place for the following reasons: 1. There was no independent witnesses to the incident. 2. It took almost one month for Reyna to report the assault. 3. Reyna did not experience any pain when the water was poured on her.

Frausto argues that Reyna filed this petition in response to a family court commissioner’s finding that both parties had repeatedly violated the parenting plan earlier that morning. Frausto describes the incident at Larry’s Market as a reaction to the verbal onslaught that he was subjected to regarding payments for their son’s extra-curricular activities after he had sat down at the table to join Reyna and N.J.R. for breakfast at the store. He characterized the water incident as “childish and regrettable.”

Reyna contends that Frausto was not invited to sit down for breakfast at Larry’s Market, noting that contact between the parties was supposed to be limited to communications by e-mail only by previous court order.

After a hearing, a family court commissioner denied Reyna’s petition. On revision, the trial court granted Reyna an order of protection against Frausto for a period of three years pursuant to RCW 26.50.060. The court was particularly careful to not interfere with Frausto’s rights under the parties’ parenting plan. The order specifically incorporated the court’s oral ruling. Reyna appeals.

ANALYSIS
We review the trial court’s ruling and not the commissioner’s.[2] “The decision to grant or deny a protection order is reviewed for an abuse of discretion.”[3] A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.[4] Untenable grounds include when a court has used an incorrect legal standard or if the facts do not meet requirements of the correct standard.[5]

Chapter 26.50 RCW governs the prevention of domestic violence. RCW 26.50.060 authorizes a court to issue a protection order after notice and a hearing. In seeking such an order, a petitioner must first allege “the existence of domestic violence, and . . . the specific facts and circumstances from which relief is sought.”[6] Domestic violence is defined as “[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members.”[7]

Reyna’s petition was based primarily on the March 29, 2006 incident at the Larry’s Market in Bellevue during which Frausto threw water from a drinking cup at Reyna. While the act of throwing water at another’s person may constitute assault in the fourth degree under some circumstances, here, however, the record does not support a finding that Frausto assaulted Reyna.[8]

In order to find an act of domestic violence, physical harm or the imminent fear thereof must be present. The term “assault” is undefined by statute and so Washington courts apply its common law definition.[9] Three different definitions of assault are recognized:

“(1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm.”[10]

Here, the incident at Larry’s Market (including verbal insults and the throwing of water) clearly did not cause bodily injury or physical harm. Nor could it reasonably be construed as an attempt to cause such harm. Furthermore, Reyna’s testimony and the record, including the police report and the description provided in Reyna’s petition, are clear that she was not in apprehension of imminent bodily injury or physical harm. Nor has Reyna alleged any credible incidents where Frausto caused either her or her son bodily injury or physical harm or the imminent fear thereof at any other time.

While a court is authorized under RCW 26.50.060(1)(f) to impose terms in an order of protection as it “deems necessary for the protection of the petitioner,” no such order may be issued at all absent at least one act of domestic violence.[11] In finding the record sufficient to indicate domestic violence, the trial court reasoned:

I am finding that based on this record there is a history of domestic violence between these two people. Domestic violence is not simply defined by physical touching, although I can find in this record that has occurred. Emotional abuse and control issues come into play when we talk about domestic violence.

Here, the domestic violence found by the trial court was not of the nature contemplated by the Act. The trial court granted Reyna’s petition for an order of protection finding that the conflict between the parties and its display was “really fundamentally harmful to [the] child.” And that “[i]f we could do mutual restraining orders, believe me, this is a case that probably would call for it.” Furthermore, the court sought to “have these two adults . . . not only not have contact but really not manipulate one another so that we’re back here again.”

A protection order issued under the Act requires a finding of domestic violence, or “[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault” against the petitioner, or against “minor family or household members.”[12] Here, this standard was neither applied nor could it be on this record. An order for protection is not a flexible tool for dealing with custody issues. While conflict amounting to emotional or verbal abuse between parents is undoubtedly psychologically harmful to children, it is neither included in nor contemplated by the statutory definition provided in the Act.[13] Under the facts presented, we find the trial court abused its discretion in granting Reyna a protection order and, therefore, reverse and vacate the order on revision granting the protection order.

For the above reasons, we reverse and vacate.

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