No. 22493-7-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: October 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-2-05772-4. Judgment or order under review. Date filed: 09/29/2003. Judge signing: Hon. David Mountsier Thorn.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Dustin Douglass Deissner, Deissner Law Firm PLLC, 1707 W Broadway Ave, Spokane, WA 99201-1817.
Susan E. Sprague-Embree, Attorney at Law, 320 W Spofford Ave Ste B, Spokane, WA 99205-4750.
KURTZ, J.
Denise Thatcher commenced a dissolution proceeding. In a proceeding under a different cause number, Ms. Thatcher obtained a protection order against her husband pursuant to RCW 26.50.030. Mr. Thatcher challenges the language of the protection order restraining him from `coming near’ Ms. Thatcher and the language requiring him to leave if both parties are at the `same location.’ Mr. Thatcher contends these terms prohibit protected conduct in violation of his First Amendment rights. Mr. Thatcher further contends the language of the order is unconstitutionally vague in violation of his due process rights. Finally, Mr. Thatcher contends the court abused its discretion when entering the order because the order is not consistent with the commissioner’s oral ruling and also conflicts with the terms of a protection order issued in the dissolution proceeding. Although the order was issued under RCW 26.50.030, not RCW 26.09.060, Ms. Thatcher attempts to recover attorney fees pursuant to RCW 26.09.140. We affirm the order of the trial court and deny Ms. Thatcher’s request for attorney fees.
FACTS
Denise and Kevin Thatcher have seven children. Ms. Thatcher filed a dissolution proceeding in August 2003. One month later, Ms. Thatcher filed a petition for an order of protection under a separate cause number. A temporary order was entered that restrained Mr. Thatcher from coming within two blocks of Ms. Thatcher’s residence and her church.
In his response to Ms. Thatcher’s petition, Mr. Thatcher pointed out that this order conflicted with the temporary order in the dissolution case that allowed him to pick up and drop off the couple’s children at the curbside of Ms. Thatcher’s residence. Mr. Thatcher also objected to any restrictions preventing him from attending the church in his original ward because he attended that church with his children during their visitations. According to Mr. Thatcher’s affidavit, the temporary order in the dissolution proceeding granted Mr. Thatcher visitation with the children on Sunday. Mr. Thatcher explained that he had been given permission from the bishop to attend church in his original ward even though he was temporarily living in a different ward.
At the hearing, the parties appeared and discussed questions related to any limitations that might be placed on Mr. Thatcher’s attendance at church or the children’s track meets. The court indicated it did not intend to prohibit Mr. Thatcher from attending church and that this question would be left to the church to decide. The court also indicated that Mr. Thatcher would be permitted to attend track meets.
Following its oral ruling, the court entered an order of protection that provided, in part, as follows:
Respondent is RESTRAINED from coming near and from having any contact whatsoever, in person or through others, by phone, mail, or any means, directly or indirectly, except for mailing or service of process of court documents by a 3rd party or contact by Respondent’s lawyer(s) with petitioner. . . . If both parties are in the same location, respondent shall leave.
Clerk’s Papers (CP) at 36 (emphasis added). These restrictions are part of the preprinted portion of the order.
Mr. Thatcher did not seek revision of this order. Instead, Mr. Thatcher filed this appeal.
ANALYSIS
Protection Order. The language of a protection order is reviewed for an abuse of discretion. State v. Noah, 103 Wn. App. 29, 43, 9 P.3d 858
(2000).
RCW 26.50.060 authorizes the trial court, after notice and a hearing, to issue a protection order. City of Seattle v. Edwards, 87 Wn. App. 305, 310, 941 P.2d 697 (1997). The court may restrain the respondent from committing domestic violence, from entering the petitioner’s residence or workplace, and from contacting the petitioner. RCW 26.50.060(1); Spence v. Kaminski, 103 Wn. App. 325, 331, 12 P.3d 1030 (2000). `If the court finds that the respondent `is likely to resume acts of domestic violence against the petitioner . . . when the order expires,’ the court has discretion to enter a permanent order of protection.’ Kaminski, 103 Wn. App. at 331 (quoting RCW 26.50.060(2)).
RCW 26.50.020 provides that any person may file a petition for a protection order alleging that he or she has been the victim of domestic violence or that a minor family or household member has been the victim of domestic violence. Under RCW 26.50.030(1), the petition must disclose `the existence of any other litigation concerning the custody or residential placement of a child of the parties . . . and the existence of any other restraining, protection, or no-contact orders between the parties.’ Here, the language the court used was the standard language contained in the preprinted forms required to be used in every case as mandated under RCW 26.50.035. Under RCW 26.50.060, the court is authorized to issue a protection order after notice and a hearing. Among other forms of relief, the court may restrain the respondent from committing domestic violence, from entering the residence, or from entering the workplace of the petitioner. RCW 26.50.060(1). RCW 26.50.060 does not require any particular wording in the order. Kaminski, 103 Wn. App. at 331. The court may make modifications to the preprinted order, but the court must give notice of the criminal penalties resulting from violation of the order. RCW 26.50.035(1)(c).
Mr. Thatcher does not challenge the sufficiency of the evidence supporting the court’s finding that he `committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner.’ CP at 35. Instead, Mr. Thatcher points out apparent inconsistencies between the court’s oral ruling and the court’s written ruling. In particular, the court appears to have made contradictory statements in its oral ruling indicating that Mr. Thatcher could be present at church or a child’s sporting event at the same time as Ms. Thatcher. Mr. Thatcher’s attorney did not seek revision of the court’s written order under RCW 2.24.050. Unless a timely motion for revision is filed challenging the court’s findings of fact and conclusions of law, the orders and judgments become the orders and judgments of the superior court. See RCW 2.24.050. Significantly, an oral opinion is not binding on the court unless incorporated into the written findings, conclusions, and judgment. DGHI Enter. v. Pac. Cities, Inc., 137 Wn.2d 933, 945, 977 P.2d 1231 (1999). Consequently, this court must rely on the written ruling and must assume that the court modified its oral decision before entering the protection order.
Mr. Thatcher next argues that Ms. Thatcher was prevented from obtaining this protection order because an order had been issued in the dissolution proceeding. This argument is without merit. RCW 26.50.030(1) reads, in part, as follows:
Petitioner and respondent shall disclose the existence of any other litigation concerning the custody or residential placement of a child of the parties as set forth in RCW 26.27.090 and the existence of any other restraining, protection, or no-contact orders between the parties.
Of equal importance, RCW 26.09.060(3) permits either party to file a petition for a protection order regardless of whether there is a pending action. RCW 26.09.060(3) provides:
Either party may request a domestic violence protection order under chapter 26.50 RCW . . . on a temporary basis. The court may grant any of the relief provided in RCW 26.50.060 except relief pertaining to residential provisions for the children which provisions shall be provided for under this chapter, and any of the relief provided in RCW 10.14.080. Here, the court had been informed of the earlier temporary order of protection. Hence, the court had the authority to grant a second protection order.
We hold the court did not abuse its discretion by entering a protection order here.
Due Process. Mr. Thatcher argues that the order is facially vague and overbroad and that the terms of the order violate due process of law. Is the order facially vague and overbroad? A defendant has standing to challenge a statute facially for overbreadth when its terms prohibit a substantial amount of protected conduct. City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989); State v. Hegge, 89 Wn.2d 584, 589-90, 574 P.2d 386 (1978). In other words, a statute may be challenged not merely as applied, but as to the constitutionality of the law on its face, including its application, hypothetically, to anyone. Hegge, 89 Wn.2d at 590. This type of analysis is reserved to limited situations. For example, standing is permitted in cases involving pure free speech, but traditional standing requirements are applied in those cases involving speech plus other conduct, unless the statute is substantially overbroad on its face. Id.
The freedom to associate and travel is a protected liberty interest granted by the First Amendment. State v. Riles, 135 Wn.2d 326, 346, 957 P.2d 655 (1998); Kaminski, 103 Wn. App. at 335-36. But the conduct addressed by the statute and the protection order is not protected conduct because the abuser’s liberty interest — freedom of movement — can be curtailed when such movement `is harmful or illegal and interferes with the victim’s right to be free of invasive, oppressive, and harmful behavior.’ Id. at 336 (citing State v. Lee, 135 Wn.2d 369, 391-92, 957 P.2d 741 (1998)) (The stalking statute, former RCW 9A.46.110, does not intrude upon constitutionally-protected behavior.).
Mr. Thatcher argues that the protection order improperly restricts his freedom of movement and his freedom of religion. But, as Ms. Thatcher points out, Mr. Thatcher is not prohibited from attending church or sporting events. Rather, Mr. Thatcher demands the right to attend church and sporting events at the time and place of his choosing. These rights are not protected rights, and, in any event, these rights are properly restricted when Mr. Thatcher’s presence interferes with Ms. Thatcher’s right to be free of invasive, oppressive, and harmful behavior.
Mr. Thatcher also cannot succeed on a facial challenge to the underlying statute and the protection order because they seek to regulate both protected conduct and unprotected conduct, not merely free speech. See Hegge, 89 Wn.2d at 589. In Spence, this court concluded that a protection order under chapter 26.50 RCW does not curtail the abuser’s freedom of movement in a manner that interferes with a liberty right because the statute `is a reasonable exercise of police power requiring one person’s freedom of movement to give way to another person’s freedom not to be disturbed. Spence, 103 Wn. App. at 336 (citing Lee, 135 Wn.2d at 392). Here, the court entered a finding that Mr. Thatcher had committed an act of domestic violence.
Relying on State v. Noah, 103 Wn. App. 29, 42, 9 P.3d 858 (2000), Mr. Thatcher suggests that the protection order is invalid unless it contains valid time, place, and manner restrictions. But Noah is distinguishable because the court was conducting First Amendment free speech analysis of what Mr. Noah claimed was a prior restraint of his free speech. Id. at 41. Under this analysis, a government regulation is not considered to be a prior restraint if the regulation is merely a time, place, or manner restriction. Id. This type of analysis is not applicable here.
Is the protection order unconstitutional under the due process vagueness doctrine? Mr. Thatcher cannot succeed on a facial challenge to the protection order. As a result, any challenge here must be based on the due process vagueness doctrine. `A vagueness challenge seeks to vindicate two principles of due process: the need to define prohibited conduct with sufficient specificity to put citizens on notice of what conduct they must avoid, and the need to prevent arbitrary and discriminatory law enforcement.’ Lee, 135 Wn.2d at 393 (citing City of Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992)).
The prevailing rule is that `one who seeks to challenge the constitutionality of a law or other governmental action, either on behalf of himself or a class which he represents, must show that the particular action complained of has operated to his prejudice.’ MacLean v. First N.W. Indus. of Am., Inc., 96 Wn.2d 338, 347, 635 P.2d 683 (1981). Mr. Thatcher has not been charged with a violation of the protection order. As a result, it is unclear how the order has operated to his prejudice. Additionally, there is some question as to whether the violation of the terms challenged here would result in a criminal conviction. Mr. Thatcher is not complaining about the restrictions applying to Ms. Thatcher’s workplace or residence. Instead, he is complaining about other restrictions placed in the order by the court. These restrictions may result in sanctions for criminal convictions or contempt proceedings under RCW 26.50.110(3). Jacques v. Sharp, 83 Wn. App. 532, 541-42, 922 P.2d 145 (1996).
Challenges under the due process vagueness doctrine which do not involve First Amendment rights are evaluated under the facts of each case. Lee, 135 Wn.2d at 393. When challenging a statute under the vagueness doctrine, vagueness must be tested by matching the conduct of which the defendant is charged with the conduct proscribed in the statute. Hegge, 89 Wn.2d at 589. `A defendant whose conduct clearly fits within the meaning of the proscriptions of a statute does not have standing to challenge the constitutionality of that statute for vagueness.’ Lee, 135 Wn.2d at 393 (citing Hegge, 89 Wn.2d at 589).
We question Mr. Thatcher’s standing to challenge the vagueness of the order under a due process analysis. Moreover, even if we assume that Mr. Thatcher was prejudiced by the protection order, his constitutional vagueness claim must fail. The due process vagueness doctrine seeks to ensure that the public has adequate notice of what conduct is proscribed and to ensure that the public is protected from arbitrary ad hoc enforcement. Riles, 135 Wn.2d at 348. As a result, the vagueness doctrine is violated if the protection order (1) fails to define the criminal offense so that ordinary people can understand what conduct is proscribed, and (2) fails to provide ascertainable standards of guilt to prevent arbitrary enforcement. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).
Mr. Thatcher argues that the protection order is vague because the terms `coming near’ and the `same location’ are susceptible of different interpretations by different people. To some extent, there is some question whether Mr. Thatcher finds the order ambiguous. He appears to correctly understand that he must not attend church or sporting events when his wife is present.
But some degree of vagueness is inherent here because language must be used to proscribe the conduct. See Riles, 135 Wn.2d at 348. `Thus, a vagueness challenge cannot succeed merely because a person cannot predict with certainty the exact point at which conduct would be prohibited.’ Id. Additionally, the party challenging the prohibition carries the burden of overcoming the presumption that the limitation is constitutional. Id. Moreover, the terms `coming near’ and the `same location’ are not unconstitutionally vague. In State v. Jacobs, the court considered whether the words `no contact’ in a domestic violence no-contact order were unconstitutionally vague. The court concluded that Mr. Jacobs could not “show beyond a reasonable doubt that ordinary people cannot understand what constitutes illegal conduct from the language” of the orders. State v. Jacobs, 101 Wn. App. 80, 88, 2 P.3d 974 (2000) (quoting State v. Hendrickson, 129 Wn.2d 61, 82, 917 P.2d 563 (1996)). In State v. Riles, 86 Wn. App. 10, 17, 936 P.2d 11 (1997), aff’d, 135 Wn.2d 326, 957 P.2d 655 (1998), the court rejected a vagueness challenge to post-release conditions requiring Mr. Riles to have `no contact’ with children and to `avoid places where children congregate’ and to `not frequent places where minors are known to congregate.’
Mr. Thatcher relies on City of Sumner v. Walsh, 148 Wn.2d 490, 61 P.3d 1111 (2003), to support his argument that the terms here are unconstitutionally vague. In Walsh, the court examined the constitutionality of the words `remain,’ `linger,’ or `stay’ contained in a criminal curfew statute. The court concluded that these words were vague because it could not be easily determined from these terms when a juvenile was engaged in an illegal activity. Id. at 499-500. The court questioned whether a violation of the statute would be found if a juvenile stopped at service station when driving home from an exempted school activity, or if a juvenile, when walking home from a school activity, might be found to violate the statute while stopping to tie a shoe. Id. at 500.
But the terms in Walsh are vague and the terms questioned by Mr. Thatcher are not. Webster’s Third New International Dictionary defines `near’ as `at, within, or to a short distance.’ Webster’s Third New International Dictionary 1510 (1993). When viewed in the context of an order prohibiting contact, the `come near’ language would be commonly understood to mean close enough to be seen and viewed as a threat. Likewise, the `same location’ language would be understood to mean that Mr. Thatcher cannot be in the same room of the church or in the same general vicinity at outdoor events. The language here is similar to that upheld in Riles, where Mr. Riles was ordered not to go places where minors congregate.
We hold Mr. Thatcher’s First Amendment and due process rights were not violated.
Attorney Fees. Ms. Thatcher requests attorney fees under RCW 26.09.140
based on her need and Mr. Thatcher’s ability to pay. RCW 26.09.140 allows fees for bringing or defending proceedings under this chapter and an affidavit of financial need is required under RAP 18.1(c). Ms. Thatcher failed to file an affidavit of financial need and, in any event, the order here was entered under chapter 26.50 RCW, not chapter 26.09 RCW. We deny Ms. Thatcher’s request for attorney fees.
We affirm the order of the trial court.
The 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.
KATO, C.J., and SWEENEY, J., concur.