Thomas Bret Haggerty v. Saiyin Phasavath ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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THOMAS BRETT HAGGERTY, rv»
No. 70827-9-1
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SAIYIN PHASAVATH UNPUBLISHED OPINION
Respondent. FILED: July 21, 2014
Dwyer, J.—In this fourth appeal arising from virtually continuous litigation
between Bret Haggerty and his ex-wife, Saiyin Phasavath, Bret contends the superior
court abused its discretion in denying his motion to revise an order dismissing his
petition for a domestic violence protection order. Because there was no abuse of
discretion, and because Bret's other arguments lack merit, we affirm.
FACTS
Bret and Saiyin divorced in 2001 and have two children, TJ and Sam. The
parties have been engaged in contentious litigation, primarily involving allegations of
domestic violence, since their divorce.
In February 2005, Saiyin obtained an order of protection that restrained Bret from
contacting their children except as provided in an existing parenting plan. The order
rested in part on Bret's harassing telephone calls, unfounded referrals to Child
Protective Services (CPS), and Saiyin's fear of imminent physical harm to her and the
children. The superiorcourt denied Bret's motion to revise the order and we affirmed.
No. 70827-9-1/2
We acknowledged that Bret denied making the calls but refused to disturb the
commissioner's credibility determinations.1
In 2006, a court commissioner renewed the protection order, finding that Bret had
not met his burden of showing that he had taken steps to change his behavior.
In July 2006, the parties entered an agreed parenting plan. Because of Bret's
history of false reporting, the plan prohibited him from making any reports to CPS
regarding Saiyin or the children. It also limited Bret's contact with the children to weekly
thirty minute telephone conversations at a specified time.
In September 2008, Saiyin obtained a new order of protection that restricted
Bret's contact with Saiyin and the children except as provided in the parenting plan.
Saiyin alleged a history of domestic violence that included Bret punching her and
throwing her across the room when she was pregnant, throwing large and small objects
at her, forcing her to have nonconsensual sex, and harassing her with phone calls and
calls to the police and CPS. In affirming, we held that the evidence supported the
court's findings of past domestic violence and Saiyin's present fear of Bret. We also
sustained the court's finding regarding Bret's ongoing triangulation of the children. We
acknowledged that Bret denied Saiyin's allegations, but we again deferred to the trial
court's credibility determinations.2
In August, 2011, police and CPS investigated reports involving Saiyin, TJ, and
Samuel. These included an incident in which Saiyin allegedly scratched TJ's neck and
arms. Police arrested Saiyin for fourth degree assault. According to Bret, Saiyin
1 In re Marriage of Phasavath. noted at 132 Wn. App. 1033, 3 (2006).
2 In re Marriaoe of Phasavath. noted at 151 Wn. App. 1029 (2009).
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No. 70827-9-1/3
eventually pleaded guilty to a lesser charge. Bret also alleged that Saiyin's husband,
Chan Phasavath, assaulted Samuel around this time. Bret claimed that Chan wanted to
take Samuel to see Saiyin but Samuel resisted. Chan then "lifted Samuel up by . . . the
back of his neck and threatened to shove rolled up papers in his ass if he didn't cross
the street." Clerk's Papers (CP) at 435. According to Bret, Chan "was subsequently
arrested again for assault, and was convicted, and spent a couple of days in jail." ]d.
In September, 2011, Saiyin obtained a temporary protection order against Bret.
The court appointed a guardian ad litem who conducted an investigation and issued a
report. The report stated that both parents had engaged in domestic violence at some
point. With respect to the allegations that Saiyin had strangled and scratched TJ, the
report noted that a DSHS caseworker was considering closing the case as unfounded
because the incident was largely emotional and verbal and "was more of a fight
between TJ and his mother than physical abuse of a child." CP 283. The report also
stated in part that Bret
has not taken responsibility for his behavior and denies altogether
having engaged in any forms of domestic violence.. .. The father
has chosen not to follow the court ordered steps that could lead to
restoration ... of his time with the children. Unfortunately, it is the
mother that the children blame for this, rather than their father's
inability or unwillingness to take responsibility for his domestic
violence." CPat283.
Contrary to Bret's allegations on appeal, the guardian ad litem (GAL) report states that
the incident involving Chan allegedly picking up Samuel and threatening him with a
newspaper did not result in charges and that the Department of Social and Health
Services (DSHS) determined the incident was unfounded. The GAL concluded that he
could not "in good conscience recommend that the children should live with their father"
No. 70827-9-1/4
until Bret accepted responsibility for his domestic violence and completed the domestic
violence program ordered by the court in 2010. CP at 281
DSHS subsequently concluded that all of Bret's recent allegations against Saiyin
were unfounded except for the allegation that she scratched TJ. A DSHS medical
expert concluded, however, that the marks on TJ's neck were "likely to have been
caused by a shirt being pulled from the back," as opposed to scratching with fingers.
In February, 2012, police arrested Chan for allegedly spitting in TJ's face after TJ
admittedly told him to "fuck off."
In the fall of 2012, Bret accused Saiyin of poisoning TJ and Samuel. In October,
2012, DSHS concluded that those accusations were unfounded.
In July 2013, Bretfiled a petition for a protection order on behalf of TJ and
Samuel. The petition alleged that in June, 2013, Chan threw Samuel out of Saiyin's
house. Bret claimed that Chan grabbed Samuel and repeatedly threw him to the
ground. The petition further alleged that Saiyin had been arrested for strangling TJ in
August, 2011, and that her "history includes the strangling of her older son Koraphol
that is documented] in past CPS reports."
Bret also expressed concern about Koraphol, alleging that he "has just recently
been released from incarceration and . . . resides in Saiyin's house. .. . [H]e has a long
history of theft and assault charges that have resulted in convictions and jail time." CP
436. Bret alleged that Chan had been convicted of assaulting Samuel, and that Saiyin
had been convicted of assaulting Bret and making a false report in 2002/2003. The
court granted a temporary protection order pending a hearing.
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No. 70827-9-1/5
In a responsive declaration, Saiyin denied Bret's allegation of a domestic
violence incident occurring in June, 2013. As to Bret's allegations that she poisoned TJ
and Samuel in 2012, she noted that DSHS ultimately ruled that the 2012 allegations
were unfounded. She also noted that DSHS found that two of three reports Bret made
against her in 2011 were unfounded and that the one founded allegation — the
scratching of TJ — only resulted in a recommendation of counseling. Saiyin recounted
Bret's acts of domestic violence and failure to obtain court-ordered treatment. She also
pointed to evidence that Bret had repeatedly engaged in triangulation of the children in
an effort to turn them against her.
In a second declaration, Bret alleged that Saiyin had strangled him in the past, "a
crime for which she was arrested and convicted in Snohomish County; her oldest son
Koraphol was strangled by her; TJ, our 16 year old son was strangled by her as
described above, and now the youngest child is the target of this kind of violence." CP
at 123. He did not support several of these allegations with documentation.
On July 24, 2013, the court dismissed Bret's petition for a protection order. In a
section of the order entitled "BASIS TO DISMISS," the court checked a box next to the
words, "[t]he Court does not find sufficient evidence of domestic violence." CP at 120 .
Bret moved for revision in superior court.
Prior to the hearing on revision, Bret filed a motion to shorten time. He argued
that time was of the essence because he had learned that Koraphol had been convicted
of crimes of violence, that Saiyin was leaving TJ and Samuel in Koraphol's care, that
Koraphol had access to Chan's firearm, and that Koraphol had recently threatened TJ
with violence. He argued that the children were "at risk, and the court should enter a
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No. 70827-9-1/6
[protection order] on its own recognizance, and move up the time when the court can
hear my motion for revision." CP at 45.
Saiyin filed a responsive declaration, alleging in part that Koraphol "did not
threaten TJ or Sam," that "[t]he police that investigated TJ's report did not find that my
son, Koraphol, had threatened TJ in any way," that Koraphol had moved out of her
residence, and that "[t]here is no gun in our home." CP at 15.
The court denied the motion to shorten time, but imposed temporary conditions
prohibiting Saiyin from allowing Koraphol in her home or using physical discipline until
the hearing on the motion to revise. Following the hearing, the court denied Bret's
motion to revise. He appeals.
DECISION
The principal issue in this appeal is whether the superiorcourt abused its
discretion in denying Bret's motion to revise the dismissal of his petition for a domestic
violence protection order. There was no abuse of discretion.
Decisions granting or denying protection orders are reviewed for abuse of
discretion. In re Marriage of Stewart, 133 Wn. App. 545, 550, 137 P.3d 25 (2006). A
court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
When an appeal is taken from a superior court's decision on a motion to revise a
commissioner's decision, our review is of the superior court's decision, not the
commissioner's. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). If, as in this
case, the superior court denied the motion to revise without making findings of its own,
No. 70827-9-1/7
we deem that it adopted the findings and conclusions of the commissioner. State ex rel.
J.V.G. v. Van Guilder, 137 Wn. App. 417, 423, 154 P.3d 243 (2007).
On the record provided, we cannot say the court abused its discretion in denying
Bret's petition.3 To obtain a domestic violence protection order, Bret had to prove the
children were victims of "domestic violence," i.e., "[p]hysical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury or assault between family
or household members [.]" RCW 26.50.010 (1)(a). As to the alleged incidents in 2013
involving Samuel and Koraphol, the trial court resolved conflicting evidence and
credibility issues in Saiyin's favor. Those determinations are not reviewable on appeal.
State v. Ainslie, 103 Wn. App. 1, 6, 11 P.3d 318 (2000) (appellate court defers to the
trier of fact on the persuasiveness of the evidence, witness credibility, and conflicting
testimony). The court was within its discretion in denying a protection order based on
the alleged incidents in 2013.
With respect to the incidents in 2011 and 2012, Bret cites Mumav. Muma, 115
Wn. App. 1, 6-7, 60 P.3d 592 (2002) and Spence v. Kaminski, 103 Wn. App. 325, 334,
12 P.3d 1030 (2000) for the proposition that past acts of alleged domestic violence are
sufficient to support a protection order so long as the victims have a present fear of
harm. Although those cases are arguably distinguishable because they involved
attempts to renew, or make permanent, existing protection orders, see In re Marriage of
Freeman, 169 Wn.2d 664, 674-75. 239 P.3d 557 (2010), we need not resolve that
3Our review is hampered by the absence of a transcript or narrative report of proceedings for the
hearings before Commissioner Stewart and the superior court. It was Brett's burden to provide this court
with a record sufficient to review the issues raised on appeal. Story v. Shelter Bay Co., 52 Wn. App. 334,
345, 760 P.2d 368 (1988).
No. 70827-9-1/8
question here. Even assuming Bret is correct, the court did not abuse its discretion in
declining to issue an order based on the alleged incidents in 2011 and 2012.
As noted above, DSHS determined that the 2011 and 2012 allegations were
largely unfounded. While the allegation that Saiyin scratched TJ was founded, the
court's exercise of discretion is supported by the nature and age of that incident,
Saiyin's subsequent counseling, and the fact that any allegation of present fear on the
part of the children is undermined by Bret's triangulation of them, his history of
unfounded allegations, and Saiyin's statements in her declaration that Sam was doing
well at home and that Bret was continuing to incite TJ. For essentially the same
reasons, the superior court did not abuse its discretion in declining to issue a protection
order based on any incidents of domestic violence allegedly occurring prior to 2011.
Bret next contends the court commissioner demonstrated bias and violated the
appearance offairness doctrine when he sua sponte dismissed the petition with
prejudice. We disagree.
Trial courts are presumed to act "without bias or prejudice." West v. Ass'n of
County Offical, 162 Wn. App. 120, 136, 252 P.3d 406 (2011). A party's allegations can
overcome the presumption of impartiality if a reasonable person who knew and
understood all the relevant facts would believe the judge might have a bias against the
party. West. 162 Wn. App. at 137. Similarly, a judicial proceeding does not violate the
appearance offairness doctrine if a reasonably prudent and disinterested person would
conclude that all parties obtained a fair, impartial, and neutral hearing. State v. Bilal, 77
Wn.App. 720, 722, 893 P.2d 674 (1995). No reasonable, disinterested person would
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No. 70827-9-1/9
conclude that the dismissal with prejudice in this case demonstrated either bias or an
appearance of unfairness.
Bret also challenges the temporary conditions in the order denying his motion to
shorten time. Those conditions prohibited Saiyin from allowing Koraphol into her house
or using physical discipline. He contends the court exceeded its authority and failed to
abide by certain statutory requirements. These contentions are moot since the
temporary conditions have long since expired and, by statute, were expunged from
agency records upon expiration. RCW 26.50.100.
Last, Bret contends "[t]he Court abused its discretion in denying [his] motion for
reconsideration and disallowing oral argument." Appellant Brief at 25. He claims the
court denied his motion because it was "untimely; ... the file was too burdensome to
read; and . . . the motion should have been a special set." But he cites to nothing in the
record supporting this claim.
Saiyin requests attorney's fees on appeal under RAP 18.1, RCW 26.09.140,
RCW 4.84.185, and principles of intransigence. Because we conclude the appeal
presents no debatable issues or reasonable possibility of reversal, we award fees and
costs to Saiyin under RCW 4.84.185 and RAP 18.9, subject to her compliance with RAP
18.1. Bret's request for fees is denied.
Affirmed.
WE CONCUR: