Kimberly May v. Mark Scopa ( 2016 )

FILED
July 7, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KIMBERLY MAY, )
) No. 33305-1-111
Respondent, )
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v. )
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MARK SCOPA, ) UNPUBLISHED OPINION
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Appellant. )
KORSMO, J. - Mark Scopa appeals from a domestic violence protection order
granted to Kimberly May, challenging the sufficiency of the evidence to support the
order. Since the order has now expired and the question of evidentiary sufficiency does
not present an issue of public importance, we dismiss the appeal as moot.
FACTS
Ms. May and Mr. Scopa dated for nearly two years between October 2012 and the
fall of 2014. During some of that time Mr. Scopa lived in Ms. May's residence with her.
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After some incidents, he was asked to move out. He declined to leave despite multiple
requests over a several week period. Eventually he did leave the property on September It
22, 2014, after police were called to escort him from the residence.
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Scopav. May
The couple had occasional contact after that, but eventually Ms. May told Mr.
Scopa that she did not want to receive any further communications from him.
Nonetheless, he sometimes contacted her after that point, ostensibly to recover property
he still had at her home. After additional unwanted contacts during the winter of 2014,
Ms. May applied for a domestic violence protection order.
Ms. May represented herself before a Commissioner of the Benton County
Superior Court, while Mr. Scopa retained counsel to oppose the petition. The petition
alleged that Ms. May was the victim of domestic violence. In support of the petition, she
filed a "Statement" that reported the incidents of contact in reverse chronological order
dating back to the time she first asked him to leave the residence. Counsel for Mr. Scopa
filed a memorandum in opposition along with declarations from Mr. Scopa and others.
The Commissioner heard argument and granted the protection order. He explained his
ruling:
It does appear to the Court that by Mr. Scopa's behaviors those both
when the parties lived together and after they separated, um, causes Ms.
May some serious concerns for her own safety and well being. Um, his
intentions may be different than what she perceived them to be but when he
went to the nursing floor seeking to see her it scared her to death. Now he
doesn't understand that. He says I'm there to seek forgiveness but because
of the interactions between these two and the fact that she wants to be left
alone and he won't leave her alone, she gets fearful. Um, irrational or
otherwise it's still a fear that she has and its harm to her. I am gonna grant
the order in this matter for a period of one year that the parties to have no
contact with each other during that time period. Um, hopefully at the end
of that year that that will resolve the issue and Mr. Scopa will demonstrate
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Scopa v. May
by his behaviors that he will not have contact with Ms. May or attempt to
have contact with her.
Report of Proceedings at 9. A one-year order of protection issued on April 3, 2015.
Mr. Scopa appealed to this court. A panel considered the case without oral
argument on April 27, 2015. Noting that the protection order had expired earlier in the
month, the panel wrote the parties to learn whether the order had been extended and, if
not, whether the case was moot.
Both parties agreed the order had not been extended. Ms. May believed the matter
moot. Mr. Scopa thought the case moot, but argued that it still should be heard because it
presented issues of public interest.
ANALYSIS
Mr. Scopa's appeal challenges the sufficiency of the evidence to support two
elements of the domestic violence protection order. Because these specific questions do
not raise an issue of public interest, we decline to resolve his challenges because we can
provide no relief to him.
A domestic violence protection order is available to anyone 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. RCW 26.50.020. The petitioner must attach an
affidavit to the petition, outlining the facts that justify the protection order. RCW
26.50.030. After notice and a hearing, the court may grant the order of protection. RCW
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Scopa v. May
26.50.060. In granting the order, 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 an order is entered, the order can be extended if a petition is
filed prior to the expiration of the existing order. RCW 26.50.060(3). An appellate court
reviews the issuance of a domestic violence protection order for abuse of discretion.
Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002). A trial court abuses its
discretion if it exercises discretion on untenable grounds or for untenable reasons. State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The petition and affidavit must allege that "the person has been the victim of
domestic violence committed by the respondent." RCW 26.50.020. The corresponding
definitional statute outlines three different "means" of committing "Domestic violence":
(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.l 10 of one family or
household member by another family or household member.
RCW 26.50.010(3). Only parts (a) and (c) are relevant to this appeal.
An appeal is moot where the court cannot grant effective relief. In re Det. of
LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986). Nonetheless, an appellate court will·
consider a moot case when it involves "matters of continuing and substantial public
interest." Sorenson v. Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972). Three
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factors to be considered in meeting the Sorenson test include ( 1) whether or not the
matter is of a private or public nature, (2) the need for guidance to public officials, and
(3) whether the problem is likely to recur. In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828(1983).
We have noted previously in an analogous context that:
Cases involving mental health procedures, as both Cross and
LaBelle demonstrate, frequently present exceptions to the mootness
doctrine. The brief time frames involved in bringing a commitment case to
trial, and the comparatively short duration of most commitment orders,
mean that few cases will not be moot when considered by an appellate
court. Nonetheless, the large number of commitment proceedings indicates
that judicial resolution of problems that do arise is important to proper I
functioning of our mental health system. l
In re Det. ofC.M, 148 Wn. App. 111, 115, 197 P.3d 1233, review denied, 166 Wn.2d If
1012 (2009). Domestic violence protection orders have much in common with mental t
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health procedural issues. There are a large number of protection order cases and the
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orders frequently are of shorter duration than the typical appeal to this court.
Nonetheless, this case does not satisfy the Sorenson requirements. As explained in I
Hart v. Department of Social & Health Services, 111 Wn.2d 445, 448, 759 P.2d 1206,J
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( 1988), all three factors are considered "essential" to justify consideration of a moot case.
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None of those factors significantly weigh in favor of finding this a case of public
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importance.
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First, the dispute is of a private nature between private parties. Second, these facts
do not clearly present an issue on which guidance is needed. Mr. Scopa argues that the
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Commissioner found that Ms. May's fear of him was "irrational," but still granted the
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protection order, a fact that justifies review in order to provide guidance to the trial
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courts. While we agree that providing an answer to the question of whether an irrational
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fear would justify a protection order is one that would provide guidance to the trial
courts, we are uncertain whether that in fact happened here. The trial court did not enter
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formal findings and its off-hand description ("irrational or otherwise") did not squarely 't
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conclude that an irrational fear would itself support a protection order. Thus, while this I
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factor somewhat favors reviewing the issue, it is not as clear cut as Mr. Scopa contends. iI
The third Sorenson factor is whether the problem presented is likely to recur. That
factor is not satisfied in this case. Domestic violence protection orders have been in I
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existence for over two decades, but nothing in our experience or in the reported cases il
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suggest that this argument has arisen before, let alone often enough that it recurs. All I
three of the "essential" Sorenson factors do not favor categorizing this case as one of I
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public importance justifying review of an expired order.
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This case would not have been moot if the order had been renewed. One effect of
renewing an existing order is that the burden shifts to the respondent to show that it is no
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longer needed. RCW 26.50.060(3). Thus, the original order is still in effect and at issue I
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when it is renewed. This appeal could have afforded some relief to Mr. Scopa ifwe had
accepted his argument.
Since the order has expired, we can provide no relief and the case is moot. This
appeal, therefore, is dismissed. Neither party shall be awarded costs.
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A majority of the panel has determined this opinion will not be printed in the *i
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Washington Appellate Reports, but it will be filed for public record pursuant to RCW II
2.06.040.
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WE CONCUR: I
Lawrence-Berrey, A.C.J.
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Pennell, J. t
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