In the Matter of the Marriage of: Mary Jane Eaton & Tracy Eaton ( 2021 )

FILED
FEBRUARY 1, 2021
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
In the Matter of the Marriage of )
) No. 36912-9-III
MARY JANE EATON, )
)
Respondent, )
)
and ) UNPUBLISHED OPINION
)
TRACY EATON, )
)
Appellant. )
KORSMO, J.P.T.1 — Tracy Eaton appeals from an order denying revision of a
commissioner’s ruling granting a temporary restraining order. Because the trial court
applied the wrong standard to its consideration of the motion, we reverse.
PROCEDURAL HISTORY
Ms. Mary Jane Eaton obtained, ex parte, an immediate temporary restraining order
against her husband on March 15, 2019. Clerk’s Papers (CP) at 8-11. Both parties filed
affidavits in advance of the hearing on the temporary order. In reply to Mr. Eaton’s
affidavit, Ms. Eaton reported that he had broken a window to the house after she locked
her husband out of the premises. CP at 85.
1
Judge Kevin M. Korsmo was a member of the Court of Appeals at the time
argument was held on this matter. He is now serving as a judge pro tempore of the court
pursuant to RCW 2.06.150.
No. 36912-9-III
In re Marriage of Eaton
A court commissioner granted the temporary restraining order following a hearing
on April 9, 2019. Acknowledging that Mr. Eaton would deny breaking the window, the
commissioner concluded that Ms. Eaton had established that Mr. Eaton posed a credible
threat to his wife’s safety due to the break-in. CP at 65, 127. Mr. Eaton subsequently
moved to revise the ruling, arguing that the commissioner improperly had relied on new
evidence offered in reply that he had no opportunity to rebut.
The superior court judge heard argument on the revision motion June 3, 2019, and
entered a ruling stating that Mr. Eaton had failed to show that the commissioner “abused
her discretion” and that the commissioner had not relied solely on the new evidence, but
had looked to the totality of the case. CP at 137. Accordingly, the court “affirmed” the
commissioner. CP at 137.
Mr. Eaton timely appealed the revision ruling to this court. The couple’s marriage
was dissolved October 28, 2019. Supp. CP at 154-161. After briefing, a panel
considered the appeal without conducting oral argument.
ANALYSIS
Appellant contends that the superior court failed to treat the revision as an original
action.2 We agree.
2
Ms. Eaton, representing herself pro se, suggests that the issue is moot because
the marriage now has been dissolved. We disagree. This court previously has noted that
the stigma associated with an order can justify hearing what otherwise might be a moot
case. Hough v. Stockbridge, 113 Wn. App. 532, 537, 54 P.3d 192 (2002), rev’d in part
on other grounds, 150 Wn.2d 234 (2003).
2
No. 36912-9-III
In re Marriage of Eaton
We have described the revision hearing process:
When a superior court judge receives a case through a motion for revision,
the judge takes “jurisdiction of the entire case as heard before the
commissioner.” State ex rel. Biddinger v. Griffiths, 137 Wash. 448, 451,
242 P. 969 (1926). Although the superior court judge cannot accept new
evidence, RCW 2.24.050, a motion on revision is in all other respects equal
to any other matter on the court’s docket. The judge reviews the law and
evidence de novo. State v. Ramer, 151 Wn.2d 106, 113, 116-117, 86 P.3d
132 (2004) (de novo standard applied even when commissioner heard live
testimony). Should the judge disagree with the commissioner’s disposition,
the judge may issue his or her own independent factual findings and legal
conclusions. Id. at 113, 86 P.3d 132; Iturribarria Perez v. Bazaldua
Garcia, 148 Wn. App. 131, 138, 198 P.3d 539 (2009); Grieco v. Wilson,
144 Wn. App. 865, 877, 184 P.3d 668 (2008), aff’d by In re Custody of
E.A.T.W., 168 Wn.2d 335, 227 P.3d 1284 (2010). Any subsequent appeal
to this court is one that reviews the decision of the superior court judge, not
the commissioner. Ramer, 151 Wn.2d at 113.
In re Marriage of Lyle, 199 Wn. App. 629, 632-633, 398 P.3d 1225 (2017).
Rather than considering the matter de novo, the superior court appears to have
conducted its own review of the commissioner’s ruling. The court’s references to the
commissioner not abusing her discretion and being “affirmed” suggest the court
incorrectly focused on the commissioner’s ruling instead of treating the case as its own.
Even in its treatment of Mr. Eaton’s issue on revision—that the commissioner had
improperly considered evidence raised for the first time on rebuttal—the court
determined that the commissioner had based her ruling on the entire facts before her and
not on the “offending fact” challenged by Mr. Eaton. CP at 137.
3
No. 36912-9-III
In re Marriage of Eaton
In light of these references in the order, we are convinced that the court did not
conduct its own de novo review of the case and, instead, weighed the commissioner’s
actions. This was error.
The order on revision is reversed and the matter remanded for a new revision
hearing. We decline Mr. Eaton’s request to find the facts of this matter ourselves or
otherwise rule the temporary order inappropriate as a matter of law. We also decline to
award him attorney fees. Defending an order on appeal will seldom amount to frivolous
behavior, even in a losing cause.
Reversed and remanded.
A 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.
_________________________________
Korsmo, J.P.T.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Siddoway, A.C.J.
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