Daniel Clark v. Luba Clark ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DANIEL S. CLARK,
No. 80273-9-I
Respondent, (consolidated with 80274-7-I)
v. DIVISION ONE
LUBA P. CLARK, UNPUBLISHED OPINION
Appellant.
---------------------------------------------------
DANIEL S. CLARK,
Respondent,
v.
HOWARD S. CLARK,
Appellant.
SMITH, J. — Luba and Howard Clark appeal the issuance of permanent
stalking protection orders sought by their son, Daniel Clark.1 Because Luba
admitted to contacting Daniel on two or more occasions and because Daniel
previously sent her a cease and desist letter, there was sufficient evidence for
the trial court to find that Luba stalked Daniel. Similarly, because Howard
previously entered into a verbal no-contact agreement with Daniel but contacted
Daniel thereafter, there was sufficient evidence for the trial court to find that
Howard stalked Daniel. Therefore, the trial court did not abuse its discretion
when it entered either protection order. Furthermore, given the long history of
1 We refer to the parties by their first names for the sake of clarity.
Citations and pin cites are based on the Westlaw online version of the cited material.
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unwanted contact by both Luba and Howard, the court did not err in making the
orders permanent. We affirm both orders.
FACTS
Daniel alleges that his childhood was filled with emotional and physical
abuse, as well as sexual assault and rape. Daniel contends that, in one
instance, Howard insisted that Daniel stay home from school after Luba
“inflict[ed] bruises on [his] face.” In a text message exchange, Luba
acknowledged that, “a few times,” she hit Daniel “too hard.” Daniel alleges that,
when he was young, Luba told Daniel that he could not report her abuse because
Howard was a doctor. He further contends that Luba knew that his brother raped
him when he was a child.
In 2011, following some personal challenges, Daniel moved back in with
his parents. That same year, Luba put Daniel in “a bear hug” to prevent him from
leaving. Daniel left their home, seeking to end contact. But Howard later
approached Daniel in a public library, though Howard contends it was “by
chance.” Luba also approached Daniel in a Walmart parking lot and, at other
times, placed notes on Daniel’s car.
In June 2014, Howard used “a yellowpages website” to find an address
that he believed to be Daniel’s. With the address that Howard had found, Luba
visited Daniel’s residence in Seattle, Washington, and spoke with Daniel’s
roommate. In a signed letter, his roommate asserted that Luba disclosed that
Howard had been driving past Daniel’s residence, “checking out [their] place.”
In December 2014, Howard sent Daniel a birthday card. Immediately
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thereafter, on December 31, 2014, and January 8, 2015, Daniel served Howard
and Luba with individual cease and desist letters, ordering them to stop
contacting him. Howard contends that he and Luba did not “take [the] letter[s]
seriously in a legal sense.”
Around Father’s Day in 2016, Howard called and left Daniel a voice mail.
Daniel then sought a temporary protection order against Howard. In August
2016, Howard and Daniel entered into an indefinite verbal no-contact agreement,
and Daniel dismissed the petition.
In March 2018, Luba texted Daniel after her mother passed away. On
June 25, 2019, Howard left Daniel another voice mail. Howard alleges that he
called Daniel because he has cancer.
Daniel quickly filed for stalking protection orders against Luba and
Howard. With regard to Luba, Daniel alleged that she placed “notes on [his] car,”
confronted his friends and intimate partners, drove around his residence to
monitor him, and “[s]how[ed] up at his place of residence multiple times[,]
knocking on the door and refusing to leave.” He stated that Luba’s actions make
him feel “unsafe,” “trigger regression from complex PTSD [(posttraumatic stress
disorder)],” cause him grief, and make him hypervigilant. With regard to Howard,
Daniel alleged that Howard moved his car without his permission, located his
residence, and called him multiple times. He claimed that he feels “unsafe,
intimidated, harassed, stalked, and vulnerable.”
The court issued temporary stalking protection orders, and for the sake of
efficiency, the court heard both petitions at the same time. Daniel testified that
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he preferred “a permanent [protection] order for [his] health, safety and well-
being.” He alleged that Luba and Howard contacted him “three times in the past
few years.” The court acknowledged the contradicting testimony from Daniel and
his parents, but it found Daniel’s evidence credible, including his contention that
“he had an abused childhood, that [Howard and Luba] have hurt him physically
and emotionally over a course of many years and [that they] have contacted him
despite his wishes to not have contact, which has been made clear.” The court
found that Howard’s and Luba’s actions “would cause a reasonable person,
given [the] long history” of continued contact and the abusive relationship, “to feel
intimidated. And it did cause Daniel to feel intimidated.” The court further found
that Howard and Luba “either knew or should have known that this intimidation
feeling would happen, even though that wasn’t . . . the intent.” Therefore, the
court concluded that Howard and Luba stalked Daniel, and it entered the
requested permanent stalking protection orders.
Luba and Howard separately appeal the court’s orders.
ANALYSIS
Luba and Howard challenge the trial court’s decision finding that they,
individually, stalked Daniel. Because Luba and Howard each contacted Daniel
on multiple occasions after he requested that they not do so and because Daniel
experienced fear and intimidation, which Luba and Howard should have realized
would happen, we disagree.
Under RCW 7.92.100(1)(a), the court must issue a stalking protection
order “[i]f the court finds by a preponderance of the evidence that the petitioner
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has been a victim of stalking conduct by the respondent.” A court may find that
the respondent committed stalking conduct if the respondent partook in one of
three courses of conduct. Specifically, stalking conduct is defined as any act of
stalking or cyberstalking2 as defined by the corresponding criminal statutes, or
[a]ny course of conduct involving repeated or continuing contacts,
attempts to contact, monitoring, tracking, keeping under
observation, or following of another that:
(i) Would cause a reasonable person to feel intimidated,
frightened, or threatened and that actually causes such a feeling;
(ii) Serves no lawful purpose; and
(iii) The stalker knows or reasonably should know threatens,
frightens, or intimidates the person, even if the stalker did not
intend to intimidate, frighten, or threaten the person.
RCW 7.92.020(4)(a)-(c).
“Whether to grant, modify, or terminate a protection order is a matter of
judicial discretion.” Marriage of Freeman, 169 Wn.2d 664, 671, 239 P.3d 557(2010). “‘Where the decision or order of the trial court is a matter of discretion, it
will not be disturbed on review except on a clear showing of abuse of discretion,
that is, discretion manifestly unreasonable, or exercised on untenable grounds,
or for untenable reasons.’” Freeman, 169 Wn.2d at 671 (quoting State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Stalking Protection Order Against Luba
The trial court did not err when it found by a preponderance of the
2 Because it is clear that neither Luba nor Howard committed repeated
acts of cyberstalking, we do not address this as a basis for the protection orders.
See RCW 9.61.260(1) (defining the criminal standard for cyberstalking and
requiring that the defendant make “an electronic communication to such other
person or a third party” that is lewd, done repeatedly, or that threatens to inflict
injury on the person or property).
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evidence that Luba stalked Daniel under RCW 7.92.030(3)(c).3
Luba admitted that she (1) gave Daniel a “bear hug” in 2011 when he was
trying to leave her home, (2) “attempt[ed] to contact Daniel by leaving
messages,” (3) went to his residence in 2014, and (4) text messaged him in
March 2018. And under RCW 9A.46.110(6)(e), “‘[r]epeatedly’ means on two or
more separate occasions.” See also State v. Haines, 151 Wn. App. 428, 437,
213 P.3d 602 (2009) (holding that the stalking statute requires only two incidents
of harassment). Thus, Luba satisfied the elements of repeated contacts.
In addition, a reasonable person who had experienced abuse from the
contacting individual would feel intimidated or frightened by that individual’s
continued contact. Furthermore, Daniel showed by a preponderance of the
evidence that he felt intimidated and frightened, and was hypervigilant after Luba
contacted him. Finally, Luba’s contact had no lawful purpose, and because
Daniel provided Luba with a cease and desist letter and told Luba that he learned
martial arts because of the “bear hug” she put him in, Luba should have known
that contacting Daniel caused him fear or intimidated him. For these reasons,
the trial court did not act manifestly unreasonable or base its decision on
untenable grounds when it concluded that Luba stalked Daniel. And when a
court finds by a preponderance of the evidence that stalking occurred, it must
issue a protection order. Therefore, the trial court did not err.
Luba disagrees and contends that we should consider “the length of time
3 Because we conclude that the trial court did not err in finding
RCW 7.92.030(3)(c) satisfied, we do not address whether Luba’s conduct
satisfied the criminal stalking statute provided for in RCW 7.92.030(3)(a).
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between contacts and the lack of notice.” However, Luba cites no case law for
the proposition that the court must consider the length of time between contacts.
Therefore, we are not persuaded. See City of Seattle v. Levesque, 12 Wn. App.
2d 687, 697, 460 P.3d 205 (“‘Where no authorities are cited in support of a
proposition, the court is not required to search out authorities, but may assume
that counsel, after diligent search, has found none.’” (quoting DeHeer v. Seattle
Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962))), review
denied, 195 Wn.2d 1031 (2020).
Similarly, Luba repeatedly alleges that her conduct and intent was “loving”
as justification for her repeated attempts to contact Daniel. But the statute does
not concern itself with the respondent’s intent. See RCW 7.92.020(4)(c)(iii) (A
court may find stalking occurred, “even if the stalker did not intend to intimidate,
frighten, or threaten the person.”). And given Daniel’s detailed cease and desist
letter to Luba, Luba should have known that her contact was unwelcome and that
it caused Daniel distress. Accordingly, Luba’s contention fails.
In addition, Luba asserts that the trial court conflated Howard’s and Luba’s
conduct when it found that Luba had committed stalking. At the hearing, the
court specifically noted Luba’s contact with Daniel over the course of their text
message conversation and after Daniel repeatedly told her not to respond or
contact him again. The court further noted that Luba admitted hitting Daniel, and
she admitted entering Daniel’s residence without his permission. In short, there
was sufficient evidence to support the trial court’s determination that Luba’s
conduct alone constituted stalking.
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No. 80273-9-I/8
Stalking Protection Order Against Howard
The trial court likewise did not err when it concluded that, pursuant to
RCW 7.92.030(3)(c), Howard stalked Daniel.4
Howard admits that he (1) contacted Daniel in 2014, (2) found Daniel’s
address online, (3) left Daniel a voice mail in 2016, and (4) following a verbal no-
contact agreement, left Daniel a voice mail message again in 2019. Accordingly,
Howard’s contact with Daniel was repeated. Furthermore, like Luba’s contact, it
served no lawful purpose and reasonably intimidated Daniel. Given Howard’s
verbal no-contact agreement, Howard should have known that the contact
intimidated or frightened Daniel. Therefore, the trial court did not act manifestly
unreasonable when it found by a preponderance of the evidence that Howard
stalked Daniel, and it did not err when it entered a stalking protection order
against Howard.
Howard contends that “[n]o reasonable person would experience fear
under the circumstances described by Daniel” because Howard’s contact with
Daniel was loving. However, the trial court found by a preponderance of the
evidence that Daniel was credible and that he actually felt fear and intimidation.
It also found that a reasonable person, given Daniel’s recollection of his
childhood and how his father covered up his mother’s abuse, would feel that way.
Therefore, as was the case with Luba, a reasonable person would be frightened
and intimidated, and we are not persuaded.
4 Because we conclude that the trial court did not err in finding
RCW 7.92.030(3)(c) satisfied, we do not address whether Howard’s conduct
satisfied the criminal stalking statute provided for in RCW 7.92.030(3)(a).
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Protection Order Length
Finally, Luba and Howard contend that the trial court erred when it issued
a permanent protection order. We disagree.
“[A] final stalking protection order shall be effective for a fixed period of
time or be permanent.” RCW 7.92.130(1). As the issuance of a protection order
is a matter of discretion, so is the length of such order.
Here, the trial court based the issuance of the permanent protection order
on the “long period of conduct” committed by Luba and Howard. It further noted
the continued contact by both Howard and Luba after they received
individualized cease and desist letters and after Daniel made it clear that he did
not want any further contact from either of them. Specifically, for nearly 10 years,
Luba and Howard separately contacted Daniel despite his clear request for them
to stop. For these reasons, we cannot conclude that the issuance of a
permanent protection order in either case was manifestly unreasonable or based
on untenable grounds.
We affirm.
WE CONCUR:
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