Bethany Carlson, V. Michael Carlson ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BETHANY CARLSON,
No. 81616-1-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
MICHAEL CARLSON,
Respondent.
APPELWICK, J. — Bethany Carlson appeals the trial court’s denial of her
petition for a domestic violence protection order against her then husband Michael
Carlson. She argues the trial court abused its discretion in denying the petition.
We affirm.
FACTS
Bethany and Michael Carlson were married on September 30, 2000. They
have three children together. Bethany1 also has a child from a previous
relationship, now aged 29, whom Michael helped raise since the child was five.
On November 18, 2019, Bethany told Michael that she wanted a divorce.
Bethany asked him to move out of the family home two days later. Michael
complied.
Bethany then left with the children for Disneyland. The parties planned to
have the children stay with Michael for the weekend after they returned. The
1 We use the parties’ first names for clarity. No disrespect is intended.
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parties also agreed that Michael could go to the family home and pick up some
items while the rest of the family was in Disneyland.
Michael’s attorney advised him to collect various documents and financial
information in preparation for the divorce action. While the rest of the family was
in Disneyland, Michael returned to the house to gather the documents and
information.
Bethany was generally responsible for managing the family’s finances and
paying household bills. While gathering the information his attorney requested,
Michael discovered several joint credit card accounts of which he was previously
unaware. He closed these accounts.2 The same day, he put $6,920.00 in the
family bank account for Bethany’s use. Bethany, still in Disneyland with the
children, attempted to use the credit cards, which were declined. She initiated the
following text message conversation with Michael,
[Bethany]: Any idea on why our credit cards aren’t working? Two of
them so far.
[Bethany]: Answer please.
[Bethany]: ??
[Michael]: My attorney advised me to cancel all the credit cards I put
money in the joint account for you to use. The money I
put in there was $6900 on top of what was already in there
that money is to be used for bills on the housebills [sic]
and for you and the kids to get home from Disneyland. I
am paying the mortgages
[Bethany]: You’re amazing in the middle of my trip. Total [M]ike
Carlson move. Since you’re always only looking out for
yourself … I can assure you I will be doing the same
2 One of Bethany’s personal credit card accounts was also closed, though
Michael denies having done so.
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[Bethany]: Was gonna play nice guy but I’m done
[Bethany]: All bets are off
[Bethany]: And by law… divorce papers have to be filed and
delivered before you do that … I know that for a fact from
my attorney … so joe [sic] any proceeds from the auction
will go into a lock fund
[Bethany]: until we have a [custody] agreement in order [sic] from
here on out you cannot see the kids since you abandoned
them
....
[Michael]: I’m begging you please do not drag the kids into this mess
this is between me and you, try to make it go smoothly
[Bethany]: YOU brought the kids into this. YOU ATTACKED THEIR
MOTHER… I don’t think you realize the gravity of your
decisions.. we have no more agreements between us -
ever. You locked that line off when you went into attack
mode on me and started cutting off every means I have
for actual survival now .. even my OWN credit lines which
is now fraud. You have a history of verbal violence with
[the children] and myself. You have a history of violence
against me… and the children. I will be keeping them safe
and with me until you are evaluated for mental stability by
a court of law.
Michael’s brother served Bethany with a petition for dissolution in the
SeaTac airport when she returned from Disneyland on November 29, 2019. On
December 4, 2019, Bethany filed for a domestic violence protection order (DVPO)
on behalf of herself and the parties’ three minor children. She obtained a
temporary protection order based on the petition that same day. Family Court
Services conducted an investigation and recommended that the protection order
be granted.
In the petition, she alleged that Michael threatened to make her “disappear.”
She also alleged that Michael was stalking her, including through the use of
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No. 81616-1-I/4
spyware and cameras in her home. She alleged that Michael had repeatedly
sexually assaulted her during their marriage. And, she alleged that Michael had
threatened to kidnap their daughter. She further accused Michael of abusing her
oldest son and the couples’ son in the past.
Michael requested an evidentiary hearing, which the trial court held on June
1-2, 2020. Both parties testified. Two of Bethany’s longtime friends testified on
her behalf.
Bethany’s friends indicated that they were afraid that Michael might harm
Bethany. They also indicated that Michael had made “little comments” about how
Bethany could disappear during their marriage. They both said that Bethany had
told them that Michael sexually assaulted her during the marriage. And, they
relayed that when she went out with friends, Michael called her on FaceTime3
“obsessively.”
Both of Bethany’s witnesses admitted that they had never witnessed any
domestic violence between the parties, and were testifying based solely on what
Bethany told them. In its findings, the trial court noted that it had to admonish
Bethany for giving answers to one of the witnesses during their testimony.
After Bethany presented her evidence, Michael moved for a directed verdict.
He argued that Bethany had failed to show that domestic violence had occurred.
The trial court reserved judgment, holding that Bethany had made a case that was
sufficient to prevent dismissal. The trial court indicated it wanted to hear additional
evidence from Michael before making a decision.
3 “FaceTime” is the video communication software from Apple Inc.
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Michael testified last. He denied physically or sexually assaulting Bethany.
He denied stalking Bethany but admitted to calling her via FaceTime while she was
out with her girlfriends. He denied installing spyware in the home. He denied
saying she would “disappear.” He attributed the comment to a mutual friend
making a joke about how Michael could “bury” Bethany if she left him because he
had excavation equipment for his business. Michael also denied abusing the
children. But, he admitted to slapping his stepson once when he was sixteen after
finding him smoking marijuana at the family’s cabin.
Michael also introduced text message conversations between himself and
Bethany, himself and the children, and group texts with the family. Michael claimed
that the text conversation between him and Bethany was a complete record of their
text message conversations from the year prior to the DVPO petition. None of
those text messages makes any mention of abuse of any kind until around the time
the DVPO petition was filed. Bethany claims Michael removed incriminating text
messages from the chain.
The trial court denied the DVPO. It found that Bethany had not established
that domestic violence had occurred. In its ruling, it noted that Michael denied
sexually assaulting Bethany. It noted that none of Bethany’s witnesses had direct
knowledge of any assault, and that all of their knowledge came from what Bethany
had told them. It also noted that it had to admonish Bethany for giving answers to
a witness during the hearing. And, it found that Bethany had introduced no
supporting evidence for her claims that Michael had installed spyware in her house
or was otherwise stalking her or her friends. The trial court also noted that Bethany
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had not provided any evidence supporting her claim that Michael had removed text
messages from the conversations between the two.
Bethany appeals.
DISCUSSION
Bethany appeals the trial court’s denial of the DVPO. She assigns
numerous errors to the trial court’s factual findings. Among other things, she
argues that the trial court erred in finding that she had not established that she
experienced domestic violence. Bethany also requests attorney fees for this
appeal.
We review the trial court’s decision to grant or deny a DVPO for abuse of
discretion. In re Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d 607 (2016). A
trial court abuses its discretion where its decision is manifestly unreasonable, or
its discretion is exercised on untenable grounds or for untenable reasons. Id.Where, as here, the trial court has weighed the evidence, our role is simply to
determine whether substantial evidence supports the trial court’s findings of fact,
and whether those factual findings support the conclusions of law. In re Marriage
of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
Substantial evidence is a quantum of evidence sufficient to persuade a
rational and fair-minded person that the premise is true. Nguyen v. City of Seattle,
179 Wn. App. 155, 163, 317 P.3d 518 (2014). We defer to the trial court’s
assessment of witness credibility and weight of evidence. Id. We will not substitute
our judgment for the trial court’s even if we might have resolved a factual dispute
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differently. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d
369 (2003).
Here, the trial court made a finding that Bethany had not established that
domestic violence had occurred. If supported by substantial evidence, that finding
would support the legal conclusion that the DVPO petition should be dismissed.
See RCW 26.50.030 (DVPO exists for protection in cases of domestic violence).
“Domestic violence” in this context means, “Physical harm, bodily injury, assault,
or the infliction or fear of imminent physical harm, bodily injury or assault, sexual
assault, or stalking as defined in RCW 9A.46.110.”4 RCW 26.50.010(3). RCW
9A.46.110(1) defines “stalking” as “intentionally and repeatedly harass[ing] or
repeatedly follow[ing] another person [where t]he person being harassed or
followed is placed in fear that the stalker intends to injure the person, another
person, or property of the person or of another person.”
Bethany alleged that Michael sexually assaulted her throughout their
marriage. She also alleged that Michael stalked her and her friends. And, she
alleged that Michael had abused the children.
In support of her accusations of sexual assault, she introduced her own
testimony and that of her two friends, who testified that Bethany had told them
about the assaults as well. Both witnesses admitted that they did not have
personal knowledge about the assaults. Bethany is correct that a trial court may
consider hearsay evidence in DVPO proceedings. See Gourley v. Gourley, 158
4 Bethany makes numerous allegations against Michael. We focus our
attention in this opinion on those accusations which, if true, would fit the statutory
definition of domestic violence.
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No. 81616-1-I/8
Wn.2d 460, 467, 145 P.3d 1185 (2006) (hearsay rules do not apply to protection
order proceedings). But, it is for the trial court to determine how to weigh such
evidence. Nguyen, 179 Wn. App. at 163 (weight of evidence questions for the trial
court). Here, the trial court considered Bethany’s witnesses’ testimony alongside
the fact that they had no firsthand knowledge of the alleged assaults. The trial
court also considered that Bethany had to be prevented from coaching one of the
witnesses during the hearing. The trial court weighed this testimony against the
husband’s denials, and a year’s worth of text messages between the parties that
make no mention of the assaults.5 Given the competing evidence, a fair minded
person could conclude that no sexual assault had occurred.
Bethany’s accusation of stalking includes Michael putting cameras in her
home and calling her “obsessively” while she was out with friends. The trial court
found that Bethany had provided no evidence that Michael had installed cameras
in her home. Bethany does not challenge that finding. Nor does she now point to
any evidence in the record that supports such an allegation.
Regarding Bethany and her witnesses’ allegation that Michael “obsessively”
called her while she was out with friends during their marriage, this by itself does
not support a finding of stalking. “Stalking” in this context must be accompanied
by a reasonable fear of physical harm to the victim, another person, or property.
RCW 9A.46.110(1). Here, Bethany’s witnesses described that if Bethany did not
Bethany assigns error to the trial court’s finding that the text messages do
5
not show domestic violence. But, her supporting argument is not that the text
messages show abuse, but rather that the fact they do not show abuse does not
mean that abuse did not happen.
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No. 81616-1-I/9
answer or comply with Michael’s demands for attention, “[h]e’d be mad at her.
There would be extensive phone calls. You know, rudeness, name-calling.” It is
not an abuse of discretion to conclude on this evidence that Bethany was not
placed in fear of injury and that no stalking occurred. Michael also denied calling
Bethany to the extent Bethany and her friends alleged. Substantial evidence
supports a finding that no stalking occurred.
Bethany also claims that Michael abused the children. But, aside from
statements from her oldest son from another relationship, she provides no
corroborating evidence to support that claim. The oldest son, now 29, is not
included in the DVPO petition. And, aside from a single incident where Michael
admits slapping him when he was 16, Michael denies abusing him or the other
children. The trial court considered the allegation, but determined it was an
exercise of corporal punishment, not abuse. Bethany sought the DVPO on behalf
of herself and their three minor children. There was no evidence that Michael had
harmed or put them in any danger. That finding is supported by substantial
evidence.
The remainder of Bethany’s accusations involve offhand comments about
making her “disappear.” She testified that based on those comments, she was
afraid that Michael would harm her. Michael testified that he did not make those
comments. If the statements were not made, they could not constitute abuse. It
is not an abuse of discretion to believe the testimony of Michael over Bethany.
Bethany made numerous allegations against Michael about conduct in the
past. No immediate act of abuse coincided with the filing. The text messages
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No. 81616-1-I/10
between the parties for the preceding year did not corroborate the threatening
relationship to which she testified. However, Michael had just cancelled credit card
accounts that affected Bethany. In response, she sent text messages that
indicated she would retaliate against him for his handling of the divorce
proceedings.
Substantial evidence supports the trial court’s finding that no domestic
violence occurred. It was not an abuse of discretion to deny the DVPO.6
We affirm.
WE CONCUR:
6 Bethany also requests attorney fees for this appeal pursuant to RAP 18.1.
That rule allows us to award attorney fees to a party when authorized by statute.
RAP 18.1. RCW 26.50.060(1)(g) allows a court to require the respondent in a
DVPO action to pay the petitioner’s legal fees. Because Bethany has not prevailed
on appeal, we decline to award her fees.
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