Washington Appeals Court Affirms New DVPO after Original DVPO Expired

Washington domestic violence protection orders (“DVPOs”) protect abused spouses, romantic partners, and family and household members.  The court may order the DVPO for a fixed period of time, in many cases, one year.  The petitioner may seek a renewal of the DVPO and, under current RCW 7.105.405, the petitioner does not have a burden to prove they have “a current reasonable fear of harm. . .” Instead, the respondent has the burden to prove they will not resume acts of domestic violence.  In some cases, however, a DVPO may be inadvertently allowed to expire.  A former husband recently challenged a DVPO protecting his former wife and their children after the previous DVPO was allowed to expire.

The parties shared custody of their two children following their divorce in 2019.  According to the appeals court’s opinion, the ex-husband tried to force his way into the ex-wife’s home and injured her.  She sought a domestic violence protection order (“DVPO”).  The court issued a DVPO protecting the ex-wife and the children for one year.  The order also limited the ex-husband’s residential time with the children to a weekly four-hour supervised visit.  The ex-wife sought renewal in June 2021. Thereafter, the DVPO was extended through agreed short-term orders and ultimately expired in January 2022.

The ex-wife sought another DVPO in February 2022, alleging she allowed the prior order to expire accidentally.  She stated she was still afraid of the ex-husband and that she thought she and the children were only safe because of the protection order.  She also stated she had moved to modify the parenting plan to limit the ex-husband to supervised visits, but that motion was still pending.

She alleged there had been issues despite the supervised visitation.  She described an incident in January 2022 involving the visitation supervisor. The supervisor then expressed concerns to the ex-wife.  The supervisor said the ex-husband “snapped” at her when she tried to intervene in his confrontation with a waiter.  He told her that intervening in his interactions with others “overstep[ped] her place.”

The ex-wife also attached a victim impact statement from the criminal case arising from the incident in May 2020 in which she described a history of verbal abuse, aggressive and threatening messages, and “unprovoked verbal confrontations” with others.

The ex-husband’s declaration stated her description of the incident was “false” and that “no intentional assault occurred.”  He claimed he had not done anything “that could objectively inflict the fear of physical harm in a reasonable person in [the ex-wife’s] circumstances” since.

Following a hearing, the court issued another DVPO for one year.  The ex-husband appealed.

The ex-husband argued the court erred because he had not committed any new domestic violence.

Former RCW chapter 26.50, which was repealed effective July 1, 2021, governed the DVPO in this case.  The applicable statute required a petition to “allege the existence of domestic violence” and include an affidavit stating the facts and circumstances.  Former RCW 26.50.030.

The trial court concluded the ex-wife showed by a preponderance of the evidence that she had a current fear based on the husband’s actions since the first DVPO was issued.  The court found she had current reasonable fear when the ex-husband’s continued denial of the domestic violence incident and behaviors during visitation were considered with the circumstances leading to original DVPO.

The husband argued he had not committed a recent act of domestic violence, but the appeals court noted that a recent act was not required by the Domestic Violence Prevention Act.

The husband also argued that the past act of domestic violence could not support the new DVPO because it had supported the first DVPO.  The appeals court pointed out it had previously rejected a similar res judicata in Muma v. Muma. The appeals court in that case concluded the domestic violence issues had not been litigated to finality because the ex-wife still demonstrated fear of the ex-husband.  The appeals court further stated it would not require the petitioner to wait for additional violent acts to obtain an order of protection.

The trial court in this case found the ex-wife showed “a current reasonable fear” that, along with the previous domestic violence, supported a new DVPO.  The appeals court therefore concluded the domestic violence issues were not fully litigated and the DVPO was not barred by res judicata.

The appeals court considered the description of the domestic violence act, the history of verbal abuse, and the recent confrontation during the supervised visit and concluded there was sufficient evidence that the ex-wife had a reasonable fear of the ex-husband.

The appeals court affirmed the DVPO and awarded the ex-wife attorneys’ fees.

Whether you are seeking or opposing a new DVPO or a renewal of an existing DVPO, an experienced Washington protection order attorney can help  Call Blair & Kim, PLLC at (206) 622-6562 for a consultation.  With our background in criminal defense, we can also assist with any associated criminal matter.


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