Washington Appeals Court Denies Termination of Permanent Protection Order

In some instances involving alleged domestic violence, courts may issue permanent protection orders.  Even if there are no intentions to contact the protected party, a respondent may find an ongoing protection order to have other consequences and seek to terminate it.  The court is to consider nine factors to determine if a substantial change in circumstances supports termination of the protection order.  Only factors that address whether the respondent is likely to commit domestic violence acts against the other party in the future are to be considered.  The respondent has the burden of showing the substantial change in circumstances by a preponderance of the evidence.

A man recently sought termination of a permanent protection order.  According to the appeals court opinion, the man’s wife filed for legal separation and a one-year protection order after he assaulted her in 1996.  The divorce decree prohibited each party from going to each other’s homes or workplaces.

In 2002, the ex-wife sought a protection order against her ex-husband on behalf of herself and their children.  She alleged that he had behaved aggressively toward their son, but he denied any abuse.  The court entered an ex parte domestic violence order of protection.

The next year the ex-wife sought a permanent restraining order, alleging her ex-husband continued to stalk and harass her and bought a home near hers.  They reached an agreed domestic violence order of protection that prohibited the ex-husband from coming within 1,500 feet of his ex-wife or children’s residence, workplace, or school.  He was permanently prohibited from coming near or having contact with his ex-wife.

The ex-husband violated the order by going to their son’s school in 2006, but he said he was picking up his sick son because his ex-wife was out of town.  The charges for violating the order were dropped and the order was amended to let him pick his son up if his ex-wife was unavailable.  The order was modified to remove the children in 2007.

The parties agreed to a modification in 2017 so the ex-husband could attend his daughter’s graduation parties.  He moved to terminate the order, arguing there would be other events involving the children and mutual friends in the future.

The ex-wife opposed the motion.  She filed a declaration stating her ex-husband had continued trying to communicate with her and expressed fear that he would come to her home uninvited or try to communicate with her.

Following a hearing, the commissioner denied the motion, finding the ex-husband had not shown a substantial change in circumstances such that he was not likely to commit domestic violence. The trial court denied the ex-husband’s motion to revise the order.  The court considered the factors set forth in RCW 26.50.130(3)(c).  The court found the ex-husband had insufficient reasons for wanting to terminate the order and had not proven the required substantial change in circumstances.  The court modified the permanent protection order to require him to leave if the parties were at the same location, but not if they were at the same event or function at a location not specifically identified in the order.

The ex-husband appealed.  He argued the trial court improperly considered the 2006 violation of the protection order.  The appeals court found, however, it was within the trial court’s discretion to consider the violation.

The ex-husband argued his acknowledgement of fault in the 1996 incident and his domestic violence treatment should have weighed in his favor.  The trial court found he took responsibility eventually, but had not shown he completed domestic violence treatment or counseling since the order had been entered because he had not provided treatment dates or details.  He argued the order did not require domestic violence treatment.  The appeals court noted successful treatment of domestic violence perpetrator treatment or counseling after the order was entered is one of the statutory factors, and nothing in the statute requires the order to specifically require treatment.  The trial court had considered the evidence and found it insufficient to show the ex-husband met this factor.

Another statutory factor involves consent of the protected party.  The ex-wife opposed terminating the order.  The ex-husband argued her lack of consent did not reflect a risk he would commit acts of domestic violence.  The statute does not require the court to determine if a lack of consent is reasonable.  Furthermore, she provided reasons for her objection, including the contentious divorce, the ex-husband’s reluctance to accept responsibility, and the lack of evidence of treatment.  The appeals court found this was sufficient for the court to consider the factor.

The trial court also considered the factor related to a party relocating away from the other party.  The ex-husband had moved quite near his ex-wife.  He argued this factor should be in his favor because the parties lived near each other for so long without any incidents.  The ex-wife argued a neighbor asked her to drop the protection order so her ex-husband could go to the neighbor’s home, making her concerned about her ex-husband’s influence in the neighborhood.  The trial court did not abuse its discretion in finding this factor weighed against terminating the order.

The statute allows the court to consider “[o]ther factors relating to a substantial change in circumstances” that address whether the respondent is likely to commit acts of domestic violence against the protected person or persons.  The ex-husband argued the court should have weighed his long-term relationship and sustained mental health in his favor.  The appeals court found the trial court had properly considered the factors and had the discretion to assign its own weight to the factors it considers.

The trial court gave the greatest weight to the fact the order had been entered by agreement.  The appeals court found it was within the trial court’s discretion to consider the various factors and there was no abuse of discretion in the court’s finding the consent to enter into the order weighed against terminating the order.

The ex-husband also argued the court failed to consider other factors that supported termination. The appeals court noted the factors he identified may be relevant, but the trial court had discretion in its analysis and weighing of the factors.

The appeals court found the ex-husband had not shown the trial court abused its discretion in finding he had not shown a substantial change in circumstances such that he was unlikely to commit domestic violence against his ex-wife in the future.

The appeals court affirmed the trial court’s order denying termination of the permanent protection order, but denied the ex-wife’s request for attorney’s fees.

This case illustrates the broad discretion the court has in applying the statutory factors and determining whether a permanent protection order will be terminated.  If you are facing an issue involving a potential civil protection order or want to get an order termination, an experienced Washington protection order attorney can help you fight to yourself and your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.

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