Aashima Kulshrestha, V. Jitendra Kulshrestha

• Court: Court of Appeals of Washington
• Decided: June 26, 2023
• Docket: 83784-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JITENDRA KUMAR KULSHRESHTHA, No. 83784-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION AASHIMA KULSHRESHTHA,

Appellant.

DÍAZ, J. — Aashima Kulshreshtha appeals a domestic violence protection

order (DVPO) protecting her former husband, Jitendra Kulshreshtha,1 and the

parties’s children, O.K. and T.K. Aashima argues that the evidence was

insufficient to support a finding that she committed domestic violence and that the

trial court erred by relying on a Family Court Services (FCS) report. We affirm.

I. FACTS2

In July 2021, Jitendra petitioned for a DVPO protecting himself, O.K., and

1 The parties’s surname also appears throughout the record as “Kulshrestha.” We spell it as Jitendra Kulshreshtha spelled it in his pro se DVPO petition below. Additionally, because the parties share a surname, we refer to them hereafter by their first names for clarity. 2 One week before this matter was set for consideration, Aashima filed an

“Emergency Motion” that consists of a supplement to her appellant’s brief. RAP 10.1(b) contemplates that the following briefs may be filed on appeal: “(1) a brief of appellant or petitioner, (2) a brief of respondent, and (3) a reply brief of appellant or petitioner.” The RAPs do not contemplate the supplemental brief that Aashima now attempts to file, and Aashima does not persuade us that the ends of justice would be served by accepting such a brief at the eleventh hour. Aashima’s “Emergency Motion” is hereby denied, and we do not consider the supplemental arguments therein. See RAP 10.1(h) (providing that appellate court may authorize No. 83784-2-I/2

T.K. from Aashima. Jitendra declared under penalty of perjury that (1) in August

2020, despite an existing restraining order, Aashima “barged” into Jitendra’s home

without his permission, resisted when he asked her to leave, “pulled [him] out,

grabbed [his] shirt, and scratched in anger”; (2) on April 21, 2021, Aashima came

to Jitendra’s home and started ringing the doorbell “despite clear prior requests to

not come to [his] property” and an existing restraining order; (3) on April 23, 2021,

Aashima was waiting in a cab a couple of houses away from Jitendra’s house,

jumped out and started following Jitendra and T.K. as soon as she saw them, and

tried to “indulge in conversation and arguments”; and (4) Aashima had been

harassing Jitendra regularly via email and text, including by calling “non-stop

during late nights, mornings, afternoon and evenings,” sometimes “30-40 times in

an hour,” and that she did not stop even after being “repeatedly reminded of her

harassing behavior.”

In September 2021, the trial court held a hearing on Jitendra’s petition and

took testimony from both parties. The court did not make a ruling on the petition

but instead continued the hearing and ordered an FCS domestic violence

evaluation to obtain “more information.”

In December 2021, FCS issued a 17-page report. The report is not in the

record, but the record shows the evaluator recommended that a protection order

be entered and that Aashima participate in a psychological evaluation.

In February 2022, the trial court held a follow-up hearing on Jitendra’s

the filing of briefs other than those listed in the rule); cf. RAP 1.2(c) (“The appellate court may waive or alter the provisions of any of these rules in order to serve the ends of justice.”).

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petition. After hearing argument from the parties, the court acknowledged that

there were disputed facts as to the parties’s “history,” indicated that it had reviewed

the FCS report, and stated that “having reviewed that I think there’s a sufficient

enough basis to grant the protection order.” The court expressly found that

Aashima “committed domestic violence as defined in RCW 26.50.010” and entered

a one-year DVPO protecting Jitendra, O.K., and T.K. from Aashima. Aashima

appeals.3

II. DISCUSSION

A. Standard of Review

We review a trial court’s decision to grant a DVPO for abuse of discretion.

In re Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d 607 (2016). The trial court

abuses its discretion when its decision is manifestly unreasonable, or when it

exercises its discretion on untenable grounds or for untenable reasons. Id. Where,

as here, the trial court has weighed the evidence, we defer to the trial court’s

determinations regarding the persuasiveness of the evidence, witness credibility,

and conflicting testimony. Vulnerable Adult Petition for Knight, 178 Wn. App. 929,

937, 317 P.3d 1068 (2014). Our role is to determine whether substantial evidence

supports the trial court’s findings of fact and whether those findings support the

3 In her notice of appeal, Aashima designated both the DVPO and an order

denying reconsideration of the DVPO. However, Aashima does not assign error to or present any argument addressing the latter order. Therefore, we do not consider whether the trial court erred by denying reconsideration of the DVPO. See RAP 10.3(a)(4), (6) (requiring appellant’s brief to include assignments of error and “argument in support of the issues presented for review”); see also Riley v. Iron Gate Self Storage, 198 Wn. App. 692, 713, 395 P.3d 1059 (2017) (declining to consider challenge to denial of motion for reconsideration where appellant did not present any argument or supporting authority in his appellate brief).

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conclusions of law. Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144

(1999).

“[S]ubstantial evidence review ‘is deferential and requires the court to view

the evidence and reasonable inferences in the light most favorable to the party

who prevailed below.’ ” Garza v. Perry, 25 Wn. App. 3d 433, 453, 523 P.3d 823

(2023) (internal quotation marks omitted) (quoting State v. Living Essentials, LLC,

8 Wn. App. 2d 1, 14, 436 P.3d 857 (2019). Evidence is substantial if it is sufficient

to persuade a rational and fair-minded person that a premise is true. Nguyen v.

City of Seattle, 179 Wn. App. 155, 163, 317 P.3d 518 (2014).

B. Domestic Violence Finding

Aashima argues that reversal is required because substantial evidence

does not support the trial court’s finding that she committed domestic violence. We

disagree, whether the domestic violence alleged is physical injury or stalking.

The Domestic Violence Protection Act (DVPA), chapter 26.50 RCW,

authorizes the trial court to enter a DVPO based on a determination that domestic

violence occurred.4 See RCW 26.50.030 (DVPO exists for protection “in cases of

domestic violence”). “Domestic violence” includes “[p]hysical harm, bodily injury,

[or] assault” of one former spouse by another former spouse. RCW

4 Aashima cites to chapter 7.105 RCW throughout her appellant’s brief.

However, when the trial court entered the DVPO, the DVPA governed civil domestic violence protection order proceedings. The legislature repealed the DVPA effective July 1, 2022 as part of legislation that reorganized various civil protection order statutes into chapter 7.105 RCW. See LAWS OF 2021, ch. 215, § 170(94)-(126). Because this legislation was not yet in effect at the time of the proceedings below, we refer herein to the relevant, but since repealed, DVPA statutes as if still in effect.

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26.50.010(3)(a), (6).

Here, Jitendra declared and later testified that in 2020, Aashima forced her

way into his home and scratched him while he was trying to get her to leave. In a

police report from the incident, the responding officer wrote that he saw “what

appeared to be a fresh small red mark on the back of [Jitendra’s] right hand and

two small scratches on his right forearm.” This constitutes substantial evidence

that Aashima inflicted physical harm, bodily injury, or assault on Jitendra and, thus,

that Aashima committed domestic violence.

Aashima counters that the police report also stated that law enforcement

did not locate her in the area and that Jitendra would not cooperate with officers

or let them look at his arm. But the fact that officers could not further investigate

the allegations in Jitendra’s report does not mean the incident could not have

occurred as Jitendra described. Cf. PacifiCorp v. Wash. Utils. & Transp. Comm’n,

194 Wn. App. 571, 598, 376 P.3d 389 (2016) (evidence is not made less

substantial by the mere presence of contradictory evidence in the record).

Similarly, according to the police report, Jitendra was “very upset that

Aashima might go to jail,” and he later explained that he did not want to press

charges at the time because he “was mindful of . . . how that can

impact . . . things.” Aashima asserts that Jitendra’s desire that Aashima to not be

arrested is inconsistent with his claim that she assaulted him. Based on this same

evidence, Aashima contends that “the lower court could not conclude that

[Aashima] physically harmed [Jitendra].” Under the applicable deferential standard

of review, we “will not substitute [our] judgment for that of the trial court even

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though [we] might have resolved a factual dispute differently.” Sunnyside Valley

Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)

“Domestic violence” also includes “stalking as defined in RCW 9A.46.110”

of one former spouse by another former spouse. RCW 26.50.010(3)(c), (6). A

person commits stalking if, “without lawful authority,” he or she “intentionally and

repeatedly [i.e., on two or more separate occasions] harasses or repeatedly follows

[i.e., deliberately maintain[s] visual or physical proximity to] another person”; and

“[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.” RCW 9A.46.110(1); see also former RCW 9A.46.110(6)(b) (2013)

(defining “follows”); former RCW 9A.46.110(6)(e) (defining “repeatedly”). “The

feeling of fear must be one that a reasonable person in the same situation would

experience under all the circumstances.” RCW 9A.46.110(1)(b). Additionally, the

stalker must “[i]ntend[ ] to frighten, intimidate, or harass the person” or “[k]now[ ] or

reasonably should know that the person is afraid, intimidated, or harassed.” RCW

9A.46.110(1)(c). “Attempts to contact or follow the person after being given actual

notice that the person does not want to be contacted or followed constitutes prima

facie evidence that the stalker intends to intimidate or harass the person,” and

“contact” includes “the sending of an electronic communication to the person.”

RCW 9A.46.110(4).

“Harasses” in turn means “a knowing and willful course of conduct directed

at a specific person which seriously alarms, annoys, harasses, or is detrimental to

such person, and which serves no legitimate or lawful purpose.” Former RCW

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9A.46.110(6)(e) (2013); former RCW 10.14.020(2) (2011). “The course of conduct

shall be such as would cause a reasonable person to suffer substantial emotional

distress, and shall actually cause substantial emotional distress to the petitioner.”

Former RCW 10.14.020(2) (2011). A “course of conduct” means “a pattern of

conduct composed of a series of acts over a period of time, however short,

evidencing a continuity of purpose,” and includes “contact” and “the sending of an

electronic communication.” Former RCW 10.14.020(1) (2011).

Here, the record contains evidence, in Jitendra’s petition and testimony, that

Aashima repeatedly texted and called him—sometimes up to 30-40 times an

hour—despite being told not to. And, Jitendra attested that Aashima showed up

at or near his house on at least two occasions in April 2021 despite a restraining

order being in place. Given that the record also contains evidence that Aashima

entered Jitendra’s home uninvited a year earlier and assaulted Jitendra, and

Jitendra’s declaration that Aashima’s actions and behavior caused him “stress,

anxiety, and harm [to] well-being, physical, and mental peace,” it was not

unreasonable for the trial court to infer that Jitendra experienced a level of fear and

substantial emotional distress that a reasonable person would under the

circumstances.

Aashima argues that she simply wanted to “check on her kids” and thus had

a lawful and legitimate purpose for her actions because she was concerned about

her children’s welfare. That argument asks this court to reweigh the evidence and

the credibility of the parties, which we will not do. See Living Essentials, 8 Wn.

App. 2d at 15 (“Reviewing courts will not reweigh the evidence or the credibility of

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witnesses on appeal.”).

In short, when viewed in the light most favorable to Jitendra, the record

supports a finding that Aashima committed domestic violence under both the

physical harm and stalking prongs of RCW 26.50.010.5 Consequently, Aashima’s

sufficiency challenge fails.

C. FCS Report

Aashima also argues that the trial court abused its discretion by relying on

the FCS report. She asserts that the report was “unreliable and inconsistent”

because it “omit[ted] several material facts favorable to [Aashima],” “contained

misleading facts that painted [Aashima] in a negative light,” “inappropriately relied

on [Jitendra]’s presentation of the facts to support its conclusions,” and presented

the facts in a “one-sided” manner.

But the FCS report is not in the record on appeal. Therefore, the record

before us does not support Aashima’s characterizations of the report—and,

indeed, Aashima does not support a number of her assertions about the report

with citations to the record. Cf. Sunderland Fam. Treatment Servs. v. City of

Pasco, 107 Wn. App. 109, 116, 26 P.3d 955 (2001) (appellant “has the burden of

providing a record sufficient to review the issues raised”). Furthermore, while the

record reflects that the trial court considered the FCS report in entering the DVPO,

5 Aashima asserts that “a court must make specific findings to support the

issuance of a [DVPO].” As much as Aashima contends that the trial court’s finding that she “committed domestic violence” was not sufficiently specific, she provides no authority to support that assertion, and we reject it. See DeHeer v. Seattle Post- Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“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.”).

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it does not establish, as Aashima claims, that the court “simply deferred” to the

report to the exclusion of considering the totality of the evidence before it. And

because that evidence, as discussed, supports the trial court’s domestic violence

finding, Aashima does not establish that the trial court abused its discretion in

entering the DVPO.

III. CONCLUSION

We affirm.

WE CONCUR: