Alisha Brown, V. Kelly Clymens

• Court: Court of Appeals of Washington
• Decided: March 2, 2026
• Docket: 87949-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALISHA BROWN, No. 87949-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION KELLY R CLYMENS,

Appellant.

BIRK, J. — A Pierce County Superior Court commissioner entered a

domestic violence protection order (DVPO) restraining Kelly Clymens, finding

Clymens physically and sexually assaulted Alisha Brown and exhibited coercive

control. The court also entered a limited parenting plan restricting Clymens’s

residential time with their child. After unsuccessfully seeking revision, Clymens

appeals, arguing the superior court abused its discretion by making findings

without substantial evidence and deprived him of due process. Clymens also

argues his counsel was ineffective. We affirm.

I

On December 10, 2024, Brown petitioned for a DVPO against Clymens on

behalf of herself and their child, L.B.C. Brown reported that Clymens had

“barricaded [their son] in a locked bedroom while he screamed,” had “threatened

to take [her] kids away,” and that he had choked, pushed, and restrained her as

well as threatened her with guns. On the same day, at an ex parte hearing, the No. 87949-9-I/2

court found that Clymens engaged in domestic violence and coercive control and

entered a temporary DVPO.

At a hearing on December 24, 2024, Clymens asked for visitation with

L.B.C. for Christmas and Clymens’s birthday. The court ordered supervised visits

but left it to the parties to determine who the authorized supervisor would be. The

court also granted Clymens’s request to continue the matter to January 7, 2025.

Clymens filed a cross petition on December 31, 2024 alleging physical abuse and

damage to property.

On January 7, Clymens reported Brown and he had agreed upon a

supervisor for child visitation. Clymens also presented an agreed continuance

motion, and the court continued the matter to January 21, 2025. The court noted

the matter needed to be continued to accommodate Brown’s response to

Clymens’s recently filed counter petition.

On January 21, the court held a hearing on both petitions. Brown testified

about her history with Clymens, detailing the physical, emotional, and sexual

abuse she experienced. She also testified about an incident where Clymens

locked himself and their child in a bedroom. In argument, Clymens argued Brown’s

testimony about the bedroom incident contradicted the transcript he submitted as

evidence, which he said showed their son was not afraid of him. He also argued

the photographs he submitted in support of his petition showed Brown had

subjected him to violence. He lastly argued that Brown did not submit any other

evidence to support her petition.

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The court granted Brown’s petition and denied Clymens’s, entering a one

year DVPO protecting Brown and restraining Clymens. The court noted that, even

with reviewing the transcript of the video of the bedroom incident, “it’s likely that

there was already coercive control, sexual assault, and domestic violence going

on in this relationship.” The court ordered a parenting plan in the DVPO permitting

Clymens three supervised visits a week: “[two] mid-week visits – [two] hours each,”

and “[one] weekend visit – [six] hours on [Saturday] or [Sunday].”

Clymens unsuccessfully moved for revision and now appeals.1

II

A2

Clymens argues there was insufficient evidence to support a DVPO against

him.3 We disagree.

1 We deny Clymens’s motion to strike Brown’s response brief. Clymens argues that Brown filed her response brief six days late without asking for an extension, that Brown failed to properly serve her response brief, and that he only received notice of her brief from our clerk’s office. He argues, as a result, that he was prejudiced by her actions and he should be awarded sanctions against her. Clymens does not show he was prejudiced by either the late filing of her brief or her alleged failure to properly serve her brief. Clymens makes no mention of Brown’s untimely response in his reply brief and does not show how her late filing prevented him from fully addressing her response arguments. We have reviewed both Brown’s response and Clymens’s reply briefs on the merits. We also deny Clymens’s motion for sanctions. 2 We address each of Clymens’s arguments to the extent they are

adequately supported by citations to legal authority and to the record. RAP 10.3(a)(6). 3 Clymens’s DVPO expired January 21, 2026. No party argues this case is

moot. An expired protection order imposes a “continuing stigma” that can be removed by a favorable decision, thereby providing effective relief. See Hough v. Stockbridge, 113 Wn. App. 532, 537, 54 P.3d 192 (2002), rev’d on other grounds, 150 Wn.2d 234, 76 P.3d 216 (2003).

3 No. 87949-9-I/4

“When reviewing an order on revision, we look to the superior court’s

decision, not the commissioner’s.” Davis v. Arledge, 27 Wn. App. 2d 55, 63, 531

P.3d 792 (2023). Under RCW 2.24.050, the findings and orders of a court

commissioner not successfully revised become the orders and findings of the

superior court. “A revision denial constitutes an adoption of the commissioner’s

decision, and the court is not required to enter separate findings and conclusions.”

Maldonado v. Maldonado, 197 Wn. App. 779, 789, 391 P.3d 546 (2017). “We

review a trial court’s decision to grant a DVPO for abuse of discretion.” Davis, 27

Wn. App. 2d at 63-64. “A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or reasons.” Id. at 64.

“We review the superior court’s findings of fact for substantial evidence.” Id.

“ ‘Substantial evidence exists if the record contains evidence of sufficient quantity

to persuade a fair-minded, rational person of the truth of the declared premise.’ ”

Id. (quoting Bering v. Share, 106 Wn2d 212, 220, 721, P.2d 918 (1986)).

“To obtain a DVPO, a petitioner must show by a preponderance of the

evidence that [domestic violence] occurred.” Id.; see RCW 7.105.225(1)(a). Under

chapter 7.105 RCW, which governs civil protection orders, “domestic violence” is

“[p]hysical harm, bodily injury, assault, or the infliction of fear of physical harm,

bodily injury, or assault; nonconsensual sexual conduct or nonconsensual sexual

penetration; coercive control; unlawful harassment; or stalking of one intimate

partner by another intimate partner; or . . . of one family or household member by

another family or household member.” RCW 7.105.010(10)(a), (b).

4 No. 87949-9-I/5

Here, there was substantial evidence to convince a fair minded, rational

person by a preponderance of the evidence that Brown was subjected to domestic

violence by Clymens. At the continued hearing for a one-year protection order,

Brown testified that since 2020, Clymens had sexually assaulted her “several times

throughout the week” for years. She described the incident where Clymens

barricaded himself and their child in a bedroom. She filed a declaration giving

account of the sexual assaults and the bedroom incident.4

Brown also filed declarations from her mother, sister, and cousin-in-law.

Her mother’s declaration recounts her receiving calls from Brown “about

arguments and escalations to physical violence,” as well as a time she went to

Brown’s house and “found out from [Brown] that [Clymens] just choked [Brown]”

and saw Brown’s neck “being swollen and reddish in color.” Her sister’s

declaration recounted an incident where Clymens was yelling while holding a gun.

Her cousin-in-law’s declaration recounted an incident where Brown spoke to

L.B.C.’s school and was informed Clymens had told L.B.C. he was never going to

see his mother again.

Clymens argues that the trial court relied on “written allegations that were

unsupported by independent documentation, testimony, or physical evidence,” and

that Brown did not produce any photographs, police reports, or video. However,

“[h]earings may be conducted upon the information provided in the sworn petition,

4 Clymens argues Brown relies on an unsubstantiated statement in her

declaration that he violated a temporary DVPO to support her argument on appeal. However, we do not address issues argued for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

5 No. 87949-9-I/6

live testimony of the parties should they choose to testify, and any additional sworn

declarations.” RCW 7.105.200(5). Here, the superior court ordered the DVPO

based upon Brown’s testimony and declarations, indicating it believed Brown and

the declarants. We defer to the trial court’s determinations on the persuasiveness

of the evidence, witness credibility, and conflicting testimony. Davis, 27 Wn. App.

2d at 64.

Clymens also argues the superior court erred in only considering some of

the transcript from the recording of the bedroom incident contrary to ER 106.

Clymens’s argument is unavailing. The commissioner stated that she had read

the transcript. Apart from the court’s discretion not to apply the rules of evidence,

RCW 7.105.200(8), Clymens never offered, and the commissioner never

purported to exclude, any parts of the writing necessary to provide appropriate

context. Rather, the commissioner read the transcript and as the trier of fact

determined its probative value. There was substantial evidence for a fair-minded,

rational person to conclude Clymens subjected Brown to domestic violence, and

Clymens’s evidentiary arguments fail.

B

Clymens argues the superior court erred in restricting visitation with L.B.C.

and ordering supervised visits without applying RCW 26.09.191, which he argues

violated his due process rights. As part of the DVPO, the temporary parenting plan

also expired on January 21, 2026. RCW 7.105.310(1)(f) provides the court with

statutory authority to order a parenting plan with limitations on residential time as

part of a DVPO “on the same basis as is provided in chapter 26.09 RCW.” At the

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hearing, the trial court heard input from the parties in fashioning a temporary

parenting plan allowing Clymens to have visitation with L.B.C. Clymens did not

argue that the commissioner was required to make specific findings under RCW

26.09.191. Clymens also did not make this argument in his motion for revision.

By not presenting this argument in the trial court, Clymens waived his ability to

present for the first time in this court. See RAP 2.5(a). In addition, Clymens fails

to explain in his briefing how the commissioner abused their discretion. Under

RCW 26.09.191(4)(a)(iii), a parent’s history of acts of domestic violence as defined

in RCW 7.105.010 is grounds for limiting a parent’s residential time. The

commissioner found that Clymens subjected Brown to domestic violence.

Clymens fails to show error.

C

Clymens argues his attorney at the hearing for a one year DVPO failed to

let him testify or introduce requested evidence into the record and failed to move

for reconsideration instead of revision. Clymens argues this was ineffective

assistance of counsel. Clymens fails to cite any authority that the Sixth

Amendment right to effective counsel applies to a proceeding such as this. See

Nicholson v. Rushen, 767 F.2d 1426 (9th Cir. 1985) (Sixth Amendment applies to

criminal cases); In re Detention of T.A.H.-L, 123 Wn. App. 172, 179, 97 P.3d 767

(2004) (party may bring an ineffective assistance of counsel claim in civil

commitment proceeding); In re Welfare of J.M., 130 Wn. App. 912, 920-22, 125

P.3d 245 (2005) (discussing right to counsel in parental rights termination

proceedings). No authority has been cited in Washington recognizing a right to an

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attorney in a DVPO proceeding, and the legislature has yet to grant a statutory

right to an attorney in DVPO proceedings under chapter 7.105 RCW. Clymens’

argument fails.

D

Clymens argues the denial of his cross petition and “failure to consider or

even enter key exculpatory evidence” deprived him of due process. Washington

courts have already recognized that the DVPO statute does not violate procedural

due process because the statute includes several safeguards, most notably

“ ‘notice and a meaningful opportunity to be heard by a neutral decision maker.’ ”

Davis, 27 Wn. App. 2d at 71 (discussing the former DVPO statute, chapter 26.50

RCW, repealed and recodified in Laws of 2021, ch. 215, § 170(94)-(126)) (quoting

State v. Karas, 108 Wn. App. 692, 699, 32 P.3d 1016 (2001)); see also Gourley v.

Gourley, 158 Wn.2d 460, 469-70, 145 P.3d 1185 (2006). Clymens does not argue

that he did not have an opportunity to present evidence; rather, he argues that

because his counsel did not present evidence or his own testimony, the court failed

to consider it. But Clymens did provide oral argument and also submitted as

evidence the transcript of the bedroom incident, both of which the court

considered. Moreover, contrary to Clymens’s argument, the commissioner clearly

did consider his petition separately filed under a different cause number. But the

actions were never consolidated, and following the hearing, to the extent of this

court’s record, Clymens sought revision and appeal only from the order granting

Brown’s petition, and not the order denying his. The transcript nevertheless shows

that despite Clymens’s failure to take steps necessary to bring his separately filed

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matter to the attention of the revision court and this court, the commissioner did

consider that evidence. Clymens’s due process argument fails.

E

Brown requests attorney fees on appeal, which Clymens disputes because

his arguments on appeal are not frivolous. RAP 18.1(a) permits a party to request

attorney fees on appeal where applicable law grants them that right. We may

award attorney fees where allowed by statute, rule, or contract. Aiken v. Aiken,

187 Wn.2d 491, 506, 387 P.2d 680 (2017). If fees are allowable at trial, then “the

prevailing party may recover fees on appeal.” Id. RCW 7.105.310(1)(j) permits

the superior court, within its discretion, to order the respondent to pay

administrative court costs, service fees, and reasonable attorney fees “incurred in

bringing the [domestic violence protection order].” Although we do not rule that

Clymens’s arguments on appeal are frivolous, Brown is the prevailing party and

may be awarded fees under RCW 7.105.310(1)(j) on that basis. Because Brown

is the prevailing party in this court, we grant Brown’s request for reasonable

attorney fees on appeal, subject to her compliance with RAP 18.1(d).

Affirmed.

WE CONCUR: