IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DANIELLE TETRAULT PESTARINO, No. 86578-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BART XAVIER PESTARINO,
Appellant.
COBURN, J. — Bart Pestarino appeals the entry of a one-year domestic violence
protection order (DVPO) protecting Danielle Pestarino and their minor child. 1
Substantial evidence supports the trial court’s finding that Bart engaged in acts of
domestic violence and Bart otherwise fails to establish a constitutional violation or error.
We affirm.
FACTS
Bart and Danielle married in December 2022 and their child was born a year
later. When they met and began dating, Danielle, a Canadian citizen, was working in
Skagit County on a travel nursing contract assignment with a temporary work visa
associated with that employment. At some point after the parties married and Danielle’s
travel nurse contract had ended, the parties submitted an application for Danielle to
Because the parties share the same last name, we use their first names for clarity. 1 No. 86578-1-I/2
obtain a “green card,” and as a part of that process, Bart was required to sign an
“Affidavit of Support,” agreeing to reimburse the federal government in the event that
Danielle received public assistance.
In February 2024, Danielle filed a petition for a DVPO on behalf of herself and
the parties’ child against Bart. Danielle’s petition identified the “most recent incident” as
a “physical assault” that took place on December 26, 2023. Danielle alleged that while
she was wearing a baby carrier that held the parties’ 3-week-old infant, Bart threw a
wooden chair at her and hit her on the thigh. Danielle stated that she tried to escape by
going upstairs, and Bart pushed her, while still carrying the baby, into a basement
bedroom and “smacked” her phone out of her hands to prevent her from calling the
police. Danielle explained in her declaration that she was afraid to report the incident to
medical providers when she took the baby to a previously scheduled appointment on
the day of the incident. However, Danielle provided evidence that she
contemporaneously told her doula what happened in a text message and also
communicated with Bart’s mother, who offered refuge at her home.
Danielle also described verbal arguments, threats, and intimidating remarks, and
alleged that Bart physically assaulted her on several previous occasions in 2023.
Danielle claimed that Bart threatened divorce, “her immigration status,” cancellation of
her health insurance, and other “legal trouble.” Danielle also alleged that in January
2023, during an argument about moving her clothing into the parties’ shared bedroom,
Bart forbade her from moving things in his home and urinated on a box of her clothing.
After Bart filed a petition for legal separation in February 2024, Danielle permanently
2 No. 86578-1-I/3
moved out of the home she shared with Bart. Danielle declared that Bart owned multiple
firearms and had made threats to harm law enforcement if they attempted to remove his
firearms or others who entered his property without his permission.
In a responsive declaration, Bart characterized Danielle’s petition as “retaliation,”
a ploy to gain an advantage in the pending family law matter, and laying the groundwork
for a plan to fraudulently secure a visa based on domestic violence victim status. Bart
posited that Danielle was suffering from post-partum depression or other mental health
condition. Providing his own version of some incidents Danielle described, Bart denied
throwing a chair at Danielle, and claimed he simply removed a chair because Danielle
threatened to endanger herself and the baby by standing on it with the baby in a carrier.
Bart admitted that he urinated on a box of Danielle’s clothing, but only because she
“blocked” the bedroom doorway. Bart claimed he did not prevent Danielle from reporting
any incident to law enforcement because his home was only two blocks away from the
police station and Danielle could have walked there at any time.
Bart denied interfering with Danielle’s pending “green card” application. However,
he explained that, in January 2024, because he believed Danielle intended to move out
of his home, he withdrew the “Affidavit of Support” he had previously submitted in
support of her application, as he was no longer willing to assume the risk of being the
“financial backstop.” Finally, asserting that Danielle’s “wild accusations” were
unsubstantiated and “flawed,” Bart asked the court to impose CR 11 sanctions against
Danielle.
3 No. 86578-1-I/4
Both parties submitted documentary evidence, including medical records, screen
shots of text messages, and three police reports generated by 911 calls made by each
party in January 2024. None of the reports indicated that law enforcement concluded
that any party committed domestic violence.
The parties appeared, represented by counsel, at a March 2024 hearing on the
petition before a superior court commissioner. The court indicated that it had thoroughly
reviewed the file, and, after considering the sworn statements and documents filed by
the parties and arguments of counsel, the court entered a one-year DVPO protecting
Danielle and the parties’ child. The court orally ruled, “[i]t’s clear to me that there is
domestic violence going on in this home, both physical and by way of coercive control.”
Specifically, the court noted that one example of exerting coercive control set forth in
Washington’s civil protection order statute is contacting authorities regarding an
individual’s suspected or actual immigration status, and stated that Bart “is using that as
a way to control” Danielle. The court also found that Bart represented a “credible threat”
to Danielle’s safety and ordered Bart to surrender all firearms in his possession to law
enforcement and prohibited him from possessing or purchasing firearms or other
dangerous weapons for the duration of the DVPO. 2 The DVPO did not preclude Bart’s
visitation with the parties’ child if ordered in the family law proceeding.
2 Bart asserted below that he had entrusted seven firearms, including one registered to Danielle, to his parents. Noting that no declaration from Bart’s parents to that effect was in the court file, the trial court nevertheless ordered the surrender of weapons.
4 No. 86578-1-I/5
DISCUSSION
Representing himself on appeal, Bart claims (1) the trial court erred when it
concluded that he engaged in coercive control by actions related to Danielle’s
immigration status, (2) the DVPO proceeding violated his constitutional right to due
process, and (3) the DVPO’s firearm restrictions violated his rights under the Second
Amendment.
As an initial matter, Danielle urges us to dismiss Bart’s appeal on two separate
bases. First, Danielle argues that the appeal is moot because the DVPO has now
expired. A case is moot if there is no longer a controversy between the parties and the
question presented is merely academic. Pentagram Corp. v. City of Seattle, 28 Wn.
App. 219, 223, 622 P.2d 892 (1981). However, a case is not moot if we can still provide
effective relief. Id. “Effective relief” can include cleansing a person’s record and
reputation of the “continuing stigma” of a protection order. Hough v. Stockbridge, 113
Wn. App. 532, 537, 54 P.3d 192 (2002), rev’d on other grounds, 150 Wn.2d 234 (2003).
Here, Bart asserts that this court can still provide effective relief because reversal of the
DVPO would effectively terminate an “adverse personnel action” related to his security
clearance, employment, and pension. In these circumstances, it appears that we may
still provide effective relief and we address the merits of his appeal.
Second, Danielle contends that Bart’s appeal should be dismissed because he
fails to provide adequate legal support for his arguments and largely fails to include
proper citations to the record. See RAP 10.3(a)(6) (appellant must provide “argument in
support of the issues presented for review, together with citations to legal authority and
5 No. 86578-1-I/6
references to relevant parts of the record”). However, the Rules of Appellate Procedure
are “liberally interpreted to promote justice and facilitate the decision of cases on the
merits” and we do not determine cases solely “on the basis of compliance or
noncompliance with these rules except in compelling circumstances where justice
demands.” RAP 1.2(a). No such compelling circumstances exist here where we are able
discern the substance of Bart’s arguments, the legal authority he relies on, and the
relevant facts. We decline to dismiss the appeal on procedural
grounds.
We review the decision to grant or deny a DVPO for an abuse of discretion.
Rodriguez v. Zavala, 188 Wn.2d 586, 590, 398 P.3d 1071 (2017). A court abuses its
discretion if its decision is manifestly unreasonable or based on untenable grounds or
untenable reasons. In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644
(2014).
When, as here, the trial court has weighed the evidence, our review is limited to
determining whether substantial evidence supports the court’s findings of fact and, if so,
whether those findings support the conclusions of law. In re Marriage of Greene, 97 Wn.
App. 708, 714, 986 P.2d 144 (1999). “Substantial evidence exists if the record contains
evidence of a sufficient quantity to persuade a fair-minded, rational person of the truth of
the declared premise.” In re Marriage of Fahey, 164 Wn. App. 42, 55, 262 P.3d 128
(2011). We “‘view the evidence and reasonable inferences in the light most favorable to
the party who prevailed’ below”—in this case, Danielle. Garza v. Perry, 25 Wn. App. 2d
433, 453, 523 P.3d 822 (2023) (quoting State v. Living Essentials, LLC, 8 Wn. App. 2d
6 No. 86578-1-I/7
1, 14, 436 P.3d 857 (2019)). We “defer to the trier of fact on the persuasiveness of the
evidence, witness credibility, and conflicting testimony.” Knight v. Knight, 178 Wn. App.
929, 937, 317 P.3d 1068 (2014). And we may affirm the superior court on any basis
supported by the record. State v. Bunner, 86 Wn. App. 158, 161, 936 P.2d 419 (1997).
Chapter 7.105 RCW governs the issuance of civil protection orders. Under RCW
7.105.225(1), “[t]he court shall issue a protection order if it finds by a preponderance of
the evidence that the petitioner has proved the required criteria.” For a DVPO, the
statute requires a court to find that “the petitioner has been subjected to domestic
violence by the respondent.” RCW 7.105.225(1)(a). RCW 7.105.010(9)(b) defines
“domestic violence” for purposes of a protection order as:
[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 family or household member by another family or household member.
The statute defines “coercive control” as:
a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty.
RCW 7.105.010(4)(a). As relevant here, coercive control includes communicating an
intent to “[c]ontact local or federal agencies based on actual or suspected immigration
status.” RCW 7.105.010(4)(a)(i)(E)(IV).
Coercive Control
Bart claims the trial court misconstrued RCW 7.105.010(4) and ignored
applicable statutory exceptions when it found that withdrawing his “Form I-864 Affidavit
7 No. 86578-1-I/8
of Support” amounted to coercive control. This is so, he argues, because federal law
authorized him to withdraw the form, see 8 C.F.R. § 213a2(f) (sponsor may “disavow”
an affidavit of support before decision on pending application), he did not interfere with
Danielle’s green card application, and Danielle’s immigration status was known to
authorities because of her pending application. Bart contends that entry of the DVPO
based on this action unlawfully punished him for “properly complying with federal
immigration law.”
But we need not decide whether the conduct related to Danielle’s pending
immigration application amounted to coercive control under statute, or whether any
other alleged coercive acts met the statutory definition. Danielle described both acts of
physical violence and acts of coercive control and it is clear from the record that the trial
court relied on both bases to conclude that Bart perpetrated domestic violence. 3
In addition to the December 2023 incident, Danielle stated that in March 2023,
during an argument about a bike ride, Bart wrestled her to the ground and placed her in
a headlock because she was holding his bike shoe, and said he would not submit her
immigration documents if she told anyone. Danielle also declared that, after she
damaged a wall while carrying heavy items down a flight of stairs, Bart “exploded,”
slapped items out of her hands, and chased her. Danielle reported that during an
October 2023 argument, Bart “grabbed” her arms and tried to “drag” her into the
bedroom. And Danielle described a November 2023 incident when she tried to get out
3 Insisting that the DVPO is solely based on a finding of coercive control, Bart inaccurately attributes Danielle’s counsel’s remark that “[t]his is one of the most clear-cut coercive control cases that I’ve ever seen,” to the trial court.
8 No. 86578-1-I/9
of a vehicle Bart was driving while it was stopped at a red light. According to Danielle,
after Bart refused to let her out and the two fought over control of the steering wheel,
Bart continued driving while holding her by the neck of the sweater, face-down in the
center console, before he eventually stopped the car.
Bart appears to assert that this evidence does not support the DVPO because
the trial court expressly cited only the December 2023 incident in its oral ruling (referring
to “chairs being thrown” and “interference” with Danielle’s ability to contact law
enforcement). He therefore claims (1) that the court discounted all incidents other than
the one specifically referenced in its oral ruling, (2) that, apart from her testimony about
the December 2023 incident, the court found Danielle’s testimony otherwise not
credible, and (3) that the court “inexplicably cherry-picked” evidence by crediting some
of Danielle’s claims and rejecting others. We disagree with these characterizations.
The trial court made credibility determinations about witness testimony when it
found, as the trier of fact, that Bart subjected Danielle to domestic violence. We do not
revisit those determinations on appeal. See Knight, 178 Wn. App. at 937. Failing to
mention some incidents Danielle testified about does not equate to an adverse
credibility finding. And nowhere did the court indicate that it relied exclusively on the
events of December 26, 2023. There is no basis in law or logic to infer the court did not
believe aspects of Danielle’s testimony. And beyond that, there is simply no support for
the premise that the trier of fact must give equal weight to all of the testimony provided
by a particular witness.
9 No. 86578-1-I/10
Substantial evidence in the record—Danielle’s sworn statements about physical
assault and corroborating evidence in the record—supports the DVPO, apart from any
evidence of coercive control.
Due Process
Bart next argues, for the first time on appeal, that the DVPO violated his right to
due process because it imposed “criminal-type penalties” by restricting his movement
and infringing on his right to bear arms, but he was not afforded the requisite procedural
safeguards. In particular, Bart points out that there was no discovery process, the court
relied on hearsay evidence that would be inadmissible in other proceedings, he had no
opportunity to “face [his] accuser,” and the petitioner was not required to establish the
criteria for a DVPO beyond a reasonable doubt.
The fundamental basis of due process when the State seeks to deprive a party of
a protected interest is notice and the right to be heard. In re Marriage of McCann, 4 Wn.
App. 2d 896, 916, 424 P.3d 234 (2018); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.
Ct. 893, 47 L. Ed. 2d 18 (1976). Matthews sets forth a series of factors courts analyze to
assess a due process claim. 424 U.S. at 334-35. And Washington appellate courts
permit manifest constitutional issues to be raised for the first time on appeal. RAP
2.5(a)(3). While they arise most commonly in criminal appeals, a party may raise a
constitutional issue for the first time on appeal in a civil case in certain circumstances.
State v. WWJ Corp., 138 Wn.2d 595, 601-02, 980 P.2d 1257 (1999) (RAP 2.5(a)(3)
applies to civil cases). But to successfully present a constitutional issue initially on
appeal, the factual record must be sufficiently developed to address the merits of the
10 No. 86578-1-I/11
claim. Id. at 602, 606 (while RAP 2.5(a)(3) applied to excessive fines issue raised in a
civil case, the record was inadequate to assess the “gravity” of offense). In the absence
of such a record, no error is manifest. Id.
It does not appear that Bart challenged any procedural aspect of the proceeding
below. He did not mention discovery, request live testimony as permitted under RCW
7.105.200(5), or ask to cross examine any witness. Insofar as Bart now challenges the
court’s consideration of hearsay evidence, he did not object below and submitted
hearsay evidence in support of his own response. See Blackmon v. Blackmon, 155 Wn.
App. 715, 722, 230 P.3d 233 (2010) (rules of evidence, including the hearsay rule, do
not apply in protection order proceedings); ER 1101(c)(4) (evidentiary rules “need not
be applied” in protection order proceedings under chapter 7.105 RCW). Indeed, Bart
expressly relied on out-of-court statements, including those in medical reports Danielle
provided, to argue that the evidence established “domestic discord but not domestic
violence.” The superior court had no opportunity to evaluate the sufficiency of the
process in light of Bart’s objections or to consider adjustments. Because the record is
insufficient, Bart’s due process claim lacks a factual predicate and review is not
warranted under RAP 2.5(a)(3).
Firearms Restrictions
Finally, Bart claims that the “coercive control” DVPO violates his rights under the
Second Amendment because firearm restrictions premised on acts of coercive control
have no “historical analogue.” 4 See New York State Rifle & Pistol Ass’n v. Bruen, 597
4 Bart does not challenge the constitutionality of RCW 9.41.800, the statute which required the trial court to include firearm restrictions in the DVPO.
11 No. 86578-1-I/12
U.S. 1, 29, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022) (refining framework for Second
Amendment claims). Bart relies on the United States Supreme Court’s most recent
Second Amendment case, United States v. Rahimi, 602 U.S. 680, 690, 144 S. Ct. 1889,
219 L. Ed. 2d 351 (2024), wherein the Supreme Court rejected a facial challenge to the
constitutionality of a federal statute which prohibits the possession of a firearm by an
individual subject to a domestic violence restraining order. 602 U.S. at 701. The Court
held that an “individual found by a court to pose a credible threat to the physical safety
of another may be temporarily disarmed consistent with the Second Amendment.” Id. at
702.
Bart fails to acknowledge that the DVPO is based on a finding of “domestic
violence” supported by evidence of physical assault. And more to the point, as in
Rahimi, the trial court found that Bart represented a “credible threat to the physical
safety” of the protected individuals. Rahimi does not undermine the constitutionality of
the firearm restrictions imposed in the DVPO. 5
Attorney Fees on Appeal
Danielle requests an award for attorney fees on appeal under the DVPO statute,
RCW 7.105.310(1)(j). In his reply brief, Bart asks this court to sanction Danielle under
RAP 18.9(a) for “bad-faith” in defending the DVPO and asserting mootness.
5 Throughout his briefing, Bart refers to matters outside the appellate record and attempts to introduce documents that were not before the trial court. RAP 10.3(a)(8) (an appendix to a brief “may not include materials not contained in the record on review without permission from the appellate court.”). We consider only the evidence and facts properly before us. In addition, Bart raises claims for the first time in his reply brief. We decline to address these arguments, as we typically do not address arguments made for the first time in reply, in part because the other party has no opportunity to respond. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
12 No. 86578-1-I/13
RAP 18.9(a) provides that this court may order a party that files a frivolous
appeal to pay sanctions. Danielle prevails on the merits. And more fundamentally, she
is not the appellant and did not file a frivolous appeal. RAP 18.9(a) cannot justify
sanctions against Danielle.
On the other hand, RAP 18.1(a) allows us to award attorney fees on appeal if
applicable law grants the party the right to recover attorney fees. RCW 7.105.310(1)(j)
vests the court with discretion to require the respondent in a protection order proceeding
“to reimburse the petitioner for costs incurred in bringing the action, including
reasonable attorneys’ fees.” We exercise our discretion under this statute to award
Danielle her attorney fees on appeal, subject to her compliance with RAP 18.1.
Affirmed.
WE CONCUR: