Gary Flanzer, V. Eladio Flores

• Court: Court of Appeals of Washington
• Decided: October 3, 2022
• Docket: 82896-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GARY FLANZER, No. 82896-7-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION ELADIO FLORES,

Respondent.

DÍAZ, J. — Gary Flanzer appeals the trial court’s decision on revision to

vacate a domestic violence protection order (DVPO), which he had obtained from

a commissioner. Flanzer fails to show that the trial court was manifestly

unreasonable or the basis of its decision legally or factually untenable when it

determined that he had not sustained his burden to establish that domestic

violence occurred. Therefore, we affirm.

I. FACTS

In February 2021, Flanzer petitioned for a DVPO protecting him from his

spouse, Eladio Flores. At the time, Flanzer and Flores were in the process of

dissolving their eight-year-long marriage and were living in separate bedrooms in

a shared condo.

By way of summary: Flanzer first alleged that Flores had committed

domestic violence by assaulting Flanzer and taking his cell phone during a

February 22, 2021 incident to which police responded (cell phone incident).

Flanzer alleged he was an “elder adult with [a] disability” and the cell phone

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82896-7-I/2

incident “instill[ed] fear of [his] safety.”

Second, Flanzer alleged that Flores “abused [him] with abusive sexual

contact resulting in surgery.” He later provided medical records from 2014 and

2015 indicating that he had been diagnosed with medical conditions, which he

attested were caused by Flores’s sexual abuse. Flanzer declared that he did not

tell his doctor about Flores’s sexual abuse because he was dependent on Flores

for health insurance.

Third, Flanzer alleged in a supplemental declaration that on February 15,

2015, Flores “hit [him] in the face during an argument at a fast food drive thru” (fast

food incident). Flanzer attached photographs of injuries he allegedly sustained

during the fast food incident; he also attested that “Jan Dickson was a witness” to

the incident. 1

In response to Flanzer’s petition, and also by way of summary, Flores

submitted a declaration in which he denied assaulting Flanzer during the cell

phone incident. According to Flores,

As part of our discussion about splitting up, I asked [Flanzer] about

1 In addition to the foregoing allegations, Flanzer claimed among other things that Flores changed the code on the thermostat in either December 2020 or 2021 “so [Flanzer] had no heat”; threatened to take Flanzer’s medications away and committed “theft of a controlled substance” on February 20, 2021; intimidated Flanzer by text with “foul language”; and threatened to take away Flanzer’s health insurance. The trial court later determined that Flanzer’s “other allegations . . . , even if considered true and taken together, do not meet the definition of ‘domestic violence’ as contemplated under Washington law.” Flanzer does not assign error to this determination or provide any argument in support of any such assignment of error. So, we do not discuss these additional allegations further. See Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014) (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”); see also RAP 10.3(a)(6) (requiring appellant’s brief to contain “argument in support of the issues presented for review”). 2 No. 82896-7-I/3

our Joint Crypto Currency account. [Flanzer] has always held closely the information about our Coin Base account saying that he would take care of our jointly held account. He would not share this information with me. . . . I grabbed his phone to look at the Coin Base account. He became very vocal and upset, so I immediately returned the phone to him. I did not touch [Flanzer] at all.

Flores also denied sexually abusing Flanzer, declaring that the surgery was

required because of a condition that predated the couple’s relationship. Flores

declared further that in the 15 years he and Flanzer had been together, Flanzer

had never mentioned having a disability, and “[a]s to the elderly comment,

[Flanzer] is always bragging how young and fit he is [and] takes questionable

supplements to enhance youth.” Flores claimed Flanzer was “very angry that

[Flores was] parting ways from him and he wants to get back at me one way or the

other,” and that “[t]his is a way to retaliate by making false accusations . . . of

assault.” Flores attested that Flanzer “has stated on several occasions that he

would ‘get [Flores] put in jail’ [and] has threatened [Flores] with loss of [his] long-

term employment and ruining [him].”

In addition to his own declaration, Flores submitted multiple declarations

from friends and family members describing interactions they had witnessed

between Flores and Flanzer. Multiple witnesses declared they had observed

Flanzer physically or verbally abusing Flores. Among these was Jan Dickson, who

attested to witnessing an altercation between Flores and Flanzer “that became

physically violent and was not initiated by Mr. Flores as he was having to defend

himself from being attacked by Mr. Flanzer.”

On April 8, 2021, Flanzer’s DVPO petition came before a commissioner for

a telephonic hearing. Flanzer did not testify, but Flores did. He testified among

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other things that he was in Atlanta on February 15, 2015, the day of the alleged

fast food incident. The commissioner determined that “[Flanzer] is more credible

than [Flores],” granted Flanzer’s petition, and entered a two-year DVPO protecting

Flanzer from Flores.

Flores moved for revision, which the trial court granted after hearing

argument from the parties and reviewing the recorded telephonic hearing before

the commissioner. In its order granting revision, the trial court determined that the

alleged assault during the February 2021 cell phone incident was not proven by a

preponderance of the evidence. The court further found that Flanzer’s sexual

abuse allegation “has not been shown to be true by a preponderance of the

evidence.” Among other considerations, the court also observed that Flores had

denied Flanzer’s allegations and had submitted declarations from a number of

friends who stated that Flores was “never volatile or violent” with Flanzer but that

Flanzer was “erratic and verbally abusive” to Flores. And, the trial court observed,

Flores and his witnesses “denied that [Flanzer] is disabled.”

The trial court finally also determined that the 2015 assault during the fast

food incident had not been proven by a preponderance of the evidence, explaining

that “[t]he one apparent eyewitness . . . , Jan Dickson, described an act of self-

defense by [Flores],” and “[w]hile this is inconsistent with [Flores]’s testimony (he

said he was in Florida [sic]), it does not support [Flanzer’]s allegation.”

“In summary,” the court concluded, “[Flanzer] has not met his burden to

show by a preponderance of the evidence that domestic violence has occurred,

warranting a two year protection o[r]der.” Thus, the court vacated the DVPO.

4 No. 82896-7-I/5

Flanzer appeals.

II. ANALYSIS

Flanzer contends the trial court erred by granting the motion for revision

which vacated the DVPO. We disagree.

A. Standard of Review

In this appeal, we review the trial court’s decision on revision; not the

commissioner’s order. In re Vulnerable Adult Petition for Knight, 178 Wn. App.

929, 936, 317 P.3d 1068 (2014). And we review a trial court’s decision whether to

grant or deny a motion for revision on a DVPO for abuse of discretion. See In re

Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d 607 (2016) (“A trial court’s

decision to grant a protection order is a matter of judicial discretion.”). 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. T.W.J.,

193 Wn. App. at 6. Where, as here, the trial court has weighed the evidence, our

role is limited to determining whether substantial evidence supports the court’s

findings of fact and whether those findings support the court’s conclusions of law.

In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999). Substantial

evidence is a quantum of evidence sufficient to persuade a rational fair-minded

person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County,

141 Wn.2d 169, 176, 4 P.3d 123 (2000). In determining the sufficiency of

evidence, an appellate court need only consider evidence favorable to the

prevailing party. Bland v. Mentor, 63 Wn.2d 150, 155, 385 P.2d 727 (1963).

Importantly, we defer to the trial court on issues of conflicting evidence,

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witness credibility, and the persuasiveness of the evidence, Thompson v. Hanson,

142 Wn. App. 53, 60, 174 P.3d 120 (2007), and “[w]e will not substitute our

judgment for that of the trial court, even if we might have resolved the factual

dispute differently.” Nguyen v. City of Seattle, 179 Wn. App. 155, 163, 317 P.3d

518 (2014).

B. Flanzer Does Not Show That the Trial Court Erred by Vacating the DVPO

Chapter 26.50 RCW authorizes a victim of domestic violence to petition the

court for an order of protection. 2 Former RCW 26.50.030 (2005). The petitioner

must allege “the existence of domestic violence” and provide an affidavit “under

oath stating the specific facts and circumstances from which relief is sought.”

Former RCW 26.50.030(1). “Domestic violence” means, as relevant here,

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

harm, bodily injury or assault, [or] sexual assault . . . of one [spouse] by [another

spouse].” Former RCW 26.50.010(3), (7) (2019). 3

A determination that the petitioner failed to establish that domestic violence

occurred supports a legal conclusion that a DVPO is not warranted. See Former

2 The legislature repealed this chapter effective July 1, 2022, as part of

legislation that reorganized various civil protection order statutes into a new RCW chapter. See LAWS OF 2021, ch. 215, §§ 1, 170(94)-(126); see also chapter 7.105 RCW. Because that legislation was not yet in effect at the time of the proceedings below, we refer herein to the relevant, but since repealed, statutes as if still in effect. 3 Flanzer points out, that the definition of “domestic violence” was recently

amended to add “coercive control.” LAWS OF 2022, ch. 268, § 1 (codified at RCW 7.105.010(9)). But as Flanzer acknowledges, coercive control was not a statutorily recognized form of domestic violence at the time of the proceedings below. Thus, we need not and do not consider whether Flores’s alleged conduct constituted coercive control. 6 No. 82896-7-I/7

RCW 26.50.030 (DVPO exists for protection in cases of domestic violence). To

this end, and as an initial matter, Flores argues that we must affirm because

Flanzer did not assign error to the trial court’s findings that Flanzer’s allegations

“were not credible and ‘did not occur,’ ” thus rendering these findings verities on

appeal. But the trial court did not find that the conduct of which Flanzer accused

Flores “did not occur.” Instead, the trial court vacated the DVPO on the basis that

Flanzer “has not met his burden to show by a preponderance of the evidence that

domestic violence has occurred.” (Emphasis added.) And Flanzer plainly

assigned error to this determination. So, we decline Flores’s invitation to affirm on

the basis of Flanzer’s allegedly insufficient assignments of error.

Nevertheless, we affirm because Flanzer’s arguments in support of his

assignments of error primarily ask us to reweigh conflicting evidence largely left to

the discretion of the trial judge and, thus, are unavailing on appeal. See

Thompson, 142 Wn. App. at 60 (“An appellate court defers to the trier of fact for

purposes of resolving conflicting testimony and evaluating the persuasiveness of

the evidence and credibility of the witnesses”); see also In re Dependency of

B.S.S., 56 Wn. App. 169, 171, 782 P.2d 1100(1989) (a superior court reviewing a

commissioner’s decision “has full jurisdiction over the case and its power of review

is essentially unlimited”).

For example, Flanzer argues that the trial court erred inasmuch as it failed

to find that Flores sexually assaulted him. In support of his claim of sexual assault,

Flanzer declared that Flores “was sexually abusive . . . and got pleasure from

hurting [Flanzer].” Flanzer’s medical records confirmed he underwent two

7 No. 82896-7-I/8

surgeries in 2014 and in 2015, and Flanzer declared that his conditions were

caused by Flores’s sexual abuse. He also declared that Flores “spent over one

thousand dollars” to take measures to audibly conceal his sexual assaults from his

neighbors.

But at the trial court level, Flores denied sexually assaulting Flanzer,

declaring under oath that Flanzer’s accusation of abusive sexual contact was a

“lie.” Flores declared that he had “nothing to do with” causing Flanzer’s medical

condition, attesting that, when Flores first was intimate with Flanzer in 2005,

Flanzer disclosed the preexisting condition and consented to the intimacy. Flores

further declared that, as their relationship proceeded, Flanzer repeatedly declined

to have surgery for reasons independent of their intimacy and ultimately did so for

his own reasons. Furthermore, Flanzer pointed the trial court to nothing in his

medical records indicating that the diagnosed conditions could be—much less

were—caused by sexual activity (consensual or not). Indeed, one of the records

suggests that the risk factors for the condition were things such as “chronic

coughing.”

In short, there was conflicting evidence in the record as to whether Flores

sexually assaulted Flanzer 4 and whether Flanzer’s medical conditions were linked

to Flores’s alleged sexual assault. Again, it was the exclusive province of the trier

of fact—here, the trial court—to weigh this evidence and determine whether

4 Flanzer does not dispute that his consent to Flores’s sexual conduct would

preclude a finding of domestic violence, arguing that “Mr. Flores admitted sexual contact occurred, so the question left was whether Mr. Flanzer consented to the sexual conduct.” 8 No. 82896-7-I/9

Flanzer’s evidence was persuasive enough to satisfy his burden to show that

domestic violence occurred. The trial court’s determination that it was not will not

be disturbed on appeal. See Yorkston v. Whatcom County, 11 Wn. App. 2d 815,

831, 461 P.3d 392 (2020) (“Although the trier of fact is free to believe or disbelieve

any evidence presented at trial, “ ‘[a]ppellate courts do not hear or weigh evidence,

find facts, or substitute their opinions for those of the trier-of-fact.’ ” (alteration in

original) (quoting Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717,

225 P.3d 266 (2009))).

In support of reversal, Flanzer also points to several types of additional

evidence that he claims the trial court did not weigh sufficiently, including for

example:

• that there was a “clear contradiction” between Flores’s statement to police

about the February 2021 cell phone incident and his later declaration; and

• that he provided images of his injuries from the fast food incident and that

Dickson contradicted Flores’s claim that he was in Atlanta on the day of

the incident.

But, again, Flanzer’s argument that this evidence was not sufficiently

weighed, individually and or cumulatively, invites us to reweigh the conflicting

evidence in a manner more favorable to him, which we will not do. Burnside v.

Simpson Paper Co., 66 Wn. App. 510, 526, 832 P.2d 537 (1992) (“Where there is

conflicting evidence, it is not the role of the appellate court to weigh and evaluate

the evidence.”), aff’d, 123 Wn.2d 93, 864 P.2d 937 (1994).

Separately, Flanzer asserts for the first time in his reply brief that the trial

9 No. 82896-7-I/10

court abused its discretion inasmuch as it failed to weigh the evidence at all,

asserting that “the lack of any weighing of competing evidence or resolving

conflicts in its findings demonstrates the revision court abused its discretion.” But

it is apparent from the trial court’s order on revision that it weighed the evidence.

For example, the trial court expressly weighed Flanzer’s allegation that Flores

assaulted him during the fast food incident against Dickson’s declaration

describing an act of self-defense by Flores. While the trial court may not have

addressed every single piece of evidence Flanzer presented, even Flanzer

concedes the court was not required to do so.

Flanzer also asserts that the trial court abused its discretion because it

“appeared to require that Mr. Flanzer have reported his sexual assaults to his

medical providers, yet did not give any weight to Mr. Flanzer reporting his sexual

assaults to law enforcement in 2021.” The trial court opened itself to this claim by

stating that “in and of itself” this failure to disclose his abuse to his providers may

“have been dispositive” of the issue and it otherwise was “illuminating.” It may

have been reversible error had the trial court imposed such a requirement, and it

is nonetheless troubling to suggest that a victim’s decision not to disclose abuse

to their providers is anything other than a neutral fact. But ultimately, the court did

not rest its decision on such musings. Indeed, the trial court expressly recognized

that “domestic violence victims will often not share how they have received

injuries.” The trial court instead considered a variety of facts that were within its

discretion to do as the trier of fact, and Flanzer cites no authority to the contrary.

The trial court was also within its discretion to give little or no weight to the

10 No. 82896-7-I/11

fact that Flanzer told law enforcement about Flores’s alleged assaults in 2021,

particularly in light of Flores’s uncontroverted testimony that by that time, Flanzer

was “very angry” that Flores was leaving him and “stated on several occasions that

he would ‘get [Flores] put in jail’ ” and threatened Flores “with the loss of [his] long-

term employment and ruining [him].” Harrison v. Whitt, 40 Wn. App. 175, 178-79,

698 P.2d 87 (1985) (“Where evidence is conflicting, the trier of fact may believe

the testimony of some witnesses and disbelieve the testimony of others, as well as

draw from the evidence any reasonable inferences fairly deducible therefrom.”).

As a final matter, Flanzer points to the purpose of the DVPO statutes and

argues that the trial court’s decision violates the public policy in favor of “the civil

protection order process being low-barrier for survivors of domestic violence.” But

as Flores points out, the DVPO statutes still place the burden on the petitioner to

establish by a preponderance of the evidence that domestic violence occurred.

See Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995) (burden of proof in

civil cases is a preponderance of the evidence); City of Tacoma v. State, 117

Wn.2d 348, 351-52, 816 P.2d 7 (1991) (DVPO is a civil remedy); State v. Otis, 151

Wn. App. 572, 578, 213 P.3d 613 (2009) (“Preponderance of the evidence means

that considering all the evidence, the proposition asserted must be more probably

true than not true.”). Flanzer does not persuade us that, because of policy

considerations, we should not hold him to that burden or grant reversal where, as

here, the trial court weighed the conflicting evidence and determined that Flanzer

failed to sustain that burden.

11 No. 82896-7-I/12

We affirm.

WE CONCUR: