Hecker v. Cortinas

110 Wash. App. 865
CourtCourt of Appeals of Washington
DecidedMarch 29, 2002
DocketNo. 26256-8-II
StatusPublished
Cited by41 cases

This text of 110 Wash. App. 865 (Hecker v. Cortinas) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hecker v. Cortinas, 110 Wash. App. 865 (Wash. Ct. App. 2002).

Opinion

Hunt, J.

— Denise Cortinas appeals a permanent Domestic Violence Protection Order against her. She argues that the issuing court commissioner lacked authority and erred in granting Thomas Hecker’s petition for a protection order on behalf of himself and his wife, Carolyn McCord. Cortinas also challenges the constitutionality of the Domestic Violence Prevention Act (the Act) and asserts that she was entitled to a jury trial. We affirm.

FACTS

Hecker and Cortinas were previously married and divorced. On behalf of himself and his new wife, McCord, Hecker petitioned for and was granted a temporary protection order against Cortinas. He alleged that Cortinas had been “showing up places” (including the race track where Hecker works) “harassing family member [s],” “causing problems,” “making up lies,” and telling their children that Hecker was “up to no good.” He also alleged that Cortinas had engaged in a fistfight with McCord. On June 7, 2000, Cortinas appeared at the Hecker/McCord household, pounded [867]*867on the side of the house, and insisted that Hecker come out and talk to her. Clerk’s Papers at 2-3.

On July 3, 2000, Hecker, McCord, and Cortinas appeared before a superior court commissioner and testified about whether to make the protection order permanent. The court initially noted that it was not “convinced that this matter is a matter for an order for protection. It sounds more like an anti-harassment type case.” The court then asked Hecker, “[You] don’t have imminent fear of your life, that [you’re] physically in fear do you?” Hecker responded that he was in fear. Report of Proceedings (RP) at 5. Neither Hecker nor McCord described any actual acts of violence. But McCord testified that Cortinas had told Hecker’s sister that she (Cortinas) was going to shoot them both and then kill herself.

After discussing with Cortinas the impossibility of reconciliation with Hecker, who had remarried, the court ruled, “[T]his case is appropriate for an order for protection.” The court entered a permanent protection order restraining Cortinas from contacting Hecker and/or McCord at their residence or at Hecker’s workplace. RP at 7. Except for claiming that the allegations were lies, Cortinas did not object that the trial court had no authority to issue a protection order to prevent contact with McCord, distinct from Hecker, as she now argues on appeal.1

ANALYSIS

I. The Act

The Domestic Violence Prevention Act creates “an action known as a petition for an order for protection in cases of domestic violence.” RCW 26.50.030. The operative section of the Act, RCW 26.50.020(1), provides:

Any person may seek relief under this chapter by filing a petition with a court alleging that the person has been the [868]*868victim of domestic violence committed by the respondent. The person may petition for relief on behalf of himself or herself and on behalf of minor family or household members.

The petition must be accompanied by a sworn affidavit, setting forth the facts supporting the request for relief. RCW 26.50.020(1); RCW 26.50.030(1); State v. Karas, 108 Wn. App. 692, 697, 32 P.3d 1016 (2001).2

The Act covers domestic ■ violence between family or household members:

“Domestic violence” means: (a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members', (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.

RCW 26.50.010(1) (emphasis added).

“Family or household members” means spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past....

RCW 26.50.010(2) (emphasis added).

Cortinas contends that (1) the Act is unconstitutional, (2) its application violates her due process rights, (3) she was denied the right to a jury trial, and (4) the court commissioner lacked authority to enter the protection order. She did not challenge the Act’s constitutionality below, nor does she support these contentions with argument or citation to authority on appeal other than to assert, “The issues raised in Karas also apply here and the respondent [sic] relies upon this Court’s ruling, whenever that will be issued, in [869]*869that case.” Br. of Appellant at 6-7. After Cortinas filed her brief, we issued our opinion in Karas, 108 Wn. App. at 697-701. Thus, Cortinas’ arguments fail here for the same reasons that Karas’ arguments failed.

II. The Protection Order

RCW 26.50.060 authorizes the trial court, after notice and a hearing, to issue a protection order. City of Seattle v. Edwards, 87 Wn. App. 305, 310, 941 P.2d 697 (1997). The court may restrain the respondent from committing domestic violence, from entering the petitioner’s residence or workplace, and from contacting the petitioner. RCW 26.50.060(1). Spence v. Kaminski, 103 Wn. App. 325, 331,12 P.3d 1030 (2000). If the court finds that the respondent “is likely to resume acts of domestic violence against the petitioner . . . when the order expires,” the court has discretion to enter a permanent order of protection. RCW 26.50.060(2). Kaminski, 103 Wn. App. at 331. We will not disturb such an exercise of discretion on appeal absent a clear showing of abuse. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We find no such abuse here.

A. Scope of Petition and Order

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110 Wash. App. 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hecker-v-cortinas-washctapp-2002.