FILED APRIL 17, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Domestic Violence ) No. 40696-2-III Protection Order for ) ) TAYLOR McAVOY. ) UNPUBLISHED OPINION ) )
LAWRENCE-BERREY, C.J. — Taylor McAvoy appeals after the superior court
granted revision of a commissioner’s order that had granted her petition for a domestic
violence protection order (DVPO). We review the superior court’s denial of a DVPO for
an abuse of discretion. We find no abuse of discretion and affirm.
FACTS
Taylor McAvoy and Alexander Sieg had a romantic relationship for over one year,
but an intimate misunderstanding led to McAvoy losing trust with Sieg. As the
relationship unraveled, various requests were made, including to return gifts and personal
items. The loss of trust felt by McAvoy increased, and she perceived Sieg as becoming
controlling. As a result, she petitioned for a DVPO.
A court commissioner heard and granted McAvoy’s petition. Sieg moved for
revision, and the superior court granted his motion. In its ruling, the court agreed with
McAvoy’s earlier description of the dispute as “he said/she said,” and found that No. 40696-2-III In re Domestic Violence Protection Order
McAvoy had not met her burden of proof. Report of Proceedings (RP) (Aug. 29, 2024)
at 21-22.1
McAvoy appeals.
ANALYSIS
REVISION MOTION AND PROTECTION ORDER
RCW 2.24.050 states that “[a]ll of the acts and proceedings of court
commissioners hereunder shall be subject to revision by the superior court.”
While revision is much like an appeal, under RCW 2.24.050 and the developed case law the superior court judge is not required to defer to the fact-finding discretion of the commissioner like we defer to the superior court’s exercise of fact-finding discretion on appeal. A revision court may, based upon an independent review of the record, redetermine both the facts and legal conclusions drawn from the facts. Thus, the superior court on revision may review factual determinations for substantial evidence, but is not limited to a substantial evidence inquiry under RCW 2.24.050.
In re Marriage of Dodd, 120 Wn. App. 638, 645, 86 P.3d 801 (2004) (citations omitted).
On appeal, we review the superior court’s ruling, not the commissioner’s. Faciszewski v.
Brown, 187 Wn.2d 308, 313 n.2, 386 P.3d 711 (2016).
Our review does not look to whether we would have come to the same conclusion
as the superior court. Rather, we review the court’s decision to grant or deny a DVPO for
1 The intimate details of the misunderstanding are omitted from our statement of facts because even an unpublished opinion is a public record, and we believe that decorum and respect for the parties requires this.
2 No. 40696-2-III In re Domestic Violence Protection Order
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 Littlefield, 133 Wn.2d 39, 46-47, 940
P.2d 1362 (1997). “A court’s decision is manifestly unreasonable if it is outside the
range of acceptable choices, given the facts and the applicable legal standard; it is based
on untenable grounds if the factual findings are unsupported by the record; it is based on
untenable reasons if it is based on an incorrect legal standard or the facts do not meet the
requirements of the correct standard.” Id. at 47.
RCW 7.105.225 provides in relevant part that:
(1) The court shall issue a protection order if it finds by a preponderance of the evidence that the petitioner has proved . . . . (a) For a domestic violence protection order, that the petitioner has been subjected to domestic violence by the respondent. .... (3) In proceedings where the petitioner alleges that the respondent engaged in nonconsensual sexual conduct or nonconsensual sexual penetration, the court shall not require proof of physical injury on the person of the petitioner or any other forensic evidence. Denial of a remedy to the petitioner may not be based, in whole or in part, on evidence that: .... (c) The petitioner engaged in limited consensual sexual touching.
“Domestic violence” in this context is defined in relevant part as “nonconsensual
sexual conduct or nonconsensual sexual penetration; [or] coercive control.”
RCW 7.105.010(9)(a). “Sexual penetration” in this context is defined as “any contact,
3 No. 40696-2-III In re Domestic Violence Protection Order
however slight, between the sex organ or anus of one person by an object, the
sex organ, mouth, or anus of another person, or any intrusion, however slight, of
any part of the body of one person . . . into the sex organ or anus of another person.”
RCW 7.105.010(33). “Consent” means “at the time of sexual contact, there are actual
words or conduct indicating freely given agreement to that sexual contact. Consent must
be ongoing and may be revoked at any time. Conduct short of voluntary agreement does
not constitute consent as a matter of law.” RCW 7.105.010(5).
The superior court was presented with two different versions of the intimate
misunderstanding. Both parties presented some corroborating evidence for their version
of events. But there is no indication that the revising court misunderstood the law or
applied the wrong legal standards in this case. So our role is limited to determining
whether the court’s decision was within the range of acceptable choices, given the
evidence before it.
The court found the evidence to be equally strong on both sides and agreed the
evidence was a “he said/she said type of thing,” stating, “I’m faced with those differing
versions of these events, and I cannot find that that is proof by a preponderance of the
evidence.” RP (Aug. 29, 2024) at 21-22. This finding was within the range of acceptable
choices for the revision court, given that the two versions of events were equally
plausible. We conclude that the superior court did not abuse its discretion by granting
4 No. 40696-2-III In re Domestic Violence Protection Order
revision and denying McAvoy’s petition for a DVPO.
PROCEDURAL ISSUES2
McAvoy raises various procedural challenges. We address each in turn.
McAvoy first contends she was never served with a copy of the transcript of the
hearing before the commissioner after Sieg filed his motion for revision. Thurston
County Local Rule 53.2(e)(3)(A) requires the party moving for revision to provide a
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FILED APRIL 17, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Domestic Violence ) No. 40696-2-III Protection Order for ) ) TAYLOR McAVOY. ) UNPUBLISHED OPINION ) )
LAWRENCE-BERREY, C.J. — Taylor McAvoy appeals after the superior court
granted revision of a commissioner’s order that had granted her petition for a domestic
violence protection order (DVPO). We review the superior court’s denial of a DVPO for
an abuse of discretion. We find no abuse of discretion and affirm.
FACTS
Taylor McAvoy and Alexander Sieg had a romantic relationship for over one year,
but an intimate misunderstanding led to McAvoy losing trust with Sieg. As the
relationship unraveled, various requests were made, including to return gifts and personal
items. The loss of trust felt by McAvoy increased, and she perceived Sieg as becoming
controlling. As a result, she petitioned for a DVPO.
A court commissioner heard and granted McAvoy’s petition. Sieg moved for
revision, and the superior court granted his motion. In its ruling, the court agreed with
McAvoy’s earlier description of the dispute as “he said/she said,” and found that No. 40696-2-III In re Domestic Violence Protection Order
McAvoy had not met her burden of proof. Report of Proceedings (RP) (Aug. 29, 2024)
at 21-22.1
McAvoy appeals.
ANALYSIS
REVISION MOTION AND PROTECTION ORDER
RCW 2.24.050 states that “[a]ll of the acts and proceedings of court
commissioners hereunder shall be subject to revision by the superior court.”
While revision is much like an appeal, under RCW 2.24.050 and the developed case law the superior court judge is not required to defer to the fact-finding discretion of the commissioner like we defer to the superior court’s exercise of fact-finding discretion on appeal. A revision court may, based upon an independent review of the record, redetermine both the facts and legal conclusions drawn from the facts. Thus, the superior court on revision may review factual determinations for substantial evidence, but is not limited to a substantial evidence inquiry under RCW 2.24.050.
In re Marriage of Dodd, 120 Wn. App. 638, 645, 86 P.3d 801 (2004) (citations omitted).
On appeal, we review the superior court’s ruling, not the commissioner’s. Faciszewski v.
Brown, 187 Wn.2d 308, 313 n.2, 386 P.3d 711 (2016).
Our review does not look to whether we would have come to the same conclusion
as the superior court. Rather, we review the court’s decision to grant or deny a DVPO for
1 The intimate details of the misunderstanding are omitted from our statement of facts because even an unpublished opinion is a public record, and we believe that decorum and respect for the parties requires this.
2 No. 40696-2-III In re Domestic Violence Protection Order
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 Littlefield, 133 Wn.2d 39, 46-47, 940
P.2d 1362 (1997). “A court’s decision is manifestly unreasonable if it is outside the
range of acceptable choices, given the facts and the applicable legal standard; it is based
on untenable grounds if the factual findings are unsupported by the record; it is based on
untenable reasons if it is based on an incorrect legal standard or the facts do not meet the
requirements of the correct standard.” Id. at 47.
RCW 7.105.225 provides in relevant part that:
(1) The court shall issue a protection order if it finds by a preponderance of the evidence that the petitioner has proved . . . . (a) For a domestic violence protection order, that the petitioner has been subjected to domestic violence by the respondent. .... (3) In proceedings where the petitioner alleges that the respondent engaged in nonconsensual sexual conduct or nonconsensual sexual penetration, the court shall not require proof of physical injury on the person of the petitioner or any other forensic evidence. Denial of a remedy to the petitioner may not be based, in whole or in part, on evidence that: .... (c) The petitioner engaged in limited consensual sexual touching.
“Domestic violence” in this context is defined in relevant part as “nonconsensual
sexual conduct or nonconsensual sexual penetration; [or] coercive control.”
RCW 7.105.010(9)(a). “Sexual penetration” in this context is defined as “any contact,
3 No. 40696-2-III In re Domestic Violence Protection Order
however slight, between the sex organ or anus of one person by an object, the
sex organ, mouth, or anus of another person, or any intrusion, however slight, of
any part of the body of one person . . . into the sex organ or anus of another person.”
RCW 7.105.010(33). “Consent” means “at the time of sexual contact, there are actual
words or conduct indicating freely given agreement to that sexual contact. Consent must
be ongoing and may be revoked at any time. Conduct short of voluntary agreement does
not constitute consent as a matter of law.” RCW 7.105.010(5).
The superior court was presented with two different versions of the intimate
misunderstanding. Both parties presented some corroborating evidence for their version
of events. But there is no indication that the revising court misunderstood the law or
applied the wrong legal standards in this case. So our role is limited to determining
whether the court’s decision was within the range of acceptable choices, given the
evidence before it.
The court found the evidence to be equally strong on both sides and agreed the
evidence was a “he said/she said type of thing,” stating, “I’m faced with those differing
versions of these events, and I cannot find that that is proof by a preponderance of the
evidence.” RP (Aug. 29, 2024) at 21-22. This finding was within the range of acceptable
choices for the revision court, given that the two versions of events were equally
plausible. We conclude that the superior court did not abuse its discretion by granting
4 No. 40696-2-III In re Domestic Violence Protection Order
revision and denying McAvoy’s petition for a DVPO.
PROCEDURAL ISSUES2
McAvoy raises various procedural challenges. We address each in turn.
McAvoy first contends she was never served with a copy of the transcript of the
hearing before the commissioner after Sieg filed his motion for revision. Thurston
County Local Rule 53.2(e)(3)(A) requires the party moving for revision to provide a
transcript of the hearing before the commissioner to the court but it contains no
requirement that the other party needs to be similarly served.
McAvoy next contends Sieg improperly served her with court documents by
e-mail when she should have been served by a third party. But, in a pleading, McAvoy
agreed to accept legal papers by e-mail and did not provide a street address or post office
box where she could have accepted legal papers.
McAvoy further contends the revision hearing was untimely because, although
there was good cause to continue it, no one filed a motion to continue. CR 1 states that
the rules “shall be construed and administered to secure the just, speedy, and inexpensive
determination of every action.” Here, the local superior court judges recused themselves,
due to Sieg’s work before them, and there was delay obtaining a visiting judge to hear the
2 Although not in her assignments of error, McAvoy raises issues related to superior court procedure as applied to her case. We address the arguments because the issues are sufficiently briefed.
5 No. 40696-2-III In re Domestic Violence Protection Order
revision motion. The delay is understandable and, in such a case, we will not place
procedure over substance to overturn a result fairly reached.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, C.J.
WE CONCUR:
Staab, J. Murphy, J.