In the Matter of the Domestic Violence Protection Order for H.P.

• Court: Court of Appeals of Washington
• Decided: April 16, 2024
• Docket: 39486-7
• Status: Unpublished

Opinion

FILED APRIL 16, 2024 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In the Matter of the Domestic Violence ) Protection Order for ) No. 39486-7-III ) H.P. ) UNPUBLISHED OPINION ) COONEY, J. — H.P. petitioned for, and was subsequently granted, a domestic

violence restraining order (DVPO) that protected him from his mother. Prior to H.P.

filing his petition for a DVPO, H.P.’s father (Father) unsuccessfully petitioned to modify

the parenting plan between he and H.P.’s mother (Mother). The DVPO and the petition

to modify the parenting plan were filed in different counties and both alleged that Mother

had committed acts of domestic violence against H.P. Father’s petition to modify the

parenting plan was denied and, shortly thereafter, H.P.’s petition for a DVPO was

granted.

Mother appeals contending that collateral estoppel bars H.P. from relitigating the

issue of whether she committed acts of domestic violence against him. We agree with

Mother and reverse. BACKGROUND

Mother and Father were married in 2006 and divorced sometime between 2016

and 2017. Shortly before their marriage, the couple begot one child, H.P. H.P. has been No. 39486-7-III In re Matter of H.P.

diagnosed with mental disorders and has struggled with behavioral, social, and academic

issues. Following his parent’s divorce, a parenting plan was entered that designated

Mother the primary parent. Father was granted visits with H.P. every other weekend and

half of the holidays.

WALLA WALLA COUNTY PROCEEDINGS

On June 28, 2022, Father petitioned the Walla Walla County Superior Court for an

immediate restraining order protecting he and H.P. from Mother. Simultaneously, Father

petitioned to modify the parenting plan, claiming H.P.’s “current living situation is

harmful to [H.P.’s] physical, mental, or emotional health.” Clerk’s Papers (CP) at 457.

Father’s declaration, which was attached to the petition to modify the parenting plan,

alleged Mother had verbally and physically abused H.P., and that H.P. was refusing to

return to Mother’s home. Father’s declaration also contained 29 pages of text messages

between Mother and H.P.

Mother opposed the petition to modify the parenting plan. Both Father and

Mother filed their own declarations, along with declarations from others that supported

their respective positions. Both Mother and Father also brought motions to strike certain

declarations or portions thereof. Attached as an exhibit to one of the declarations was

Mother’s declaration from the separate Benton County DVPO matter.

On August 15, the court in Walla Walla County denied Father’s petition to modify

the parenting plan finding there was “no substantial change of circumstances” since the

2 No. 39486-7-III In re Matter of H.P.

entry of the original parenting plan. CP at 609. The court awarded Mother attorney fees

for “having to respond to the Petition which was without basis, and brought in bad faith.”

CP at 611. The hearing transcripts from the Walla Walla County proceedings were not

made part of the record.

BENTON COUNTY PROCEEDINGS

On July 15, while the Walla Walla County matter was pending, H.P. petitioned the

Benton County Superior Court for a DVPO against Mother. The Benton County court

granted H.P. a temporary protection order. In support of his petition for the DVPO, H.P.

filed a declaration and attached the same 29 pages of text messages that were attached to

Father’s declaration in the Walla Walla County matter.

On July 26, Mother filed a declaration in the Benton County matter that

mistakenly contained handwritten comments in the margins, presumably from her

attorney. This declaration was filed in the Walla Walla County matter as an exhibit to

H.P.’s counsel’s declaration. Mother later filed an amended declaration in the Benton

County matter that did not contain the typewritten comments in the margins. The

amended declaration was nearly identical to the declaration she filed in the Walla Walla

County matter.

Monesa Grant, a witness for Mother, also filed identical declarations in both the

Benton County and the Walla Walla County matters. H.P. and Mother also filed multiple

3 No. 39486-7-III In re Matter of H.P.

declarations in the Benton County matter and attached the same declarations filed in the

Walla Walla County matter, as well as the Walla Walla County court’s orders.

BENTON COUNTY HEARING AND MOTION FOR REVISION

On September 7, a Benton County commissioner held a hearing on H.P.’s petition

for a DVPO. At the hearing, Mother asserted that H.P. should be precluded from

rearguing that she had committed acts of domestic violence against him because the court

in Walla Walla County had denied Father’s petition to modify the parenting plan that was

based on the same allegations. The commissioner asked if Mother had filed a

memorandum in support of her argument, to which Mother’s counsel replied that she had

not. The commissioner declined to consider Mother’s issue-preclusion argument and

proceeded to the merits.

The commissioner ultimately granted the DVPO, stating, “[T]his is a very close

call” but specified that “what swayed the Court is the inconsistency in the Declarations

between [Mother]’s Declaration filed on July 26, 2022 and the crafted up or cleaned up or

edited or polished version thereafter.” CP at 235. The commissioner stated, “That

undermines the credibility of the declarant somewhat.” Id. The commissioner therefore

made a “finding of domestic violence under coercive control.” Id.

Thereafter, Mother filed a motion to revise the commissioner’s ruling. In her

memorandum in support of the motion to revise, Mother argued that H.P. should be

4 No. 39486-7-III In re Matter of H.P.

precluded from relitigating the issue of domestic violence based on the Walla Walla

County court’s previous findings.

Mother’s motion to revise was denied without a hearing. In its order, the Benton

County court noted that “on August 12, 2022, [Benton County Superior Court] Judge

Ruff offered to allow [H.P.] the opportunity to change venue to Walla Walla County” to

which “[H.P.] declined.” CP at 632. The court also recognized that “[t]he pleadings filed

in this, Benton County, matter are identical to those filed in the Walla Walla mater [sic].”

CP at 632-33.

Mother timely appeals the issuance of the DVPO.

ANALYSIS

Mother argues that collateral estoppel bars H.P. from relitigating the issue of

whether she committed acts of domestic violence against him.

“Whether collateral estoppel applies to bar relitigation of an issue is reviewed de

novo.” Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957

(2004). Collateral estoppel, also known as issue preclusion, bars relitigation of an issue

in a subsequent proceeding that involves the same parties. Id. at 306. Collateral estoppel

may only be applied to “preclude only those issues that have actually been litigated and

necessarily and finally determined in the earlier proceeding.” Id. at 307. Further, the

party against whom collateral estoppel is asserted against must have had a full and fair

opportunity to litigate the issue in the earlier proceeding. Id.

5 No. 39486-7-III In re Matter of H.P.

In order for collateral estoppel to apply, Mother bears the burden of establishing

the following factors: (1) the issue decided in the earlier litigation was identical to the

issue presented in the later litigation; (2) the earlier litigation resulted in a judgment on

the merits; (3) the party against whom collateral estoppel is asserted was a party to, or in

privity with a party, to the earlier litigation; and (4) application of collateral estoppel does

not work an injustice against the party whom it is applied. Reninger v. Dep’t of Corr.,

134 Wn.2d 437, 449, 951 P.2d 782 (1998); McDaniels v. Carlson, 108 Wn.2d 299, 303,

738 P.2d 254 (1987).

COLLATERAL ESTOPPEL

Mother contends that collateral estoppel precludes H.P. from relitigating the issue

of whether she committed acts of domestic violence against him. We agree. In the

absence of new evidence or incidents of Mother’s alleged acts of domestic violence, H.P.

is precluded from relitigating the issue.

As a preliminary matter, in its order denying Mother’s motion to revise the

commissioner’s ruling, the Benton County court seemingly found the inapplicability of

collateral estoppel because RCW 7.105.225(2) precludes the doctrine in DVPO

proceedings. The court’s order reads:

5. Although [H.P.] is not a party to the Walla Walla matter it would not matter because RCW 7.105.225(2), further provides: The court may not deny or dismiss a petition for a protection order on the grounds that (c) A no-contact order or a restraining order that restrains the respondent’s contact with the petitioner has been issued

6 No. 39486-7-III In re Matter of H.P.

in a criminal proceeding or in a domestic relations proceeding; (d) The relief sought by the petitioner may be available in a different action or proceeding, or criminal charges are pending against the respondent. 6. Commissioner Holt properly heard this matter as RCW 7.105.225(2), specifically allows simultaneous proceedings (privity or not) without regard to collateral estoppel. Injustice is not a statutory consideration. Id.

CP at 633.

Here, neither RCW 7.105.225(2)(c) nor (d) were applicative. First, there were no

other orders that precluded Mother from having contact with H.P. in either a criminal or

domestic-relations proceeding. Second, there were no other actions pending; the Walla

Walla County matter had been adjudicated on the merits. Further, denial of the DVPO on

the basis of collateral estoppel would not run afoul of RCW 7.105.225(2)(d) because the

denial was not based on the relief sought being “available in a different action.”

We now turn to the first element of collateral estoppel, the parity between the

issues in each petition. RCW 7.105.225, the applicable statute in the Benton County

DVPO proceeding, states in relevant part:

(1) The court shall issue a protection order if it finds by a preponderance of the evidence that the petitioner has proved the required criteria specified in (a) through (f) of this subsection for obtaining a protection order under this chapter. (a) For a domestic violence protection order, that the petitioner has been subjected to domestic violence by the respondent.

Further, RCW 26.09.260 states in relevant part:

7 No. 39486-7-III In re Matter of H.P.

(1) Except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. The effect of a parent’s military duties potentially impacting parenting functions shall not, by itself, be a substantial change of circumstances justifying a permanent modification of a prior decree or plan. (2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless: .... (c) The child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Father’s petition to modify the parenting plan was based on allegations that

Mother committed acts of domestic violence against H.P. A multitude of declarations

and exhibits were filed in Walla Walla County. Whether Mother committed acts of

domestic violence against H.P. was the dispositive issue in the Walla Walla County

matter. On August 15, 2022, the court in Walla Walla County dismissed the petition to

change the parenting plan ruling Father had failed to establish adequate cause to change

the parenting plan. In denying Father’s motion for adequate cause to modify the

parenting plan, the court in Walla Walla County necessarily concluded Father had failed

to prove that Mother had committed acts of domestic violence against H.P.

8 No. 39486-7-III In re Matter of H.P.

H.P.’s petition for a DVPO in Benton County was based on the same evidence that

was before the court in Walla Walla County. On September 7, 2022, almost a month

after the court’s ruling in the Walla Walla County matter, a commissioner in Benton

County granted H.P.’s petition for a DVPO finding that Mother had committed acts of

domestic violence against H.P. Because the issue previously litigated in Walla Walla

County was identical to the issue in the Benton County matter, the first element of

collateral estoppel is met.

We turn next to the second element of collateral estoppel, whether the previous

litigation resulted in a judgment on the merits. In Walla Walla County, the court

considered numerous declarations and exhibits and, presumably, held a hearing on the

petition1 before denying it on the merits. The court’s order dismissing the petition to

modify the parenting plan was issued after the court considered the evidence before it.

The Walla Walla County matter resulted in a judgment on the merits. The second

element of collateral estoppel has been met.

We next analyze the third element of collateral estoppel, whether the parties in the

subsequent litigation were parties to, or in privity with a party, to the earlier litigation.

Mother argues that H.P. and Father were in privity or that the virtual representation

1 There are no transcripts from the Walla Walla County matter in the record, only filings. However, there is a reference to some kind of hearing in the Walla Walla County matter in the transcript of the hearing on the DVPO in Benton County. CP at 200-01.

9 No. 39486-7-III In re Matter of H.P.

doctrine bars H.P. from relitigating the domestic violence issue. We agree that the virtual

representation doctrine applies under these facts.

“‘Privity’ is the ‘connection or relationship between two parties, each having a

legally recognized interest in the same subject matter.’” State v. Longo, 185 Wn. App.

804, 809, 343 P.3d 378 (2015) (quoting BLACK’S LAW DICTIONARY 1394 (10th ed.

2014)). Typically, when parties are found to be in privity, the litigation involves the

state, a city, or a county being in privity with one another. E.g., Barlindal v. City of

Bonney Lake, 84 Wn. App. 135, 925 P.2d 1289 (1996); State v. Barnes, 85 Wn. App.

638, 932 P.2d 669 (1997).

In the Walla Walla County matter, Father was the petitioner, Mother the

respondent, and H.P., although the subject of the action, was not a party. Similarly, in the

Benton County matter, H.P. was the petitioner, Mother the respondent, and Father a mere

witness. This is insufficient to establish a mutuality of interests in the same subject

matter.

However, Washington recognizes the virtual representation doctrine. Garcia v.

Wilson, 63 Wn. App. 516, 520, 820 P.2d 964 (1991). The doctrine of virtual

representation goes to the third factor of collateral estoppel and allows collateral estoppel

to be asserted against a nonparty when the prior litigation involved a party with

substantial identity of interests with the nonparty. Id. However, the doctrine “must be

applied cautiously in order to [ensure] that the nonparty is not unjustly deprived of her

10 No. 39486-7-III In re Matter of H.P.

day in court.” Id. The paramount factor to consider when applying the doctrine is

whether the nonparty participated in the former litigation in some way, for instance as a

witness. Id. at 521. Further, the issue must have been fully and fairly litigated in the

prior action, and the evidence and testimony in the present action must be identical to that

presented in the former litigation. Id. Finally, there should be some evidence that the

separation of the litigations “was the product of some manipulation or tactical

maneuvering.” Id.

Here, H.P. may not have participated directly in the Walla Walla County matter

but he was undisputedly involved. First, H.P. was the subject of Father’s petition to

modify the parenting plan. Further, Father testified in his declaration that H.P. “gave me

his phone to show me the texts from his mom to him. He gave me permission to view

them.” CP at 501. The text messages attached to Father’s declaration filed in the Walla

Walla County matter are identical to the text messages later attached to H.P.’s declaration

filed in the Benton County matter. Further, the record clearly reveals H.P.’s desire to

reside with Father instead of Mother. Father and H.P. possessed a shared interest in

reaching this objective. In his petition for a DVPO, H.P. alleged Mother would scream at

him and hit him for “wanting and trying to live with my dad.” CP at 8. Father, in a

declaration filed in the Walla Walla County matter, stated H.P. “is refusing to return to

his mom’s . . . . He says he will not go.” CP at 136-37. Father and H.P. were

intrinsically involved in each other’s litigation and sought the same objective.

11 No. 39486-7-III In re Matter of H.P.

Additionally, there is no dispute that the Walla Walla County matter was fully and

fairly litigated. As to the evidence and testimony, the filings in the Walla Walla County

matter were either identical to those filed in Benton County, or were attached as exhibits

to documents filed in the Benton County matter. Likewise, filings in the Benton County

matter were filed as exhibits to declarations in the Walla Walla County matter. Both the

Walla Walla County matter and the Benton County matter contained the same evidence.

The court recognized this in its order on the motion for revision noting: “The pleadings

filed in this, Benton County, matter are identical to those filed in the Walla Walla mater

[sic] above.” CP at 632-33.

Finally, it appears that the separation of the litigations was the product of some

“manipulation or tactical maneuvering.” Garcia, 63 Wn. App. at 521. The record

reveals that H.P. and Father desired the same relief. When the petition to modify the

parenting plan was dismissed, H.P. proceeded with the petition for a DVPO with the goal

of residing with Father. Notably, H.P. declined the Benton County court’s invitation to

change venue to Walla Walla County. This is unsurprising given the unfavorable ruling

Father received in Walla Walla County on his petition to modify the parenting plan.

Based on the facts before us, the virtual representation doctrine applies. The third

element of collateral estoppel is satisfied.

Finally, we turn to the fourth element, whether application of the doctrine would

work an injustice. For collateral estoppel to apply, it must not work an injustice against

12 No. 39486-7-III In re Matter of H.P.

the party against whom the doctrine is to be applied. “Washington courts look to whether

the parties to the earlier proceeding received a full and fair hearing on the issue in

question.” In re Marriage of Murphy, 90 Wn. App. 488, 498, 952 P.2d 624 (1998). The

injustice factor also recognizes the significant role of public policy. State v. Vasquez,

148 Wn.2d 303, 309, 59 P.3d 648 (2002).

As discussed above, the court in Walla Walla County conducted a full and fair

hearing regarding the alleged acts of domestic violence committed by Mother against

H.P. Because H.P. was both the subject of the Walla Walla County matter and a witness

thereto, he will not be deprived of his day in court if collateral estoppel bars him from

relitigating the issue.

Lastly, public policy supports our conclusion. If we failed to apply collateral

estoppel to the record before us, we would essentially be encouraging a parent who is

aggrieved by a court’s ruling in one jurisdiction to seek a remedy under the same facts in

a competing jurisdiction. The parent-child relationship should not be subject to a

blitzkrieg of litigation based on common facts. The fourth and final element of collateral

estoppel is met.

Lastly, Mother argues that the court erred in denying her motion to revise the

commissioner’s ruling and for finding, by a preponderance of the evidence, that she

committed acts of domestic violence against H.P. Because we concluded that collateral

13 No. 39486-7-III In re Matter of H.P.

estoppel bars H.P. from relitigating the issue of Mother’s alleged domestic violence

against him, we need not address this issue.

CONCLUSION

We remand with instructions to the court to vacate the order and dismiss the

petition.

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.

Cooney, J.

WE CONCUR:

Lawrence-Berrey, C.J.

Staab, J.