IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SALLY VON ERFFA, ) ) No. 77986-9-1 Respondent, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION KURT PRASSE, ) ) Appellant. ) FILED: July 23, 2018 ) APPELWICK, C.J. — Prasse appeals a domestic violence protection order in favor of Von Erffa and against Prasse. Prasse argues 18 grounds for reversal,
including that the protection order entered against him was an improper
modification to the parties' parenting plan. We remand for further factual findings
as to the child's residential schedule. We affirm in all other respects.
FACTS
Sally Von Erffa and Kurt Prasse were married and had a child together.
They dissolved their marriage in 2015. Their parenting plan generally granted 50
percent residential time to each parent.
On December 4, 2017, Von Erffa petitioned for a protection order. She
alleged that Prasse had personally delivered a two paragraph threatening letter to
her. The letter's first paragraph expressed anger over allowing the child to eat
food out of plastic containers and "pesticide containing foods," and stated that he No. 77986-9-1/2
was collecting "every bit of negative information" about Von Erffa. The more
troubling second paragraph stated,
You have closed off most avenues of life enjoyment for me but I have two things left, I live for:
1) redemption by taking revenge on you for having permanently harmed me psychologically and crippled my life and bereft me of almost all joys I was capable experiencing [sic] before I met you and for you having removed my son from half of my life and for having split his into two places. It just won't be that I pay the price for your actions while you escape unscathed. Obviously he will have to be a teenager before I can go to jail for you, but my detailed plot is set for summer 2029 and I just will have to pre-live it in my dreams until then, as I often am. (Of course my real revenge will be when [our son] inherits the many diaries and hours of video diaries I recorded. He will hate you until the rest of your life, no doubt)
2)to protect my son. This moral obligation overrides everything and anything or anyone standing in the way of this objective will be battled [sic] and obliterated to the fullest extent of my capacities.
And, she provided a printout from a 2015 website postingl purportedly authored
by Prasse that stated,
If I dreamt they were dreams of violence towards Sally and her family and other people I knew. Or dreams of falling without end. In my irrational state I contemplated murder and considered violence (having your child taken registers in the oldest part of the brain my therapist said) and abduction. But my son was too young to be separated from his mother permanently.
Prasse also personally handed a note to Von Erffa on December 2, that stated, "I
will not let you leave the state for christmast [sic]."
A commissioner issued a temporary protection order on December 4,2017,
and scheduled a hearing for December 28, 2017. Following that December 28
I It is not clear whether Prasse posted this before or after the 2015 parenting plan was entered.
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hearing, the commissioner issued a protection order. That order restrained Prasse
from contact with Von Erffa or the child, except for twice weekly supervised
visitations.
Prasse moved for revision. The trial court denied that motion. Prasse
appeals. DISCUSSION
I. Change to Parenting Plan
Prasse argues that the protection order violated RCW 26.09.260 by
improperly modifying the child's residential schedule without proper findings.
A decision to grant or deny a domestic violence protection order is reviewed
for an abuse of discretion. Maldonado v. Maldonado, 197 Wn. App. 779, 789, 391
P.3d 546 (2017). And, rulings dealing with the provisions of a parenting plan are
generally reviewed for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d
39, 46, 940 P.2d 1362 (1997). A court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons. Id.
at 46-47.
When a court issues a domestic violence protection order, residential
provisions regarding minor children of the parties must be made in accordance
with chapter 26.09 RCW. RCW 26.50.060(1)(d). Here, the domestic violence
protection order altered the existing residential schedule of the child.
A modification of a parenting plan occurs when a party's rights are either
extended beyond or reduced from those originally intended. In re Marriage of
Christel 101 Wn. App. 13, 22, 1 P.3d 600(2000). A court may modify a parenting
3 No. 77986-9-1/4
plan if "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." RCW 26.09.260(1). Applying
this standard, courts must retain the residential schedule within a parenting plan
unless:
(a) The parents agree to the modification;
(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;
(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; or
(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070.
RCW 26.09.260(2). Here, the only justification for a modification to the parenting
plan could be subsection (c), based on the allegations about Prasse's behavior.
Protections against domestic violence are a serious concern. However,
"there is no evidence that the Legislature intended to allow protection orders to
function as de facto modifications of permanent parenting plans." In re Marriage
of Barone, 100 Wn. App. 241, 247, 996 P.2d 654 (2000). The legislature has
created barriers to modifications of parenting plans. Id. at 247-48. "For example,
g[c]ustodial changes are viewed as highly disruptive to children, and there is a
strong presumption in favor of custodial continuity and against modification." Id.
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at 247 (alteration in original) (quoting In re Marriage of McDole, 122 Wn.2d 604,
610, 859 P.2d 1239 (1993)). And, failure by the trial court to make findings that
reflect the application of each relevant factor is error. In re Marriage of Shrvock,
76 Wn. App. 848, 852, 888 P.2d 750(1995).
Here, the threats alleged by Von Erffa since the parenting plan was entered
were against her personally. The writings of Prasse on which she relied do not
appear to threaten the child. The protection order restrained Prasse from contact
with Von Erffa or the child, except for twice weekly supervised visitations. Neither
the commissioner nor the trial court made findings as to the need to protect the
child. Consequently, the orders do not reflect a factual basis for modification of
residential schedule in the parenting plan.
The protection order stated that the change in the existing residential
schedule for the child would be superseded by subsequent modification to the
parenting plan.2 However, nothing within the protection order required a
modification be pursued. Given the nature of the restrictions on Prasse, Von Erffa
would not have an incentive to seek a modification of them. Prasse would be
unlikely to be able to carry his burden establishing a change of circumstances of
the nonmoving party or the child. See RCW 26.09.260(1). As a result, despite the
lack of an identification of a factual basis for an order of protection for the child or
for imposing residential limitations, a danger exists that the changed residential
provisions would become a de facto permanent modification of the parenting plan.
2The order on revision also stated that the protection order "may be modified to allow contact with child per family court order."
5 No. 77986-9-1/6
Based on the record before us, we cannot say that there was a substantial change
in circumstances that would warrant such a modification of the parenting plan
consistent with RCW 26.09.260(2)(c).
We remand for the findings necessary to support application of the
protection order to the child and to support the changes in the residential schedule
provided for in the parenting plan; or, absent that, amendment of those provisions
of the protection order. However, if subsequent to the filing of this appeal, a
modification of the residential schedule has been entered, the trial court need not
make further findings in this matter.
II. Exclusionary Rule
Next, Prasse argues that Von Erffa used Prasse's therapeutic diaries as
evidence in violation of the exclusionary rule. But, "[t]he exclusionary rule does
not apply to the acts of private individuals." State v. Smith, 110 Wn.2d 658, 666,
756 P.2d 722 (1988). Prasse alleges that Von Er-11a illegally accessed these
private documents, not that any state actor wrongfully took them. Therefore, this
argument fails.
III. Statutory Meaning of "Threat"
He next argues that the commissioner erred by concluding that documents
authored by him in 2015 were "threats" under RCW 9A.04.110. He argues that
these were private documents, not written to the mother, and thus cannot qualify
as threats against the mother. Prasse cites to no portion of the record where he
raised this argument below. Under RAP 2.5(a), we need not address arguments
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raised for the first time on appeal. We therefore decline to address this argument
further.
IV. Trial Court's Alleged Psychological Conclusions
Prasse next contends that the commissioner improperly drew psychological
conclusions, which should be the subject of expert testimony. But, Prasse also did
not raise this argument below. Under RAP 2.5(a), we need not address it.
V. Weight of Evidence
Issues 4, 5, 6, 7, 8, 10, 11, 12,4 and 15 raised by Prasse all generally go to
the weight or sufficiency of the evidence. Prasse conceptualizes each issue in a
slightly different way. For example, in issue 5, Prasse points to a "discrepancy that
was roundly ignored by the commissioner." In issue 15, Prasse argues that "this
ruling seems completely unwarranted with the circumstances of this case," and
"[t]he commissioner erred by making a ruling not in the best interests of the child."
We review the trial court's decision to grant or deny a protection order for
an abuse of discretion. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50
(2002). We determine whether the trial court's findings are supported by
substantial evidence in the record, and, if so, whether those findings support the
conclusions of law. Scott v. Trans-Sys., Inc., 148 Wn.2d 701, 707-08, 64 P.3d 1
4 In this section of his brief, Prasse also refers to witnesses that he claims were wrongfully excluded. It appears that the court told Prasse that it did not believe it was necessary to hear from two witnesses that Prasse had brought to the hearing, because it had reviewed their declarations. Although Prasse had brought those witnesses to the hearing, he did not make any objection to the decision. Given this lack of objection, and minimal discussion in his brief, we decline to address this argument further. RAP 2.5(a); Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835(2011)(declining to consider an inadequately briefed argument).
7 No. 77986-9-1/8
(2003). Substantial evidence is evidence that is sufficient to persuade a fair-
minded, rational person of the truth of the asserted premise. Pilcher v. Dep't of
Revenue, 112 Wn. App. 428, 435, 49 P.3d 947(2002).
A petition for a domestic violence protection order must allege "the
existence of domestic violence" and must be accompanied by an affidavit under
oath that states specific facts and circumstances supporting relief. RCW
26.50.030(1). "Domestic violence" is defined in part as "[p]hysical harm, bodily
injury or assault, or the infliction of fear of imminent physical harm, bodily injury or
assault, between family or household members." RCW 26.50.010(3)(a).
Here, Von Erffa received a letter in which Prasse discussed "redemption by
taking revenge on you," stated that anyone standing in his way "will be battled and
obliterated," and stated that "1 can go to jail for you." Von Erffa stated that Prasse
had delivered the letter to her in-person. She also testified that she has been in
fear for her safety ever since, and that she was scared to stay in her own home.
Substantial evidence supports the trial court's decision to issue the protection
order. And, to the extent that Prasse believes that the trial court improperly
weighed the evidence, or ignored holes in Von Erffa's story, we defer to the trial
court's determinations on the persuasiveness of the evidence, witness credibility,
and conflicting testimony. State v. Ainslie, 103 Wn. App. 1, 6, 11 P.3d 318(2000).
The trial court did not abuse its discretion in determining that a protection
order was warranted.
8 No. 77986-9-1/9
VI. History of Domestic Violence
Prasse next argues that the commissioner erred in finding a history of
domestic violence, because it relied on the prior issuance of a 2015 no-contact
order, rather than a protection order. RCW 26.10.160(2)(a)(iii) states that a court
may limit a parent's visitation with a child if the court finds a history of domestic
violence. Prasse argues that a no-contact order is insufficient to show a history of
domestic violence, because it is different from a protection order. But, nothing in
the record suggests that the trial court found a history of domestic violence under
RCW 26.10.160(2)(a)(iii). Rather, its decision was based on a credible threat to
the mother's safety. Therefore, this argument is not grounds for reversal.
VII. Equal Protection
Prasse argues that the commissioner violated the equal protection clause.
But, nothing in the record suggests that Prasse raised the equal protection clause
below. An exception to RAP 2.5(a) instructs that a party may raise for the first time
on appeal a manifest error affecting a constitutional right. In order to be "manifest,"
the party "must show that the asserted error had practical and identifiable
consequences at trial. State v. Grimes, 165 Wn. App. 172, 186-87, 267 P.3d 454
(2011). Prasse argues that, due to this error,"no time at all was allotted during the
hearing to examine the father's character as a parent." Prasse also contends that
he was denied equal protection rights based on his background growing up in
foreign countries. But, absent significant state action, a claim of equal protection
violation fails. See Long v. Chiropractic Soc`v of Wash., 93 Wn.2d 757, 761, 613
P.2d 124(1980).
9 No. 77986-9-1/10
Prasse's equal protection argument is that Von Erffa portrayed the evidence
against Prasse in a discriminatory light, not that any government actor
discriminated against him in any way. Even so, to the extent that the trial court
may have wrongfully denied him the ability to present his case, Prasse was allowed
to testify at the hearing. He was free to give testimony about his parenting skills
and dedication. He did not object when the commissioner told Prasse that it did
not find it necessary to hear his witnesses testify, because it already had reviewed
their "well written" declarations. He was given a hearing before a trial court on
revision. He therefore fails to establish that this alleged error was manifest. He
points to no portion of the record where his nationality was invoked in the
proceedings.
We find no equal protection violation.
VIII. Temporary Protection Order
Prasse next argues that the commissioner erred, because the temporary
protection order was in place for more than 14 days. Under RCW 26.50.070(4), a
court may issue ex parte a temporary protection order for a fixed period not to
exceed 14 days. It appears that the commissioner authorized the temporary order
to be in effect beginning December 4,2017, until the end of the next hearing, which
did not occur until December 28, 2017. But, Prasse fails to identify how this error
bears on the validity of the permanent order that is the subject of this appeal.
IX. "Flawed Process"
Prasse's final argument is that "the trial court rulings were flawed because
they were based on a flawed process of finding facts by the commissioner." But,
10 No. 77986-9-1/11
he provides no further articulation of how the process below was flawed, and cites
no authority in support of this argument. We decline to address it further. See •
Norcon, 161 Wn. App. at 486 (declining to consider an inadequately briefed
argument).
X. Attorney Fees
Von Erffa requests attorney fees on appeal. Under ROW 26.09.140, an
appellate court may award fees in its discretion. In determining whether to award
attorney fees on appeal, we "examine the arguable merit of the issues on appeal
and the financial resources of the respective parties." In re Marriage of Booth, 114
Wn.2d 772, 779-80, 791 P.2d 519, 523(1990). We decline to award fees to Von
Erffa.
We remand for further proceedings relative to the application of the order to
the child. We affirm in all other respects.
WE CONCUR:
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