IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: No. 83451-7-I PETER JOHN PETRUCCI, DIVISION ONE Petitioner, UNPUBLISHED OPINION and
EMILY FARRIS PETRUCCI,
Respondent.
HAZELRIGG, A.C.J. — Emily Farris (formerly Petrucci) appeals from various
orders associated with a dissolution action. Because she fails to demonstrate
any error that necessitates reversal, we affirm.
FACTS
Emily Farris and Peter Petrucci married in February 2008.1 They have two
children, E2 and F. Farris left Petrucci on October 22, 2019, after a domestic
violence incident and was granted a temporary domestic violence protection
order (DVPO) the next day. A week later, Petrucci filed a petition for dissolution.
A one-year order for protection was granted in December 2019; Petrucci moved
1 The record establishes that Emily’s last name was changed during the proceeding.
Accordingly, we refer to Emily and Peter by their current last names. 2 E identifies as gender nonbinary. Accordingly, we utilize they/them/their pronouns in
referencing E throughout this opinion. No. 83451-7-I/2
for reconsideration and for revision, but both motions were denied. The parties
engaged in extensive high-conflict litigation leading up to a bifurcated trial, as
well as after the trial concluded. The court ultimately entered a variety of orders,
amended orders, and supplemental orders. Farris timely appealed. The Family
Violence Appellate Project, joined by several other organizations,3 moved this
court for permission to file an amicus curiae brief. The motion was granted.
ANALYSIS
We review a trial court’s parenting plan for an abuse of discretion. In re
Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). A trial court
abuses its discretion if its decision is based on untenable grounds or untenable
reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362
(1997). If a court’s decision “is outside the range of acceptable choices, given
the facts and the applicable legal standard,” or if its factual findings are
unsupported, it abuses its discretion. Id. at 47. We review a court’s factual
findings for substantial evidence, and review “de novo whether the trial court’s
conclusions of law flow from its findings.” In re Marriage of Raskob, 183 Wn.
App. 503, 510, 334 P.3d 30 (2014). “‘Substantial evidence exists if the record
contains evidence of a sufficient quantity to persuade a fair-minded, rational
person of the truth of the declared premise.’” In re Marriage of Wehr, 165 Wn.
App. 610, 615, 267 P.3d 1045 (2011) (quoting In re Marriage of Fahey, 164 Wn.
App. 42, 55, 262 P.3d 128 (2011)). Finally, we defer to the trial judge “‘for
3 The other organizations are: Washington State Coalition Against Domestic Violence,
King County Bar Association—Domestic Violence Legal Advocacy Project, Project DVORA | Jewish Family Service, King County Sexual Assault Resource Center, and Clark County Volunteer Lawyers Program.
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purposes of resolving conflicting testimony and evaluating the persuasiveness of
the evidence and credibility of the witnesses.’” In re Marriage of Bundy, 12 Wn.
App. 2d 933, 938, 460 P.3d 1111 (2020) (quoting Thompson v. Hanson, 142 Wn.
App. 53, 60, 174 P.3d 120 (2007), aff’d, 168 Wn.2d 738, 239 P.3d 537 (2009)).
With this standard of review in mind, we turn to Farris’s assignments of
error.4
I. Ruling on Domestic Violence Protection Order
Farris first contends the trial court erred as a matter of law by ruling on the
existing DVPO where neither party requested related relief. She asserts the
court’s ruling was essentially an advisory opinion as there was no justiciable
controversy since neither party had requested modification or renewal of the
DVPO. Farris also argues the judge erred in applying the Freeman5 factors in
evaluating whether modification or termination of the DVPO was warranted.
“[P]rotective orders are essentially a type of injunction” and, as such,
actions for a protection order are equitable in nature. Blackmon v. Blackmon,
155 Wn. App. 715, 721, 230 P.3d 233 (2010). Courts have wide equitable
discretion to “‘fashion broad remedies to do substantial justice to the parties and
put an end to litigation.’” Hough v. Stockbridge, 150 Wn.2d 234, 236, 76 P.3d
4 On reply, Farris urges this court to disregard most of Petrucci’s response brief as noncompliant with RAP 9.11, 9.13, 10.3(1)(5) and (6). “[P]ro se litigants are bound by the same rules of procedure and substantive law as attorneys.” Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997). However, it is clear in much of Petrucci’s argument where he references certain testimony or reports, and we decline to reject his arguments solely for failure to cite to the record. See RAP 1.2 (requiring the rules of appellate procedure to be “liberally interpreted to promote justice and facilitate the decision of cases on the merits”). However, we decline to consider references to proceedings outside of the record before us, as presented by both parties in their respective briefing. 5 In re Marriage of Freeman, 169 Wn.2d 664, 239 P.3d 557 (2010).
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216 (2003) (quoting Carpenter v. Folkerts, 29 Wn. App. 73, 78, 627 P.2d 559
(1981)). Despite this broad authority, a trial court may not issue a ruling on the
merits of a claim if it is not presented with a justiciable controversy. See West v.
Thurston County, 169 Wn. App. 862, 867, 282 P.3d 1150 (2012) (citing To-Ro
Trade Shows v. Collins, 100 Wn. App. 483, 490, 997 P.2d 960 (2000), aff’d, 144
Wn.2d 403, 27 P.3d 1149 (2001)). A justiciable controversy is:
“(1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.”
To-Ro Trade Shows, 144 Wn.2d at 411 (quoting Diversified Indus. Dev. Corp. v.
Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)). If there is no justiciable
controversy, the court risks issuing a prohibited advisory opinion. Id. at 416.
Here, neither party requested a modification, termination, extension, or
renewal of the DVPO. As the court noted, the DVPO in place at the time of trial,
issued pursuant to a separate cause of action,6 was not set to expire until
January 8, 2022. Despite this, the court entered findings related to the merits of
extending the DVPO, stating “[t]he acts of domestic violence that gave rise to the
original DVPO on their own do not warrant a long-term domestic violence order,”
and “[o]n this record, after over ten days of trial, the [c]ourt finds no basis to issue
a superseding DVPO of longer duration.” As neither party had requested a
6 The family law proceeding was linked with the protection order proceeding in December
2019.
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superseding DVPO of longer duration or a long-term DVPO, there was no actual,
present and existing dispute.
The court erred in entering a ruling on the merits where there was no
justiciable controversy. However, no prejudice resulted from this error. The
court made clear that Farris retained the right to seek renewal of the DVPO prior
to its expiration on January 8. Further, the renewal would take place before a
different judicial officer, rather than before the trial court who made the advisory
ruling. There is no indication that the findings related to the merits of the DVPO
had any prejudicial impact on Farris that would warrant vacatur of the findings of
fact or conclusions of law as she requests. While Farris contends that the
commissioner who considered her motion to renew the DVPO denied her motion
based on the trial court’s findings, she provides no citation to the record before
which could support this assertion. See Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Further, any decision by the
commissioner that considered renewal of the DVPO is outside the scope of the
current appeal and, as such, we will not review it under RAP 2.4.
Likewise, the court erred as a matter of law in applying the Freeman
factors. In Freeman, our state Supreme Court announced a test for analyzing
whether a DVPO should be modified. Freeman v. Freeman, 169 Wn.2d 664,
672-73, 239 P.3d 557 (2010). However, the test was subsequently superseded
by our state legislature. LAWS OF 2011, ch. 137, § 2. The trial court erred when it
applied these factors as a matter of law, but, again, Farris demonstrates no
resulting prejudice. She argues that the trial court utilized its erroneous findings
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of fact related to the Freeman factors to support other rulings, but we analyze
those findings of fact separately to investigate whether the findings are supported
by substantial evidence and whether the trial court’s conclusions of law flow from
the findings.
While the trial court erred as a matter of law, no prejudice resulted and, as
such, Farris fails to demonstrate a basis for relief.
II. Request for a Restraining Order
Farris next claims the trial court abused its discretion by failing to consider
her request for a restraining order. A trial court “abuses its discretion if it fails to
exercise discretion when required to do so.” In re Adoption of A.W.A., 198 Wn.
App. 918, 922, 397 P.3d 150 (2017). Farris’s assignment of error is belied by the
record. The trial court explicitly ruled on her request for a restraining order in
multiple orders: the “order on respondent’s motion for reconsideration and/or
clarification of orders entered on August 10, 2021,” and “amended findings and
conclusions about a marriage,” issued on October 11, 2021, and the
“supplemental final divorce order” entered on November 4, 2021. The court
denied her request each time. The trial court did not abuse its discretion.
III. Substantial Evidence of Rehabilitation
Farris argues the court’s findings related to Petrucci’s rehabilitation are
unsupported by substantial evidence. She avers that these findings, though
mainly used in the trial court’s analysis of the DVPO, were also utilized to support
the residential schedule, decision-making about the children’s education, and
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attorney fees. The court found “there was a history of domestic violence,”
specifically based on “the father’s infliction of fear of imminent physical harm,
bodily injury or assault, which resulted in a DVPO.” However, the court also
found that “the father commendably took ownership of his role in the toxic
relationship and was found to have taken responsibility for his actions in his DV
treatment with Dr. Adrienne Casteele.” It additionally found Petrucci would no
longer be entangled in litigation around the children.
Farris argues Petrucci attacked her character and denied violent acts
during the trial, undercutting the court’s finding that Petrucci had taken ownership
of his previous acts of domestic violence. Throughout trial, Farris and Petrucci
provided differing accounts of conflict that took place during their marriage.
Farris characterized incidents as domestic violence, while Petrucci interpreted
the same incidents as innocuous disagreements or mutual mistreatment.
Petrucci contested Farris’s report of the incident giving rise to the initial DVPO,
and stated that he “came to the door, did not touch the door, put my arms behind
my back, and asked if there was anything she needed or we could do to
deescalate this.” He testified that the children were sitting on the couch watching
TV at the time. This account differed significantly from Farris’s, who testified that
Petrucci yelled at her, pounded on the door, and that E was using an Xbox guitar
controller to protect themselves and their sister from Petrucci. The court found
Farris’s testimony about the event credible. The court also found Farris’s
testimony credible regarding an incident where Petrucci put his hand over F’s
mouth to stifle her screaming. The parties disputed incidents where Petrucci
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allegedly broke a dashboard of a vehicle, yelled at Farris after E was born, or
pressured Farris into unwanted sexual contact. They also disputed incidents that
involved vulgar or demeaning language, financial control, and accessing a
private online journal. Throughout trial, Petrucci provided testimony that was, at
times, internally inconsistent and at times contradictory. He explicitly admitted
during his testimony that he had a problem with rage and that he had a “physical
overbearing presence in the house.” However, he also testified that during the
marriage he did not see himself “as a threatening, imposing guy;” rather, he
would try “to remain as unimposing and unrecognized as possible.”
During his testimony, Petrucci expressed frustration with the DVPO. He
testified that in the course of the dissolution proceedings, particularly when it
came to visitation issues, “the DVPO was waved at me as a stick.” He stated, “in
the last 19 months, I have lived in fear of that DVPO, and it has been used like a
stick to ward me off or to threaten me.” The court found that Petrucci violated the
DVPO several times shortly after its issuance, including by hiring a private
investigator to locate Farris’s vehicle. Petrucci also testified that he felt
mistreated by Farris during their marriage. He testified that he had no power or
voice, and stated that he “couldn’t set boundaries with Ms. [Farris],” and, “I simply
felt like I had no voice,” particularly related to educational decisions. Farris
contends that this frustration with the DVPO and criticism of her behavior or
choices undercuts the court’s finding that Petrucci took accountability for his
harmful behaviors. However, Petrucci’s testimony about his perceptions of
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mistreatment and frustration are not mutually exclusive from demonstrating
accountability for past harmful behavior.
It is uncontested that Petrucci successfully engaged in individual mental
health services, domestic violence evaluation and the resulting treatment plan,
and parenting courses. In addition to this uncontested testimony, the court made
several relevant credibility determinations. It found credible Petrucci’s and
Casteele’s testimony that Petrucci was compliant with domestic violence
treatment and Hughes’s testimony that Petrucci “owned” his responsibility for the
harmful dynamic and harm to the children. It also made an explicit credibility
determination as to Petrucci’s testimony regarding his violations, that “he did not
appreciate the stringency of the DVPO provisions, and that these behaviors
stopped.” Finally, it found Petrucci “was credible at trial that he recognized his
role in the parties’ toxic relationship, that all firearms have been surrendered, and
that he has no interest in interacting with the mother except to the extent the
parties must exchange the children.” As an appellate court, we do not re-
evaluate any of these credibility determinations. Bundy, 12 Wn. App. 2d at 938.
Ultimately, this court will accept the trial court’s findings of fact so long as
there is sufficient evidence “to persuade a fair-minded person of the truth of the
matter asserted.” Katare v. Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012).
The trial court has the unique benefit of hearing the testimony live and observing
the demeanor of witnesses. In re Dep. of A.V.D., 62 Wn. App. 562, 568, 815
P.2d 277 (1991). We defer to the trial judge to resolve conflicting testimony;
“‘[w]e do not reweigh or rebalance competing testimony and inferences even if
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we may have resolved the factual dispute differently.’” Bundy, 12 Wn. App. 2d at
938 (quoting Bale v. Allison, 173 Wn. App. 435, 458, 294 P.3d 789 (2013)).
Consistent with controlling case law, we defer to the trial judge here, who had the
benefit of observing all parties live during the multi-day trial, to resolve conflicting
testimony and weigh evidence. While much of Farris’s briefing emphasizes
evidence which she argues supports a contrary finding under the statute, that is
not the test we apply on appeal. Rather, our review is limited to determining
“‘whether the evidence most favorable to the prevailing party supports the
challenged findings, even if the evidence is in conflict.’” In re Marriage of
DeVogel, 22 Wn. App. 2d 39, 48, 509 P.3d 832 (2022) (quoting Thomas v.
Ruddell Lease-Sales, Inc., 43 Wn. App. 208, 212, 716 P.2d 911 (1986)). There
is substantial evidence to support the court’s findings that Petrucci has
acknowledged wrongdoing and taken responsibility for his harmful actions, and
will no longer be entangled in litigation with regard to the children.
IV. Residential Schedule
Farris argues the trial court abused its discretion by placing the children
with Petrucci half of the time based on RCW 26.09.191(2)(n). She avers the
evidence does not support application of the statutory exception.
Under RCW 26.09.191(2)(a), a trial judge must limit a parent’s residential
time if the parent has previously committed acts of domestic violence. However,
the court need not limit the residential time:
[i]f the court expressly finds based on the evidence that contact between the parent and the child will not cause physical, sexual, or emotional abuse or harm to the child and the probability that the
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parent’s or other person’s harmful or abusive conduct will recur is so remote that it would not be in the child’s bests interests to apply the limitations . . . of this subsection.
RCW 26.09.191(2)(n). In conducting this analysis, the court has discretion in
determining how much weight to give “to the existence of a protection order.” Id.
Farris largely relies on the testimony of parenting evaluator Margo
Waldroup in support of her challenge. Waldroup conducted a parenting
evaluation of both Farris and Petrucci. Farris correctly identifies that Waldroup
had concerns about E’s screen time and the content of the video games that
Petrucci allowed E to play. Waldroup also testified that she “didn’t like that”
Petrucci “would sometimes ask [F] to move or to engage in problem solving”
when conflict between the siblings was caused by E’s behavior. During
questioning regarding E’s dysregulated behavior, Waldroup answered that she
thought Petrucci could “possibly” handle a situation in the home where E put F in
danger while dysregulated.
However, Waldroup also testified that she did not believe Petrucci needed
to be supervised in his visitation with F as of December 2020. She
recommended “a very short phase-in where the supervisor would be involved just
in part of it” and then to “absolutely start lengthening the visits.” Waldroup
testified, “I picture [F] going to overnights rather quickly,” and then she would
recommend moving “to spending the entire weekend and alternate weekends,”
from “Wednesday after school through Monday morning return to school.” Her
recommendation for E, however, was “[f]ar more complex.” In December 2020,
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she recommended “two additional months of supervision,”7 and that “[E] should
be with [their] father each Saturday or Sunday for six hours.” In Waldroup’s
suggested plan, this visitation would increase and eventually result in “a schedule
of every other weekend from Friday after school until Monday morning return to
school, and then also have that opposite Wednesday with [F] and [their] father.”
However, Waldroup also stated she was unable to predict whether there would
be any barriers to a parenting plan for E that placed them with each parent on
alternating weeks, even if they were “doing well in school and in general on the
home front.” She additionally testified that she felt Petrucci had taken
accountability, had learned new skills, and wanted “to do things better and create
healing in the family.”
Dr. Mollie Hughes, who taught Petrucci in two parenting courses, also
testified at trial. She testified that, as the course progressed, Petrucci began
“moving from this victim mentality more toward the effect that type of thinking had
on his partner and also on his children.” Her ultimate conclusion was that
Petrucci had made progress in taking accountability for his actions.
As to the court’s finding that Petrucci’s abusive or harmful conduct is
unlikely to recur, the court found Petrucci was compliant with domestic violence
treatment. Petrucci was evaluated by and attended domestic violence training
with Casteele. She testified at trial that Petrucci was “very much engaged” in the
curriculum, and that “he’s been actively participating with accountability and
7 At the time of trial, Petrucci had already completed four additional months of supervised
visitation and Waldroup did not think the supervision requirement was necessary with regard to Petrucci’s future visitation with E.
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responsibility for his actions,” such that Casteele changed her recommendation
from a 12-month program to a 9-month program.
In addition to the testimony of Waldroup, Hughes, and Casteele, the trial
court’s credibility determinations and unchallenged findings of fact support its
application of RCW 26.09.191(2)(n). The court found Petrucci’s testimony
credible that he has not held F’s mouth shut again; we do not review such a
determination. See Bundy, 12 Wn. App. 2d at 938. The court also stated, “the
Court does not find that the father has done anything since separation to cause
[E] fear and that any ongoing apprehension likely results from the irregular
schedule and complications related to [E]’s autism and other conditions.” Farris
does not challenge this finding and, as such, it is a verity on appeal. See
Raskob, 183 Wn. App. at 510 (“Unchallenged factual findings are verities on
appeal.”).
Again, we defer to the trial court to resolve conflicting testimony. Bundy,
12 Wn. App. 2d at 938. While Waldroup testified that she had some concerns
regarding Petrucci’s parenting skills, there is sufficient evidence to support the
trial court’s finding that contact between Petrucci and the children will not cause
them harm. The court’s finding that domestic violence is unlikely to recur is also
supported by substantial evidence. The court’s application of RCW
26.09.191(2)(n) flows from these findings and, as such, the court did not abuse
its discretion.
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V. Educational Decision-Making
Next, Farris contends the trial court erred as a matter of law by permitting
Petrucci decision-making authority over education decisions in contradiction of
RCW 26.09.191(1)(c). We review a trial court’s decision about parental decision-
making authority for an abuse of discretion. In re Marriage of C.M.C., 87 Wn.
App. 84, 86, 940 P.2d 669 (1997). Under RCW 26.09.191(1)(c), a judge may not
require mutual decision-making or alternative dispute resolution if a parent has
engaged in “a history of acts of domestic violence as defined in RCW 7.105.010.”
Here, the court found Petrucci has a history of domestic violence and is subject
to limitations. However, the court concluded that “the allocation of education-
related decision-making authority should not operate to override altogether the
father’s ability to influence the children’s education if the mother decides she
wants to return to homeschooling the children.” The court’s order states that, if
the mother decides to homeschool the children, “she must notify the father 90
days in advance” so that the father may seek relief from the court.
In In re Marriage of Mansour, the trial court restricted a mother’s sole
decision-making authority by preventing her from enrolling the child in
extracurricular activities or obtaining in non-emergency health care that would
incur additional expense, absent agreement or court order. 126 Wn. App. 1, 10-
11, 106 P.3d 768 (2004). This court held that such an order was an abuse of
discretion. Id. at 10. However, this court also explained that the trial court could
alleviate any concern about the financial well-being of the parties “by requiring
that the mother give sufficient notice to the father of decisions that would incur
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significant costs . . . so the father is able to seek timely court intervention if he
chooses.” Id. at 11. Under this clear authority, the trial court did not award
Petrucci decision-making authority in violation of RCW 26.09.191(1)(c), but
permissibly required that Farris provide notice prior to utilizing her sole decision-
making authority in a particular way.
Farris has sole authority to make educational decisions, but if she chooses
to homeschool the children she must give notice so Petrucci may seek relief from
the court if he so chooses. Petrucci has no authority to make decisions, only an
avenue to seek such relief; notably, one he would be free to pursue even without
advance notice regarding such a change. Nothing in RCW 26.09.191(1) forbids
a parent who has engaged in acts of domestic violence from seeking relief in
court. To the contrary, the statute explicitly and exclusively permits resolution of
disputes through court action. RCW 26.09.191(1). The court did not err.
VI. Attorney Fees
Farris requests attorney fees associated with this appeal as well as the
preceding trial. Under RAP 18.1(a) and RCW 26.09.140, this court may award
attorney fees on appeal associated with a dissolution action. C.M.C., 87 Wn.
App. at 89. We consider the parties’ financial resources as well as the merit of
the issues presented on appeal. Id. The trial court found that Petrucci had no
ability to pay Farris’s attorney fees. Based on the merits of the issues Farris
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raises on appeal and the court’s finding that neither party has the ability to pay
the others’ fees, we decline to award Farris fees.8
WE CONCUR:
8 Because reversal is not warranted here, we need not reach Farris’s argument that she
is entitled to attorney fees on remand, nor her argument that matters on remand must be heard by a different judicial officer.
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