Filed Washington State Court of Appeals Division Two
June 1, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STACY L. JONES, No. 54116-5-II
Respondent,
v.
MANUEL E. BOLIVAR, UNPUBLISHED OPINION
Appellant.
GLASGOW, C.J.—Stacy L. Jones petitioned for domestic violence protection orders for
herself and her four minor children against Manuel E. Bolivar. Before the hearing, Bolivar made
a threat in connection with the commissioner who was presiding over the case, prompting the
commissioner’s recusal and the circulation of a security alert in the superior court. Bolivar moved
for a change of venue or appointment of a visiting judicial officer. The trial court denied the
motion.
Bolivar did not appear at the final hearing, and his attorney explained that Bolivar had
missed his flight the night before and requested a continuance, which the trial court denied. The
court admitted Bolivar’s domestic violence evaluation into evidence. After the final hearing, the
trial court imposed protection orders prohibiting Bolivar from contacting Jones and their children.
The trial court also ordered Bolivar to surrender any weapons.
Bolivar appeals. He argues the trial court erred by denying his motion for a change of venue
or a visiting judge, denying his motion for a continuance, and admitting the domestic violence No. 54116-5-II
evaluation. Jones requests that this court award her attorney fees on appeal and impose sanctions
on Bolivar.
We affirm the protection orders and the order to surrender weapons. We grant Jones
attorney fees on appeal. We deny the request for further sanctions.
FACTS
Bolivar and Jones have four minor children together. Jones filed a parentage action and in
2014 received a five-year restraining order prohibiting Bolivar from contacting Jones or their
children. Commissioner Tracey Mitchell also required Bolivar to complete domestic violence and
substance abuse evaluations and treatment “prior to petitioning the court for visitation.” Clerk’s
Papers (CP) at 43. Bolivar never completed the required evaluations or treatment.
Over the next several years, Bolivar created an Internet blog website about the court orders
prohibiting him from contacting his children and a YouTube channel containing more than 100
videos of the children. He also hung banners and posted stickers encouraging the children to
contact him in areas the children frequented, including near their school.
In June 2019, shortly before the five-year protection order expired, Jones petitioned for
domestic violence protection orders under RCW 26.50.030 to permanently restrain Bolivar from
contacting Jones or their children. A hearing was set before Commissioner Mitchell for June 2019.
Several days before the hearing, Bolivar called the Washington State Bar Association
seeking an attorney referral. He complained to the staffer who answered the phone about
corruption in Lewis County, and he told them that they would “read about it” if Bolivar “didn’t
get his way.” CP at 234. He mentioned Commissioner Mitchell by name in the call. The bar
association’s general counsel informed Commissioner Mitchell about the call by e-mail and phone
2 No. 54116-5-II
call. Commissioner Mitchell forwarded the e-mail to all three Lewis County Superior Court judges
with a few sentences explaining what precautionary measures were being taken. The Lewis County
Superior Court administrator acquired a photograph of Bolivar and placed it in the court
administrator’s office so staff could identify him, alongside photographs of two other individuals.
Commissioner Mitchell recused from the case due to Bolivar’s phone call. After her
recusal, the hearing was continued at least two times. When the case was assigned to Judge Joely
O’Rourke, Commissioner Mitchell forwarded the security alert to Judge O’Rourke a second time
in September 2019, without any comment. Judge O’Rourke did not respond to the e-mail.
In September 2019, Bolivar attended a domestic violence evaluation. The evaluation placed
Bolivar in the “over-all high-range-risk for lethality and recidivism” and recommended “level 4
domestic violence intervention treatment” for a minimum of 18 months. Sealed Clerk’s Papers at
493 (boldface omitted). Jones then filed a declaration heavily quoting from the evaluation and
describing other actions that alarmed Jones, including placement of the stickers near the children’s
school and attempts to contact the children via social media.
In late September 2019, Bolivar’s attorney saw the photograph of Bolivar in the court
administrator’s office. Bolivar made a public records request for Lewis County Superior Court
internal e-mails regarding himself and discovered the internal security alert e-mails regarding his
threat about Commissioner Mitchell.
Bolivar then moved to change venue or appoint a visiting judicial officer. At a hearing on
November 14, 2019, before Judge O’Rourke, Bolivar argued that it would be impossible to hold
an impartial hearing in Lewis County. After acknowledging that no judge had responded to the e-
mail from Commissioner Mitchell, Bolivar’s attorney stated, “[I]t’s speculation, but I respectfully
3 No. 54116-5-II
submit, more was said outside of electronic communication about my client between this court’s
judicial officers and within administration as well.” Verbatim Report of Proceeding (VRP) (Nov.
14, 2019) at 6. “[W]e submit that there is a mountain of evidence that indicates our pool of judicial
officers in this court and court administration had prior knowledge and, frankly, a fear of my
client.” Id. at 7. Bolivar requested that the trial court transfer the case to a neighboring county or
appoint a visiting judicial offer.
The trial court asked if Bolivar had any evidence that any of the county’s judicial officers
feared him. Bolivar argued that the e-mail notice of his threat “implicates that everyone is being
told to be wary.” Id. at 9. The trial court noted that judicial officers frequently encounter safety
risks: “At least once daily I have somebody up from the jail sitting in red, which tells the court this
person is a safety risk, and if we had a judicial officer recuse from every case, we wouldn’t be able
to conduct the courts properly.” Id. at 9-10.
Jones responded that granting the motion would invite Bolivar to issue additional threats
to judicial officers in the next county: “If the court grants a change in venue, there is nothing to
stop Mr. Bolivar from calling in new threats to new judicial officers and trying to find a county in
this state that would ignore all of the vast evidence before them that he is a threat.” Id. at 11. She
pointed out that court administration’s response to the threat complied with GR 36, the court rule
addressing trial court security, and relevant public safety standards. Jones’s counsel also noted that
Jones was going into debt to pay her attorney fees, which a change of venue to a more distant
county would exacerbate.
The trial court denied the motion to change venue or appoint a visiting judicial officer,
explaining that Commissioner Mitchell followed standard steps that judicial officers and court
4 No. 54116-5-II
administration take when they become aware of a threat. Judge O’Rourke did not remember the
alert e-mails, explaining that she gets similar e-mails “a lot” and they do not typically affect a
judicial officer’s ability to be fair and impartial. Id. at 18. Judge O’Rourke also said that she was
not afraid of Bolivar.
Judge O’Rourke further pointed out that if judges had to recuse every time they received a
security alert, the court would not be able “to get stuff done.” Id. at 19. She also said that she was
unaware of Bolivar’s picture at the front desk and said that providing a picture at the front desk is
standard protocol when there has been a threat.
After issuing her ruling, Judge O’Rourke then noted that she had been a deputy prosecutor
in 2011 when Bolivar was involved in a criminal case in the county. Judge O’Rourke did not
believe that she “ever had any dealings in the case whatsoever,” and a different prosecutor was
assigned to the case, but she nevertheless invited Bolivar to file an affidavit of prejudice. Id. at 20.
But Judge O’Rourke made it clear that an affidavit of prejudice would not result in a change of
venue or appointment of a visiting judge.
Bolivar filed an affidavit of prejudice against Judge O’Rourke. The day of the final hearing,
Judge Andrew Toynbee, another Lewis County Superior Court Judge, recused. The case was then
assigned to Lewis County District Court Judge R.W. Buzzard, and proceeded to a final hearing in
November 2019.
The morning of the hearing, Bolivar’s counsel requested a continuance because Bolivar
had missed a flight from Denver, Colorado the previous evening. Jones raised that there were
additional flights from Denver that Bolivar could have taken and that the number of previous
5 No. 54116-5-II
continuances in the case weighed in favor of denying the request. The trial court denied the motion
for a continuance.
Bolivar also asked the trial court to exclude from consideration the September domestic
violence evaluation under ER 408, which prohibits admission of settlement negotiations to prove
a claim’s validity. “This evaluation was the subject of negotiations while we were trying to reach
a settlement in this case and enter agreed restraints in a parentage action. . . . This evaluation was
given to [Jones] and releases were signed in the interest of reaching a settlement in this case.” VRP
(Nov. 25, 2019) at 26-27. Judge O’Rourke had previously ruled that the evaluation was not barred
by ER 408.1 Judge Buzzard declined to revisit that ruling.
After the hearing, the trial court granted the petition for a lifelong protection order for
Jones. The trial court imposed a one-year protection order for the children, but noted that Jones
could reapply for additional one-year orders until the children reached 18. “However, this order
will yield to any family law order if and when Mr. Bolivar follows through with their
requirements.” Id. at 127. The trial court also ordered Bolivar to surrender any weapons. The trial
court awarded Jones attorney fees.
Bolivar appeals the protection orders and the order to surrender weapons. He requests that
we remand for a new hearing in a different county. Jones argues that we should dismiss the appeal
because although Bolivar included assignments of error in his briefing to this court, he did not
include a list of issues raised as required by RAP 10.3.
1 The hearing for this ruling has not been designated and is not included in our record. 6 No. 54116-5-II
ANALYSIS
I. REQUEST TO DISMISS THE APPEAL
As an initial matter, RAP 10.3(a) calls for a brief to contain both assignments of error and
issues pertaining to those assignments, as well as argument that cites to legal authority and relevant
portions of the record. If “the nature of the appeal is clear,” and the brief contains argument and
supporting legal citation for all relevant issues “so that the Court is not greatly inconvenienced and
the respondent is not prejudiced, there is no compelling reason for the appellate court not to
exercise its discretion to consider the merits of the case.” State v. Olson, 126 Wn.2d 315, 323, 893
P.2d 629 (1995). Bolivar’s brief contains assignments of error, the nature of the appeal is clear,
and the relevant issues are argued in the body of the brief with citations to authority. We decline
to dismiss Bolivar’s appeal.
II. MOTION TO CHANGE VENUE OR APPOINT A VISITING JUDICIAL OFFICER
Bolivar claims that the trial court abused its discretion when it denied his motion to change
venue or appoint a visiting judicial officer under RCW 4.12.030. Bolivar compares his case to
State v. Hillman, 42 Wash. 615, 85 P. 63 (1906), arguing that “every Judicial Officer in Lewis
County Superior Court should have recused” due to the court administrator’s office displaying his
photograph, the e-mail security alert to Lewis County judicial officers, and Commissioner
Mitchell’s resending of the e-mail security alert to Judge O’Rourke. Appellant’s Br. at 8. Bolivar
argues that we should overturn the protection orders and remand for a new hearing in a neighboring
county. We disagree.
RCW 4.12.030(2) provides that a trial court may transfer a case to a different county “when
it appears by affidavit, or other satisfactory proof . . . that an impartial trial cannot be had therein.”
7 No. 54116-5-II
Bolivar asks this court to review the denial of his motion to change venue or appoint a visiting
judicial officer de novo “given the clear existence of prejudice against” him, but he provides no
legal support for this argument. Appellant’s Br. at 7. Although Bolivar contends that we should
engage in de novo review, it is well settled that a trial court’s decision to deny a motion to change
venue is reviewed for manifest abuse of discretion. Unger v. Cauchon, 118 Wn. App. 165, 170, 73
P.3d 1005 (2003). A manifest abuse of discretion occurs “when no reasonable person would adopt
the trial court’s position.” Id.
A. Appearance of Fairness
Bolivar primarily argues that no Lewis County judicial officer could have fairly presided
over his case. The test for “whether a proceeding satisfies the appearance of fairness doctrine is
how it would appear to a reasonably prudent and disinterested person.” Chicago, Milwaukee, St.
Paul & Pac. R.R. Co. v. Wash. State Human Rights Comm’n, 87 Wn.2d 802, 810, 557 P.2d 307
(1976). “Evidence of a judge’s actual or potential bias is required before the appearance of fairness
doctrine will be applied.” State v. Dominguez, 81 Wn. App. 325, 329, 914 P.2d 141 (1996).
Bolivar relies in part on Judge Toynbee’s recusal to argue the rest of the Lewis County
judicial officers also had to recuse. In West v. Osborne, 108 Wn. App. 764, 769, 34 P.3d 816
(2001), several Pierce County judges had recused, and one had commented that he felt “‘the case
ought to be heard in another county.’” Id. This court held that the recused judge’s remarks did not
show that other Pierce County judges could not be impartial or fairly preside over the case. Id. at
770. And Division Three has similarly declined to remand for a new trial in a different county
based on a prior judge’s conflict of interest when the judge in question had recused from the case.
8 No. 54116-5-II
In re Custody of Z.C., 191 Wn. App. 674, 706-07, 366 P.3d 439 (2015). Division Three did not
conclude the entire bench in that county was disqualified.
Here, Commissioner Mitchell recused because of a threatening statement Bolivar made in
the context of a conversation where Bolivar also expressed frustration about her. Judge O’Rourke
invited Bolivar to file an affidavit of prejudice due to her former status as a prosecutor. Judge
Toynbee recused at Bolivar’s request. None of these three judicial officers presided over Bolivar’s
case. Additionally, the security alert e-mail regarding Bolivar’s statement was sent to only superior
court judges and Judge Buzzard was not among the recipients. Nothing else in our record suggests
that Judge Buzzard received the security alert.
Similar to West and Z.C., these recusals, without more, do not establish that Judge Buzzard
was incapable of being impartial or fairly presiding over the hearing. Judges in Lewis County get
security alerts regularly, and the mere exercise of court security protocols does not mean all of the
judicial officers at that court cannot be fair. Bolivar has not shown evidence of Judge Buzzard’s
actual or potential bias. Dominguez, 81 Wn. App. at 329. Thus, we hold that the appearance of
fairness was not implicated.
B. Analogy to Pretrial Publicity and Hillman
The parties discuss cases involving pretrial publicity that occurred before jury trials. We
conclude that these cases are irrelevant. The case before us involved a bench trial, and a trial court
is presumed “to perform its functions regularly and properly without bias or prejudice.” Wolfkill
Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000). We presume that
judges conducting bench trials base their decisions on only appropriate evidence. In re Marriage
of Zigler, 154 Wn. App. 803, 810, 226 P.3d 202 (2010).
9 No. 54116-5-II
Bolivar relies in particular on Hillman. There, multiple inflammatory newspaper articles
about the defendants’ lack of business integrity were widely circulated throughout King County,
and an association of people defrauded by the defendants organized for the purpose of turning
public opinion against the defendants. 42 Wash. at 617-18. No similar widespread targeting of
Bolivar’s reputation occurred in this case. More importantly, routine notice to court employees
under established security protocols is not likely to have the same effect as the pretrial publicity
that occurred in Hillman. The pretrial publicity analysis is inapplicable here.
In sum, we hold that it was not a manifest abuse of discretion for the trial court to deny
Bolivar’s motion to change venue or appoint a visiting judicial officer.
III. MOTION FOR A CONTINUANCE
Bolivar argues that the trial court abused its discretion when it denied his motion for a
continuance. He claims that he was unable to attend the hearing through no fault of his own and
was prejudiced by the denial of the continuance, making the denial a manifest abuse of discretion.
We disagree.
We review a trial court’s denial of a continuance for a manifest abuse of discretion. Scheib
v. Crosby, 160 Wn. App. 345, 350, 249 P.3d 184(2011). A trial court abuses its discretion when
its decision is manifestly unreasonable or based on untenable grounds. In re Custody of C.D., 188
Wn. App. 817, 828, 356 P.3d 211 (2015). “In deciding a motion to continue, the trial court takes
into account a number of factors, including diligence, due process, the need for an orderly
procedure, the possible effect on the trial, and whether prior continuances were granted.” In re
Dependency of V.R.R., 134 Wn. App. 573, 581, 141 P.3d 85 (2006).
10 No. 54116-5-II
“The purpose of [chapter 26.50 RCW] proceedings is to prevent domestic violence.”
Scheib, 160 Wn. App. at 352. In Smith v. Smith, a case regarding a request to stay a domestic
violence protection order proceeding until the conclusion of the respondent’s criminal trial,
Division One summarized several reasons to avoid delay of such proceedings. 1 Wn. App. 2d 122,
404 P.3d 101 (2017). Abandonment of petitions by victims was and is a major concern:
When a court repeatedly continues [domestic violence protection order] proceedings, the system becomes too challenging to navigate and pro se litigants are forced to either abandon their claims or seek pro bono or hired counsel if they are able.
....
[D]elay may cause victims to abandon their petition due to exhaustion or frustration, or as a result of logistical obstacles. . . . [I]t may be prohibitive for a victim to return to court repeatedly to oppose multiple continuances or ask the court to reissue a temporary order; logistical impediments may pose enough of a barrier to dissuade a victim from pursuing even a temporary [protection order].
Id. at 135-36. The Smith court held that the trial court did not abuse its discretion by denying the
requested stay. Id. at 137.
The implications of a continuance in a domestic violence proceeding contrast with
continuances in dissolution proceedings. See Chamberlin v. Chamberlin, 44 Wn.2d 689, 703, 270
P.2d 464 (1954) (“Especially in divorce cases a liberal view toward granting continuances is taken
by most courts.”). In Chamberlain, the Washington Supreme Court held that the trial court should
have granted a continuance when one spouse, who had always lived in Illinois, fell ill shortly
before trial and was advised not to travel by her doctor, and the other spouse had initiated
dissolution proceedings in Washington. Id. at 706. The denial of the continuance did not permit
11 No. 54116-5-II
the spouse in Illinois to testify in support of her answer to the complaint, which prejudiced her in
that proceeding. Id.
Here, unlike Chamberlain, our record does not show that Bolivar was expected to testify
in response to Jones’s petition. Additionally, Bolivar’s attorney was present to participate in the
hearing on his behalf, he cross-examined Jones, and witnesses testified in support of Bolivar,
explaining that they had never witnessed Bolivar commit domestic violence.
More importantly, the trial court expressed concern about further delay. The trial court had
granted several previous continuances which burdened Jones financially in part because she had
to miss work for each hearing. Bolivar’s flight from New Mexico was merely delayed, not
canceled, and he missed a connecting flight in Denver. Jones argued that Bolivar could have caught
a later flight from Denver to Seattle. Considering all of these facts, Bolivar does not show that the
trial court’s denial of a continuance was untenable. C.D., 188 Wn. App. at 828.
We hold that the trial court did not abuse its discretion by denying Bolivar’s request for a
continuance.
IV. ADMISSIBILITY OF THE DOMESTIC VIOLENCE EVALUATION AND JONES’S DECLARATION
Bolivar argues the trial court abused its discretion by admitting the domestic violence
evaluation and Jones’s declaration quoting key portions of the evaluation. He contends that the
evaluation constituted part of a settlement negotiation, making it inadmissible under ER 408. He
also asserts that the trial court erred by refusing to seal Jones’s accompanying declaration. Thus,
he argues that we should overturn the protection orders. We disagree.
ER 408 prohibits a trial court from admitting “evidence of (1) furnishing or offering or
promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration
12 No. 54116-5-II
in compromising or attempting to compromise a claim which was disputed as to either validity or
amount” for the purposes of proving “liability for or invalidity of the claim or its amount.” The
rule “does not require exclusion of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations . . . [and] does not require exclusion when the
evidence is offered for another purpose.” ER 408. “Trial courts have broad discretion in ruling on
evidentiary matters and will not be overturned on appeal absent a manifest abuse of discretion.”
Duckworth v. Langland, 95 Wn. App. 1, 5-6, 988 P.2d 967 (1998). Even if the trial court committed
an evidentiary error, we will affirm if the error was harmless. See In re Marriage of Ochsner, 47
Wn. App. 520, 524, 736 P.2d 292 (1987).
Bolivar does not show that the evaluation and declaration were not offered for some
purpose other than revealing settlement offers, like evaluating the likelihood that Bolivar would
engage in further domestic violence if permitted contact with Jones or the children. Thus, he fails
to show that the trial court committed a manifest abuse of discretion in admitting the evaluation.
Additionally, neither recent instances of domestic violence nor expert predictions of future
domestic violence are required for a trial court to grant a permanent protection order under chapter
26.50 RCW, only a credible fear of future violence is required. Spence v. Kaminski, 103 Wn. App.
325, 333-34, 12 P.3d 1030 (2000). Given the previous protection orders issued to Jones and the
additional evidence she offered of Bolivar’s attempts to contact Jones and their children, any error
in admitting the evaluation was harmless in light of the other admissible evidence in the case.
ATTORNEY FEES
Jones seeks attorney fees on appeal under RAP 18.1 and RCW 26.50.060(1) and sanctions
under RAP 18.9.
13 No. 54116-5-II
RAP 18.1(a) states that a party may recover “reasonable attorney fees or expenses on
review” if “applicable law grants to [the] party the right to recover” such fees or expenses. RCW
26.50.060(1)(g) provides that a trial court deciding a domestic violence action may “[r]equire the
respondent to pay the administrative court costs and service fees . . . and to reimburse the petitioner
for costs incurred in bringing the action, including reasonable attorneys’ fees.” “If attorney fees
are allowable at trial, the prevailing party may recover fees on appeal.” Aiken v. Aiken, 187 Wn.2d
491, 506, 387 P.3d 680 (2017) (awarding appellate attorney fees to petitioner in domestic violence
protection order proceeding who was the prevailing party on appeal). The trial court awarded Jones
attorney fees below. Because we affirm the protection orders, Jones is the prevailing party on
appeal. Thus, we grant Jones’s request for appellate attorney fees.
“Under RAP 18.9(a), we may award attorney fees on appeal to an opposing party for
defending a frivolous appeal.” Dzaman v. Gowman, 18 Wn. App. 2d 469, 484, 491 P.3d 1012
(2021). Because we award Jones attorney fees under RCW 26.50.060(1)(g) and Jones does not
specify what additional sanctions this court may or should impose, we decline her request for
further sanctions.
CONCLUSION
We affirm the protection orders and the order to surrender weapons. We grant Jones’s
request for appellate attorney fees. We deny the request for further sanctions.
14 No. 54116-5-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, C.J. We concur:
Maxa, J.
Price, J.