                                                                            FILED
                                                                                      DIV
                                                                    OtiRT OF APPEALS
                                                                              WAStitHGTOft
                                                                    STATE OF

                                                                    10113 OCT 15 Ali 8:56



        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DARLA K. PADGETT,
                                                     No. 76543-4-1
                                Respondent,
                                                     DIVISION ONE
                       V.
                                                     UNPUBLISHED OPINION
 JOSEPH PADGETT,

                                   Appellant.        FILED: October 15, 2018


        CHUN, J. — During the acrimonious marriage dissolution between Darla

and Joseph Padgett, the court entered mutual restraining orders, including a

prohibition against the possession of weapons. After the State charged Josephl

with possession of depictions of minors engaged in sexually explicit conduct, the

court imposed additional restraints on him. The dissolution decree, entered in

August 2014, lifted the restraints as to Darla, but continued the restraints against

Joseph. The court allowed Darla to keep Joseph's weapons until the conclusion

of the criminal proceedings. The State dismissed the criminal charges on

procedural grounds in December 2015.

        In December 2016, Joseph filed a CR 60(b)(6) motion to vacate the

restraining order and protection order provisions in the decree. He argued that

the prospective application of the order was inequitable. The trial court denied



        1 For convenience, this opinion refers to the parties by their first names. We mean no
disrespect.
No. 76543-4-1/2


the motion to vacate and Joseph appeals. Because the CR 60(b)(6) motion to

vacate was an improper attempt to circumvent the statutory process to terminate

the protection and restraining orders, we affirm.
                                         1.
                                 BACKGROUND

       Darla and Joseph married on February 6, 1998, in California. The parties

separated on November 8, 2010. A superior court commissioner granted Dada's

request for an ex parte temporary restraining order against Joseph. The order

restrained Joseph from contact with Darla and their minor son.

       On November 29, 2010, another commissioner denied entry of a full

domestic violence protection order, finding "[a] preponderance of the evidence

has not established that there is domestic violence." The court entered mutual

restraining orders. The orders stated the parties should not have direct or

indirect contact, except through counsel. A later modification of the mutual

restraining order allowed for Joseph to have limited e-mail contact with Dada.

       In January 2011, the State charged Joseph with one count of possession

of depictions of minors engaged in sexually explicit conduct. The court entered

an order in the criminal case prohibiting Joseph from contact with Dada and all

minor children. On February 22, 2011, the court released Joseph on his own

personal recognizance on the condition he not possess weapons and have no

contact with Darla or any minors.

       On September 26, 2011, a superior court commissioner entered a new

temporary restraining order imposing mutual restraints on Joseph and Darla.



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The commissioner noted a "substantial change in circumstances" since the

temporary restraining order entered in November 2010: "Respondent is now

charged with a crime that requires consideration of RCW 26.09.191 as to contact

with a child and is in fact subject to a no contact order that prohibits contact with

any child at this time." The new order restrained Joseph from coming within one

thousand feet of Dada and their minor son. The order also prohibited both Dada

and Joseph from disturbing the other party and possessing firearms or

ammunition.

       On October 10, 2011, the trial court entered a dissolution decree, but

reserved resolution of the property distribution and parenting plan pending trial.

The decree specified the September 26, 2011 restraining order remained in

effect pending trial.

       The trial on the property distribution and the parenting plan occurred on

August 25, 2014. Despite proper notification, Joseph did not appear. Darla

explained she wanted the restraining order maintained until resolution of the

criminal case because she and their child were considered witnesses. Darla

addressed the family court restraining order, which stated she was in potential

danger and increased the physical scope of the restraining order against Joseph

to one thousand feet. She also testified about the role Joseph played in the

destruction of her business.

       The findings of fact and conclusions of law and final dissolution decree

entered after trial maintain many of the provisions of the September 26, 2011




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restraining order. The conclusions of law state: "Mr. Padgett appeared in court

and signed the restraining order entered. .. on September 26, 2011. This order

and decree continues those exact same restraints on Mr. Padgett. It ends the

restraints on Ms. Padgett." In the final dissolution decree, the trial court imposed

additional restraints on Joseph in section 1.1 entitled "Restraining Order

Summary." This section included several restrictions:

      Respondent is restrained from knowingly remaining within 1000
      feet of the home, work place of Darla Padgett or [their minor son]
      as long as he is a minor.

       Respondent is restrained from going onto the grounds or entering
       the home, workplace, or school of Darla or [their minor son].

       Joseph Padgett is restrained and enjoined from molesting,
       assaulting, harassing, or stalking Dada Padgett and [their minor
       son].

       Darla may continue to store Joseph Padgett's firearms until such
       time as all criminal proceedings and [sic] him are terminated and he
       is allowed to possess firearms.

In section 3.9, entitled, "Protection Order," the trial court provided, "Joseph

Padgett should not contact Dada Padgett in any way. Joseph Padgett should not

contact [their minor son] in any way as long as he is a minor."

       The State dismissed the criminal charges against Joseph after the court

granted a motion to suppress.

       In December 2016, Joseph moved under CR 60(b)(6) to vacate the

restraining and protection order sections of the August 2014 dissolution decree.

He argued the ambiguity and unknown duration of the terms of the restraining




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order and protection order in the decree and the dismissal of the criminal charges

against him made the prospective application of the orders inequitable.

       At the hearing on the motion to vacate, Darla argued Joseph used the

court system to abuse her by intentionally filing frivolous actions, thereby forcing

her to expend time and money. Darla also raised concerns about Joseph's

mental instability and his willingness to place her in danger. She told the court

she was "scared to death of this man." Darla told the court:

       That restraining order is the only tool that I have to protect myself.
       That is the only thing that's given us any peace of mind for the last
       years. Now my son has turned 18... He's going off to college.
       And now this will escalate because Mr. Padgett won't be able to
       use him to harass me; he'll find some other way.

The court denied Joseph's motion to vacate. It maintained the prospective

application of the judgment, stating,"Ms. Padgett provided evidence at the time

of trial as to why it was appropriate to have such an order and that she was

fearful of Mr. Padgett. She remains fearful of Mr. Padgett today, and it is

equitable .. . for the order to remain in place."

       Joseph appeals.
                                          II.
                                     ANALYSIS

       A.     CR 60(b)(6) Motion to Vacate
       Joseph contends the trial court abused its discretion by declining to vacate

the protection and restraining orders. He argues the trial court erred by failing to

find the prospective application of the protection and restraining orders to be

inequitable. He claims the dissolution decree's language is ambiguous language




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and points to the court's dismissal of all criminal charges, the early finding he had

not committed domestic violence, and the lack of findings to support the

restraining and protection orders. We disagree with his argument.

       CR 60(b)(6) allows relief from judgment when "[t]he judgment has been

satisfied, released, or discharged, or a prior judgment upon which it is based has

been reversed or otherwise vacated, or it is no longer equitable that the judgment

should have prospective application." The rule "deal[s] with problems arising

under a judgment that has continuing effect, where a change in circumstances

after the judgment is rendered makes it inequitable to enforce the judgment."

Metro. Park Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 438, 723 P.2d 1093

(1986). A vacated judgment has no effect, leaving the parties as though the

judgment had never been entered. In re Marriage of Leslie, 112 Wn.2d 612,618,

772 P.2d 1013(1989).

       On review of an order denying a motion to vacate, "only 'the propriety of

the denial not the impropriety of the underlying judgment' is before the reviewing

court." State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832(quoting Bjurstrom v.

Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533(1980)). As a result, "an

unappealed final judgment cannot be restored to an appellate track by means of

moving to vacate and appealing the denial of the motion." Gaut, 111 Wn. App. at

881.

       An appellate court will not overturn a trial court's decision on a motion to

vacate a judgment under CR 60(b)(6) absent an abuse of discretion. Gustafson




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v. Gustafson, 54 Wn. App. 66, 69-70, 772 P.2d 1031 (1989). "Discretion is

abused when exercised on untenable grounds or for untenable reasons."

Scanlon v. Witrak, 110 Wn. App. 682,686,42 P.3d 447(2002).

       Here, Joseph argues the trial court failed to make the requisite finding of

domestic violence necessary for a protection order under RCW 26.50.060. His

argument challenges the legal justification for the original order. A CR 60(b)

motion does not allow a litigant to challenge the underlying judgment. "The

exclusive procedure to attack an allegedly defective judgment is by appeal from

the judgment, not by appeal from a denial of a CR 60(b) motion." B"urstrom, 27

Wn. App. at 451. Therefore, any defects in the legal justification for the original

order should have been addressed on appeal of that order. Because Joseph did

not appeal the order, he cannot now raise these untimely arguments.

       Furthermore, the Domestic Violence Protection Act(DVPA) provides

specific procedures for modification or termination of a permanent order of

protection. RCW 26.50.130. Under the DVPA,the respondent must make a

motion to modify or terminate in order to obtain relief from a protection order's

terms. RCW 26.50.130. The motion must include a declaration setting forth the

facts supporting the request, which the court will deny unless the declaration

establishes adequate cause for a hearing. RCW 26.50.130(2). By attempting to

collaterally attack the protection order through a CR 60(b) motion to vacate,

Joseph did not comply with the DVPA filing requirements for a motion to modify

or terminate.




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      Joseph cannot meet the legal requirements for modification or termination

of the protection order under the DVPA. The court may not modify a permanent

protection order "unless the respondent proves by a preponderance of the

evidence that the requested modification is warranted." RCW 26.50.130(4). The

court may not terminate a permanent order of protection "unless the respondent

proves by a preponderance of the evidence that there has been a substantial

change in circumstances such that the respondent is not likely to resume acts of

domestic violence against the petitioner or those persons protected by the

protection order if the order is terminated." RCW 26.50.130(3)(a).

      For termination of the protection order, "[t]he relevant analysis" includes

consideration of whether the Joseph can prove "an unlikelihood of committing

future acts of domestic violence and whether the facts support a current

reasonable fear of imminent harm." In re Marriage of Freeman, 169 Wn.2d 664,

674, 239 P.3d 557(2010)(emphasis omitted). The petitioner bears no burden of

proving current reasonable fear of imminent harm by the respondent.

RCW 26.50.130(3)(a). But the facts must support a finding that the petitioner's

fear of imminent harm is reasonable. Freeman, 169 Wn.2d at 674. "The facts

supporting a protection order must reasonably relate to physical harm, bodily

injury, assault, or the fear of imminent harm. It is not enough that the facts may

have justified the order in the past. Reasonable likelihood of imminent harm

must be in the present." Freeman, 169 Wn.2d at 674(emphasis omitted).




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           The record does not support Joseph's claim that Dada's fear stems from

    conduct related to the dismissed criminal charges. Darla testified about her fear

    of Joseph and his ongoing attempts to harass her. The trial court's oral ruling

    reflected its consideration of the standards for termination of a restraining order.

    The court found Dada had demonstrated her continuing fear. This finding

    resulted in the denial of the motion to vacate and maintenance of the restraining

    order. Given the evidence presented, the trial court did not abuse its discretion

    by retaining the provisions of the restraining order.

           Because Joseph attempts to collaterally attack the legal basis for the

    original restraining and protection orders and to circumvent the termination

    requirements stipulated by the DVPA,the trial court did not abuse its discretion in

    denying the motion to vacate.

           B.     Second Amendment Right to Bear Arms

           Joseph contends the trial court's failure to vacate the restraining order

    infringes on his Second Amendment Right to bear arms. Specifically, he asserts

    that, because there is no pending criminal charge or evidence of domestic

    violence, the public-interest justification for restraining him from bearing arms is

    absent. He argues the restraining order amounts to a permanent ban on his right

    to bear arms.

           The Second Amendment "elevates above all other interests the right of

    law-abiding, responsible citizens to use arms in defense of hearth and home."

    District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L.Ed.2d
No. 76543-4-1/10 ,


637(2008). A valid restraining order does not violate the Second Amendment

right to bear arms. Under 18 USC 922(g)(8), a person may not possess firearms

or ammunition if subject to a court order that:

       (A) was issued after a hearing of which such person received
       actual notice, and at which such person had an opportunity to
       participate;(B) restrains such person from harassing, stalking, or
       threatening an intimate partner of such person or child of such
       intimate partner or person, or engaging in other conduct that would
       place an intimate partner in reasonable fear of bodily injury to the
       partner or child; and (C)(i) includes a finding that such person
       represents a credible threat to the physical safety of such intimate
       partner or child; or (ii) by its terms explicitly prohibits the use,
       attempted use, or threatened use of physical force against such
       intimate partner or child that would reasonably be expected to
       cause bodily injury.

The September 2011 restraining order included a provision based on 18 USC

922(g)(8), "[e]ffective immediately and continuing as long as this restraining order

is in effect, the restrained person may not possess a firearm or ammunition."

The dissolution decree continued this restraint. As discussed, the protection and

restraining orders remain in effect until properly challenged through a motion to

modify or terminate under the DVPA. Joseph cannot regain his right to own

weapons by evading this procedure through a motion to vacate. Because a valid

restraining order exists against Joseph, his right to bear arms is not violated.

       C.     Due Process

       Joseph also argues denial of the motion to vacate violates due process

because the orders are too vague and inadequate to give notice of prohibited

conduct. But Joseph signed the restraining order in September 2011, and he did

not appeal it. He failed to appear at his dissolution proceedings and, again, he



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did not appeal the terms of restraint and protection entered in the dissolution

decree in 2014.

       We affirm the denial of the CR 60(b) motion to vacate.



                                                          ...C.•
                                                               , 441.01




WE CONCUR:




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