                                                               FILED
                                                           DECEMBER 17, 2019
                                                        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

CRYSTAL UGOLINI,                               )         No. 36156-0-III
                                               )
                      Respondent,              )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
FRANK UGOLINI,                                 )
                                               )
                      Appellant.               )

       LAWRENCE-BERREY, C.J. — The trial court issued a one-year order of protection

prohibiting Frank Ugolini from having any contact with his former wife, Crystal Ugolini,

and their three minor children. The factual basis for the order was Mr. Ugolini’s

admission that he slapped his 11-year-old son on the cheek as discipline for talking back.

       But RCW 9A.16.100 allows reasonable and moderate physical discipline by a

parent, teacher, or guardian to restrain or correct a child. Because the trial court failed to

enter findings whether the discipline exceeded that allowed under RCW 9A.16.100, we

reverse and remand.
No. 36156-0-III
Ugolini v. Ugolini


                                          FACTS

       On May 7, 2018, Frank Ugolini’s former wife, Crystal Ugolini, filed a petition for

an order of protection under chapter 26.50 RCW, the Domestic Violence Protection Act.

In her petition, she described prior incidents where Mr. Ugolini assaulted her and their

11-year-old son, B.U. She requested an order of protection be issued to protect herself

and their three minor children. A pro tem judge reviewed the petition and issued a

temporary protection order that restrained Mr. Ugolini from having any contact with Ms.

Ugolini and their three minor children. The petition and order were promptly served on

Mr. Ugolini.

       Mr. Ugolini filed and served opposing declarations. Mr. Ugolini’s declaration

disputed most of his former wife’s accusations. But his and his current wife’s

declarations said he recently slapped B.U. on the cheek after repeatedly telling him not to

talk back. A police report, made part of the record, shows two officers responded to the

incident and they did not see any red marks on B.U.’s face.

       A hearing on the order for protection was held on May 31, 2018. The trial court

began the hearing by asking Ms. Ugolini whether she still wanted a protection order, to

which she responded she did. The trial court then asked Mr. Ugolini to respond.




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No. 36156-0-III
Ugolini v. Ugolini


Through counsel, Mr. Ugolini explained that he does discipline his children. This

admission prompted the trial court to rule:

       [T]he request before the Court is for an order for protection. . . . The
       standard for order for protection is whether or not an individual has caused
       physical harm, bodily injury, assault, including sexual assault or the threat
       thereof. . . . Frank told [B.U.] to be quiet or he would get smacked. Crystal
       instantly replied that is not how we discipline. Physical punishment is not
       okay. The children are too old. . . . Frank stepped forward and smacked
       [B.U.] on the cheek. . . . That’s domestic violence right, there. . . . What I
       have is to look at whether or not the petitioner has given a basis for an order
       for protection to have been granted. And, with the respondent’s own
       witnesses, there’s a basis for me to enter this order.
              So I will be doing so. . . . [A]t this point I’m issuing the [one year]
       order for protection in its entirety pending any modifications with family
       law court.

Report of Proceedings at 13-14.

                                        ANALYSIS

       Mr. Ugolini contends the trial court erred when it entered the protection order

because he used lawful force when disciplining B.U. We agree the trial court erred, but

do not determine whether Mr. Ugolini’s actions were lawful.

       A trial court’s grant of a protection order is reviewed for abuse of discretion. In re

Vulnerable Adult Petition for Knight, 178 Wn. App. 929, 936, 317 P.3d 1068 (2014).

Abuse of discretion is found only when the decision is “‘manifestly unreasonable, or

exercised on untenable grounds, or for untenable reasons.’” State v. McCormick, 166


                                              3
No. 36156-0-III
Ugolini v. Ugolini


Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d

12, 26, 482 P.2d 775 (1971)). Untenable reasons include errors of law. Cook v. Tarbert

Logging, Inc., 190 Wn. App. 448, 461, 360 P.3d 855 (2015).

       A petition for a protection order can be commenced by

       [a]ny person . . . filing a petition with a court alleging that the person has
       been the victim of domestic violence committed by the respondent. The
       person may petition for relief on behalf of himself or herself and on behalf
       of minor family or household members.

RCW 26.50.020(1)(a). “Domestic violence” includes “[p]hysical harm, bodily injury,

assault, or the infliction of fear of imminent physical harm, bodily injury or assault,

between family or household members.” Former RCW 26.50.010(3)(a) (2015).

“Family or household members” include former spouses and biological children.

RCW 26.50.010(6).

       In her petition, Ms. Ugolini claimed Mr. Ugolini assaulted her and their 11-year-

old son, B.U. There are three forms of assault: (1) assault by actual battery, (2) assault by

attempt to cause injury, and (3) assault by attempt to cause fear or apprehension of injury.

State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000). The form of assault at issue here

is assault by actual battery. This form of assault occurs when there is any “intentional

touching or striking of another person that is harmful or offensive.” State v. Tyler, 138




                                              4
No. 36156-0-III
Ugolini v. Ugolini


Wn. App. 120, 130, 155 P.3d 1002 (2007). But the legislature has deemed certain

intentional touching or striking permissible.

       The legislature created a safe harbor that allows a parent, teacher, or guardian to

use reasonable and moderate force to restrain or correct a child. RCW 9A.16.100

provides, in relevant part:

       It is the policy of this state to protect children from assault and abuse and to
       encourage parents, teachers, and their authorized agents to use methods of
       correction and restraint of children that are not dangerous to the children.
       However, the physical discipline of a child is not unlawful when it is
       reasonable and moderate and is inflicted by a parent, teacher, or guardian
       for purposes of restraining or correcting the child.

       The statute sets forth a nonexclusive list of physical disciplinary actions that are

presumed unreasonable:

       (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a
       closed fist; (3) shaking a child under age three; (4) interfering with a child’s
       breathing; (5) threatening a child with a deadly weapon; or (6) doing any
       other act that is likely to cause and which does cause bodily harm greater
       than transient pain or minor temporary marks. The age, size, and condition
       of the child and the location of the injury shall be considered when
       determining whether the bodily harm is reasonable or moderate.

RCW 9A.16.100.

       Courts must consider all of the circumstances of the physical discipline, and

determine whether it was objectively excessive, immoderate, or unreasonable. In re

Dependency of H.S., 188 Wn. App. 654, 664, 356 P.3d 202 (2015); State v. Singleton,

                                                5
No. 36156-0-III
Ugolini v. Ugolini


41 Wn. App. 721, 723, 705 P.2d 825 (1985); see also former WAC 388-15-009(2) (2002)

(other factors may include the developmental level of the child and the nature of the

misconduct).

       While this court has not analyzed RCW 9A.16.100 in the context of “domestic

violence,” it has analyzed the statute in the context of “abuse and neglect.” H.S., 188 Wn.

App. 654. There, a 16-year-old girl was removed from her father’s care when she

reported that her father and stepmother had slapped and spanked her. Teachers and social

service officials were unable to find any marks to corroborate her reports. Nevertheless, a

dependency action was commenced, and a contested hearing was held. During the

hearing, the father and stepmother admitted to slapping the daughter to discipline her for

talking back and behaving violently. The trial court found the girl dependent, and the

father appealed. We held that the use of an open hand to slap a child on the face is

“permissible so long as it does not ‘cause bodily harm greater than transient pain or minor

temporary marks.’” Id. at 665 (quoting RCW 9A.16.100).1

       This case is similar to H.S. While H.S. dealt with the definition of abuse and this

case deals with the definition of domestic violence, the circumstances surrounding both


       1
         The holding should be taken in context. The result would have been different
had the child been small. As implied by RCW 9A.16.100, the smaller the child, the more
likely a slap on the face will be deemed unreasonable or immoderate.

                                             6
No. 36156-0-111
Ugolini v. Ugolini


remain consistent. Both cases involve a parent slapping his child on the face as

discipline; and in both instances, independent witnesses did not see any marks on the

child's face after the slap. B.U. was likely smaller and more vulnerable than the 16-year-

old girl in HS. Whether Mr. Ugolini acted within or outside of the safe harbor created by

RCW 9A.16.100 is a question of fact, a question we do not answer.

      The trial court abused its discretion by not analyzing the appropriate factors and

concluding that any physical discipline by a parent constitutes domestic violence. By its

terms, the order of protection has expired. Nevertheless, we remand for the trial court to

vacate the wrongfully issued order and any other order in this case issued based upon it.

We grant this relief because such orders, if wrongfully issued, often have collateral

consequences that extend beyond the orders' duration.

      Reversed and remanded.


                                                   l4.,,.f'V,.(.',.-~W\_"'7    I   C..~,
                                                 Lawrence-Berrey, C.J.

WE CONCUR:




K~I                                              Pennell, J.




                                             7
