       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 ANDREA ABBOTT,
                                                No. 79124-9-I
                         Respondent,
                                                DIVISION ONE
                   V.
                                                UNPUBLISHED OPINION
 SCOTT HILL,

                         Appellant.             FILED: March 2, 2020


       APPELWICK, C.J.     —   Scott Hill appeals a domestic violence protection order

issued to protect his former spouse, Andrea Abbott. Scott1 argues that the court’s

findings are not supported by substantial evidence, the court violated his due

process rights, and the court erroneously issued an order to surrender weapons.

We affirm.

                                         FACTS

       Scott and Andrea were married and had two children together.             They

dissolved their marriage in 2017.

       On July 25, 2018, Andrea filed a petition for a domestic violence protection

order and a motion to surrender weapons. She alleged that, on July 20, Scott

physically assaulted her in the presence of their children. In a declaration attached

to the petition, Andrea stated that, during a scheduled exchange of the children,

she and Scott began to argue about the children and other topics. During this

       1   We use first names for clarity.
 No. 79124-9-1/2


exchange, she claimed, Scott was sitting in the driver’s seat of his truck with the

door open while she was standing next to the door. She stated that, without

warning, Scott yelled, “Fuck you! Fuck everything you stand for! I’ll take the kids

away from you!” She alleged that Scott then slammed the truck door and struck

her thigh with the door. Andrea claimed that she was unable to avoid being hit by

the door, suffered injuries to her leg, and attached pictures of bruising on her thigh.

       A superior court commissioner issued a temporary protection order and set

the matter for hearing on a later date.

       Before the hearing, Scott filed a response claiming Andrea’s allegations

were “baseless and unsubstantiated.” Scott denied striking Andrea. According to

Scott, after he attempted to disengage from the argument and leave, Andrea

injured herself when she opened his vehicle door and “continued to verbally

berate” him.

       A hearing on the protection order was held on August 28, 2018.                A

commissioner found insufficient evidence of domestic violence and dismissed

Andrea’s petition.

       Andrea asked a superior court judge to revise the commissioner’s ruling.

Scott opposed her revision request. After hearing argument on September 28,

2018, the court revised the commissioner’s ruling and granted Andrea a one year

protection order. The minute entry of the court’s oral ruling, indicated that there

was a sufficient legal basis to enter an order for protection and that the court would

order Scott to surrender any weapons and to participate in a domestic violence

assessment.


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No. 79124-9-1/3


        In its protection order, the court found that Scott “committed domestic

violence as defined in RCW 26.50.010” and was “a credible threat to the physical

safety of” Andrea and the children.

        Scott appeals.

                                  DISCUSSION

        Scott make three arguments. First, he argues that the court’s domestic

violence finding is not supported by substantial evidence. Second, he argues that

the court violated his due process rights. Third, he argues that the court erred in

ordering him to surrender his weapons.

   I.   Standard of Review

        On a motion to revise, the superior court reviews the commissioner’s

findings of fact and conclusions of law de novo based on the evidence and issues

presented to the commissioner. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d

132 (2004) (citing In re Marriacie of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240

(1999)). The court “is not required to defer to the fact-finding discretion of the

commissioner” but “is authorized to determine its own facts based on the record

before the commissioner.” In re Marriage of Dodd, 120 Wn. App. 638, 644-45, 86

P.3d 801 (2004).

        On appeal, we review the superior court’s ruling, not the commissioner’s.

Ramer, 151 Wn.2d at 113. We review a trial court’s decision to grant a protection

order for an abuse of discretion. In re Parentage of T.W.J., 193Wn. App. 1,6,367

P.3d 607 (2016). We will not disturb such a decision on appeal, unless the court’s




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No. 79124-9-1/4


discretion was manifestly unreasonable, exercised on untenable grounds, or for

untenable reasons. k1.

    II. Substantial Evidence

       Scott argues that the court’s domestic violence finding is not supported by

substantial evidence.2 He contends that Andrea’s declarations failed to establish

domestic violence or refute his declaration that she was the “primary aggressor

and the ‘one engaging him’ while he attempted to disengage from the parties’

verbal disagreement.”

       Substantial evidence is evidence in sufficient quantum to persuade a fair-

minded person of the truth of the stated premise. Cowiche Canyon Conservancy

v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992). Where the superior court

has weighed the evidence, our role is to determine whether substantial evidence

supports the findings of fact and whether the findings in turn support the

conclusions of law. In re Marriacie of Greene, 97 Wn. App. 708, 714, 986 P.2d 144

(1999). We will not substitute our judgment for that of the superior court, weigh

the evidence, or determine witness credibility. Id.

       Under chapter 26.50 RCW, a victim of domestic violence may petition the

court for an order of protection. RCW 26.50.030. The petition must allege the




      2  Scott also argues that the superior court made no specific findings to
support the conclusion that he was a “credible threat.” But, because a petitioner
is not required to specifically allege the existence of a “credible threat,” see RCW
26.50.010(3), .030(1), we construe Scott’s credible threat argument as part of his
argument that the court’s domestic violence finding is not supported by substantial
evidence.

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No. 79124-9-1/5


existence of domestic violence3 and must be supported by an affidavit made under

oath that states the specific facts and circumstances supporting relief.           RCW

26.50.030(1).

         In her petition for a protection order, Andrea alleged that Scott “physically

assaulted” her on July 20, 2018, in the presence of their children, and had been

charged with assault in the fourth degree. Andrea attached a declaration to the

petition. In the declaration, she alleged that Scott “struggled with controlling his

anger” throughout their marriage.

         Andrea’s declaration also detailed her version of the July 20, 2018 incident.

She alleged that, while Scott “was sitting in his large lifted truck with the door open,”

they began to argue about the children’s passport and Scott’s girlfriend. She then

wrote:

         Next thing I knew, without warning, Scott yells, “Fuck you! Fuck
         everything you stand for! I’ll take the kids away from you!” As he
         yelled this, Scott slammed the door and I attempted to jump out of
         the way but did not make it and was struck by the door on my
         leg/thigh. My leg started bruising immediately.
She further claimed that the children were inside “and saw the entire thing.” Scott

then allegedly “sped out of [Andrea’s] driveway, spraying gravel everywhere.” She

then met with Officer Thomas Jernigan of the Brier Police Department, who took

pictures of her thigh bruises and filed an incident report. She also alleged: “I feel



       ~ “Domestic violence” is defined in part as “physical harm, bodily injury,
assault, or the infliction of fear of imminent physical harm, bodily injury or assault”
between family or household members. RCW 26.50.010(3)(b). “Family or
household members” includes “adult persons. who have resided together in the
                                                  .   .


past.” RCW 26.60.010(6)(b).

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No. 79124-9-1/6


that Scott’s behavior is escalating, and I fear that he will hurt me again or will follow

through with this repeated threats of taking the children from me/out of state.”4

       In a supplemental declaration, Andrea attached a copy of the Brier Police

Department incident report concerning the events on July 20, 2018,~ and additional

pictures of her leg to document the medical treatment she received due to the

incident.

       Scott argues that Andrea’s declarations do “not rebut [his] assertion that he

tried to leave in his vehicle and disengage [her] from conversation or argument,

but she pursued and opened his vehicle door, barring his retreat.” He claims that

Andrea “could not have been injured but for her pursuing [him] as he was trying to

retreat.” Thus, he contends that the superior court abused its discretion “by failing

to consider such factors [in] making [its] conclusory findings.” But, we do not

reweigh the evidence submitted to the superior court. Greene, 97 Wn. App. at

714.

       Here, the evidence of Scott’s threat to “take the kids away” and the bruises

on Andrea’s thigh, which were undisputably caused by the door of Scott’s truck,

presented a credible threat to the physical safety of Andrea and the children. The




       ~ Andrea alleged that she took Scott’s threats to take the children “very
seriously” because Scott had previously worked overseas.
       ~ In a narrative police report written on July 20, 2018, Officer Jernigan wrote
that he had inspected Andrea’s claimed injury and noted: “I observed redness on
the upper thigh of her left leg. I took pictures of the injury. I collected a written
statement from [Andrea] regarding the incident.” The officer also described
contacting, and later arresting, Scott. Scott admitted to the officer that he told
Andrea “Fuck you and everything you stand for.”

                                           6
No. 79124-9-117


evidence was sufficient to support the superior court’s issuance of the protection

order. It did not abuse its discretion.

   Ill. Due Process

       Scott next claims that the court’s orders violated his due process rights

under the state and federal constitutions because he was not permitted to testify

or cross examine Andrea at the revision hearing.

       Due process fundamentally requires the opportunity to be heard at a

meaningful time and in a meaningful manner. Mathews v. Eldrid~e, 424 U.S. 319,

333, 96S. Ct. 893,47 L. Ed. 2d 18 (1976). The concept of due process is flexible,

requiring procedural protections tailored to the particular situation. jçj. at 334. The

Washington Supreme Court has held that the procedures outlined in the Domestic

Violence Prevention Act, chapter 26.50 RCW, protect the due process

requirements of being heard at a meaningful time and in a meaningful manner.

Gourley, v. Gourley, 158 Wn.2d 460, 468, 145 P.3d 1185 (2006); Aiken v. Aiken,

187 Wn.2d 491, 503, 387 P.3d 680 (2017).

      All of chapter 26.50 RCW’s procedures were met here, and Scott offers no

persuasive basis to contend otherwise. There was no due process violation.

   IV. Surrender of Weapons

       Lastly, Scott contends that the court erred by ordering him to surrender

weapons. He argues the court lacked authority to consider the weapons surrender




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No. 79124-9-1/8


issue because it was not one of the issues “for which revision was sought on the

face” of Andrea’s motion for revision.6

       On a motion for revision, the superior court “takes ‘jurisdiction of the entire

case as heard before the commissioner.” In re Marriage of Lyle, 199 Wn. App.

629, 632, 398 P.3d 1225 (2017) (quoting State ex rel. Biddinger v. Griffiths, 137

Wn. 448, 451, 242 P. 969 (1926)). Although the superior court cannot accept new

evidence at a revision hearing, it reviews the law and facts de novo.           RCW

2.24.050; Ramer, 151 Wn.2d at 113.

       Here, Andrea’s request for an order requiring Scott to surrender weapons

was properly before the commissioner.7 Scott does not offer any authority to

suggest that the superior court lacked the authority to consider that issue on

revision. Accordingly, the court did not err in ordering Scott to surrender his

weapons.

   V. Attorney Fees

      Andrea requests an award of attorney fees on appeal under RCW

26.50.060(1)(g), RAP 14.1, and RAP 18.1. Attorney fees may be awarded when

authorized by a contract, statute, or recognized ground in equity.          Mellor v.

Chamberlin, 100 Wn.2d 643, 649, 673 P.2d 610 (1983). Where attorney fees are


      6     Scott also argues that the order to surrender weapons was improper
because it was based on the erroneous findings of domestic violence and him
being a credible threat. But, because we have already determined that the
protection order was properly issued, this argument fails and we need not consider
it further.
          ~ RCW 26.50.060(1)(k) (authorizing the court to consider prohibiting a
respondent’s possession of weapons under RCW 9.41.800 when issuing a
protection order).

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No. 79124-9-1/9


permitted at trial, the prevailing party may recover them on appeal. RAP 18.1;

Landberci v. Carlson, 108 Wn. App. 749, 758, 33 P.3d 406 (2001).            RCW

26.50.060(1)(g) permits the petitioner to recover reasonable attorney fees. Andrea

is the prevailing party on appeal. Therefore, we grant Andrea’s request for fees,

subject to compliance with RAP 18.1(d).

      We affirm.




WE CONCUR:


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