Gourley v. Gourley

• Decision Date: 26 October 2006
• Docket Number: No. 76270-8.,76270-8.
• Citation: 158 Wn.2d 460,145 P.3d 1185
• Parties: Kimberly GOURLEY, Respondent, v. Clifford GOURLEY, Petitioner.
• Court: Washington Supreme Court

Page 1185

145 P.3d 1185

158 Wn.2d 460

Kimberly GOURLEY, Respondent, v. Clifford GOURLEY, Petitioner.

No. 76270-8.

Supreme Court of Washington, En Banc.

Argued September 15, 2005.

October 26, 2006.

Howard K. Todd, Attorney at Law, Seattle, WA, for Petitioner.

Susan Delanty Jones, Laura Kristine Clinton, Preston Gates & Ellis LLP, David Scott Law, Skellenger Bender, Seattle, for Respondent.

Margaret T. Sassaman, King County Superior Court, Seattle, WA, Leslie Woodruff Owen, Northwest Justice Project, Olympia, WA, for Amicus Curiae on behalf of Northwest Justice Project.

Grace S. Huang, Wa. State Coalition Against Dom. Violence, Seattle, WA, for Amicus Curiae on behalf of Washington State Coalition Against Domestic Violence.

Bryan Patrick Harnetiaux, Attorney at Law, Debra Leigh Williams Stephens, Attorney at Law, Spokane, WA, Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, for Amicus Curiae on behalf of Washington State Trial Lawyers Assoc. Foundation.

J.M. JOHNSON, J.

¶ 1 N. Gourley accused her father, Clifford Gourley, of sexual assault. As a result, N.'s mother, Kimberly Gourley,¹ sought and received a domestic violence protection order against Mr. Gourley, prohibiting contact between Mr. Gourley and herself and their three children — 14-year-old N., 14 year-old D., and 10-year-old K. On appeal, Mr. Gourley argues that in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of N.

¶ 2 We reject Mr. Gourley's hearsay challenge because ER 1101(c)(4) allows courts to consider hearsay in protection order proceedings. We also reject Mr. Gourley's due process argument as all requisite procedures were followed. The facts of Mr. Gourley's case did not require cross-examination — although we note that allowing such cross-examination would not have been error.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 In February 2003 the Gourley's neighbor reported to Child Protective Services (CPS) that N. and K. had disclosed that Mr. Gourley had sexually and physically abused them. However, when first interviewed by CPS, both girls denied the allegations.

¶ 4 During the subsequent investigation, N. described to a detective "multiple incidents of sexual touching" in which her father "rubbed her vaginal area both over and under her clothing on several occasions." Clerk's Papers (CP) at 39, 162. N. told the detective that before the CPS interview her father had convinced her to lie. N. also admitted to her mother and her personal counselor that she had in fact been abused by Mr. Gourley.

¶ 5 Mr. Gourley admitted to the detective that he applied aloe vera to N. while she was naked, including her bare breasts, but denied any sexual intent. He told the detective that there may have been other times when he touched N.'s breasts. He acknowledged that it was wrong to do so and admitted that he needed counseling. The detective also reported that Mr. Gourley admitted "cautioning" N. before the interview with CPS, at which she denied the charges.

¶ 6 In April 2003 Ms. Gourley petitioned for a domestic violence protection order on behalf of herself and her children against Mr. Gourley. The petition explained that N. reported that her father had sexually assaulted her from November 2001 to March 2003. The petition was later supported by the declarations of Ms. Gourley, N.'s personal counselor, the investigating officer, and N. herself. In N.'s declaration, she expressed fear of continued sexual abuse.

¶ 7 While Mr. Gourley denied sexually abusing N., in his declaration he admitted the following:

one night (last summer) when I was in bed, nearly asleep, [N.] had come into our bedroom and asked me to put aloe vera on her sunburn. I did, while she stood next to the bed. She didn't want lotion on her clothes, so she took them off. Just as I was finishing, [K.] came downstairs looking for a decongestant, so I left N. and helped K. find a decongestant in the kitchen. [N.] put her clothes on and joined us in the kitchen.

CP at 138-39.²

¶ 8 The hearing on the petition was continued twice at the request of Mr. Gourley, and he was allowed to depose Ms. Gourley. Mr. Gourley's counsel also submitted a prehearing memorandum in which he argued that N.'s statements to third parties were inadmissible hearsay and could not be admitted without cross-examination. However, Mr. Gourley made no attempt to subpoena N.

¶ 9 Prior to the hearing, Mr. Gourley was formerly charged by information filed in the Superior Court of Snohomish County with child molestation in the second degree.

¶ 10 At the hearing, Mr. Gourley's counsel repeated his argument that the evidence was insufficient "without direct, nonhearsay testimony from [N.] which is subject to cross-examination." Report of Proceedings (RP) at 19. The commissioner expressed concern about allowing cross-examination of a victim in a civil case when a criminal charge was pending and explained that he would not allow cross-examination of a minor victim without giving the prosecutor an opportunity to object.

¶ 11 The commissioner found that an act of domestic violence had occurred — that it was more likely than not that inappropriate touching by Mr. Gourley of N. had occurred. The commissioner granted the protection order but made it "subject to revision and subject to the dissolution action."

¶ 12 Mr. Gourley filed a motion for revision of the commissioner's ruling with the superior court. The superior court denied Mr. Gourley's motion finding that the "records submitted by defendant constitute sufficient facts on which to order the [domestic violence protection order]." CP at 14. Mr. Gourley appealed to the Court of Appeals. The Court of Appeals affirmed the commissioner's issuance of the protection order. In re Gourley, 124 Wash.App. 52, 55, 98 P.3d 816 (2004).

II. ANALYSIS

A. ER 1101

¶ 13 Mr. Gourley argues that the commissioner improperly relied on hearsay evidence. This argument fails because ER 1101(c)(4) allows courts to consider hearsay in a chapter 26.50 RCW protection order proceeding.

¶ 14 Interpretation of a court rule is a question of law, subject to de novo review. Nevers v. Fireside, Inc., 133 Wash.2d 804, 809, 947 P.2d 721 (1997). In determining the meaning of a court rule, we apply the same principles used to determine the meaning of a statute. City of Bellevue v. Hellenthal, 144 Wash.2d 425, 431, 28 P.3d 744 (2001). Foremost, we consider the plain language of the rule and construe the rule in accord with the intent of the drafting body. See id. If the rule's meaning is plain on its face, the court must give effect to that plain meaning as an expression of legislative intent. Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wash.2d 359, 367, 89 P.3d 217 (2004).

¶ 15 ER 1101 discusses the applicability of the evidence rules in various proceedings in Washington, including protection order proceedings:

(c) . . . The rules (other than with respect to privileges) need not be applied in the following situations:

. . . .

(4) Applications for Domestic Violence Protection. Protection order proceedings under RCW 26.50 and 10.14. When a judge proposes to consider information from a domestic violence database, the judge shall disclose the information to each party present at the hearing; on timely request, provide each party with an opportunity to be heard; and, take appropriate measures to alleviate litigants' safety concerns. The judge has discretion not to disclose information that he or she does not propose to consider.

¶ 16 The plain language of the rule indicates that the rules of evidence need not be applied in protection order proceedings.³ ER 1101(c)(4); see also Hecker v. Cortinas, 110 Wash.App. 865, 870, 43 P.3d 50 (2002) (finding that "the rules of evidence, including the hearsay rule, need not be applied in protection order proceedings under chapter 26.50 RCW."). Therefore, the commissioner did not err when he considered hearsay evidence.

B. Due Process

¶ 17 Mr. Gourley next argues that his due process rights were violated when the commissioner refused to allow testimony from and cross-examination of N. at the hearing. Because Mr. Gourley does not argue that chapter 26.50 RCW is facially unconstitutional, we only address whether his due process rights were violated under the specific facts of this case. We hold that they were not.

¶ 18 "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). Due process is a flexible concept in which varying situations can demand differing levels of procedural protection. Id. at 334, 96 S.Ct. 893. In evaluating the process due in a particular circumstance, we must consider (1) the private interest impacted by the government action, (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards," and (3) the government interest, including the additional burden that added procedural safeguards would entail. Id. at 335, 96 S.Ct. 893.

¶ 19 In the present case, Mr. Gourley claims a fundamental right to make decisions concerning the care, custody, and control of his children. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). However, the possible length of the deprivation of the interest is also an important factor in the Mathews test. Mathews, 424 U.S. at 341, 96 S.Ct. 893. Thus, we must consider that Mr. Gourley's right was only temporarily restrained by the protection order. On its face, the duration of the protection order was only one year, and the order was further subject to orders issued in the dissolution action.

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