Graham v. Silbaugh

• Decision Date: 02 December 2021
• Docket Number: 37827-6-III
• Parties: PATRICIA RAY GRAHAM, Respondent, v. ALISHA SILBAUGH, Appellant.
• Court: Washington Court of Appeals

PATRICIA RAY GRAHAM, Respondent,
v.
ALISHA SILBAUGH, Appellant.

No. 37827-6-III

Court of Appeals of Washington, Division 3

December 2, 2021

UNPUBLISHED OPINION

Staab, J.

Patricia Graham petitioned for an order for protection against Alisha Silbaugh on the basis of unlawful harassment following a series of events that caused both her and her minor daughter, BRK, to be scared of Ms. Silbaugh. Ms. Silbaugh is an acquaintance of BRK's biological father and became acquainted with Ms. Graham and her daughter when she drove the father to a visitation with BRK. The district court granted a temporary ex parte order and then scheduled a hearing on the petition. After reviewing the record and taking testimony, the superior court granted Ms. Graham's petition and issued an order preventing Ms. Silbaugh from contacting Ms. Graham or her daughter, coming within 500 feet of their home or work place, and preventing her from keeping them under surveillance.

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Ms. Silbaugh appealed the decision, arguing on appeal that the court violated her due process and First Amendment rights in issuing the order. She also contends that the evidence is insufficient to support the finding of unlawful harassment. Finding that the evidence is sufficient and that Ms. Silbaugh's rights were not violated, we affirm.

As a preliminary matter, we address compliance with the Rules of Appellate Procedure (RAP) and the courts role on appeal. State v. Marintorres, 93 Wn.App. 442, 452, 969 P.2d 501 (1999). Ms. Silbaugh is representing herself and is not an attorney. While we respect her efforts, as a pro se appellant, she is held to the same standard as an attorney. Edwards v. Le Duc, 157 Wn.App. 455, 464, 238 P.3d 1187 (2010).. Under RAP 10.3(a)(5), appellant's brief must contain a statement of the case that includes "facts and procedure relevant to the issues presented for review, without argument. Reference to the record must be included for each factual statement." Ms. Silbaugh's statement of the case does not cite to the record except to occasionally cite an exhibit. In addition, her brief contains numerous factual assertions that are not contained in the record, and are irrelevant to her issues on appeal. We do not consider facts outside the record. Nor do we consider allegations that are irrelevant to the legal issues on appeal in this case. Allegations concerning an unrelated custody case, or Ms. Graham's history of treatment and prior conviction are all irrelevant to the issues on appeal and will not be considered.

The order for protection from which Ms. Silbaugh appeals was issued by a superior court judge following a hearing in which both parties testified. During such a

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hearing, the judge sits as the finder of fact. "An essential function of the fact finder is to discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses." State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999) (citing State v. Snider, 70 Wn.2d 326, 327, 422 P.2d 816 (1967)). The Court of Appeals is not a trial court and we do not provide a second opportunity to argue and decide disputed facts. "The power of this court is appellate only, which does not include a retrial here but is limited to ascertaining whether the findings are supported by substantial evidence or not." Stringfellow v. Stringfellow, 56 Wn.2d 957, 959, 350 P.2d 1003 (1960).

As an appellate court, we do not reweigh the evidence. Harrison Mem'l Hosp. v. Gagnon, 110 Wn.App. 475, 485, 40 P.3d 1221 (2002). Instead, following a bench trial, we review the record in a light most favorable to the prevailing party to determine if substantial evidence supports the trial court's findings of fact and, if so, whether the findings support the conclusions of law. Id. at 484-86. We consider specific issues raised in the briefs that include citation to legal authority and references to the relevant portions of the record. RAP 10.3(a)(6). We need not consider arguments that are unsupported by meaningful analysis or authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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FACTS

Ms. Graham has a minor daughter, BRK, with her ex-husband, Robbert Korth. After they divorced, Mr. Korth agreed that Ms. Graham could have full custody of BRK. Ms. Graham lives in Yakima. Mr. Korth currently works as a handyman for Ms. Silbaugh in western Washington.

Ms. Graham and Ms. Silbaugh first met in April 2020, when Ms. Silbaugh drove Mr. Korth to a visitation with BRK at Ms. Graham's home. In her petition, Ms. Graham alleges that over the next several months Ms. Silbaugh injected herself into Ms. Graham's family law matters and began a pattern of harassing Ms. Graham and her daughter. Ms. Graham's allegations include conduct directed toward herself and her daughter, as well as Ms. Silbaugh's communications with third persons. Because Ms. Silbaugh raises First Amendment issues, we distinguish between allegations of harassment directed at Ms. Graham and her daughter and allegations that Ms. Silbaugh disseminated information about Ms. Graham to third parties.

During Mr. Korth's visit in April, BRK told her mother that Ms. Silbaugh had a camera in her pocket and appeared to be recording the visit. At the hearing on the final order, Ms. Silbaugh denied recording, but Ms. Graham testified that the video of the visit was subsequently sent by Ms. Silbaugh to the father of another child of hers who she was at the time in a custody battle with. The video showed Ms. Graham and her new boyfriend. Ms. Graham also alleged that Ms. Silbaugh continued to send unwelcome

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messages through social media to herself and her current boyfriend. She said Ms. Silbaugh has appeared at her home and stood at the end of the driveway filming her, and has driven by screaming out her window at Ms. Graham and her daughter. Ms. Graham stated that both she and her daughter were frightened by Ms. Silbaugh's actions and decision to interject herself into a family law matter in which she has no connection.

In her petition in support of an order for protection, Ms....