Jurss v. Mooney, 091421 WACA, 53617-0-II

CourtCourt of Appeals of Washington
JudgeWe concur: Worswick, J., Veljacic, J.
Writing for the CourtLEE, C.J.
PartiesSTACY MARIE JURSS, Respondent, v. LIAM ALOYSHA MOONEY, Appellant
Docket Number53617-0-II,54061-4-II

STACY MARIE JURSS, Respondent,

v.

LIAM ALOYSHA MOONEY, Appellant

Nos. 53617-0-II, 54061-4-II

Court of Appeals of Washington, Division 2

September 14, 2021

UNPUBLISHED OPINION

LEE, C.J.

Stacey M. Jurss and Liam A. Mooney have a child together, H.J. The superior court granted Jurss's petition for a domestic violence protection order (DVPO) against Mooney. Mooney appeals the terms imposed in the DVPO, arguing that the superior court abused its discretion by ordering that the DVPO remain in effect until H.J. is eighteen years old, imposing provisions in the DVPO to protect H.J., and restricting his possession of firearms. Mooney also challenges a portion of the superior court's findings of fact 12.1

We agree that the superior court abused its discretion by imposing the challenged provisions in the DVPO. Further, the challenged portion of the superior court's finding of fact 12 is speculative. Accordingly, we reverse the improper provisions in the DVPO and remand for the superior court to limit the length of the DVPO to one year, strike the provisions protecting H.J., strike the provisions restricting Mooney's possession of firearms, and strike the challenged portion of finding of fact 12.

FACTS

On March 20, 2019, Jurss filed a petition for a DVPO against Mooney based on a 2009 sexual encounter with Mooney. Jurss's DVPO petition sought protections for herself, but did not seek protections for H.J. However, she did request that protection order restrain Mooney from interfering with her custody of H.J. and removing H.J. from the state. Jurss also requested that the order remain effective for more than one year because Mooney was likely to resume acts of domestic violence against her.

Both Jurss and Mooney testified at the hearing for the protection order. The following evidence was presented to the superior court.

Jurss and Mooney have a child together, H.J., born in 2010. H.J. was conceived following a 2009 New Year's Eve party that Jurss and Mooney attended together. At the time, Mooney was 18 years old and Jurss was 27 years old. Both parties consumed alcohol at the party.2

Jurss testified that she remembered going to a New Year's Eve party in 2009 with Mooney. Mooney drove to the party in his truck. Jurss agreed that she could have supplied Mooney with alcohol during the party but she could not remember. Jurrs was so intoxicated, she blacked out. Jurss does not recall what happened after the party. And Jurss cannot remember any details of the sexual contact between her and Mooney.

Mooney testified that he believed he drove the two of them to the party in Jurss's van. Jurss, and several other people, supplied him with alcohol during the party. According to Mooney, a coworker drove him and Jurss back to their apartment in Jurss's van. When they returned to the apartment, Jurss led Mooney into her bedroom. Mooney "believed she wanted to have sex with [him]." Verbatim Report of Proceeding (April 22, 2019) at 117. Mooney testified that the sex was consensual.

Both parties agree they had sexual intercourse that night. Both parties also agree that this was the only time Jurss and Mooney had any sexual contact, and H.J. was born as a result.

Mooney was shocked when he learned that Jurss was pregnant. He already had plans to move to New York for college at the time. Although Jurss was pregnant, Mooney followed through with his plans to move to New York. Jurss raised H.J. alone for five years until 2015.

Jillian Scheibeck, a friend of Jurss's, testified and provided a detailed declaration to the superior court about the time period when Jurss was raising H.J. alone. Jurss and H.J. lived with Schieibeck in 2014. While Jurss was living with Scheibeck, Jurss was arrested for driving under the influence (DUI) while H.J. was in the car. H.J. was temporarily placed in foster care in Scheibeck's home. During this time, Mooney visited with H.J., and Scheibeck met Mooney.

In 2015, Jurss was again arrested for DUI. Jurss again had H.J. with her. This DUI resulted in a dependency action, and H.J. was again placed in Scheibeck's custody. In the dependency action, Jurss denied knowing the identity of H.J.'s father. Scheibeck decided to contact Mooney and tell him about the dependency.

As soon as Mooney learned of the dependency, he called the social worker and filed a parentage action. In less than six weeks, he had left New York and returned to Washington. H.J. was placed in Mooney's custody. The dependency was dismissed when the superior court approved Jurss and Mooney's agreed parenting plan.

Following the hearing on Jurss's 2019 DVPO petition, the superior court entered the following relevant findings of fact: 12. In this case, Ms. Jurss argues that she lacked the mental capacity to consent. Both parties agree that Ms. Jurss was intoxicated that night. Both parties testified that Ms. Jurss did not drive home, though there is dispute over if Mr. Mooney or a third party provided the transportation. The court concludes that if Mr. Mooney knew that Ms. Jurss did not have the capacity to drive her car, he should have suspected she did not have the capacity to consent.

13. Additionally, Mr. Mooney offered the testimony of a witness, Jillian Scheibeck (formerly Andrews). Ms. Scheibeck testified that at a later occasion, Ms. Jurss became so intoxicated that she blacked out. This is consistent with the testimony of Ms. Jurss indicating that she blacked out on the night in question. Ms. Scheibeck['s] declaration and oral testimony both support the conclusion that Ms. Jurss has a problem consuming alcohol to excess resulting in her blacking out. This testimony of Ms. Scheibeck supports Ms. Jurss' testimony that she was blacked out on the night of December 31, 2009/January 1, 2010.

14. Both parties raised the issue of credibility of the other. Each have made inconsistent statements over the course of the last nine years and additional information has been raised over time. The court does not find these inconsistencies to be problematic for either party. The nature of the allegations, the balancing needs of sharing a child, the legal ramifications of certain statements, and the passage of time all contribute to these inconsistencies and additions. However, the main crux of the narrative for both parties on the night in question has been effectively unchanged over time.

15. Ms. Jurss also testified that her mental health has been impacted by the trauma of the event. Even simple courtesy interactions with Mr. Mooney place her in fear. Mr. Mooney argued that Ms. Jurss has interacted with him without fear on many occasions. The court does not conclude that these interactions evidence a lack of fear. Instead, they evidence that Ms. Jurss had tried, on occasions, [to] make the best of an uncomfortable situation setting aside her personal fears for the welfare of the child. The court concludes that Ms. Jurss has an ongoing, reasonable fear of Mr. Mooney.

16. The court further concludes that Ms. Jurss has proven, by a preponderance of evidence, that due to her severe level of intoxication, she lacked the capacity to consent to sexual intercourse. Because Ms. Jurss lacked the capacity to consent that evening and Mr. Mooney proceeded to participate in sexual intercourse with Ms. Jurss anyway, Ms. Jurss is entitled to the Order requested.

Clerk's Papers (CP) at 477-79. The superior court's findings regarding Jurss's fear were based exclusively on the sexual contact that occurred on New Year's Eve 2009. The superior court did not make any findings about any additional conduct by Mooney.3 Based on its findings, the superior court issued a DVPO.

In the DVPO, the superior court found that Mooney represented a credible threat to Jurss's physical safety. The protection order restrained Mooney from "causing physical harm, bodily injury, assault, including sexual assault, and from molesting, harassing, threatening, or stalking" Jurss and H.J. The...

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