### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter ofthe Marriage of 

### ) No. 78245-2-I PAULA RENEE OWENS, 

### ) ) Respondent, 

### ) and 

### ) ) UNPUBLISHED OPINION MICHAEL LEON WEAR, 

### ) ) FILED: September23, 2019 Appellant. 

### )
VERELLEN, J.

— The court in a dissolution proceeding has broad discretion to impose a restraining order. A court abuses that discretion, however, if it relies exclusively on judicially noticed facts from an entirely separate proceeding. We therefore vacate the restraining order entered in this matter. FACTS Paula Owens and Michael Wearwere married on December 19, 2008 and separated sixyears later in late 2014.1 In early February 2017, Owens filed a petition fordivorce.2

1 Clerk’s Papers (CP) at 5. 2 CP at 36.No. 78245-2-1/2

Owens petitioned fordissolution using the mandatoryfamily lawform FL 201. In her petition, she checked the boxes to request a restraining order requiring thatWear not disturb her peace, that he not knowingly go orstaywithin 300 feet of her home, workplace, orschool, and that he not hurt orthreaten her.3 Owens did not, however, file a motion for either a temporaryfamily law order or an immediate restraining order.4 Weardid not move for anytemporary relief. The court issued a standard temporary restraining order (TRO) directing the parties to preserve their property and insurance policies, paytheir own debts, and share financial information and records as needed.5 Butthis TRO did not impose any of the restrictions sought by Owens in her petition fordissolution. In his timely response to Owens’ petition, Wearobjected to the entry ofa restraining order.6 The case wentto trial on March 1, 201 8.~ Owens did not appear. At trial, the court asked Wearwhat he knew about Owens’ requestfora restraining order.8 Weartold the court “this is the second time” Owens had sought such an order and that her prior requestfor a protection order had been dismissed

3CPat44-45. 4See Forms FL 221, 223.

~ CF at 32-33. 6 CF at 27-31. CF at 25. 8 Report of Froceedings (RF) (Mar. 1, 2018) at 8.

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with prejudice.9 Beyond that, he said, “I don’t know, I have no contactwith her, so I don’t knowwhat she is talking about.”1° Underfurther questioning bythe court, Wearalso stated that he and Owens “didn’t really see each otherfora couple of years until we started going to courtwith each otherso I have no contactwith her, none.”11 He asserted thatthere was no basis forwhat Owens was requesting, and that he did not even know her phone number.12 The court responded by indicating “forthe record” the cause numberofthe petition Owens had filed in April, 2016 seeking an orderof protection from harassment byWear.13 The courtthen stated, “I’m going to takejudicial notice of that action and the results of it in the paperwork[; they] are all part ofthe court file.”14 The court explained thatthe “new computersystem links these things.”15 The court stated, “In that petition, she indicates that she is a victim of unlawful harassment[.] [S]he indicated quite a fewthings. I am not going to go through them, but I am going to takejudicial notice ofthe content of her petition and herdeclaration.”16 The court noted that both Owen and Wearwere present

~ Id. 10 Id.

~ Id. at 9. 12 Id. 13 Id. 14 Id. ~5 Id. 16kLat 10.

3No. 78245-2-114

when Owens’ 2016 petition was heard on April 29, 2016 and thattwo declarations were filed, one byWear and one by Owens.17 The court also stated that a commissioner “heard the matter and hejust dismissed the TRO with prejudice based on what he said was insufficient evidence.”18 The courtthen marked as Exhibit4 a declaration apparentlyfiled by Owens on April 26, 2016 in connection with the 2016 petition. The courtthen admitted Exhibit4 into evidence in the dissolution matter “for purposes ofthis record.”19 The court did not mark or admit into evidence the petition Owens filed in 2016, Wear’s response, the court’s order dismissing the case, or any otherdocuments filed in connection with the 2016 petition. Exhibit 4 is a five-page document consisting ofa coversheet, a two-page courtform fora declaration, and two typed pages. The coversheet bears handwriting indicating in relevant part that attached is the filer’s “written response to the respondent’s materials.”20 The two-page declaration form is also filled in by hand. It indicates thatthe declarant is Paula Owens and refers the readerto an attached document.21 This declaration form is unsigned, and the space provided forthe declarant’s certification that her declaration is made under penalty of

17 Id. at 11. 18 Id. 19 Id. 20 Ex. 4 atl. 21 Id. at2.

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perjury has been left blank.22 The final two pages appearto be Owens’ typed statement submitted in response to Wear’s response to her petition.23 This document is also unsigned.24 The court read portions ofthe declaration into the record and noted that [t]he partthat is critical forthis particular hearing is she says further down, “I also have divorce papers that I’m filing and I’m seeking legal counsel. Given the way he has reacted to an antiharassment order, I feargreatlythatwhen Mr. Wear is served with the divorce papers, his anger and excessive need to be rightwill reach a new and possibly dangerous high.[25] The court read another portion ofthe declaration in which Owens said, IfYour Honorfeels that an antiharassment order should be denied due to my lack of proofas to why I need this order in effect, I would like to askfor a continuance so that I can make contacts and gather the papers needed that prove thatthe respondentwas very abusive to me through our marriage and also confirm that (a) the majority of my struggles in life are caused by him, and (b) that it is more probable than notthat he will tryto harass and intimidate me to an unbearable degree should the court not issue this order.~26] The court explained thatthe reason itwas takingjudicial notice ofthe declaration is thatthe commissionerwho heard the 2016 petition dismissed the matterdue to insufficient evidence, “which means he denied her requestfor a

22 Id. at 3. 23kLat4-5. 24 Id. at 5. 25 RP (Mar. 1, 2018) at 12. 26 Id. at 12-13.

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continuance. And my inference from all ofthat is that she acquiesced in that because she thought she might be able to pursue this further in this context.”27 The court granted Owens’ requestfor a restraining order, imposing the restrictions Owens requested.28 Neitherthe dissolution decree northe court’s finding and conclusions aboutthe marriage include specificfindings related to the restraining order.29 Both documents refer instead to an attachment, which is a photocopy ofthe page of Owens’ dissolution petition where she requests the restraining order.3° Wear appeals. ANALYSIS Wear contends thatthe court erred when it granted Owens’ requestfora restraining order because the requestwas barred by resjudicata, collateral estoppel, or both. He also argues thatthe court erred bytaking judicial notice of documents filed in connection with the 2016 petition. Before we reach these issues, we first address Wear’s motion to supplement the record. Motion to Su~lementthe Record Wear requests thatthe we supplementthe record with the entire case file from Wear’s 2016 petition. He argues thatwithout it, the record is not sufficiently

27 RP (Mar. 1,2018) at 13. 2~ Id. at 15. 29CPat7, 11. 30SeeCPat8, 13.

6No. 78245-2-117

complete forthis courtto decide the appeal on the merits. RAP 9.11(a) provides that an “appellate court may directthat additional evidence on the merits ofthe case be taken before the decision ofa case on review” ifthe following requirements are met: (1) additional proofoffacts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party’s failure to presentthe evidence to the trial court, (4) the remedy available to a partythrough postjudgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a newtrial is inadequate or unnecessarilyexpensive, and (6) itwould be inequitable to decide the case solely on the evidence alreadytaken in the trial court. Although it appears thatthe trial court may have read from or referred to several documents in the 2016 petition courtfile, it is clearthatthe key piece of evidence the court relied on was the Owens declaration admitted as Exhibit4. We find thatthe conditions of RAP 9.11 are not met here because the issues before the court can be fairly resolved without additional proofoffacts.31 Wear’s motion to supplement the record is denied. Res Judicata and Collateral Estoppel Wearargues the court erred in awarding a restraining orderto Owens because her requestwas barred by resjudicata and collateral estoppel. Res judicata and collateral estoppel are affirmative defenses and are waived if not

31 See Harbison v. Garden Valley Outfitters, Inc., 69 Wn. App. 590, 593-94, 849 P.2d 669 (1993) (denying requestto supplement the record where the additional evidence did not change the court’sjurisdiction analysis).

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raised in the trial court by an affirmative pleading, a motion under CR 12(b), or else tried bythe express or implied consent ofthe parties.32 Claims of resjudicata and collateral estoppel will not be considered forthe firsttime on appeal.33 Weardid not raise eitherofthese arguments in the trial court. He objected to the imposition ofa restraining order but did not argue that Owens was barred from requesting a restraining order bythe previous case. Because he raises these defensesforthe firsttime here, we will not considerthem. Judicial Notice Wearargues the court erred in considering the declaration filed by Owens in the 2016 petition. We agree. We begin by noting that courts in dissolution proceedings have broad statutory and equitable authorityto impose restraining orders.34 Under RCW26.09.050(1), a court entering a decree ofdissolution must provide “any necessary continuing restraining orders.” We review a court’s decision to impose a restraining order on a partyto a decree ofdissolution for abuse ofdiscretion.35 A court abuses its discretion when

32 Farmers Ins. Co. ofWashington v. Miller, 87 Wn.2d 70, 76, 549 P.2d 9 (1976); Taliesen Corp. v. Razore Land Co., 135 Wn. App. 106, 134, 144 P.3d 1185 (2006).

~ Jumamil v. Lakeside Casino, LLC, 179 Wn. App. 665, 680, 319 P.3d 868 (2014); see also RAP 2.5(a) (with some exceptions not pertinent here, an appellate court may refuse to review any claim oferror not raised in the trial court). See RCW26.09.050(1); Blackmon v. Blackmon, 155 Wn. App. 715, 721- 22, 230 P.3d 233 (2010).

~ In re Marriage of Freeman, 169 Wn.2d 664, 671-72, 239 P.3d 557 (2010).

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its decision is manifestly unreasonable or is based on untenable grounds or untenable reasons.36 ER 201 permits the courtto takejudicial notice ofadjudicative facts. The rule provides that ajudicially noticed fact must be one not subjectto reasonable dispute in that it is either “(1) generally known within the territorial jurisdiction ofthe trial court or (2) capable ofaccurate and ready determination by resortto sources whose accuracy cannot reasonably be questioned.”37 A court maytakejudicial notice ofthe record presently before it or in proceedings ‘“engrafted, ancillary, or supplementary to it.”38 A court cannot, however, “while deciding one case, takejudicial notice of records ofother independent and separatejudicial proceedings even though they are between the same parties.”39 In In re Adoption of B.T., for example, our Supreme Court held in an appeal involving an adoption proceeding that it could not consider evidence from separate dependency proceedings involving the same child.4° Similarly, in Swakv. Department of Laborand Industries, our Supreme Court held the trial court properly refused to takejudicial notice ofthreejudgments presented bythe departmentto demonstrate thatthe plaintiff had previously been awarded the

36 Luckettv. Boeing Co., 98 Wn. App. 307, 309-10, 989 P.2d 1144 (1999) (quoting Lane v. Brown & Haley, 81 Wn. App. 102, 105, 912 P.2d 1040 (1996)).

~ ER 201. 38 In reAdoption of B.T., 150 Wn.2d 409,415,78 P.3d 634 (2003) (quoting Swakv. Dep’t of Labor& Indus., 40 Wn.2d 51, 53, 240 P.2d 560 (1952)).

~ Id. 40 150 Wn.2d 409, 415, 78 P.3d 634 (2003).

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maximum amount allowable underthe workmen’s compensation act and was therefore unable to recover in the matter before the court.41 The court listed numerous examples of proceedings that may be deemed engrafted, ancillary, or supplementaryto the present case such that a court maytakejudicial notice of them.42 Where the proceedings are separate and independent, however, judicial notice is an improper method of proof because “itwould make those facts, unsupported by evidence in the case in hand, conclusive against the opposing party.”43 Here, the trial court had no evidence in the record to support granting Owens’ requestfora restraining order, and Owens did not appearto testify. The court elected to rely on a declaration Owens filed in a separate proceeding two years earlierto supportthe finding that a restraining order should be imposed againstWear in the dissolution proceeding. This was an abuse ofdiscretion. Consideration ofOwens’ 2016 declaration is problematic for other reasons as well. The declaration was filed nearlytwo years priorto the trial in this matter, and no new evidence was presented to substantiate any ongoing contact or harassment byWearor a risk ofcontact or harassment. Only onejudicial officer had the opportunityto hearfrom both parties in person and assess their credibility, and thatjudicial officerdismissed Owens’ petition fora protection orderwith

4140 Wn.2d 51, 52-53, 240 P.2d 560 (1952). 42 Id. at 53. ki at 54.

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prejudice.44 Perhaps more importantly, the actual exhibit referred to and relied upon bythe trial courtwas the unsigned declaration. Judicial notice ofsuch a document could not applyto supportthe restraining order. We vacate the restraining order.

WE CONCUR: 

# / I

~See RP (Mar. 1,2018) at 11.