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Ugolini v. Ugolini

Court of Appeals of Washington, Division 3

December 17, 2019

CRYSTAL UGOLINI, Respondent,
v.
FRANK UGOLINI, Appellant.

          LAWRENCE-BERREY, C.J.

         The trial court issued a one-year order of protection prohibiting Frank Ugolini from having any contact with his former wife, Crystal Ugolini, and their three minor children. The factual basis for the order was Mr. Ugolini's admission that he slapped his 11-year-old son on the cheek as discipline for talking back.

         But RCW 9A.16.100 allows reasonable and moderate physical discipline by a parent, teacher, or guardian to restrain or correct a child. Because the trial court failed to enter findings whether the discipline exceeded that allowed under RCW 9A. 16.100, we reverse and remand.

         FACTS

         On May 7, 2018, Frank Ugolini's former wife, Crystal Ugolini, filed a petition for an order of protection under chapter 26.50 RCW, the Domestic Violence Protection Act. In her petition, she described prior incidents where Mr. Ugolini assaulted her and their 11-year-old son, B. U.She requested an order of protection be issued to protect herself and their three minor children. A pro tern judge reviewed the petition and issued a temporary protection order that restrained Mr. Ugolini from having any contact with Ms. Ugolini and their three minor children. The petition and order were promptly served on Mr. Ugolini.

         Mr. Ugolini filed and served opposing declarations. Mr. Ugolini's declaration disputed most of his former wife's accusations. But his and his current wife's declarations said he recently slapped B.U. on the cheek after repeatedly telling him not to talk back. A police report, made part of the record, shows two officers responded to the incident and they did not see any red marks on B.U.'s face.

         A hearing on the order for protection was held on May 31, 2018. The trial court began the hearing by asking Ms. Ugolini whether she still wanted a protection order, to which she responded she did. The trial court then asked Mr. Ugolini to respond. Through counsel, Mr. Ugolini explained that he does discipline his children. This admission prompted the trial court to rule:

[T]he request before the Court is for an order for protection. . . . The standard for order for protection is whether or not an individual has caused physical harm, bodily injury, assault, including sexual assault or the threat thereof. . . . Frank told [B.U.] to be quiet or he would get smacked. Crystal instantly replied that is not how we discipline. Physical punishment is not okay. The children are too old. . . . Frank stepped forward and smacked [B.U.] on the cheek. . . . That's domestic violence right, there. . . . What I have is to look at whether or not the petitioner has given a basis for an order for protection to have been granted. And, with the respondent's own witnesses, there's a basis for me to enter this order.
So I will be doing so. . . . [A]t this point I'm issuing the [one year] order for protection in its entirety pending any modifications with family law court.

         Report of Proceedings at 13-14.

         ANALYSIS

         Mr. Ugolini contends the trial court erred when it entered the protection order because he used lawful force when disciplining B.U. We agree the trial court erred, but do not determine whether Mr. Ugolini's actions were lawful.

         A trial court's grant of a protection order is reviewed for abuse of discretion. In re Vulnerable Adult Petition for Knight,178 Wn.App. 929, 936, 317 P.3d 1068 (2014). Abuse of discretion is found only when the decision is "' manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" State v. McCormick,166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 ...


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