In Re: David Fegel, Respondent V. Sarah Kessler, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DAVID FEGEL,
Respondent,
v.
SARAH KESSLER,
Appellant.
No. 79843-0-I
DIVISION ONE
UNPUBLISHED OPINION
L EACH, J. — On December 31, 2018, the trial court entered an order and
findings stating that it would file a 20-year protection order and permanent
restraining order to protect Sarah Kessler and two minor children from David Fegel.
The court did not file a protection order, but filed a 20-year restraining order rather
than a permanent order. 	Kessler asked the trial court to reconsider its failure to
follow its December order. 	Kessler appeals the denial of her request.1 	Fegel
appeals the trial court’s December 31st decisions. 	A commissioner of this court
consolidated Kessler and Fegel’s appeals. We remand for the trial court to modify
the protection and restraining orders consistent with its findings. 	Because Fegel
has abandoned his appeal, we dismiss it.
1 We note that Fegel did not respond to Kessler’s appeal.

No. 79843-0-I/2
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BACKGROUND
Since 2015, David Fegel and Sarah Kessler both filed petitions to modify
parenting plans, protection orders, and restraining orders impacting their three
children. Now, only two of their children remain minors.
After a five-day trial, on December 31, 2018, the trial court issued its “final
order and findings on petition to change a parenting plan.” 	The order protects
Kessler and the two minor children from Fegel. The order states that the trial court
approves and will file separately a parenting plan, order on renewal of order for
protection, restraining order, and order to surrender weapons.
In its amended findings, the trial court determined the protection order
should be extended by 20 years because “Fegel failed to demonstrate that he is
unlikely to resume acts of domestic violence if the protection order is not renewed.”
It also determined:
a. 	The protection order should be modified as requested by Sarah
Kessler. RCW 26.50.130(5).
i. 	The fact that the mother is the petitioner/protected party
and the father is the respondent/restrained party should
be clarified.
ii. 	The 	new parenting plan 	controls 	with 	regard 	to 	the
father’s contact with the children.
The trial court did not file a renewal of the protection order or modify the protection
order.
Also, the trial court found “good cause to enter a permanent restraining
order” to protect Kessler from Fegel. The trial court explained “Fegel represents a
credible threat to the physical safety” to Kessler, and that Fegel was an intimate

No. 79843-0-I/3
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partner to Kessler as parents of common children. But, the trial court issued a final
restraining order that expires on January 1, 2039.
On January 18, 2019, Kessler asked the court to reconsider its actions and
enter a renewal of the protection order, modify the protection order, and provide a
permanent restraining order. 	In response, Fegel conceded, “the Court’s findings
are clear that the protection order should be a 20-year protection order and that
the restraining order should be a permanent restraining order.” On March 5, 2019,
the trial court denied Kessler’s motion for reconsideration without explanation.
Kessler appeals the trial court’s denial of her motion for reconsideration.
Fegel cross-appealed but has since withdrawn the request. 	Fegel appeals the
December 31st decisions. A commissioner of this court ordered the two appeals
consolidated.
ANALYSIS
Protection Order
Kessler asserts the trial court failed to issue a 20-year protection order
required under RCW 25.50.060(3) and failed to modify the protection order after it
found that modifications were appropriate. 	In response to Kessler’s request for
reconsideration, Fegel conceded, “the Court’s findings are clear that the protection
order should be a 20-year protection order.” 	Fegel has not filed a response to
Kessler’s appeal.
“Whether to grant, modify, renew, or terminate a protection order is a matter
of judicial discretion.”2 Under RCW 26.50.060(7), if the trial court “declines to issue
2 In re Marriage of Freeman, 169 Wn.2d 664, 671, 239 P.3d 557 (2010).

No. 79843-0-I/4
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an order for protection or declines to renew an order for protection, the court shall
state in writing on the order the particular reasons for the court’s denial.”
Here, in its final order and in its amended findings, the trial court stated that
it would sign and file a renewed and modified protection order. But, the trial court
did not do so. And, the trial court did not state a reason for denying the motion to
reconsider the protection order.
We accept Fegel’s trial court concession.3 	And, we accept Kessler’s
request for remand to modify the protection order because Fegel did not file a
response and has not provided any authority contrary to the persuasive authority
cited by Kessler. 	We remand with instructions, consistent with the trial court’s
findings, to issue a 20-year protection order and to modify the protection order.
Permanent Restraining Order
Kessler asserts the trial court should have issued a permanent restraining
order rather than one that expires in 2039. 	In Fegel’s response to Kessler’s
request for reconsideration, Fegel conceded “the restraining order should be a
permanent restraining order.”
In its findings, the trial court determined “There is good cause to enter a
permanent restraining order protecting Sarah Kesslerfrom David Fegel.” 	The
court also determined that “Fegel had reasonable notice and an opportunity to be
heard, was present at the hearing, and had actual notice of the hearing.” But, for
3 Because we accept her assertion that the court failed to issue a 20-year
protection order, we need not address Kessler’s assertion that the renewal of a
protection order is mandatory when a court finds the respondent cannot prove by
a preponderance of evidence that they will not resume acts of domestic violence
when the order expires.

No. 79843-0-I/5
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reasons not disclosed in the record, it issued a restraining order that expires in 20
years.
Because Fegel concedes the restraining order should be permanent and
has 	not 	responded 	to 	Kessler’s 	appeal, 	and 	because 	the 	court’s 	findings
sufficiently support a permanent restraining order, we remand with instructions to
issue a permanent restraining order.
Fegel’s Appeal
On 	February 	11, 	2019, 	Fegel 	responded 	to 	Kessler’s 	motion 	for
reconsideration by stating “Petitioner takes issue with the Court’s issuance of a
restraining order and a protection order in this matter. However, those arguments
are saved for a different form.” 	Then, on April 3, 2019, Fegel filed a notice of
appeal. 	This court extended time for Fegel to file a brief to support his appeal.
But, Fegel failed to do so. 	On August 9, 2019, Fegel asked this court to dismiss
his earlier cross-appeal which this court did. And, Fegel did not file a response to
Kessler’s appeal, in which she asserts that Fegel’s appeal should be dismissed as
abandoned under RAP 18.9(c)(1).
RAP 18.9(c)(1) provides this court with discretion to dismiss review of a
case “for want of prosecution if the party seeking review has abandoned the
review.” Because Fegel has not filed a brief in his appeal or a response to Kessler’s
appeal, and he asked this court to dismiss his cross-appeal, we conclude that
Fegel has abandoned his appeal. So, we dismiss Fegel’s appeal.

No. 79843-0-I/6
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CONCLUSION
Consistent with the trial court’s findings, we remand for the trial court to
renew and modify the protection order and to issue a permanent restraining order.
And, we dismiss Fegel’s appeal.
WE CONCUR: