Opinion
No. 30211-0-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 01-3-01739-7. Judgment or order under review. Date filed: 03/26/2003. Judge signing: Hon. Diane M Woolard.
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), Carolyn Marie Drew, Scott Horenstein Law Firm PLLC, 900 Washington St. Ste 1020, PO Box 61507, Vancouver, WA 98666-1507.
Brendan Finucane Patrick, Attorney at Law, 800 5th Ave Ste 4100, Seattle, WA 98104.
Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Stephen Schwary appeals the trial court's (1) parenting plan, (2) order changing the child's name, and (3) monetary and attorney fee awards to his wife, Angela Schwary. He contends the evidence is insufficient to support these rulings and that the trial court abused its discretion by imposing RCW 26.09.191 restrictions on the parenting plan. We find no reversible error and, therefore, affirm.
FACTS
Stephen and Angela Schwary married in July 2000. The couple separated on March 22, 2001. On October 11, 2001, Angela gave birth to their son, Aidan.
Angela told Stephen he could not attend Aidan's birth unless he complied with certain conditions. She said he could be present for the birth but that she wanted private time for nursing and for two days of recovery. Stephen told her it was 'his right to be there and . . . he didn't care' if he made Angela uncomfortable. Report of Proceedings (RP) at 49. Stephen did not attend Aidan's birth.
The next day, Angela called Stephen from the hospital and he went to see Aidan. During the call, Stephen threatened to take Aidan from the hospital and bring a lawyer to the hospital with him. A hospital worker notified security about Stephen's threat to take Aidan. When he arrived at the hospital, the security officers initially kept Stephen away from Aidan but eventually allowed him to see Aidan for a brief period. Stephen spent an hour to an hour-and-a-half at the hospital.
While at the hospital, Stephen asked to see Aidan's medical records. He noticed that Angela had named the child 'Aidan Michael Ellis Schwary.' RP at 95-96. Ellis is Angela's maiden and current surname. Angela testified that Stephen also reviewed her hospital chart and that she thought he had photographed the records.
Although the couple had discussed naming the child Aidan or Christopher, they disagree about whether they discussed the name Ellis. Stephen petitioned the Secretary of State to change the name on the birth certificate to 'Aidan Christopher Schwary' without Angela's knowledge. Stephen also caused Aidan's medical card to read 'Christopher A. Schwary.' Stephen and his family refer to the child as 'Christopher' or 'A.C.'.
The day after Angela and Aidan were released from the hospital, they met Stephen and his family at a restaurant. The visit lasted several hours. Stephen testified that the visit was enjoyable.
On October 16, 2001, Angela served Stephen with a domestic violence restraining order that allowed Stephen supervised visits with Aidan three times per week.
Stephen has visited Aidan since he was two weeks old. Stephen initially took Aidan for approximately an hour and fifteen minutes three times per week. The temporary parenting plan did not require the visits to be supervised. Stephen testified that the visits went fairly well except that Aidan was hungry all the time and Angela did not provide breast milk for the visits during the first several months. Instead, she breast-fed Aidan immediately before the visits. Stephen missed some visits due to work and traffic. And Angela testified that one time when she came to Stephen's home to pick up Aidan, Stephen called her a pathological liar and pushed her.
Stephen retained an attorney and filed an action to change Aidan's name to Christopher Aidan Schwary. When Angela then filed a petition for dissolution, the court consolidated the two actions.
Angela loaned Stephen between $4,000 and $6,660 for improvements to the home Stephen owned. He repaid between $2,760 and $3,500.
The trial court's parenting plan imposed RCW 26.09.091 restrictions on Stephen and awarded sole decision making power to Angela. The trial court also ordered that Aidan's name be changed to 'Aidan Ellis Schwary.' Clerk's Papers (CP) at 27. It awarded Angela $7,265.71, based on outstanding credit card liabilities and the principle amount of her loan to Stephen. And the trial court awarded Angela $5,500 in attorney fees. Stephen challenges every aspect of the trial court's decision including all findings pertaining to the parenting plan.
ANALYSIS I. Findings
Stephen assigns error to every finding, arguing that the evidence is insufficient to support them.
We will uphold findings of fact that are supported by substantial evidence. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991) (citing In re Marriage of Nicholson, 17 Wn. App. 110, 114, 561 P.2d 1116 (1977)). Evidence is substantial if it persuades a fair-minded, rational person of the truth of the finding. In re Marriage of Spreen, 107 Wn. App. 341, 346, 28 P.3d 769 (2001) (citing Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)).
The trial court found that:
1. Stephen Schwary presents an oppositional view of any point of view that is not in agreement with his.
2. Stephen Schwary has no insight into his actions which cause his 'provocation'.
3. Stephen Schwary has little credibility with the Court.
4. Stephen Schwary shows no capability of co-decision making or problem solving, as evidenced by his own testimony at trial.
5. Stephen Schwary has behaved in a manner as described in the definition of domestic violence.
6. [Stephen] has initiated the majority of the legal filings in this case, or has initiated the need for same by his own behavior.
7. Angela Schwary is over-involved in trying to accommodate [Stephen] and his family . . . [and] unless [she] strictly adheres with the Parenting Plan, the Respondent and his family will continue to exert power and control.
8. [T]he provisions of 26.09.191(3) . . . constitute grounds for limitations in the Parenting Plan. Therefore, the mother shall have sole decision-making.
9. [There is] no evidence at this time that [Stephen] is capable of reasonable, non-aggressive communication with the mother regarding decisions for the child.
10. [T]he testimony surrounding the visitation exchanges and adversity therein, are not in keeping with the best interests of the child and his developmental needs.
11. The Court takes notice of studies in child development indicating that high conflict in parenting, as seen in this case, adversely affects the children involved in the conflict.
12. [U]nder 26.09.187, in looking at the strength, nature and stability, provided that the mother be designated as the primary residential parent of the child, to accommodate the emotional and developmental needs of the child.
13. The Parenting Plan shall be entered incorporating these Findings as they pertain to restrictions and limitations on the decision making, visitation transfers, visitation exchange supervisor and designation of primary parent.
CP at 19-20.
Stephen concedes that findings 1 through 4 are, at least in part, findings as to his credibility. And we will not disturb the trial court's credibility findings on appeal. In re Marriage of Fiorito, 112 Wn. App. 657, 667, 50 P.3d 298 (2002) (citing In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996)).
Testimony regarding Stephen's anger and his abusive and controlling behavior support findings 5, 7, and 9. Angela testified that Stephen was angry on their wedding night and that there was 'one argument after another' during their honeymoon. RP at 30-31. At one point, Stephen threatened to tear apart Angela's older son's 'Furby' toy; and 'aggressively' threw the boy (Austin) onto his bed. RP at 25-26. Stephen refused to respect Angela's boundaries surrounding Aidan's birth. And after the birth, Stephen told Angela they were 'going to play things by his rules.' RP at 55. Stephen admits he threatened to take Aidan from the hospital because he was mad. And he pushed Angela while she stood near the entrance to his house with Aidan in her arms.
Stephen also scheduled Angela's deposition only weeks after Aidan's birth and refused to limit the deposition to two hours so she could breast-feed Aidan. Despite the fact that Angela was trying to exclusively breast-feed Aidan, Stephen gave the child formula and other food. And Stephen told Angela that he had a sample of her breast milk analyzed without her permission because he suspected she was smoking cigarettes. Finally, Stephen did not take Aidan to the nearest medical provider after he suffered a burned. The trial court characterized the conflicts surrounding visitation, the birth, Aidan's name, and medical appointments as 'battlefields.' RP at 629.
The statements and behavior of Stephen's family also support Angela's claim of abuse. His mother admitted asking Angela if Stephen had hit her. She also admitted calling Angela 'a pathological liar.' RP at 384. Angela's sister testified that while Angela was pregnant with Aidan, Stephen and his mother lingered outside Angela's parents' house while Angela and Austin hid behind a couch because they were so frightened. Angela called her family members to ask them to drive 20 miles to the house because Austin was 'very scared.' RP at 267-68.
Finding 6 is supported by Stephen's admission that, besides the initial hearing or temporary orders, all of the hearings were based on motions he filed.
Finding 8 is a legal conclusion, not a finding of fact. We discuss the court's legal reasoning in a later section.
Findings 10, 11, and 12 are related to the parenting plan's residential provisions as governed by RCW 26.09.187(3), which requires a court to 'make residential provisions . . . consistent with the child's developmental level and the family's social and economic circumstances.' But the court has the power to limit a parent's participation if the court finds an abusive use of conflict or other factors that adversely affect the child. RCW 26.09.191.
Here, the court found that Stephen had abusively engaged in ongoing conflict and that other factors supported the parenting limits imposed on Stephen. The evidence we have outlined amply supports these conclusions.
II. RCW 26.09.191 Restrictions
Stephen next argues that the trial court abused its discretion by imposing RCW 26.09.191 restrictions on him through the parenting plan. We review a parenting plan for an abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997) (citing In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993)). A court abuses its discretion if its decision is 'manifestly unreasonable or exercised on untenable grounds or for untenable reasons.' Thomas, 63 Wn. App. at 660 (citations omitted).
RCW 26.09.191(3) allows a court to limit any provisions in the parenting plan based on potentially adverse effects on the child's best interests where there is 'abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development,' or '[s]uch other factors or conduct as the court expressly finds adverse to the best interests of the child.' RCW 26.09.191(3)(e), (g).
The trial court granted Angela sole decision making authority pursuant to the provisions of RCW 26.09.191(3). This legal conclusion is supported by the trial court's findings that Stephen presented an oppositional point of view, had no insight into his actions, showed no capability of co-decision making, and was incapable of reasonable, non-aggressive communication. Together, these support the trial court's legal conclusion that Stephen abusively used conflict. In addition, the trial court took judicial notice of 'studies in child development indicating that high conflict in parenting, as seen in this case, adversely affects the children.' CP at 20. Although Stephen assigns error to finding 11, he does not specifically assign error to the trial court taking judicial notice of child development studies. Moreover, Stephen cites no authority that the trial court erred in taking such judicial notice. Rather, he criticizes the trial court only for failing to cite to the specific studies or allude to the results of these studies in its written or oral findings. Absent a citation to authority or any analysis, we decline to consider the argument. RAP 10.3(a)(5).
III. Child's Name
Stephen argues that this court should remand for an evidentiary hearing on the issue of Aidan's name change.
Stephen contends the trial court failed to find the name change was in Aidan's best interests, and that chapter 26 RCW does not authorize changing a child's name through a dissolution action. Stephen argues 'the parentage statute only provides for changing a child's name when a parent files a petition under RCW 4.24.130 and the court finds the name change to be in the best interests of the child under RCW 26.26.130(3).' App. Br. at 22-23. He cites Daves v. Nastos, 105 Wn.2d 24, 711 P.2d 314 (1985), and In re Marriage of Hurta, 25 Wn. App. 95, 605 P.2d 1278 (1979).
In dealing with a name change request, the trial court must consider the child's best interests. Hurta, 25 Wn. App. at 96 (citing In re Marriage of Laks, 25 Ariz. App. 58, 540 P.2d 1277 (1975)). In considering the child's best interests, the trial court should take account of (1) the child's preference; (2) the effect of the name change on the preservation and the development of the child's relationship with each parent; (3) the length of time the child had a given name; (4) the degree of community respect associated with the present and the proposed surname; and (5) the harassment, embarrassment, or difficulties the child might experience with the present or proposed surname. Daves, 105 Wn.2d at 31.
Angela argues that Daves's findings are unnecessary because of Aidan's age and the parties' history of conflict over the name. She maintains that Aidan's preference is irrelevant because he was only fourteen months old at the time of trial. And she contends the length of time Aidan bore his original name is irrelevant because his name has been a topic of contention since his birth. It has gone from 'Aidan Michael Ellis Schwary,' to 'Christopher Aidan Schwary,' to 'Aidan Christopher Schwary,' to 'A.C. Schwary,' or to 'Aidan Ellis Schwary.' She further argues that the two surname factors are irrelevant because 'the parties agree that Aidan's surname should remain 'Schwary.'' Resp. Br. at 22. Thus, the only potentially relevant factor, she contends, is the effect of the name change on the development of Aidan's relationship with each parent. She argues the trial court's decision was justified as to this factor because Stephen used the child's name as a 'weapon to damage Aidan's relationship with Angela,' even though they had agreed on the name 'Aidan' before birth. Resp. Br. at 23.
We agree with Angela. Moreover, the parties agreed to 'Aidan' before the child's birth. And Aidan carries Stephen's surname now. In addition, Angela's attorney had the following exchange with Stephen: 'Do you have a problem if his last name isn't hyphenated if it's Aidan [sic] whatever [middle name] . . . Ellis Schwary?' Stephen responded, 'I don't have a problem if it's . . . a middle name.' The attorney then said, 'Okay. If it's part of the name. It's the hyphen part you have a problem with.' Stephen responded, 'Yeah.' RP at 579-80.
We conclude that a remand to deal with this minor issue would unnecessarily prolong this harmful conflict. To the minimal extent the Daves factors apply here, the trial court considered and dealt with them.
IV. Property Award
Stephen argues the record does not support the monetary judgment award of $7,265.71 to Angela. He contends the judgment should be reduced to $700.00.
In a dissolution action, the trial court makes a 'just and equitable' distribution of the property and liabilities of the parties after considering all relevant factors, including the nature and extent of the separate and community properties and the duration of the marriage. RCW 26.09.080. The trial court must also consider the economic circumstances of each spouse after distribution. In re Marriage of Olivares, 69 Wn. App. 324, 330, 848 P.2d 1281 (1993) (citing In re Marriage of DeRuwe, 72 Wn.2d 404, 408, 433 P.2d 209 (1967)).
The trial court has broad, discretionary power; we review its decision for a manifest abuse of discretion. In re Marriage of Pilant, 42 Wn. App. 173, 176, 709 P.2d 1241 (1985) (citations omitted). The trial court is in the best position to determine what is fair, just, and equitable. Brewer v. Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999) (quoting In re Marriage of Hadley, 88 Wn.2d 649, 656, 565 P.2d 790 (1977)).
Here, Stephen owned the house where the couple lived. Angela loaned Stephen money to make improvements to the house. Her original contribution toward these improvements totaled $6,660.56 ($4,760.56 in credit card charges and $1,900 in checks). Although Stephen repaid part of this amount, the parties disputed the total amount outstanding at the time of trial. Both parties also acquired additional credit card debt during the marriage.
Angela requested the $7,265.71 award based on the outstanding credit card debt and her loan to Stephen. Angela now concedes that the correct amount, based on the record, was $5,833.89. But she argues that the distribution was still fair. She asserts, "[t]he key to an equitable distribution of property is not mathematical preciseness, but fairness." In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989) (quoting In re Marriage of Clark, 13 Wn. App. 805, 810, 538 P.2d 145 (1975)).
Nevertheless, the record is clear that the trial court intended to grant Angela an award of $5,833.89, but through an error in subtraction, awarded $7,265.71. We will correct the error by allowing Stephen a credit in our award of attorney fees to Angela discussed below.
V. Attorney Fees Award
Stephen argues that we should reverse the attorney fees award because the trial court did not balance the needs of the two parties or explain how it calculated the award. He argues, 'the trial court failed in all regards when the court set the amount at $5,000.' App. Br. at 27RCW 26.09.140 grants the trial court the discretion to order payment of attorney fees and costs in a dissolution action 'after considering the financial resources of both parties.' 'The court may also consider the extent to which one spouse's intransigence caused the spouse seeking a fee award to require additional legal services.' In re Marriage of Crosetto, 82 Wn. App. 545, 563-64, 918 P.2d 954 (1996) (citing In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989)). A fee award will not be overturned on appeal unless the party challenging the award shows the trial court 'used its discretion in an untenable or manifestly unreasonable manner.' In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999) (citing In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994)).
Here, Stephen's intransigence arguably caused the need for much of Angela's legal services. The trial court found that Stephen 'initiated the majority of the legal filings in this case . . . or has initiated the need for same by his own behavior.' CP at 19. Despite Stephen's argument to the contrary, the trial court did balance the needs of each party. It explicitly found that the income disparity between Angela and Stephen justified awarding Angela $5,000 for attorney fees and costs. And it awarded Angela another $500 based on Stephen's 'delay in entry of final Orders.' CP at 25. The record supports the findings.
The trial court's decision to award Angela $5,500 for attorney fees and costs was reasonable under the circumstances and not an abuse of discretion.
VI. Attorney Fees on Appeal
Angela requests additional attorney fees and costs for responding to this appeal.
RCW 26.09.140 states, 'Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs.' In determining whether to award fees, we examine "the arguable merit of the issues on appeal and the financial resources of the respective parties." In re Marriage of Fernau, 39 Wn. App. 695, 708, 694 P.2d 1092 (1984) (quoting In re Marriage of Thompson, 34 Wn. App. 643, 648, 663 P.2d 164 (1983)). To have its resources considered, a party must file a financial declaration at least 10 days before the date set for argument. RAP 18.1(c).
Angela has filed an affidavit demonstrating current need with this court as required by RCW 26.09.140 and RAP 18.1(c). She states that she supports herself and her two sons. Her net monthly income is $1,817.47 ($1,458.26 from her job and $606.85 in child support), and her monthly expenses are $1,978.21. She has incurred over $30,000 in attorney fees ($20,981.26 at trial and $9,641.29 on appeal as of December 23, 2003). And she has used all of her savings and has borrowed a substantial sum from her parents. We award Angela attorney fees in an amount to be determined by a commissioner of this court. The commissioner shall calculate a reasonable award and then subtract the credit to Stephen discussed above to reach a net attorney fee award to Angela.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON and MORGAN, JJ., concur.