Opinion
No. 26810-1-III.
April 21, 2009.
Appeal from a judgment of the Superior Court for Grant County, No. 06-5-00272-2, Kenneth L. Jorgensen, J., entered January 31, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
UNPUBLISHED OPINION
Triney Beddow, pro se, appeals a trial court decision designating Latasha Jones as the primary residential parent of their son, E.B. Mr. Beddow claims the trial court erred by conducting a criminal trial instead of a civil trial, disregarding the opinion of the guardian ad litem (GAL), and failing to consider the required statutory factors in making its placement decision. He also asserts these errors are evidence of the court's bias against him in violation of the Code of Judicial Conduct (CJC) Canons 1 and 3. We reject his contentions and affirm.
FACTS
Mr. Beddow and Ms. Jones were teenagers when their son, E.B., was born in April 1998. The young couple lived together sporadically for the next four years, but never married. During these years, the couple frequently argued. Court documents reflect that between May 1999 and October 2001, Ms. Jones complained of seven incidents of domestic violence and civil harassment by Mr. Beddow. In July 1999, Ms. Jones obtained a protection order against Mr. Beddow. The order awarded temporary custody of E.B. to Ms. Jones and granted Mr. Beddow weekend visitation.
When Mr. Beddow and Ms. Jones separated for good in 2002 they did not have a parenting plan. Mr. Beddow moved to the west side of Washington for about three years and sporadically visited E.B. E.B. lived primarily with his mother in Moses Lake for the next four years. By all accounts, E.B. thrived during these years, earning numerous academic and behavior awards. He attended school regularly and was the top reader in his second grade class.
Mr. Beddow eventually moved back to Moses Lake with his girl friend, Loriann Magas, and visited E.B. on weekends. At the time of trial, Ms. Magas worked as an apartment manager and Mr. Beddow worked as a sales representative for an aluminum railing manufacturer.
The placement dispute in this case arose when Ms. Jones decided to move to Arizona in September 2006, claiming Mr. Beddow had sexually assaulted her earlier that month. Ms. Jones left E.B. in the care of his maternal grandmother in Soap Lake. Ms. Jones intended to return for E.B. in a few weeks after she found a job for herself and a school for E.B.
In early October, Mr. Beddow learned that Ms. Jones had moved to Arizona. Mr. Beddow subsequently removed E.B. from his Soap Lake school with the help of a county sheriff. Mr. Beddow eventually re-enrolled E.B. in his Moses Lake elementary school. School records show that E.B.'s grades dropped significantly during this period and that he was not turning in all of his homework. Teachers noted that E.B. was having a hard time focusing. On November 17, 2006, Mr. Beddow filed a petition for primary residential placement of E.B. Ms. Jones opposed the request.
In the spring of 2007, Ms. Jones moved back to Grant County. On March 29, 2007, a court commissioner temporarily placed E.B. with Mr. Beddow, noting E.B. had lived with his father since October 10, 2006. The commissioner also ordered the appointment of a GAL to conduct an investigation and make recommendations to the court concerning E.B.'s residential placement.
The GAL's June 2007 interim report recommended that E.B. primarily reside with his father. Her report noted that E.B. was suffering separation anxiety as a result of being removed from his grandmother's care, but that his current environment was stable. She opined that it was in the best interest of E.B. to be placed with his father because the mother had interfered with the child's relationship with the father and the father had demonstrated his ability over the last few months to care for E.B. The GAL felt that Ms. Jones had been noncompliant with the investigation and therefore recommended supervised visitation. On July 12, 2007, a court commissioner entered a temporary parenting plan, placing E.B. with Mr. Beddow and allowing Ms. Jones twice weekly supervised visitation.
At the January 8, 2008 trial, the GAL opined that E.B. should be placed with Mr. Beddow "because [Mr. Beddow] is at this time the performing parent, the one that is hands on and has done what he was asked by the court. He takes care of the child. He's got him in activities that are helpful for the child's development. This child needs development. He's not at a par with children his age." Report of Proceedings (RP) at 29. The GAL also noted that Mr. Beddow's home was clean and that he and Ms. Magas appeared to have a stable and committed relationship.
In contrast, the GAL's report of Ms. Jones was not favorable. She testified that Ms. Jones had been uncooperative with the investigation. She reported that Ms. Jones was overprotective and "parentaliz[ed]" E.B. RP at 29. She also stated that E.B. told her that he wanted to live with his father because his mom sometimes lied.
Ms. Jones, who appeared pro se, testified that she had been working as a receptionist in Soap Lake since August 2007 and was living with her mother, but intended to eventually get her own place. When asked to explain the rape allegation, Ms. Jones testified that on September 9, 2006, she and Mr. Beddow met in a public place to discuss E.B. Mr. Beddow drove her home and she invited him inside her home for a few minutes. She stated that Mr. Beddow refused to leave and eventually pushed her down and had unprotected sex with her. Ms. Jones stated that she did not want to anger Mr. Beddow by going to the police, so she chose to leave the area as soon as feasible.
Mr. Beddow denied sexually assaulting Ms. Jones. He explained that on the evening in question, they simply discussed E.B. for about a half hour and then he left. He claimed that Ms. Jones made up the story to get custody of E.B. Mr. Beddow submitted a declaration from Paula Berneski, a friend of his, which stated that he had been at her house between noon and 11:00 p.m. on September 9. Melissa Cantu, a friend of both parties, testified that Ms. Jones told her in August 2006 that she was thinking of moving to Arizona to join her boyfriend.
The court awarded Ms. Jones primary placement of E.B., emphasizing that she "had this child for the first eight years of its life." RP at 214. The court also concluded that Mr. Beddow had raped Ms. Jones, explicitly finding that Mr. Beddow's denial of the incident was not credible. The court orally ruled,
If the parties had come before this court before this incident took place where she went to Arizona, there would be no question about what the court would do. We wouldn't even have a trial. . . .
The only reason why the father can even come in here with a straight
face and ask for primary custody of the child is because she went to Arizona. . . .
. . . .
. . . [I]t is my conclusion that [Ms. Jones] was raped.
. . . .
Because of that victimization, she went to Arizona. Then what happens? [Mr. Beddow] comes in and grabs the child, comes into court and puts restrictions on her contact with the child. . . . [Ms. Jones] should have been seeing this child for this year and a half. . . .
But [Ms.] Jones will have primary residential placement. There is no question about that.
RP at 214-17.
Mr. Beddow appeals the trial court's placement decision.
ANALYSIS
The issue is whether the court erred in awarding residential placement of E.B. to Ms. Jones. A trial court has broad discretion in making residential placement decisions. In re Marriage of Possinger, 105 Wn. App. 326, 335, 19 P.3d 1109 (2001). This broad discretion is due to the trial court's unique opportunity to observe the parties, determine their credibility, and sort out conflicting evidence. In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982). The appellate court is "`extremely reluctant to disturb child placement dispositions.'" In re Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001) (quoting In re Marriage of Schneider, 82 Wn. App. 471, 476, 918 P.2d 543 (1996), overruled on other grounds by In re Marriage of Littlefield, 133 Wn.2d 39, 940 P.2d 1362 (1997)).
A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). A court's decision is based on untenable reasons "if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard." Littlefield, 133 Wn.2d at 47.
Placement decisions are based on the child's best interests, as found at the time of trial. RCW 26.09.187(3)(a); Littlefield, 133 Wn.2d at 52. The court must consider seven statutory factors when establishing a residential schedule. These include the strength, nature, and stability of the relationship with each parent and whether one parent has taken greater responsibility for the child's daily care; any agreements between the parties; each parent's past performance and future potential as a parent; the child's emotional needs and developmental level; the child's involvement in significant activities; the parents' and child's wishes; and each parent's employment schedule. RCW 26.09.187(3)(a)(i)-(vii). The first factor is given the greatest weight. RCW 26.09.187(3)(a)(vii).
Mr. Beddow first contends that the trial court erred by holding a criminal trial, instead of a civil parenting trial. He complains that he "didn't know he was going to be tried for rape that day." Br. of Appellant at 5. We note that Mr. Beddow fails to support his argument with a single citation to any legal authority. Assignments of error not supported by citation to authority need not be considered by a reviewing court. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
But even if we address his argument, it fails. This is unquestionably a civil case: Mr. Beddow was not arrested or charged with a crime, and he was not subject to a criminal trial or incarceration. Furthermore, it was well within the court's discretion to make a civil finding that Mr. Beddow raped Ms. Jones, resulting in her move to Arizona.
Mr. Beddow contends that this finding is undermined by Ms. Berneski's alibi evidence and Ms. Cantu's testimony that Ms. Jones was planning to move to Arizona before the alleged rape. We reject his argument. Although the parties' evidence regarding the sexual assault is in conflict, Ms. Jones' testimony sufficiently supports the court's finding that Mr. Beddow raped her. The trial court had the opportunity to observe the parties and explicitly found Ms. Jones credible and Mr. Beddow untruthful. We do not reweigh this assessment.
Next, Mr. Beddow claims that the court erred in disregarding the GAL's opinion. Again, he fails to cite to any authority to support his assignment of error. Nevertheless, even if we address his contention, it fails. As previously noted, trial courts have broad discretion in determining the residential placement of a child. In exercising this discretion they make their own assessment of the child's best interests. In re Marriage of Swanson, 88 Wn. App. 128, 138, 944 P.2d 6 (1997). Accordingly, courts are not bound by a GAL's recommendations. Id.
In any event, the record indicates that the court considered the GAL's information. We note that the court was critical of the GAL's investigation and expressed frustration about the irrelevance of some of her information. The court also criticized the GAL for failing to investigate E.B.'s grades during the years he lived with his mother, noting that this information would have reflected on the mother's parenting. Ultimately, the trial court weighed all of the evidence, assessed the witnesses' credibility, and rejected the GAL's recommendation that E.B. be placed with his father. It was well within its discretion to do so.
Third, Mr. Beddow argues that the court failed to consider any of the required factors in making its placement decision, including the child's preference. To support this argument, Mr. Beddow points to the court's disregard of the GAL's opinion and the court's failure to cross-examine the mother regarding her relationship with her fiancé. Mr. Beddow fails to cite the statutory factors under RCW 26.09.187(3)(a)(i)-(vii) or any other supporting authority. Nevertheless, we address his argument.
As discussed above, a trial court must consider the seven statutory factors set forth in RCW 26.09.187(3)(a). The court is not required to enter written findings on each factor, but it must be evident from the court's ruling that the court considered the factors. In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981). Here, while the trial court did not state that it was addressing each factor individually, the trial court's questioning of the parties at trial and its oral ruling convinces us that it considered the required factors.
For example, contrary to Mr. Beddow's position, the record reveals that the court considered E.B.'s placement preference. Although the GAL testified that E.B. wanted to live with his father, school records indicated that E.B. missed his mother and wished to live with her. Furthermore, the court was not persuaded by the GAL's testimony, noting that E.B. may have preferred to live with his father because he indulged him.
Additionally, the record shows that the court properly emphasized the first statutory factor, finding that Ms. Jones had been E.B.'s primary caretaker for the first eight years of his life. This finding is amply supported. Mr. Beddow himself testified that he moved to the western side of the state for three years after he and Ms. Jones separated, leaving E.B. solely in Ms. Jones' care for months at a time. Visits during this time were sporadic at best.
The record also indicates that E.B. thrived in his mother's care. He received regular physical and dental appointments. School records reveal a well-behaved child who earned outstanding grades and honors while in his mother's care. In marked contrast, E.B.'s grades plummeted after he moved in with his father.
The court also considered the parties' respective living arrangements and work schedules, and heard testimony about the parents' past performance of parenting duties.
The court properly considered the statutory factors in determining E.B.'s placement.
Finally, Mr. Beddow asserts that the court was biased against him in violation of CJC Canons 1 and 3. He argues that the court "took on the role of advocate" for Ms. Jones because she was unrepresented at trial. Br. of Appellant at 12. To support his argument, he points to the court's failure to consider the GAL's testimony that the mother often perceives herself to be a victim, the court's condemnation of his failure to marry Ms. Magas, the court's failure to cross-examine Ms. Jones about her own unmarried status, and the court not requiring Ms. Jones to make a closing argument.
CJC Canon 1 provides in part, "Judges Shall Uphold the Integrity and Independence of the Judiciary." CJC Canon 3 provides in part, "Judges Shall Perform the Duties of their Office Impartially and Diligently."
A judicial proceeding must appear to be fair and "is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing." State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992), abrogated on other grounds by State v. Finch, 137 Wn.2d 792, 975 P.2d 967 (1999). Accordingly, the CJC requires a judge to uphold the independence of the judiciary and to recuse himself where there is bias against a party. CJC Canon 1; CJC Canon 3(D)(1).
A party alleging judicial bias must present evidence of actual or potential bias. State v. Post, 118 Wn.2d 596, 618, 619 n. 9, 826 P.2d 172, 837 P.2d 599 (1992). We use an objective test to determine if a judge's impartiality might reasonably be questioned by a reasonable person who knows all the relevant facts. In re Marriage of Davison, 112 Wn. App. 251, 257, 48 P.3d 358 (2002). Without evidence of actual or potential bias, a claim of judicial bias is without merit. Post, 118 Wn.2d at 619.
Mr. Beddow fails to point to any evidence that the court was biased against him. Contrary to his claim, nothing in the record suggests that the court did not consider the GAL's testimony. The court's failure to question Ms. Jones about her relationship with her fiancé does not constitute evidence of actual or potential bias. Furthermore, there is no evidence that the court used Mr. Beddow's unmarried status against him — in fact, the court concluded that Mr. Beddow's relationship with Ms. Magas appeared stable and weighed this factor in his favor. Mr. Beddow's dissatisfaction with the outcome of the trial does not amount to judicial bias against him.
CONCLUSION
Based on all the evidence, the trial court's decision to place E.B. in Ms. Jones' primary residential care was not manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Accordingly, we affirm the trial court's placement decision.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KORSMO, J., concur.