Opinion
No. 24878-0-III.
May 1, 2007.
Appeal from a judgment of the Superior Court for Franklin County, No. 04-3-50023-7, Vic L. VanderSchoor, J., entered December 19, 2005.
Remanded by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kulik, JJ.
We are reviewing the decision of a trial judge, not making our own.
And that distinction dictates our approach. We review the reasons for the court's decision and then pass judgment. Here, the decision is in the form of a judgment awarding primary custody of the children of this marriage to their father. We then review the court's findings of fact and conclusions of law. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999). And therein lays the problem. There are no findings or conclusions on this question (is the father a proper custodial parent) to support this judgment. There is, then, nothing for us to review.
The single most important factual issue during this dissolution proceeding was who should have custody of the children and, specifically, the suitability of the father to have custody. The judge listened to five days of testimony and then awarded custody to the father.
The mother alleged and presented evidence that the father was abusive. The father presented evidence that he was not abusive and that his wife's allegations were unfounded. But there are no findings that he is or was abusive or that he is not abusive and a worthy custodial parent. There is a vague reference at the end of the trial that the judge did not find the mother credible. Report of Proceedings at 635. But what the judge actually found based on that observation is a mystery. Now the lack of a finding on an issue is presumptively a negative finding against the person with the burden of proof. Taplett v. Khela, 60 Wn. App. 751, 760, 807 P.2d 885 (1991). And here Ms. Fortner had the burden of proving Mr. Fortner an unfit parent. But that presumption does not help here.
We review findings of fact and conclusions of law. Greene, 97 Wn. App. at 714; Scott v. Trans-System, Inc., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003). Under CR 52(a)(2)(B), findings of fact and conclusions of law are required in "connection with all final decisions in adoption, custody, and divorce proceedings." In re Marriage of Stern, 68 Wn. App. 922, 926, 846 P.2d 1387 (1993). Our review is limited to determining whether the findings of fact are supported by substantial evidence in the record and, if so, '"whether the findings in turn support the trial court's conclusions of law.'" Greene, 97 Wn. App. at 714 (quoting Org. to Preserve Agric. Lands v. Adams County, 128 Wn.2d 869, 882, 913 P.2d 793 (1996)).
Here, there are no findings of fact regarding the abuse allegations that would support giving primary custody of the children to their father. There is, then, nothing for us to review. See Greene, 97 Wn. App. at 714; In re Estate of Freeberg, 130 Wn. App. 202, 205, 122 P.3d 741 (2005).
So we will engage in the presumption and presume that the trial judge refused to find that the father was abusive or guilty of domestic violence. But that does nothing to support the decision itself.
We think we know what the trial judge would have found. We think we know what the trial judge concluded working back from the ultimate decision here. But it is still speculation when it comes to the specifics. And it is still speculation whether those specific findings and conclusions support the judge's decision to grant primary custody of these children to their father.
In short, there is no principled or even organized way for this court to review this decision without findings of fact and conclusions of law on the central issue in this case — the abuse allegations in connection with the final decision in the custody and divorce proceeding. CR 52(a)(2)(B); Stern, 68 Wn. App. at 926.
We remand for entry of findings of fact and conclusions of law and entry of a judgment.
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.
WE CONCUR:
Brown, J.
Kulik, J.