Opinion
No. 31374-0-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-3-03657-0. Judgment or order under review. Date filed: 01/09/2004. Judge signing: Hon. Frank E. Cuthbertson.
Counsel for Appellant(s), Doug Owens, Attorney at Law, 911 6th St, Anacortes, WA 98221-1716.
Counsel for Respondent(s), Boyd Scott Wiley, Campbell Dille Barnett Smith Wiley, 317 S Meridian, PO Box 488, Puyallup, WA 98371-0164.
Carlyle Gooch appeals an order denying his motion for reconsideration of a dissolution decree and child support and visitation orders. He argues the trial court (1) denied due process because it did not allow him to present evidence at a trial, and (2) erred in conditioning reconsideration of the visitation schedule on payment of his former wife's attorney fees. Because Gooch never had proper notice that the trial court would decide dissolution issues in an uncontested hearing without an adequate opportunity to be heard, we reverse and remand.
FACTS
On November 15, 2002, Carlyle Gooch petitioned for dissolution of his marriage to Jaymalea Gooch.
We use the parties' first names for clarity.
I. Original Trial Schedule
On March 17, 2003, the trial court entered an order setting the case schedule, including a settlement conference date, discovery dates, a pre-trial conference date, and a trial date of December 2, 2003, at 9:30 a.m. Both parties received copies of this order.
On August 29, 2003, and again on September 12, 2003, Carlyle's counsel filed notices of intent to withdraw.
On October 7, 2003, the trial court filed a status report, indicating that the parties had attempted dispute resolution, that settlement would be unlikely because criminal charges were pending against Carlyle, and that Carlyle's attorney had withdrawn from representing him. On October 8, Jaymalea filed her response to Carlyle's dissolution petition.
On November 18, 2003, the trial court sent Carlyle a letter explaining that he needed to contact the court about the trial no later than November 26, 2003. The court sent this letter to Carlyle at 20003 85th Ave Ct. E. in Tacoma, an address Carlyle claims was not his.
Although trial was set for 9:30 a.m., on December 2, 2003, proceedings began at 8:45 a.m., with Jaymalea's formal offer of proof for an uncontested dissolution. Present with the trial court were Jaymalea and her attorney; Carlyle had not yet arrived.
Jaymalea's attorney told the trial court that the previous day, his legal secretary had received a telephone call from Doug Owens, an Anacortes attorney preparing to appear on Carlyle's behalf. The legal secretary had conversed with Owens as follows:
She advised him that it wasn't a hearing, that it was a trial that was set, and he didn't seem as interested once he found out it was actually a trial, not just a hearing. He hadn't faxed us anything, and I checked with my secretary again this morning just before I got to the courthouse. I called her on the cell phone, and she indicated we hadn't gotten any written materials, any Notice of Appearance or anything else, so I don't know who Mr. Owens is. He said he was an attorney from Anacortes and that's all the information I can provide the court.
Report of Proceedings (RP) (12/2/03) at 3. The trial court confirmed that Owens had not filed a notice of appearance on Carlyle's behalf as of December 2.
The trial court proceeded with Jaymalea's formal offer of proof. During Jaymalea's testimony, at about 9:00 a.m., Carlyle entered the courtroom. He told the court that (1) he had a new attorney, (2) the docket sheet showed that the matter was scheduled for 9:30 a.m., (3) he did not know if his new attorney had filed a notice of appearance, (4) he had not talked with Jaymalea or her attorney about the parenting plan and child support schedule, and (5) he had not seen Jaymalea's proposed final papers.
The trial court responded:
Well, Mr. Smith [Jaymalea's attorney], I think we're going to need to give them an opportunity to participate in the hearing and trial. It appears this is going to be a contested trial at this point.
RP (12/2/03) at 8. After a recess, the court explained:
[W]e have interrupted testimony of Mrs. Gooch understanding now that this is going to be a contested trial.
There are a couple of things that I want to make a record of. One is that our staff sends out what we call a civil readiness checklist, and one went to Mr. Gooch and one went to Mr. Smith. We have received Mr. Smith's. Having not received one from you, Mr. Gooch, we believed and from the record that Mr. Smith made this morning, I believed that the respondents believed that this wasn't going to be contested, which is why we set this for what we call a formal proof at 8:30 this morning on the docket. We have a criminal case going forward otherwise.
I understand from Ms. Meade that Mr. Owens called yesterday indicating something about a continuance, and we're not granting a continuance. This needs to go forward and be resolved today. Both sides have an obligation to complete those forms, whether represented by counsel or not, and what we're going to do since the case was assigned to this department, we're going to send it to administration.
When it goes to administration, you have several options. One is that you can agree on a pro tem judge to hear this case today; two, the Administrative Offices of the Court can try to get your case in front of another judge today which may be difficult; I'm not sure, but it seems like the departments are pretty busy. And a third option is what we call trailing, which means you wait until we finish the criminal trial, but if you're trailing, it means that you and Mr. Owens, who I understand lives in Anacortes, is going to have to be on call and ready to go any time in the next three days, and I don't know if that's going to be amenable to you or not. I'll hear from either side at this time regarding how to move forward on this case.
RP (12/2/03) at 9-10.
Jaymalea opposed the trial court's proposed options. She contended that Carlyle's failure to comply with the local rules, failure to prepare and to present required information, and blindsiding her on the morning of trial were unfair to her and the children. She asked the trial court instead to continue her formal proof and to allow Carlyle to present any contested issues in a motion for reconsideration following entry of the final orders. The trial court accepted this suggestion and continued Jaymalea's testimony.
The trial court then discussed the proposed child support and visitation orders, then recessed before ruling. When court reconvened, Carlyle's new attorney, Owens, was present. Owens explained to the court that he (1) was representing Carlyle and was going to file a notice of appearance, (2) had just arrived for the 9:30 hearing, (3) had not seen the GAL report, (4) had not reviewed the file, and (5) wanted a continuance so he could review the file and do whatever he deemed necessary.
The trial court refused to grant a continuance but proposed an alternative:
What I'm going to do is I'm going to enter the final papers today. This doesn't preclude you from reviewing the papers, getting up to speed, and if necessary, bringing a motion for reconsideration. I think that that is the most reasonable way to proceed. It gives you a chance to get up to speed. There are a number of things in this case which you might want to study and look over more closely, and at the same time, we don't punish her; we don't punish the kids, and the Court keeps moving, because I mean, there's really no other way to do it.
RP (12/2/03) at 22-23. Owens did not further object.
At oral argument before this court, Owens explained that he saw no need to object because the trial court had already decided how it was going to proceed. Further, he had already requested and had been denied a continuance.
II. Motion for Reconsideration, New Trial
On December 9, 2003, Carlyle filed a motion for reconsideration and/or a new trial. He argued that (1) because his original attorney had withdrawn from representation and provided the court with an incorrect address, he had never received notice of his pre-trial obligations; (2) the trial court erred in fashioning a visitation schedule based on errors in the GAL report; (3) the trial court incorrectly imputed income to him based on Jaymalea's representations even though she knew he was unemployed; (4) the trial court improperly compounded his financial difficulties by requiring him to pay $500 per month spousal maintenance; and (5) the parenting plan, which allowed him only four hours of supervised time with his children per week, was unnecessarily punitive.
He told the court that, at the time of trial, he was working in a warehouse earning $10 per hour.
The trial court decided to reconsider the visitation schedule but not its other orders, reasoning:
Well, here's the problem, Mr. Owen[s], notwithstanding the $40,000 in legal fees accrued by the petitioner, we have no financial source documents to make decisions on. Apparently, we don't have a good address at this point. We know very little. I'm not sure what all that — all those resources went to or how this Court is expected to make a decision on support, on maintenance, without that information. I mean, we just don't have it. I'm going to do this. I am going to — a couple of things. I will reconsider the issue of visitation, and I'm going to reconsider that issue in part based on the indication in the record that Mr. Gooch has been involved in drug court for some time and because the restrictions on visitation are predicated in part on his history of substance abuse and danger to the child.
The second reason I'm going to open up this issue of visitation, Ms. Gooch, is because this Court has to consider the best interests of the children, and I think it's worth taking another look at it. Limiting a parent to four hours a week is a pretty severe limitation and that may or may not be appropriate in this case given the changed circumstances, but given the tender age, the young age of the children — I think Carson is just one, I'm not sure, and Alexia is [four].
. . . .
I think it's worth looking at since there are long-term psychological impacts on the kids regarding their relationship with their father, so for those reasons, I will reconsider visitation.
I'm not reconsidering support. I'm not reconsidering maintenance or anything else at this time. There is a caveat. Mr. Gooch needs to promptly, before any hearing is held, pay the attorney's fees owed to the respondent's counsel pursuant to earlier order of the Court.
. . . .
I'm going to order you to pay $700 in fees for this hearing today. I have not heard a good reason for the delay of petitioner and responding and being prepared to go to trial. But again, I think that the best interests of the children [are] something that notwithstanding procedural and other problems [are] worth looking at again.
Another hearing was scheduled for March 26, 2004, but the record before us on appeal does not show whether it took place.
Carlyle appeals.
ANALYSIS I. Continuance
Carlyle first argues that the trial court violated his due process right to be heard at a meaningful time and in a meaningful manner by (1) denying him a continuance, and (2) starting the trial in his absence at 8:45 a.m., instead of 9:30 a.m., as originally scheduled.
Carlyle Gooch cites Rabon v. City of Seattle, 107 Wn. App. 734, 743, 34 P.3d 821 (2001) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)); and Cuddy v. Dep't of Pub. Assistance, 74 Wn.2d 17, 19, 442 P.2d 617 (1968):
The constitutional elements of procedural due process, and thus of a fair hearing, are: notice; an opportunity to be heard or defend before a competent tribunal in an orderly proceeding adapted to the nature of the case; an opportunity to know the claims of opposing parties and to meet them; and a reasonable time for preparation of one's case. In re Messmer['s Welfare], 52 Wn.2d 510, 326 P.2d 1004 (1958).
Because Carlyle had failed to file the necessary pretrial pleadings, it initially appeared to Jaymalea and the trial court that Carlyle was not going to contest the dissolution proceedings, which he had initiated. Nonetheless, once Carlyle appeared and made it known that he was contesting certain dissolution-related issues, the trial court properly acknowledged the need to schedule the matter for trial.
But when Jaymalea objected and proposed the alternative of allowing Carlyle to seek reconsideration after entry of the final decree, the trial court adopted her proposal. Although Carlyle did not specifically object to this procedure, we note that (1) his new attorney had just requested a continuance to allow him time to prepare; (2) the trial court had just denied a continuance, departed from its previous plan to schedule a trial, and had adopted Jaymalea's request to proceed; and (3) the circumstances merit judicial review.
The record does not show that Carlyle had formal notice of the hearing or received the court's pretrial forms. Even though Carlyle obviously knew about the hearing scheduled for 9:30 a.m., nothing in the record shows (1) how the hearing came to be rescheduled to begin at 8:45 a.m.; and (2) that Carlyle knew that the hearing had been rescheduled to an earlier time or that the trial court was considering the dissolution issues as uncontested.
On the contrary, the record shows that Carlyle learned of the change in start time only after arriving a half-hour early for the 9:30 hearing and discovering the hearing had started without him, with Jaymalea testifying. When Carlyle tried to question Jaymalea, the trial court told him he could not. Further, both the trial court and Jaymalea's counsel knew that Carlyle had contacted Owens and both the court and Jaymalea's counsel's office had told Owens that the matter was scheduled for 9:30.
Moreover, the record before us does not adequately explain why this matter was rescheduled without informing Carlyle or his new counsel. Further, we know of no authority to support the trial court's acceptance of Jaymalea's suggestion that it enter a final decree, without first hearing from Carlyle, and postpone considering Carlyle's challenge until after entry of judgment and then considering Carlyle's objections in a motion for reconsideration.
Compounding its earlier preclusion of Carlyle's input, at the post-judgment hearing on Carlyle's motion for reconsideration, the trial court refused to reconsider its child support and maintenance orders because Carlyle had provided no financial information to support reconsideration. The record before us does not explain why Carlyle failed to provide the necessary financial documents before the hearing on the motion for reconsideration. Nonetheless, the trial court's failure to allow him a contested hearing, rescheduling the hearing without notice, and then requiring him to file an after-the-fact motion for reconsideration denied him a meaningful opportunity to participate. Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (citing history of cases and concluding that 'the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.'); McDaniels v. Carlson, 108 Wn.2d 299, 311, 738 P.2d 254 (1987) (rights of the child, parent, and state); In re Marriage of Ebbighausen, 42 Wn. App. 99, 102, 708 P.2d 1220 (1985) (a father's due process rights were violated when the court resolved a joint custody issue in chambers and failed to hear testimony concerning the merits of both parties' custody request).
Carlyle did not waive any due process claims by failing to raise them below. RAP 2.5(a). As such, this matter must be remanded for a contested hearing.
II. Visitation and Attorney Fees Below
Carlyle next argues that the trial court erred by requiring him to pay Jaymalea's attorney fees as a precondition to reconsidering its visitation order. We need not address this claim because we remand to the trial court for a contested hearing; thus, any precondition to a hearing is moot.
III. Attorney Fees on Appeal
Jaymalea also requests attorney fees for responding to Carlyle's appeal. She is not the prevailing party, and we deny her request.
Reversed and remanded for a hearing.
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.
QUINN-BRINTNALL, C.J. and VAN DEREN, J., concur.