From Casetext: Smarter Legal Research

In re McClinton

The Court of Appeals of Washington, Division One
Oct 22, 2007
141 Wn. App. 1012 (Wash. Ct. App. 2007)

Opinion

No. 59364-1-I.

October 22, 2007.

Appeal from a judgment of the Superior Court for King County, No. 97-5-02181-3, James A. Doerty, J., entered December 5, 2006.


Affirmed by unpublished opinion per Cox, J., concurred in by Coleman and Becker, JJ.


Gerald L. McClinton appeals the trial court's determination that Gretchen M. Marx, the mother of their child, was not in contempt of the provisions of the parenting plan previously ordered by a Washington court. He also contests the trial court's decision to defer to the Pennsylvania court's pending termination proceedings involving their child, which was based on the conclusion that the state of Washington is an inconvenient forum. Because the trial court did not abuse its discretion in either respect, and its finding that Marx did not violate the parenting plan is supported by substantial evidence in the record, we affirm.

Gerald McClinton and Gretchen Marx had a child, A.E.M., in 1996. They were never married to each other.

In 1997, McClinton commenced an action in Washington to establish parentage. After Marx and A.E.M. moved to Pennsylvania, the parties agreed on a parenting plan, which the court approved. The plan gave Marx primary residential time with A.E.M. The plan also allowed McClinton a phased-in residential schedule, giving him a certain number and type of visits with A.E.M. during each phase. Before continuing to the next phase, such as overnight visits, the plan required McClinton to complete a certain number of visits from the prior phase, as well as anger management and parenting classes.

Pursuant to the plan, McClinton completed two 10-day daytime visits with A.E.M. in Pennsylvania in 1997-1998. After that time, he had no personal contact with A.E.M. The parties dispute what attempts he has made since 1998 to contact A.E.M. and whether Marx has hindered those efforts.

In 2006, the parties were involved in legal proceedings over A.E.M. in both Pennsylvania and Washington. That year, Marx responded to McClinton's recent efforts to schedule a visit with A.E.M. by moving to terminate McClinton's parental rights in Pennsylvania state court. That same proceeding apparently also involves potential adoption of A.E.M. by Marx's present husband. The court appointed a guardian ad litem, who met with A.E.M. Thereafter, the Pennsylvania court stayed the parental rights hearing to resolve preliminary objections filed by McClinton. Upon notice to the Pennsylvania court that related issues were also pending in Washington, the Pennsylvania court stayed all proceedings until Washington resolved the jurisdictional issue.

Just after proceedings began in Pennsylvania, McClinton moved for an order of contempt in Washington based on Marx's alleged violations of the parenting plan. Marx filed a response and also moved for an order in Washington asking the court to defer to Pennsylvania's jurisdiction over the termination proceedings.

The trial court denied McClinton's motion for contempt and granted Marx's motion to defer to Pennsylvania's jurisdiction. McClinton moved for reconsideration, which the trial court denied.

McClinton appeals.

CONTEMPT

McClinton argues that the trial court abused its discretion in not finding Marx in contempt for violating the parenting plan. He also claims the court improperly denied him oral argument on the matter, but fails to identify in his briefing any prejudice. We disagree with both of his contentions.

Oral Argument

Citing King County Local Family Law Rules (KCLFLR) 5(b) and 6(f)(1), McClinton maintains that he was denied a right to oral argument on the family law motions calendar. But McClinton's motion for contempt was not heard on the family law motions calendar. Thus, the rules he cites do not govern the issue. Rather, the motion for contempt was consolidated with the inconvenient forum motion and assigned to a judge. That judge advised the parties that the motions would be heard without oral argument. Nothing in the record shows any objection to that procedure for hearing the motion.

Clerk's Papers at 190.

Clerk's Papers at 198.

Moreover, we conclude that it was entirely within the discretion of the judge hearing the motion to determine whether he wished to hear oral argument on the contempt motion. We note that nowhere in either the opening or the reply brief does McClinton identify any prejudice to his case by the court's action in declining to entertain oral argument on the contempt motion. We see nothing in this record to lead us to conclude that this judge abused his discretion by denying oral argument in this case.

Contempt

McClinton argues that the trial court abused its discretion by denying his contempt motion based on the allegation that Marx intentionally violated the parenting plan. We disagree.

According to statute, a parent's attempt to either refuse to perform a duty under a parenting plan or hinder the other parent from performing under the plan "shall be deemed bad faith and shall be punished by the court by holding the party in contempt of court. . . ." In a contempt case such as this, in which the trial court was required to balance competing documentary evidence, resolve conflicts, weigh credibility, and ultimately make a finding regarding bad faith, we review the trial court's findings of fact to determine whether they were supported by substantial evidence in the record, and whether they in turn support the conclusions of law. Substantial evidence is that which is sufficient to convince a fair minded person of the truth of the matter asserted. We do not review credibility determinations on appeal. We will not overturn a contempt order absent an abuse of discretion.

In re Marriage of Rideout, 150 Wn.2d 337, 350-51, 77 P.3d 1174 (2003).

Bunch v. King County Dep't of Youth Servs., 155 Wn.2d 165, 179-80, 116 P.3d 381 (2005).

See Rideout, 150 Wn.2d at 352.

In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995).

McClinton urges this court to employ a de novo standard of review. Citing In re Marriage of Hunter, he claims that a de novo standard is appropriate when the trial court did not hear testimony, but only reviewed affidavits. But he acknowledges that this ruling has been questioned by later courts in favor of a substantial evidence standard. We thus review the trial court's findings of fact under the substantial evidence standard, properly deferring to the trial court's weighing of conflicting evidence and credibility determinations.

E.g., In re Marriage of Stern, 68 Wn. App. 922, 928-29, 846 P.2d 1387 (1993).

The trial court's finding that Marx did not intentionally violate the parenting plan is supported by substantial evidence in the record. Although these facts were disputed, evidence in the record supports the view that Marx did not hinder McClinton's efforts to visit A.E.M. pursuant to the parenting plan. According to her declaration, Marx allowed McClinton two 10-day visits in 1998, but McClinton failed to seek contact with A.E.M. after that until 2006, except for one mailed package and letter. Marx stated that she attempted to contact McClinton and provide him with updated contact information each time she and A.E.M. moved, but that McClinton never provided her with sufficient contact information to inform him of these changes. Letters she sent were returned, and she was never given his current phone number. The record supports that she has had the same post office box number since the parenting plan was signed in 1998. Although Marx did not have a phone number for McClinton, evidence supports that at least since 2004 he had her Pennsylvania phone number, which has been the same for several years.

McClinton also faults Marx's refusal to allow him visitation during July through September 2006. But it was during this period that Marx moved for relief in the Washington and Pennsylvania courts. The motions included requests to terminate McClinton's parental rights, stay visitation pending determinations in court proceedings, and for Washington to defer to Pennsylvania's jurisdiction. Legitimately pursuing legal action to resolve issues regarding the parenting plan by requesting a stay of visitation pending judicial determinations is not a violation of the terms of that plan.

Although McClinton denies some of these facts, the trial court was entitled to find Marx's version of the facts to be more credible than McClinton's. Therefore, its finding that she did not intentionally violate the parenting plan is supported by the evidence in the record, and the trial court did not abuse its discretion in declining to find her in contempt.

INCONVENIENT FORUM

McClinton challenges the trial court's decision to defer to Pennsylvania as a more appropriate forum for the termination of parental rights on two bases. He claims the court improperly failed to enter findings and conclusions to support its decision. He also claims the court's substantive decision is wrong. We reject both claims.

Findings and Conclusions

Preliminarily, McClinton argues that reversal is required because the trial court did not enter written findings of fact and conclusions of law. Because he fails to cite any pertinent authority to support this claim and the record is sufficient for our review, we hold there was no error in this respect.

In re Marriage of Greenlaw contradicts McClinton's argument. There, the supreme court reviewed the trial court's order denying the motion to decline jurisdiction despite the lack of written findings and conclusions by the trial court. The supreme court reasoned that the trial court did not abuse its discretion because the record supported both outcomes.

Id. at 596 n. 2.

Id. at 609.

The lack of findings likewise does not prevent meaningful appellate review in this case. On this record, it appears that the court correctly applied the statutory factors to which it referred in its order denying reconsideration. Marx presented substantial evidence on each applicable factor. There was no abuse of discretion in not entering written findings.

Cf. In re Marriage of Horner, 151 Wn.2d 884, 896, 93 P.3d 124 (2004) (Written findings on each child relocation factor in RCW 26.09.520 are not required if substantial evidence is presented on each factor and it is clear from the record that the trial court considered each factor.).

Trial Court's Jurisdiction Determination

McClinton argues that the trial court abused its discretion in declining to exercise its jurisdiction. We disagree.

The parties agree that the trial court had continuing jurisdiction over this matter until it properly relinquished jurisdiction under RCW 26.27.261. That statute allows a trial court to decline to exercise its jurisdiction over a child custody case "if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." The court shall consider all of the relevant factors, including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside [the] state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

We review a decision to decline jurisdiction under this statute for an abuse of discretion.

In re Custody of A.C., 137 Wn. App. 245, 256, 153 P.3d 203 (2007).

Here, the trial court did not abuse its discretion because evidence of each applicable factor supports the decision that Pennsylvania is a more convenient forum. The first factor is not applicable because there is no evidence of a history of domestic violence in this case. Although Marx alleges that the anger classes required in the parenting plan suggest such a history, there is no evidence in the record relating to abuse. Second, A.E.M. has lived outside of Washington since 1997 and has lived in Pennsylvania consistently since October 2002. Third, the great distance between Washington and Pennsylvania would make litigation in Washington difficult for Marx and A.E.M.

Fourth, Marx has submitted documentation that her finances are insufficient to sustain a lawsuit in Washington. She has six children living at home, and a monthly family income of approximately $1,500.00. In contrast, court documents support that McClinton was one of several heirs to his parent's estate of more than $1,000,000.00. Although he denies the evidence regarding both his and Marx's financial status, he provided no evidence to the trial court regarding either party's finances.

The fifth factor requires the court to consider any agreement of the parties regarding jurisdiction. Although the parenting plan provides that conflicts will be resolved "on the Family Law Motions Calendar," another provision of the plan states that issues will be resolved on that calendar "or its equivalent in the jurisdiction then handling the case." There is no explicit agreement in the parenting plan that Washington is the more convenient jurisdiction.

Regarding the sixth factor, most of the evidence and witnesses, including A.E.M., Marx, A.E.M.'s school teachers and/or counselors, the guardian ad litem, and the records from the Pennsylvania court proceedings, are located in Pennsylvania. The records from the Washington court proceedings and McClinton are located in Washington.

Seventh, Pennsylvania is probably more likely to decide the ultimate issue of McClinton's parental rights more expeditiously. That proceeding has already begun in Pennsylvania, and a guardian ad litem has been appointed and has met with A.E.M. Finally, the courts in both states are somewhat familiar with the issues in this case, but the petition to terminate McClinton's parental rights has already been partially litigated in Pennsylvania. The petition and preliminary objections thereto have been filed, a guardian ad litem appointed, and visitation stayed on an interim basis pending resolution of the other matters.

Considering all of these factors, the trial court did not abuse its discretion in concluding that Pennsylvania is a more convenient forum. Although the court did not specifically state that Washington is an inconvenient forum, that is implicit in its decision to defer to Pennsylvania's court.

Finally, McClinton argues that the Pennsylvania trial court did not have jurisdiction to enter any orders while Washington had continuing jurisdiction over the matter. This argument is unpersuasive. Washington properly declined jurisdiction under governing statutes in this state. We need not address whether the court in Pennsylvania had the power to enter orders in its jurisdiction.

ATTORNEY FEES

McClinton and Marx both seek attorney fees on appeal. We award fees to Marx, and note that she has already filed the financial declaration required by RAP 18.1(c).

In Washington, a party may recover attorney fees only when they are authorized by a private agreement, statute, or recognized ground of equity.

Mellor v. Chamberlin, 100 Wn.2d 643, 649, 673 P.2d 610 (1983).

McClinton seeks attorney fees under RCW 26.09.160(1), which provides that a trial court shall award attorney fees and costs to the party successfully seeking an order of contempt. Because the trial court properly found that Marx was not in contempt, McClinton is not entitled to attorney fees.

Marx also seeks compensation for defending this appeal. RCW 26.09.140 and the Uniform Child Custody Jurisdiction Act support the award of fees and costs. Thus, we grant fees and costs to Marx.

We affirm the order of no contempt, the jurisdiction order, and the order on reconsideration.


Summaries of

In re McClinton

The Court of Appeals of Washington, Division One
Oct 22, 2007
141 Wn. App. 1012 (Wash. Ct. App. 2007)
Case details for

In re McClinton

Case Details

Full title:In the Matter of the Parentage of A.E.M., GERALD LEWIS MCCLINTON…

Court:The Court of Appeals of Washington, Division One

Date published: Oct 22, 2007

Citations

141 Wn. App. 1012 (Wash. Ct. App. 2007)
141 Wash. App. 1012