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In re of Katare

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1041 (Wash. Ct. App. 2007)

Opinion

No. 59061-8-I.

October 1, 2007.

Appeal from a judgment of the Superior Court for King County, No. 02-3-05316-9, Mary Roberts, J., entered November 18, 2005.


Affirmed in part and remanded by unpublished opinion per Schindler, A.C.J., concurred in by Baker and Ellington, JJ.


In In re the Marriage of Katare, 125 Wn. App. 813, 105 P.3d 44 (2004), rev. denied, 155 Wn.2d 1005 (2005) we held that RCW 26.09.191(3) gives the trial court the discretion to impose limitations in a parenting plan if the court expressly finds the parent's conduct is adverse to the best interests of the child and the limitations are reasonably calculated to address the identified harm. Brajesh Katare contends that on remand the trial court failed to comply with this court's mandate to enter findings that justify the passport and foreign travel restrictions in the parenting plan imposed under RCW 26.09.191(3). He also contends the trial court's decision to temporarily deviate from the child support obligation was an abuse of discretion. Because the trial court's findings in the parenting plan do not expressly address whether the parenting plan limitations are justified under RCW 26.09.191(3), we remand to the trial court. But based on the decision to award all of the air miles to Brajesh, the trial court did not abuse its discretion in temporarily deviating from the allocation in the child support order.

Lynette Katare argues that Brajesh's challenge to the passport and foreign travel restrictions in the parenting plan is barred by the law of the case doctrine. Roberson v. Perez, 156 Wn.2d 33, 42, 123 P.3d 844 (2005) ("once there is an appellate holding enunciating a principle of law, that holding will be followed in subsequent stages of the same litigation."). But here, the doctrine does not apply because we remanded. See RAP 2.5(c)(2); Fluke Capital Management Services Co. v. Richmond, 106 Wn.2d 614, 724 P.2d 356 (1986) (when an issue has not been decided by a prior appellate decision in the same case, the doctrine does not apply).

The facts in this case are fully set forth in In re Katare, 125 Wn. App. 813, and will be repeated only as necessary.

Brajesh was born and lived much of his life in India. His family still lives in India. Brajesh went to school in Florida and obtained a masters degree in 1989. Brajesh met and married Lynette while attending school in Florida. In 1999, Brajesh and Lynette moved to Washington to work for Microsoft. Brajesh and Lynette have two children, A.K., born May 27, 2000, and R.K., born September 20, 2001. In April 2002, Microsoft offered Brajesh a two-year position in India, which he accepted. Lynette did not want to leave the states and live in India.

We refer to Brajesh and Lynette Katare by their first names to ensure clarity.

Before separating in July 2002, Brajesh and Lynette often argued about moving to India. Lynette testified that Brajesh repeatedly threatened to take the children to India without her and was planning to do so. During discovery, Brajesh requested copies of the applications for the children's passports and India tourist visas and copies of the children's immunization records. Lynette also testified that she found an application for an India PIO card (similar to a United States "green card") on Brajesh's computer. Margo Waldroup, who prepared a parenting assessment and parenting plan recommendations report, testified that despite Brajesh's denial that he threatened to take the children to India, two witnesses heard him threaten Lynette on two separate occasions. The witnesses each said Brajesh threatened to take the children to India with or without her. While Waldroup believed that Brajesh "used threats of kidnapping the children or killing the family in an effort to force Lyn's agreement to move to India," because he denied making the threats, she concluded it was impossible to predict whether he would abduct the children.

No evaluation of this type can tell whether the father will abduct the children. I am not aware of any criteria that can predict if such would occur. The Katares' situation is somewhat unusual in that there is not only the allegation of abduction but corroboration of two witnesses hearing the threat that Brajesh would take the children to India 'with our [sic] without' their mother. As Brajesh denies these statements it is impossible to evaluate whether the statements were said in crisis to pressure the mother to move to India, rather than being his literal intent or whether Brajesh truly intended to remove the children from the country without the mother's consent. Because Brajesh is not willing to acknowledge his anger over the mother's lack of agreement to move, I cannot assess whether his anger has decreased over time and if he has gained any perspective on his actions of last summer. His assurances that he has surrendered his Indian passport and citizenship are of no comfort given that he can easily be reinstated as an Indian citizen and obtain a passport.

Waldroup told the court that because she was unable to predict the likelihood that Brajesh would abduct the children, the court had to decide whether the risk of abduction was significant enough to impose the restrictions she recommended.

At the conclusion of the trial, the court stated in its oral ruling that it was not persuaded that Brajesh posed a serious threat, but said "if I'm wrong on this the consequences are incredibly serious and I'm mindful about that." The court then said, "I'm going to impose some restrictions in the parenting plan that will be designed to address this issue. . . ."

In the parenting plan, the trial court expressly found that the provisions of RCW 26.09.191 did not apply, but nonetheless imposed limitations, apparently based on the risk of abduction.

2.20.1 India is not a signator to the Hague Convention on International Child Abduction.

2.20.2 Based on the evidence, including the testimony of expert witnesses, the husband appears to present no serious threat of abducting the children. Nonetheless, under the circumstances of this case, given the ages of the children, the parties' backgrounds, ties to their families and communities, and history of parenting, the consequences of such an abduction are so irreversible as to warrant limitations on the husband's residential time with the children, including: location of exercise of residential time, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children. The mother shall retain the children's passports.

On appeal, we held that a trial court has the authority under RCW 26.09.191(3) to impose limitations in a parenting plan if the court enters express findings to justify the limitations. Katare, 125 Wn. App. at 826. Because the trial court stated that Katare appeared to present no serious threat of abducting the children, yet imposed limitations to prevent abduction, we remanded to the trial court. "Whether the court found there was a risk of abduction that justified the imposition of limitations is at least ambiguous. Indeed, such a finding is implicit in the trial court's discussion of the risk of abduction, the findings it made, and the limitations imposed . . . Rather than speculate, we remand for the trial court to clarify the legal basis for its decision to impose restrictions to prevent Brajesh from taking the children to India and if appropriate to make the necessary findings." Katare, 125 Wn. App. at 831.

Under RCW 26.09.191(3):
A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist:

(a) A parent's neglect or substantial nonperformance of parenting functions;

(b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;

(c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;

(d) The absence or substantial impairment of emotional ties between the parent and the child;

(e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development;

(f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or

(g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

On remand, the trial court amended paragraph 2.2 of the parenting plan as follows:

OTHER FACTORS (RCW 26.09.191(3)). Based on the evidence, including the testimony of expert witnesses, the husband appears to present no serious threat of abducting the children. Nonetheless, under the circumstances of this case, given the ages of the children, the parties' backgrounds, ties to their families and communities, and history of parenting, and the fact that India is not a signator to the Hague Convention on International Child Abduction, the consequences of such an abduction are so irreversible as to warrant limitations on the husband's residential time with the children. The risk of abduction is a factor justifying limitations under RCW 26.09.191(3)(g).

By basically restating its earlier findings as the justification for imposing limitations on Brajesh's residential time with the children under RCW 26.09.191(3))(g), the trial court does not resolve the ambiguity and does not expressly address whether the evidence supports the limitations under RCW 26.09.191(3). The amended parenting plan still states that "the husband appears to present no serious threat of abducting the children," and again, without express findings to justify the limitations, the court imposed restrictions, apparently based on an implicit risk of abduction. In addition, the court also does not expressly address the best interests of the children. Because these findings do not comply with the mandate to explain the reasons for the limitations under RCW 26.09.191(3), we remand. In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007) (cursory findings of fact, even when supported by the record, are insufficient); In re Marriage of Horner, 151 Wn.2d 884, 896-897, 93 P.3d 124 (2004) (conclusory findings are insufficient because its basis is unclear and appellate courts cannot review the trial court's decision); In re Marriage of Kinnan, 131 Wn. App. 738, 129 P.3d 807 (2006) (trial court's failure to make findings that reflect the application of each relevant factor is error). Given the passage of time, the trial court should also examine current relevant information concerning any limitations under RCW 26.09.191(3).

We reject Brajesh's reliance on out-of-state statutes to argue that the trial court must find a "serious risk of abduction" before imposing limitations designed to prevent abduction as unpersuasive. RCW 26.09.191(3)(g) expressly gives the trial court discretion to examine whether the conduct of a parent is averse to the best interests of the child.

Brajesh also contends the trial court erred in deviating from the basic support obligation for long-distance travel expenses without a finding of financial need. In Katare, we recognized that "in some cases it may be appropriate to consider property distribution payments pursuant to a dissolution order, a resource to be taken into account when determining whether to deviate from a child support schedule. Katare, 125 Wn. App. at 835, citing In re Marriage of Stenshoel, 72 Wn. App. 800, 866 P.2d 635 (1993). But we remanded to the trial court "to clarify whether it intended to deviate in the child support order from the requirement that each parent pay a proportionate share of the travel expenses." Katare, 125 Wn. App. at 836.

On remand, the trial court amended the child support order to expressly state that the court was deviating from the child support allocation for long-distance travel expenses because all of the community air miles were awarded to Katare.

REASONS WHY REQUEST FOR DEVIATION WAS DENIED. A deviation was not requested, except with regard to the apportioning of the father's long-distance travel expenses, which is set forth in Paragraph 3.15.

Paragraph 3.15 read:

The court deviates from apportioning the father's long-distance travel expenses per the percentages at Line 6 of the worksheets in consideration of the award of all of the parties' 625,000 air miles solely to the father, which he may choose to use towards those long-distance travel expenses.

Because the trial court's findings on remand support the deviation, we conclude the trial court did not abuse its discretion in deviating from the basic support obligation for the long-distance travel expenses based on its award of all the community air miles to Brajesh in the dissolution decree.

While we affirm the trial court's decision regarding the long-distance travel expenses because the court did not comply with the mandate for the findings in the parenting plan under RCW 26.09.141(3), we remand to enter findings consistent with this opinion.

Because we conclude the trial court's findings do no sar upport the limitations under RCW 26.09.191(3) and remand for the trial court to enter the necessary findings and if appropriate, Brajesh's alternative constitutional challenge is premature. And because Brejesh's appeal is not frivolous, Lynette's request for attorney fees under RAP 18.9 is denied.


Summaries of

In re of Katare

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1041 (Wash. Ct. App. 2007)
Case details for

In re of Katare

Case Details

Full title:In the Matter of the Marriage of LYNETTE KATARE, Respondent, and BRAJESH…

Court:The Court of Appeals of Washington, Division One

Date published: Oct 1, 2007

Citations

140 Wn. App. 1041 (Wash. Ct. App. 2007)
140 Wash. App. 1041