Opinion
No. 33127-6-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 03-3-01573-4, Christine A. Pomeroy, J., entered March 18, 2005.
Counsel for Appellant(s), Robert Martin Hill, Morgan Hill PC, Olympia, WA.
Counsel for Respondent(s), Lloyd D. Rawlinson (Appearing Pro Se), Rochester, WA.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
Victoria Rawlinson appeals a trial court decision designating her ex-husband, Lloyd Rawlinson, as the primary residential parent of their daughter, VR. Victoria claims that the trial court abused its discretion in denying her motion for a continuance before trial, and that the trial court erred in not entering explicit findings on the statutory factors it must consider in making parenting determinations. We affirm the trial court's decision not to grant a continuance but remand for further findings on some of the statutory factors.
We use first names to avoid confusion. We intend no disrespect.
FACTS I. Background
The Rawlinsons were married in September 1995. Victoria already had two children from a previous marriage: her son, BR, and her daughter, AF. At the time of the Rawlinsons' dissolution in March 2005, BR was 17 years old, AF was 15 years old, and VR was 8 years old.
In July 2004, the trial court appointed Lorraine Ely-Morrison as guardian ad litem (GAL) to conduct an investigation and make recommendations to the court concerning which residential placement would serve VR's best interests. The GAL's investigation was delayed for various reasons, and she did not file the final report until February 18, 2005. Trial was set for the week of February 28. The report detailed the GAL's difficulties in contacting Victoria to do a home visit, intimating that Victoria was irresponsible.
In her report, Ely-Morrison was highly complimentary of Lloyd, speaking well of him personally and detailing his concern for VR's well-being. Ely-Morrison did note that VR was attached to both parents equally, but she asserted that this closeness was more evident with Lloyd. Ely-Morrison was not nearly so complimentary of Victoria, and the report included numerous insults and back-handed compliments of her employment prospects and mothering skills. She asserted in the report that Victoria would have a difficult time finding a job and regularizing her routine for VR.
The report also detailed VR's recent deterioration in school attendance and performance, noting one instance in which VR was so tired that she was sent to the nurse's office to sleep until her babysitter could pick her up.
The GAL found that Lloyd was providing a stable, predictable, consistent environment that would best foster VR's mental health and social skills, and ultimately recommended primary residential placement with Lloyd, though VR had been living with Victoria up to this point.
Four days before trial, Victoria moved for a continuance, claiming that she needed more time to hire an attorney and more time to prepare because the GAL report contained "tremendous amounts of misinformation." Report of Proceedings (RP) (02/25/05) at 3-4. The trial court denied the continuance, saying that Victoria could point out the report's discrepancies at trial.
II. Trial
At the bench trial, both parties appeared pro se. Victoria demonstrated that the GAL's report contained various technical errors. Victoria also demonstrated that VR had been with Lloyd the night before the incident when she was so tired that she had to go to the nurse's office. She presented evidence that the number of tardies was exaggerated because if a child is late one morning and misses three class periods, the school counts that as three tardies instead of one. Lloyd demonstrated that only two of the tardies were times when VR came from his house.
In attacking the GAL's report, Victoria demonstrated that she returned each of the GAL's phone calls within two days. The GAL admitted that she came to Victoria's house twice without first confirming that Victoria would be there (on one instance, Victoria was not home). The GAL acknowledged that, despite what the report said, it was not entirely Victoria's fault that she failed to do a home visit sooner. Finally, Victoria presented evidence that the GAL did not conduct thorough interviews with the people she provided as references.
Victoria's daughter, AF, testified at trial that Lloyd was physically abusive. She described numerous incidents when he hit her, starting when she was about seven until shortly before he moved out of the family home. She testified that he beat her brother and VR as well.
Lloyd acknowledged that a few of the instances of abuse that AF described took place, but he denied the majority of them. The GAL testified that Victoria never told her about Lloyd's physical abuse during their phone interview or during the home visit.
The trial court ultimately awarded Lloyd primary residential custody. In its oral ruling, the court stated:
I find both of you to be loving and caring parents. You have different parenting styles, but that doesn't make you any less appropriate of a parent.
It does concern me that there are nine to ten absences. Although it doesn't rise to the Becca Bill, the absences and tardies do give me some concern. But that in and of itself is not enough for a parenting issue.
I am going to go with the recommendation of the GAL; that the primary residential parent be the father. I believe that the stability in getting the child to the educational institution is of such concern to the Court that I believe that she should remain there for the best possible educational stability that can be given to V.R. at this time.
I will award the [mother], then, weekend visitation and substantial visitation, and it will be the first, third, and fourth weekends.
3 RP (Mar. 3, 2005) at 4-5.
The court ordered Lloyd to get an anger management assessment, to receive treatment if recommended, and to attend parenting classes.
The court entered written findings of fact and conclusions of law that incorporated by reference the court's parenting plan. The parenting plan detailed when VR would be with each parent but did not include any specific factual findings.
ANALYSIS I. Denial of a Continuance
Victoria claims that the trial court abused its discretion in denying her motion to continue the trial. She argues that her request for a continuance was reasonable because her counsel had recently withdrawn for maternity leave and she needed time to save money to pay the large retainer her counsel was requesting before returning to her case. Victoria asserts that the continuance would not have caused undue delay or prejudice to anyone involved and that the outcome of trial would have differed because counsel would have been more effective in attacking the "omissions, discrepancies, and apparent biases" in the GAL report. Appellant's Br. at 11.
Generally, granting a motion to continue a trial, whether in a criminal or civil case, rests within the trial court's sound discretion, and we will not disturb that decision absent a showing that the trial court either failed to exercise its discretion or manifestly abused its discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re the Marriage of Combs, 105 Wn. App. 168, 173, 19 P.3d 469 (2001).
Here, the trial court did not abuse its discretion in denying the continuance. At the time of its decision, the case had been pending for over a year. Both parties had ample time to retain counsel but had failed to do so. The parties and the child required finality on the issue. Also, most of Victoria's arguments at the hearing were regarding the GAL's report, not the timing of trial. The court's decision did not prevent Victoria from attacking the GAL report at trial. In fact, the court explicitly informed her that she could attack the report at trial. The court's ruling was reasonable and therefore not an abuse of discretion.
II. Parenting Plan
Victoria next claims that the trial court abused its discretion in awarding Lloyd primary custody because it failed to consider the statutory factors listed in RCW 26.09.187(3)(a) or make the findings required by CR 52(a)(2)(B). She argues that the transcript of the trial court's oral decision does not show the basis for its decision but instead gives only generalized statements. She asserts that an objective analysis of the statutory factors supports residential placement with her. She asks us to remand for a new trial in which new evidence may be heard or to remand for specific findings as to each statutory factor.
Washington Court Rules require "findings and conclusions . . . [i]n connection with all final decisions in adoption, custody, and divorce proceedings, whether heard ex parte or not. In all cases in which the court makes specific findings of physical or sexual abuse or exploitation of a child the court shall direct the court clerk to notify the state patrol of the findings pursuant to RCW 43.43.840." CR 52(a)(2)(B).
Appellate courts generally are reluctant to disturb a child custody disposition because of the trial court's unique opportunity to personally observe the parties. In re the Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981). We review a trial court's ruling dealing with the placement of children for abuse of discretion. In re the Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993).
A trial court must make findings of fact and conclusions of law sufficient to suggest the factual basis for its ultimate conclusions. CR 52(a); In re the Marriage of Lawrence, 105 Wn. App. 683, 686, 20 P.3d 972 (2001). When ordering a parenting plan, the trial court must consider the factors listed in RCW 26.09.187. In re the Marriage of Littlefield, 133 Wn.2d 39, 51-52, 940 P.2d 1362 (1997), superseded by statute on other grounds, RCW 26.09.405 et seq., as recognized in In re the Marriage of Grigsby, 112 Wn. App. 1, 6-7, 57 P.3d 1166 (2002). That statute states:
The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances. The child's residential schedule shall be consistent with RCW 26.09.191. Where the limitations of RCW 26.09.191 are not dispositive of the child's residential schedule, the court shall consider the following factors:
(i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
If written findings of fact do not demonstrate that the trial court has considered the statutory factors, we can look to the trial court's oral opinion or to statements in the record. Lawrence, 105 Wn. App. at 686; Murray, 28 Wn. App. at 189.
Littlefield and Murray addressed the former parenting plan statute, RCW 26.09.190.
Specific findings are not required on each statutory factor when evidence of those factors is before the court and its oral opinion and written findings reflect consideration of those statutory factors. Murray, 28 Wn. App. at 189; see In re the Marriage of Horner, 151 Wn.2d 884, 896, 93 P.3d 124 (2004) (addressing the factors required in the child relocation statute).
A. Evidence Presented on Statutory Factors
In this case, the trial court did not make specific findings on any of the statutory factors; however, evidence was presented at trial addressing each them.
1. The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child
In this case, the court had evidence that VR had a good relationship with both her parents. Victoria was not employed outside of the home for most of the time that VR was growing up, except that she had a temporary job several months before trial. VR lived with Victoria her entire life, including during a year and a half period when VR was about two and the Rawlinsons separated.
The GAL noted VR's attachment to both parents, remarking that VR was sympathetic to her mother when she was with her and sympathetic to her father when she was with him. She also noted in her report that VR was equally attached to both her parents. Both parents claimed to offer VR a stable and loving home.
Lloyd testified that VR is better off with him because he can focus all his energy on her without having other kids to tend to. The GAL's report said that VR reported liking it better at her dad's because she had better meals where they sat down together; she had a regular routine; she got help with homework; and they would read, play cards, and play games together.
2. The agreements of the parties, provided they were entered into knowingly and voluntarily
The court understood that there was no agreement on this issue. The parties fundamentally disagreed on who should have primary custody of VR.
3. Each parent's past and potential for future performance of parenting functions
The court had ample testimony from which to evaluate each parent's past performance and potential to perform parenting functions in the future. Two of Victoria's friends testified that she was a good, involved parent who enjoyed organizing activities for her children. These same friends acknowledged that they had not been around Lloyd enough to see his parenting, but did not have any reason for concern.
Victoria's daughter AF testified about several incidents in which Lloyd hit her, her brother, and VR. The GAL testified that Victoria reported on her questionnaire that Lloyd disciplined the children by spanking or slapping them. However, the GAL was shocked to hear AF's testimony about many instances of alleged abuse. The GAL had learned from VR's therapist about Lloyd slapping AF but believed that this was a one-time occurrence.
Victoria claimed to have seen Lloyd beat the children many times. She stated that there was only one time when there were bruises but that Lloyd would hit the kids with objects. Victoria claimed that she tried to make Lloyd stop but that he would not listen to her.
The court also heard testimony that Lloyd was not very involved as a parent and would not attend the children's games and activities very often. Victoria and AF claimed that he would become angry, withdraw, and refuse to communicate. Lloyd denied withdrawing as punishment but admitted that sometimes he withdrew rather than get involved.
In his narrative testimony, Lloyd disparaged Victoria's parenting style, claiming that she was "often explosive, screaming and yelling at [VR]," but that she would later recant on discipline and not follow through. 2 RP (Mar. 3, 2005) at 298. He also accused her of failing to enforce consistent rules and of staying in her bedroom and failing to monitor the children's behavior.
The GAL testified that although Victoria had been diagnosed with bipolar disorder, she appeared to be fully functioning and to have her symptoms under control. The GAL believed that Victoria was a good parent; however, she recommended that Lloyd be given primary custody because he was more stable.
4. The emotional needs and developmental level of the child
The GAL testified that both parents had done a good job keeping VR insulated from the custody battle but that the recommendation that VR move in with Lloyd had caused some upheaval.
The GAL also testified at trial that VR was starting to be indifferent towards school and that the quality of her schoolwork had been declining this year. Lloyd asked the GAL whether VR exhibited some behaviors similar to Victoria, and the GAL answered:
I think they're starting to show, yes. And that was actually my — one of my very great concerns. The indifference, the sort of disregard for timeliness, that sort of stuff. . . . I think there are not sufficient controls being put around her to get her to school on time, to be alert and interested in school, and to focus in that setting.
1 RP (Mar. 1, 2005) at 133-34.
5. The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activitiesThe court heard testimony from AF that she and VR have a close relationship. It also heard Lloyd's concern that, because VR was a different age than her siblings, she was often told to "bug off" or "be quiet." 2 RP (Mar. 3, 2005) at 311. The family was active in their church, and VR participated in activities there. VR also attended regular counseling sessions.
6. The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential scheduleAs already noted, each of the parents wanted to be VR's primary residential parent. VR was equally attached to both her parents. The GAL stated that VR was sympathetic to her mother when she was with her and with her father when she was with him. Although the GAL's report noted that VR reported liking it better at her father's house, VR also reportedly called the GAL "a liar" when she heard the GAL's recommendation. CP 112; 2 RP (Mar. 3, 2005) at 284. There was no evidence in the record that VR was sufficiently mature to express a reasoned and independent preference.
7. Each parent's employment schedule
At the time of trial, Lloyd worked full time at the Department of Fish and Wildlife, from 7:30 am until 4:30 pm. Except for a few months on assignment through Manpower Temporary Services, Victoria did not work outside the home. On Wednesdays when VR spent the evening with Lloyd, she would go to a babysitter after school until Lloyd came home from work.
B. Oral Ruling Reflects Consideration of Only Some Statutory Factors
The trial court's oral ruling reflects consideration of most, but not all, of the statutory factors. It found both Lloyd and Victoria to be loving and caring parents and noted that although they had different parenting styles, this did not make either less appropriate as a parent.
In following the GAL's recommendation and awarding Lloyd most of the residential time, the trial court stated that VR's educational stability was the deciding factor. The court ordered Lloyd to pick VR up on Sunday evenings after her weekend visits with Victoria to better insure that VR arrived at school on time on Mondays. The court awarded Victoria only "substantial visitation." 3 RP (Mar. 3, 2005) at 5. The specific evidence we identified above supporting the first, third, and fourth factors supports this determination.
In requiring Lloyd to get an anger management assessment and to attend parenting classes, the trial court demonstrated that it considered the testimony supporting factor three. Although it apparently did not find that the abuse allegations disqualified Lloyd as a residential parent, the ruling does reflect that the court considered that testimony.
In addition to weekends and certain holidays, the trial court awarded Victoria residential time from after school until 7:00 p.m. one night per week. On the other days, the court instructed Lloyd not to presume that Victoria will baby sit VR without making prior arrangements with her first. This demonstrates some consideration of the last factor, the parents' schedules.
The foregoing discussion illustrates that the trial court was well aware of the statutory factors and worked carefully to apply them to the facts. However, the record does not reflect the court's consideration of the evidence presented for the second, fifth, and sixth statutory factors involving the child's relationships, the child's wishes, and the parents' wishes and agreements. The record must not only reflect evidence on each of the statutory factors but also the court's consideration of this evidence. Horner, 151 Wn.2d at 896. We therefore must remand this case to the trial court for entry of findings on these factors.
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.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.