Opinion
No. 57722-1-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-3-05238-0, Carol A. Schapira, J., entered January 9, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Schindler, A.C.J., and Agid, J.
At the trial of the dissolution action between Leah and Michael Stewin, there was testimony that Leah had physically assaulted Michael on more than one occasion. The trial court found that Leah had a history of domestic violence and restricted her time with the three Stewin children. We affirm, rejecting Leah's assertion that the court had to make findings as to what specific acts constituted the history of domestic violence.
Michael and Leah Stewin married in October 1993. They had three children. Frequent arguments brought an end to the marriage. Michael filed for dissolution in September 2004. Michael and Leah were unable to agree on a parenting plan or how the community assets should be divided. The case proceeded to a bench trial in November 2005. The trial lasted four days and included 20 witnesses.
Michael asked the court to restrict Leah's time with the children because Leah had a history of domestic violence. Michael testified that on separate occasions Leah had slapped him across the face, put her hands around his neck and threatened to strangle him, and stabbed a knife into the counter during an argument. Another witness testified that he saw Leah hit Michael one night on a camping trip, leaving Michael with a black eye and a scratched face the next morning.
The court checked a box on the parenting plan form indicating that Leah had a "history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm." As a result of this finding, the court ruled that Michael will be the primary residential parent. Leah will have a substantial amount of residential time on weeknights with the children during the school year, but in the summer the plan restricts her time with them to only two weekends.
Clerk's Papers at 145 (Parenting Plan, January 6, 2006).
Leah appeals. She contends the trial court erred in restricting her time with the children, did not divide community assets fairly, and put an ambiguous clause in the parenting plan regarding future modifications.
PARENTING PLAN RESTRICTIONS BASED ON DOMESTIC VIOLENCE
Leah contends that the restrictions in the parenting plan based on the finding of a "history of domestic violence" must be vacated because the trial court did not enter findings about what specific acts constituted the history of domestic violence.
A trial court must limit a parent's residential time with the child if the court finds that the parent has a history of domestic violence. RCW 26.09.191(2)(a). Domestic violence means physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm between family members. RCW 26.50.010(1). Michael asked the trial court to make the finding of domestic violence under RCW 26.09.191(2)(a). Neither Michael nor Leah asked the trial court to make specific findings about what incidents constituted the history of domestic violence. On appeal, Leah argues that in the absence of findings specifying what acts make up the history of domestic violence, the restrictions must be stricken. Leah relies primarily on In re Marriage of Katare, 125 Wn. App. 813, 826, 105 P.3d 44 (2004). In Katare, the wife alleged that the husband might try to abduct the children and take them to his native country of India. The trial court did not think there was a serious threat of abduction, and did not make any findings under RCW 26.09.191, but nonetheless imposed travel limitations in the parenting plan to prevent the father from taking the children to India. The trial court explained the necessity for restrictions in its oral ruling:
I'm not persuaded, based on all the evidence presented, including that of the expert witnesses who were called to testify, that Mr. Katare presents a serious threat of abducting the children. Nonetheless, if I'm wrong on this the consequences are incredibly serious and I'm mindful about that. I'm going to impose some restrictions in the parenting plan that will be designed to address this issue. . . .
Katare, 125 Wn. App. at 828-29.
On appeal, this court reversed: "We conclude the court may not impose limitations or restrictions in a parenting plan in the absence of express findings under RCW 26.09.191." Katare, 125 Wn. App. at 826. The case was remanded for the trial court to clarify the legal basis for its decision to impose restrictions under RCW 26.09.191(3) and if appropriate to make the necessary findings to justify the limitations. Katare, 125 Wn. App. at 832.
Leah wants to stretch the court's holding in Katare to mandate specific written findings of fact to support the ultimate finding of the existence of a factor identified in RCW 26.09.191. But the court's concern in Katare was that there were no findings at all to support the restriction entered under RCW 26.09.191(3). A court has discretion to limit a parent's involvement with the children if "other factors or conduct" exist that the court expressly finds adverse to the best interest of the child. RCW 26.09.191(3)(g). If the court is imposing restrictions under the "other factors" section, it must identify the factors that support the decision.
Here, the court did not rely on the "other factors" section of the statute. The court imposed restrictions based on Leah's history of domestic violence under RCW 26.09.191(2)(a). Neither Katare nor RCW 26.09.191(2) mandates written findings specifying the particular acts the court relied on when finding there is a history of acts of domestic violence.
Leah's concern is that the court may have based the finding of a "history of domestic violence" solely on an incident that occurred on Thanksgiving in 2004. There was no real dispute that Leah slapped Michael that evening. Leah points out that the trial court's oral ruling also referred to her "kicking a cabinet, slamming doors, screaming at children" and "throwing a child down". Leah characterizes these acts as temper tantrums that do not meet the statutory definition of domestic violence and she argues that the one undisputed act of domestic violence — the Thanksgiving slap — cannot amount to a history of acts.
Report of Proceedings (Nov. 17, 2005) at 637.
Leah fails to take into account the testimony of the witness who saw her hit Michael in the face during a camping trip. This action meets the definition of domestic violence as physical harm, bodily injury, or assault. Leah also overlooks Michael's testimony about an argument in which he said Leah stabbed the counter with a knife, and the separate incident where Leah put her hands around Michael's neck and said she could strangle him. These incidents can properly be characterized as "infliction of fear of imminent physical harm" as contemplated by RCW 26.50.010(1). Because there are several acts in the record that meet the definition of domestic violence, there was ample evidentiary support for the finding of a "history of domestic violence."
Leah cites two cases she believes mandate specific findings when a trial court imposes domestic violence restrictions, McCausland v. McCausland, 159 Wn.2d 607, 620-21, 152 P.3d 1013 (2007) and Kinnan v. Jordan, 131 Wn. App. 738, 752-53, 129 P.3d 807 (2006). These cases refer to different statutes and contexts, and are thus unpersuasive.
Leah contends that the parenting plan is internally inconsistent because on one hand the court concluded a restriction on her residential time was appropriate based on her history of domestic violence, but on the other hand the court granted her a large amount of unsupervised time with the children during the school year. Leah claims the ruling "eviscerates the notion the restrictions are necessary to protect the children from specified harms or to serve their best interest." The court's oral ruling, however, provides an adequate rationale for the division of time. The court found that Leah was better suited to help with daily school activities because, with the benefit of her college education, she had taken a greater role and interest in the children's education than Michael and had consistently helped them turn in homework on time. The court aligned Leah's residential time with the children's school schedule.
Br. of Appellant at 26-27.
The strict limitation on Leah's residential time during the summer is consistent with the evidence that Leah shines when supervising academic pursuits but does not keep her temper in check in settings that require flexibility and cooperation with the other parent. The court likely was concerned about the possibility that Leah's antagonism to Michael and his nonacademic interests would find too many avenues for expression during the more unstructured and family-oriented days of summer vacation. The parenting plan is not internally inconsistent and we conclude it represents an appropriate exercise of discretion. We find no error in the allocation of residential time.
PROPERTY DIVISION
Leah claims the court erred in allocating $70,000 of the equity from the family home to Michael so that he could pay back his parents for loaning funds to make a down payment on their house. In the decree of dissolution, the court stated: "The husband is further awarded and ordered to pay the $70,000 debt to his parents out of the equity of the family home after refinance."
Clerk's Papers at 119 (Decree of Dissolution, Jan. 6, 2006).
A trial court has broad discretionary power in making a division of the property and debts of divorcing spouses. In re Marriage of Nicholson, 17 Wn. App. 110, 118, 561 P.2d 1116 (1977). Valuation of property is a question of fact. In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P.2d 175 (1984). Accordingly, a decision of the trial court will be reversed only for a manifest abuse of discretion. In re Marriage of Monkowski, 17 Wn. App. 816, 817, 565 P.2d 1210 (1977). The essential consideration is whether the final distribution is fair, just, and equitable under the circumstances. RCW 26.09.080.
Leah contends the money from Michael's parents cannot be legally characterized as a loan. She relies on National Bank of Commerce v. Preston, 16 Wn. App. 678, 558 P.2d 1372 (1977). In Preston, the court held that check stubs containing the notation "loan" along with the corresponding checks did not constitute written loan agreements. Preston, 16 Wn. App. at 678. "In the absence of the essential promise to repay, the checks and check stubs are merely orders of payment and not written loan agreements." Preston, 16 Wn. App. at 680. In contrast to Preston where the sole evidence offered to show a promise to repay was the notation on the check stubs, here there was testimony from Michael, Leah, and Michael's mother supporting a finding that Michael and Leah had promised to repay the money. Michael and his mother both testified that the money was given as a loan for an undetermined amount of time and not as a gift. Even Leah acknowledged that Michael's parents expected the $70,000 to be repaid at some time:
Q. So what you're saying is you think that the down payment on the 166 Street house was entirely taken up by a gift, in your opinion, from Mr. Stewin's
Q. But this gift was supposed to be repaid by the
[Leah]. Yes.
Report of Proceedings (Nov. 14, 2005) at 41.
In view of this evidence, the trial court did not err in characterizing the $70,000 as a loan from Michael's parents.
Leah argues that the trial court unlawfully assumed the role of debt collector for Michael's parents. We disagree. The court simply segregated a portion of the equity from the house and allocated it to Michael in recognition that he was being assigned the responsibility to pay the community's debt. This was not an abuse of discretion.
At oral argument, Leah focused on the fact that the court did not mention the $70,000 loan in the findings of fact or conclusions of law. The only reference to the $70,000 is in the divorce decree itself. Leah did not present this argument in her opening brief and did not raise it below, thus it is not preserved for appellate review. But even if Leah had properly preserved this issue, remand to the trial court to enter findings to support the conclusion of a community debt would not change the ultimate outcome. It is clear from the record that the court did not believe the $70,000 was a gift and intended to allocate this community liability, along with the means to pay the debt, to Michael. Leah claimed at oral argument that there is a question about whether the statute of limitations has run on the parents' ability to collect the debt. This issue was not raised below, so it is not properly before this court.
Leah's next assignment of error pertains to the court's valuation of equity in the family home. Leah contends the trial court "undervalued the house by $25,000 solely by refusing to use the most current appraisal value." She claims that the court improperly valued the home at the time of separation rather than at trial, thereby allowing Michael to reap the benefit of the increased value since he received the home in the property distribution.
Br. of Appellant at 31.
An appraiser hired by Michael valued the house at $365,000 based on an inspection that was done on April 28, 2005. A second appraiser hired by Leah testified at trial that the house was worth $450,000 based on an appraisal date of October 13, 2005. In its oral ruling, the court explained that it took both appraisals into account when setting the value of the home at $425,000.
Report of Proceedings (Nov. 17, 2005) at 643.
Leah inaccurately characterizes the record when she says that the court refused to use the later valuation. The court stated that it chose a figure in between the two appraisal amounts because neither appraisal accurately captured the current value: "I'm not sure that that's — that I'm satisfied with either figure, and therefore I chose something between those two, both because of the timing and because of the comparables." The trial court did not abuse its discretion in considering both appraisals and we conclude the court fairly apportioned equity in the family home.
Report of Proceedings (Nov. 17, 2005) at 659.
MODIFICATION OF THE PARENTING PLAN
The trial court on its own initiative added a paragraph about modifying the parenting plan: "After Jan 2008, depending on counseling, anger mg't classes, and needs of children, the court may modify parenting plan on petition of either parent." There is no indication in the record that either party requested this provision. Leah contends that the trial court intended to retain the authority to modify the plan in 2008 without the necessity of finding a substantial change of circumstances. Michael responds that Leah's interpretation, which makes the parenting plan temporary in nature, is inconsistent with that part of the parenting plan where the trial court checked the box indicating that the plan was a final order.
Clerk's Papers at 155 (Parenting Plan, Jan. 1, 2006).
Modification of a final parenting plan is generally governed by RCW 26.09.260. A court shall not modify a prior parenting plan unless the court finds "that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child." RCW 26.09.260(1). But this court has recognized that a trial court has equitable power to defer permanent decision making with respect to parenting issues for a specified time period after the decree of dissolution is entered. Marriage of Possinger, 105 Wn. App. 326, 336-37, 19 P.3d 1109 (2001). When this occurs, the deferred decision is based on the criteria in RCW 26.09.187, not on the substantial change in circumstances standard of RCW 26.09.260(1). To designate as "final" the parenting plan entered at the time of decree is not inconsistent with making a temporary residential schedule that is subject to change after a little time has gone by. As noted in Possinger, such an arrangement is essentially "a permanent parenting plan containing an interim residential schedule." Possinger, 105 Wn. App. at 337. Accord Marriage of Adler, 131 Wn. App. 717, 725, 129 P.3d 293 (2006) ("Possinger establishes that at the time of dissolution the trial court has the authority to build in a review of the terms of the parenting plan and that it is irrelevant whether the plan is labeled as temporary or permanent.").
We interpret the provision inserted by the trial court here as a Possinger provision deferring a permanent decision about the residential schedule until 2008. There is no other explanation for the court's decision to pencil in such a provision, and we conclude the provision makes it possible for either parent to seek a change in the plan without having to meet the criteria of RCW 26.09.260(1). To avoid misunderstandings, however, trial courts and parties would be well advised to ensure that parenting plans state more clearly what is intended by such a provision and also that they establish clear deadlines for review.
ATTORNEY'S FEES
Both Michael and Leah have requested fees on appeal under RCW 26.09.140. Leah has filed an affidavit of financial need as required by RAP 18.1(c); Michael has not. Fees are awarded based on the parties' financial circumstances. RCW 26.09.140 does not require that the moving party prevail on appeal. In re Marriage of Rideout, 150 Wn.2d 337, 357, 77 P.3d 1174 (2003). While Michael's income is higher, it also appears from testimony at trial that his financial liabilities are more burdensome than Leah's. Leah's need is not so great as to warrant an award of fees in these circumstances. We deny both requests for fees.
WE CONCUR: