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In re Woods

The Court of Appeals of Washington, Division Three
Aug 7, 2007
140 Wn. App. 1005 (Wash. Ct. App. 2007)

Opinion

No. 24327-3-III.

August 7, 2007.

Appeal from a judgment of the Superior Court for Franklin County, No. 03-3-50037-9, Carrie L. Runge, J., entered June 17, 2005.


Affirmed by unpublished opinion per Stephens, J., concurred in by Brown and Kulik, JJ.


Rigel and Tonya Woods were married in 1989 and had two children, A.W. and L.W. The couple separated in 2003 when Mr. Woods was charged with molesting A.W. The case was later dismissed and temporary orders declared Mr. Woods the primary residential parent after it was determined Ms. Woods had coached A.W. into accusing her father of molestation. Following a full trial in 2005, the court entered a parenting plan awarding Mr. Woods primary residential placement of the children. The court denied Ms. Woods' request for maintenance. She appeals. Finding no error, we affirm.

Facts

Rigel and Tonya Woods were married in 1989. During the course of their marriage, they had two children, A.W., born September 26, 1994, and L.W., born January 14, 1998.

In 2003, A.W.'s physician saw some physical evidence that caused her to contact Child Protective Services (CPS). Mr. Woods was subsequently arrested on charges of molesting his daughter.

A.W. was ultimately diagnosed with a fused labia, a condition that required her to see a pediatric gynecologist. Both parents testified to this condition. The guardian ad litem also testified about A.W.'s condition and what she learned of it through her review of A.W.'s medical records.

When Mr. Woods was arrested, Ms. Woods filed for dissolution. The criminal case against Mr. Woods was later dismissed.

During the course of the dissolution proceedings, both parties underwent court-ordered psychological evaluations. A guardian ad litem (GAL), Linda Waters, was appointed to represent the best interests of the children. Ms. Woods also took the children to see a counselor, Carol Harting.

After the criminal case was dismissed, a court commissioner ordered supervised visits between Mr. Woods and the children. Ms. Harting, the children's counselor, was asked to facilitate the reunification of the children with their father. She refused. The court then determined that Mr. Woods's counselor, Matt Cummings, would facilitate the reunification.

On November 5, 2005, Mr. Cummings met with A.W., L.W. and Ms. Woods. During this meeting, he spoke with A.W. alone and she told him that Mr. Woods had never touched her. After the session concluded, Mr. Cummings witnessed Ms. Woods yelling at the children. He testified he understood she was angry because "[A.W.] had finally told the truth." Report of Proceedings (March 21, 2007) at 27.

On November 6, Mr. Woods sought and obtained an ex parte restraining order against Ms. Woods. This order gave him custody of the children.

On November 10, the court conducted a show cause hearing on the restraining order. It removed the restraining order but decided it was in the children's best interests to remain with Mr. Woods. It entered a temporary order naming him the residential parent. Ms. Woods was given visitation one day every week and every other weekend. The court then ordered that a new counselor, Amy Trevino-Rieck, would start treating the children.

Ms. Trevino-Rieck met with the children and concurred that Ms. Woods had coached A.W. to make up the allegations against their father.

At the November 10 hearing, the court warned Ms. Woods not to discuss the allegations of abuse with the children. Ms. Woods did not comply, and eventually her visits were restricted and supervised.

The case proceeded to trial. The court heard live testimony from both parents, Linda Waters (GAL), Jamie Gavin (Ms. Woods's counselor), Matthew Cummings (Mr. Woods's counselor), Carol Harting and Amy Trevino-Rieck (the children's counselors), a prosecutor in the criminal case, and a psychologist who conducted an evaluation of Ms. Woods.

Ms. Waters, the GAL, prepared an extensive report, recommending the children should reside with Mr. Woods. After reviewing all the testimony, the court named Mr. Woods the primary residential parent. Ms. Woods was given supervised visitation until she completed a parenting class. The court also denied her request for maintenance. Ms. Woods appeals.

Analysis

A. Temporary Orders

Ms. Woods claims several errors with respect to the court's temporary custody orders, including bias of the court commissioner. However, an order of temporary custody does not resolve the issue of permanent legal custody, nor does it end the litigation; and thus is it not appealable under RAP 2.2. In re Marriage of Greenlaw, 67 Wn. App. 755, 759, 840 P.2d 223 (1992), rev'd on other grounds, 123 Wn.2d 593, 869 P.2d 1024, cert. denied, 513 U.S. 935 (1994). In the instances in which the court has reviewed temporary orders, it has done so prior to entry of a final order and consistent with RAP 2.3, pertaining to the rules for discretionary review upon a finding the temporary orders altered the status quo. Greenlaw, 67 Wn. App. at 759-60. Here, Ms. Woods never sought discretionary review of the temporary orders which terminated in any event upon the entry of the final decree. RCW 26.09.060(10). Accordingly there is no basis for us to address these orders on appeal.

Ms. Woods also argues the court erred in relying on the temporary custody placement when it made its permanent placement decision. In making a permanent parenting plan decision, the court is not permitted to draw any presumptions from the temporary plan. RCW 26.09.191(4). The record reflects the court made its permanent placement decision on the statutory factors in RCW 26.09.187(3).

B. Final Parenting Plan

Ms. Woods challenges the court's final parenting plan awarding primary residential placement of the children with Mr. Woods. We review a trial court's decision regarding the residential placement of children for abuse of discretion. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). "A trial court abuses its discretion only if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." In re Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001) (citing In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). Because the trial court hears evidence first-hand and has a unique opportunity to observe the witnesses, the appellate court should be "`extremely reluctant to disturb child placement dispositions.'" Id. (quoting In re Marriage of Schneider, 82 Wn. App. 471, 476, 918 P.2d 543 (1996), overruled on other grounds by Littlefield, 133 Wn.2d at 57).

Decisions regarding residential placement must be made in the best interests of the children after considering the factors set forth in RCW 26.09.187(3). In re Parentage of J.H., 112 Wn. App. 486, 492-93, 49 P.3d 154 (2002), review denied, 148 Wn.2d 1024 (2003). RCW 26.09.187(3) provides:

(3) RESIDENTIAL PROVISIONS.

(a) 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.

The court considered the requisite factors. It heard live testimony from several counselors, and the GAL. These witnesses provided independent observations and conclusions, which supported granting custody to Mr. Woods. The parents also testified, and the court was permitted to evaluate the weight and credibility of their testimony as well.

Ms. Woods claims the GAL was biased and did not act within the scope of her appointment. There is nothing in the record to suggest the GAL did not comply with these requirements. Furthermore, GALR 7 provides a grievance procedure Ms. Woods could have used if she felt Ms. Waters was not meeting her obligations. She failed to avail herself of this remedy.

Ms. Woods asserts she was the primary caretaker of the children and thus placement with her was preferred. This is only one factor, not a presumption. Kovacs, 121 Wn.2d at 809. The court considered all the factors and its decision is well supported by the record.

The court's decision was well supported and amply demonstrated reasonable grounds for permanent residential placement with Mr. Woods. There was no abuse of discretion.

C. Maintenance

Finally, Ms. Woods contends the court erred in not awarding her maintenance. We review an award of maintenance for an abuse of discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999). The court must consider the financial resources of each party; the age, physical, emotional condition and financial obligations of the spouse seeking maintenance; the couple's standard of living during the marriage; the duration of the marriage; and the time needed by the spouse seeking maintenance to acquire education necessary to obtain employment. RCW 26.09.090; In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).

The couple was married for 14 years. Ms. Woods operated a daycare out of her home during the marriage. Prior to having children, she worked outside the home. The couple did not have an exceptionally high standard of living during their marriage. Mr. Woods paid Ms. Woods maintenance for over two years. Mr. Woods did not receive child support from Ms. Woods for the children. Given these facts, the court did not err in determining further maintenance was not required.

Prior to the trial, the court terminated the temporary order of maintenance. Ms. Woods claims the court could not do this without a change in circumstances. A temporary order may be revoked or modified and terminates when the final decree is entered. RCW 26.09.060(10). The change in circumstance standard is the standard for orders entered in conjunction with the decree. See RCW 26.09.170(1). The court was not required to find a change in circumstances to terminate the temporary order of maintenance.

Conclusion

This matter was resolved following trial at which both parties had a full opportunity to present their evidence. Based on the evidence, the trial court granted primary residential placement of the children to Mr. Woods and denied Ms. Woods further maintenance. We find no abuse of discretion. The temporary order terminated upon entry of the final orders and is not appealable. We affirm.

In his appellate brief, Mr. Woods requests attorney fees and costs based upon a finding that Ms. Woods's appeal is frivolous. He provides no authority or argument in support of his request. Accordingly, his request is denied. RAP 18.1(b).

BROWN, J., KULIK, J., concur.


Summaries of

In re Woods

The Court of Appeals of Washington, Division Three
Aug 7, 2007
140 Wn. App. 1005 (Wash. Ct. App. 2007)
Case details for

In re Woods

Case Details

Full title:In the Matter of the Marriage of TONYA WOODS, Appellant, and RIGEL WOODS…

Court:The Court of Appeals of Washington, Division Three

Date published: Aug 7, 2007

Citations

140 Wn. App. 1005 (Wash. Ct. App. 2007)
140 Wash. App. 1005