Opinion
No. 66501-4-I No. 67100-6-1
03-19-2012
In the Matter of the Parenting and Support of S.M.F., minor child STATE OF WASHINGTON, Respondent, v. ARNOLD-CARLO ANDRADA DELIZO, Alleged Father, RYOKO FUKUDA, Appellant.
UNPUBLISHED OPINION
Ellington, J. — Ryoko Fukuda appeals the orders providing for the care and support of her child with Arnold-Carlo A. Delizo. She also appeals the denial of her posttrial motion to vacate. Fukuda does not demonstrate error or abuse of discretion in the orders on review. We affirm.
BACKGROUND
Fukuda and Delizo had a brief dating relationship in 2004. Fukuda became pregnant and gave birth to a daughter, S.M.F, on March 6, 2005. In May and December 2005, however, the parties experienced conflict, and Fukuda called police to report certain incidents when Delizo came to her apartment.
In February 2006, Fukuda obtained an order of protection against Delizo. The order required Delizo to complete domestic violence treatment and parenting classes. The order noted that parentage had not been established and was issued subject to orders in any paternity action. Fukuda sought and obtained renewal orders each year. Delizo did not violate the order and did not attend the hearings on renewal until July 2010. There was no contact between the parties for approximately five years.
Fukuda applied for public assistance, and in August 2009, the State filed a petition to establish the parentage of S.M.F. Genetic testing confirmed that Delizo is S.M.F.'s father. The court appointed special advocate (CASA) filed a report recommending that Delizo be allowed gradually to establish a relationship with S.M.F., beginning with professionally supervised visits and progressing to visits supervised by a nonfamily member known by the child. The CASA also recommended that Fukuda participate in a minimum of five individual counseling sessions to ensure her cooperation as S.M.F. establishes a relationship with Delizo. In August 2010, the parties signed a CR 2(A) agreement providing for eight professionally supervised visitation sessions for Delizo at Indaba of Seattle, and assigning 54 percent of the cost to Delizo and 46 percent to Fukuda.
Although Fukuda had apparently been represented by counsel before, she represented herself at trial. She proposed a parenting plan providing no residential time for Delizo until he completed domestic violence treatment as required by the protection order. Delizo proposed a plan consistent with the CASA recommendation, beginning with professionally supervised visits and gradually increasing visitation and residential time until S.M.F. would spend unsupervised residential time with him every weekend.
The court entered a parenting plan substantially in line with Delizo's and the CASA's recommendation, providing for five phases of increasing visitation with Delizo until S.M.F. resides with him every first, third and fourth weekend of each month. The court found that Fukuda "withheld from the other parent access to the child for a protracted period without good cause." The court therefore "restricted" Fukuda's residential time with S.M.F. under RCW 26.09.191(3) by requiring that Fukuda "shall participate in a minimum of 5 individual counseling sessions to ensure that she [is] able to support the child as she establishes a relationship with her father." The court dismissed the protection order and refused to order domestic violence treatment. The court also ordered Delizo to pay child support of $79.69 per month as well as $3,774.54 in back support from S.M.F.'s date of birth.
Clerk's Papers at 511.
Clerk's Papers at 514.
In March 2011, Fukuda's new counsel filed a motion to vacate all the previous orders and rescheduled the trial date, claiming that Delizo made material misrepresentations in his trial testimony and sworn declarations. The court reviewed the transcript and the record, entered additional findings of fact, and denied Fukuda's motion.
DISCUSSION
Parenting plan decisions are an area for the exercise of the trial court's discretion, and we will not reverse unless the decision is manifestly unreasonable or based on untenable grounds or reasons. A primary concern in establishing parenting plans is that parenting arrangements should serve the best interests of the child.
In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
Fukuda presents extensive argument supporting her challenge to the finding that she withheld the child from Delizo for a protracted period of time. She argues about the circumstances leading to the issuance of the original protection order, including the procedural propriety of the 2006 hearing and statements made at the hearing by Delizo and the court commissioner who entered the protection order. She contends the trial court "erroneously disregarded the domestic violence protection order and renewal orders and the Commissioner's advice to the parties." She suggests the judge was biased, misinterpreted laws against domestic violence, and erroneously faulted her for seeking protection from domestic violence. Her position is that Delizo chose not to see his child and the parenting plan rests upon an erroneous attribution of improper motive for her annual renewals of the protection order. She also contends the court unreasonably excused Delizo from participating in domestic violence treatment as required by the protection order.
Br. of Appellant at 3.
The court heard extensive testimony from both parties about the circumstances surrounding the protection order. In essence, Fukuda testified she felt threatened by physical violence and threats to cause her trouble. She emphasized that Delizo told the court commissioner he intended to file a parentage action. Delizo denied her allegations and testified he had given up trying to contact Fukuda because he concluded from her behavior he was not S.M.F.'s father.
The court resolved this factual dispute based on its assessment of the credibility of the parties. The court identified inconsistencies in Fukuda's testimony and observed that despite having had no contact with Delizo for years, Fukuda had annually renewed the protection order. The court found credible Delizo's explanation that he had no longer believed he was the father. The court ultimately found that Fukuda withheld the child from Delizo for a protracted time without cause.
Credibility determinations are the province of the trial judge; appellate courts do not review those determinations nor substitute our judgment for that of the trial court. Fukuda fails to establish that the court erred in finding she withheld S.M.F. from Delizo for a protracted period without just cause.
In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
The court was not persuaded that the parenting plan should include restrictions on Delizo's residential time or that he should be required to complete domestic violence treatment. This too is a discretionary determination based in part on credibility and is supported by the evidence and the CASA recommendation. We see no grounds for reversal.
Fukuda contends the parenting plan includes punitive provisions. But nothing in the parenting plan is punitive. The court imposed only one restriction on Fukuda: the requirement that she attend five counseling sessions. This is consistent with the CASA's recommendation and is not punitive.
See Clerk's Papers at 511, 514 (parenting plan ¶ 2.2; ¶ 3.10). We note that Fukuda does not challenge this requirement on appeal.
Fukuda also contends the final residential schedule is outside the bounds of reasonable choices. In particular, she objects to the amount of residential time for Delizo, the right of first refusal for two hours or more of child care during residential time, and joint decision making. She argues that the scheduled three weekends per month with Delizo is "highly questionable" because the quality of Delizo's parenting has not yet been assessed and the "norm" is alternating weekends. But the three weekend plan is not an immediately effective schedule, and the quality of Delizo's parenting will be well known before that schedule is in place. Fukuda also contends the right of first refusal is not in the child's best interest and undermines her privacy, and that joint decision making will be so time consuming and expensive she will be unable to work except when the child is in school or with Delizo. But she made no objection below regarding the right of first refusal or joint decision-making. She fails to demonstrate error or establish any abuse of discretion in the parenting plan.
The parenting plan provides: "Right of first refusal: [I]f a parent will be unable to exercise his/her residential time for two hours or more, the parent shall immediately notify the other parent who shall be afforded the option to care for the child before the child is placed with any other third party such as a babysitter, relatives, friends or daycare." Clerk's Papers at 517.
Br. of Appellant at 42.
Fukuda next challenges the child support order, contending the court abused its discretion by finding Delizo's monthly income to be $1,207 because he listed his monthly expenses as $2,934 in his financial declaration. We review a child support order for abuse of discretion. The court relied on Delizo's testimony and documentary evidence including tax returns, commission statements, and bank records to determine Delizo's monthly income. Fukuda did not challenge that evidence and offered no contrary evidence or argument. The court's determination was therefore within the bounds of the evidence presented, and the court did not deviate from the uniform child support schedule. Under these circumstances, Fukuda fails to demonstrate any abuse of discretion in the child support order.
In re Marriage of Bell, 101 Wn. App. 366, 371-72, 4 P.3d 849 (2000).
See RAP 2.5(a); In re Marriage of Burch, 81 Wn. App. 756, 761, 916 P.2d 443 (1996) (parent waived objection to grant of a health care credit in support calculation by failing to raise issue at trial court level).
In conclusion, because Fukuda fails to establish any error or abuse of discretion, we affirm the challenged orders. We therefore do not address Fukuda's additional arguments regarding proceedings on remand.
Affirmed.
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WE CONCUR:
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