Opinion
No. 45237-1-I.
Filed: June 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 93-5-01925-5, Hon. James W. Bates Jr, August 24, 1999, Judgment or order under review.
Counsel for Appellant(s), E.W. R. Lawrence, Attorney At Law, 14058 N.E. 181st St #f204, Woodinville, WA 98072.
Counsel for Respondent(s), Frank Baker (Appearing Pro Se), 5400 So. Fletcher St., Seattle, WA 98118.
Carol R. Bryant, Deputy Prosecuting Atty, Ofc of King Co Pros Atty, 900 4th Ave Fl 9, Seattle, WA 98164.
This is the fifth appeal in a custody battle between Tamie Starr and Frank Baker. Starr left the jurisdiction and did not appear at the custody modification hearing where the court granted Baker custody. Starr filed a motion for a new trial and numerous other motions, which the trial court denied. Starr appeals, challenging denial of a new trial and certain other motions. We affirm.
FACTS
Starr and Baker are the parents of two daughters, Ashley, born in 1987, and Samantha, born in 1992. A parenting plan as to Ashley was entered in 1989. In 1991, Starr was found in contempt for withholding visitation. In 1993, she filed a complaint with Child Protective Services alleging Baker had sexually abused Ashley. After an investigation, the court determined that the allegation was unfounded and that Starr had fabricated it. The court retained jurisdiction over the case.
In 1994, the court entered a parenting plan as to Samantha and consolidated the two cases. In 1997, Starr was twice held in contempt for failing to bring the children for court-ordered visitation. A bench warrant was issued for Starr's arrest when she failed to appear at a contempt hearing.
In September 1997, Baker filed a modification petition as to Samantha. Starr failed to appear at the hearing. The trial court found adequate cause, placed temporary custody of Samantha with Baker, and ordered issuance of a writ of habeas corpus for Samantha's return. In November 1997, the court entered a temporary order terminating Baker's support obligation and granted Baker's request for service by alternative means. Starr appealed rulings from the August, September, and November 1997 hearings. The court granted a motion on the merits and affirmed. In January 1998, the State filed a criminal action charging Starr with custodial interference and issued a warrant for her arrest.
The ruling consolidated Starr's appeals in No. 42710-5-I and No. 42949-6-I under No. 41246-9-I.
In May 1998, Baker filed a modification petition as to Ashley. The court consolidated the modifications for trial and scheduled trial for November 1998. On August 14, 1998, Starr's attorney withdrew from representing her. Starr did not appear for trial, but her former attorney did, claiming authority to represent her. The attorney admitted he had had no contact with Starr since she left the state in 1997 and that he had no directive from her reinstating his representation. The trial court refused to allow the attorney to represent Starr. Trial proceeded without Starr's or her attorney's presence. The court entered a final parenting plan placing custody of the children with Baker and in December 1998 entered findings of fact, conclusions of law, and appropriate orders. Starr appealed the December 1998 findings, conclusions, and orders. This court dismissed Starr's appeal after she failed to comply with a superior court order regarding the children's custody.
The dismissed appeal is No. 43836-1-I.
In May 1999, Starr was apprehended in Mississippi and subsequently returned to Washington. While awaiting trial on the pending custodial interference charge, she filed a motion for a new trial. The trial court denied the motion. In September 1999, Starr filed a notice of appeal of the order denying a new trial. During the same period, Starr filed a motion in the trial court raising numerous issues: unsealing the sexual abuse report, dismissing the case manager, seeking visitation for the grandmother, unsealing portions or all of the court file, striking orders and pleadings affecting Ashley, striking or clarifying findings from trial, and striking orders entered December 14, 1998, May 20, 1999, and June 15, 1999. The court entered findings of fact and conclusions of law and denied all the requested relief. The court also denied reconsideration.
On November 19, 1999, Starr filed an amended notice of appeal in this action, challenging certain aspects of these rulings. Starr pleaded guilty to custodial interference and was sentenced to 12 months, with credit for 4 months time served. The court suspended the remaining sentence. On January 4, 2000, the court issued a bench warrant for Starr's arrest after she twice violated a no contact order. Starr's counsel does not dispute the State's contention that Starr remains a fugitive.
NEW TRIAL
Starr's motion for a new custody modification trial was based on CR 60(b)(3), newly discovered evidence. Starr argued she was entitled to a new trial on the grounds that the trial judge should have granted her motion to recuse himself, that she should be permitted immediate visitation with the children, and that her attorney had authority to represent her.
The recusal issue was addressed at length in a prior appeal. Starr has identified no new evidence relating to this issue. We will not address it again. Starr has not pursued the visitation issue in this appeal. She is in no position to do so, given the no contact orders based on the outstanding bench warrant for her arrest.
The recusal issue was addressed in appeal under No. 41246-9-I.
In support of her motion for a new trial, Starr filed a declaration stating that she had no notice of her attorney's withdrawal, that it should have been obvious she urgently needed representation, and that had she known of his withdrawal, she would have given him authority to again represent her. CR 60(b)(3) allows the trial court to relieve a party from a final order when the party has newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under CR 59(b).
The evidence must be such that will probably change the result. Starr did not exercise due diligence. Indeed, she was unaware of her attorney's withdrawal because she had fled the State and the jurisdiction of the court in violation of court orders. Her attorney was unaware of her whereabouts and unable to communicate with her. And her declaration did not set forth any new evidence material to the issues at the modification trial. Starr's declarations regarding her attorney do not constitute newly discovered evidence. The trial court did not err in denying Starr's motion for a new trial. For the same reasons, we reject Starr's contention that she was denied due process at the modification trial when the court proceeded without Starr's or her attorney's presence. Contrary to her contention, Starr was not denied an opportunity to be heard. It was Starr's refusal to appear and participate in the trial and her failure to keep her attorney informed of her whereabouts that resulted in the court proceeding without Starr or her attorney.
Nelson v. Mueller, 85 Wn.2d 234, 239-40, 533 P.2d 383 (1975).
CUSTODY MODIFICATION
In December 1998, the trial court entered findings of fact, conclusions of law, and orders modifying custody. Starr contends that she did not receive notice of presentation of the findings and orders. She also challenges the trial court's findings that her actions terminating contact between the children and Baker and disrupting therapy had harmed the children and that placing the children with Baker was appropriate. Starr appealed the findings, conclusions, and orders from the modification trial in a prior appeal. A commissioner conditionally dismissed Starr's appeal unless within 10 days she complied with the superior court orders regarding return of the children. She failed to do so. This court twice denied her motions to modify and the Supreme Court denied review. Starr cannot again challenge the findings, conclusions, and orders. By failing to appear at trial, Starr waived her right to notice of presentation of findings and conclusions. CR 52(c). Moreover, in ruling on Starr's multiple motions also the subject of this appeal, the trial court found that the entry of ex parte orders was permitted in emergency circumstances. The court did not err. CR 52(c), CR 54(f)(2)(A).
CR 52(c) provides: Presentation. Unless an emergency is shown to exist, or a party has failed to appear at a hearing or trial, the court shall not sign findings of fact or conclusions of law until the defeated party or parties have received 5 days' notice of the time and place of the submission, and have been served with copies of the proposed findings and conclusions. Persons who have failed to appear at a hearing or trial after notice, may, in the discretion of the trial court, be deemed to have waived their right to notice of presentation or previous review of the proposed findings and conclusions.
CR 54(f) provides in part: (2) Notice of Presentation. No order or judgment shall be signed or entered until opposing counsel have been given 5 days' notice of presentation and served with a copy of the proposed order or judgment unless: (A) Emergency. An emergency is shown to exist.
JURISDICTION TO ENTER ORDERS AFFECTING ASHLEY
Starr contends that the trial court did not have jurisdiction to terminate Baker's child support payment for Ashley because the modification petition did not refer to her. This issue was resolved in a prior appeal on the ground that it was not appealable as a temporary order. We will not address it again. Starr also contends that the court did not have jurisdiction to modify custody as to Ashley because Starr was never served with the petition. She contends, therefore, that the modification order is void as to Ashley and must be vacated. The State concedes that there is no proof of service in the file, but argues that as a practical matter, it makes no difference because Starr is prohibited from having contact with Ashley and is subject to arrest.
The issue was resolved in No. 41246-9-I.
We agree with the State that Starr is currently prohibited from any contact with the children and that she is subject to arrest. But we resolve the service issue on a different basis. The trial court had continuing jurisdiction to enter decisions regarding the children's custody and support. Because Starr's whereabouts were unknown, the trial court entered an order permitting service by mail on Starr's mother, grandmother, or attorney. At the modification trial, the court specifically found that Starr was served through these alternate means. As noted above, Starr's appeal of those findings was dismissed by this court. Moreover, in its September 1998 order rejecting Starr's multiple motions, the trial court again found valid service of process pursuant to the order for alternative service. There was no error.
In re Marriage of McLean, 132 Wn.2d 301, 305, 937 P.2d 602 (1997).
MAY 20, 1999 AND JUNE 15, 1999 ORDERS RELEASING CHILDREN TO CUSTODIAN
After Starr was apprehended and returned to the State of Washington, the trial court entered orders releasing the children to a custodian. Starr contends that the court erred in entering the orders without notice to her.
In its September 1999 ruling, the trial court found Starr's challenge to the orders was moot because a no contact order had been entered in the criminal proceeding preventing Starr's contact with the children.
The trial court made no written finding regarding whether Starr received notice of the orders.
We agree. The orders in question were entered pursuant to writs of habeas corpus to free the children from illegal restraint and return them to the jurisdiction of the court. At the same time, Starr was arrested on the custodial interference bench warrant and faced imposition of the remaining sentence. As part of the criminal proceeding, Starr was prohibited from having contact with the children. Starr suffered no prejudice resulting from the alleged lack of notice of the orders releasing the children to a custodian.
Schreifels v. Schreifels, 47 Wn.2d 409, 414, 287 P.2d 1001 (1955).
See Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986).
Affirmed.