Opinion
No. 23120-8-III.
May 11, 2006.
Appeal from a judgment of the Superior Court for Franklin County, No. 02-5-50019-0, Robert G. Swisher, J., entered June 23, 2004.
Counsel for Appellant(s), Michelle Finley (Appearing Pro Se), 1876 Fowler #106, Richland, WA 99352.
Counsel for Respondent(s), Michael Ronald Pickett, Attorney at Law, 8203 W Quinault Ave Ste 600, Kennewick, WA 99336-7128.
Affirmed by unpublished opinion per Kato, J., concurred in by Brown, J., and Thompson, J. Pro Tem.
Michelle Finley and Thomas A. Rus never married, but lived together after the birth of their daughter, H.R. After they stopped living together, Ms. Finley had custody of H.R. and Mr. Rus had visitation. He moved to modify custody. The court granted the motion, awarding him permanent custody of H.R. We affirm.
Ms. Finley and Mr. Rus met in March 1998 and began dating in April. She became pregnant shortly thereafter. Although the relationship did not progress, Mr. Rus wanted to raise their child together. He let Ms. Finley move into his home, but did not intend to marry her.
H.R. was born on December 14, 1998. About two weeks later, Mr. Rus was diagnosed with a brain tumor. He had surgery in February 1999 and spent two to three months recovering. Ms. Finley took care of him during that time.
In December 2000, they signed a cohabitation agreement. Mr. Rus wanted Ms. Finley to understand he did not intend to marry her. But he did want her to live in his home so they could raise H.R. together.
In February 2002, Ms. Finley left the home with H.R. Mr. Rus then started this parentage action.
The first temporary order granted Ms. Finley custody of H.R. and Mr. Rus was to provide day care while she was at work. Ms. Finley nevertheless placed H.R. in a day care facility.
A guardian ad litem (GAL) was appointed. In August 2002, the GAL filed a report indicating it was in H.R.'s best interest to be placed with Mr. Rus. The court entered a temporary order granting Mr. Rus primary residential placement of H.R.
The issue of permanent residential placement proceeded to trial in January 2004. After considering all the evidence, the court determined both parents loved the child and both were capable of caring for her. But it found Mr. Rus was able to provide a more stable home environment for H.R. Ms. Finley was granted visitation on the first, third, and fifth weekends of the month and was also given one weekday from after school until 7:30 p.m. She appeals.
Ms. Finley contests the court's temporary parenting plan. A temporary order, however, neither resolves the issue of permanent legal custody nor ends the litigation. Accordingly, it is not appealable under RAP 2.2(A)(13). 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 (1994). The Greenlaw court did review the temporary orders, but it did so pursuant to discretionary review under RAP 2.3. Id. at 759-60.
To challenge it, Ms. Finley should have sought discretionary review of the temporary order within 30 days of its entry. She did not. We decline to review the issue.
Ms. Finley contends the court erred by awarding permanent residential placement of H.R. to Mr. Rus. We review a court's ruling on the placement of children for an abuse of discretion. In re Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001). Decisions regarding residential placement must be made in the best interest of the children and only 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 considered the GAL's report and testimony from numerous witnesses about their independent observations and conclusions. The court noted both parents loved the child and had the ability to care for her. It also commented there was more testimony about Ms. Finley's parental deficiencies and no testimony Mr. Rus was a bad father. He was the more stable of the two parents and, to be with the parent who could provide more stability, was in H.R.'s best interest. The court's decision was well supported and amply demonstrated reasonable grounds for permanent residential placement with Mr. Rus. There was no abuse of discretion.
Ms. Finley nonetheless relies on three circumstances she claims entitles her to custody of H.R. She alleges Mr. Rus is not medically stable because he had surgery to remove a brain tumor in 1999, making him unable to parent H.R. But he has had custody of H.R. since fall 2002 with no showing he suffered any medical condition affecting his ability to parent. Mr. Rus's alleged medical infirmity is no basis for showing the court abused its discretion.
Ms. Finley further asserts Mr. Rus is violent and has a drinking problem. She claims he had a criminal conviction for assault. But these were mere allegations with no proof provided to the court. Numerous witnesses testified Mr. Rus was not violent by nature. He admitted drinking alcohol at times, but nothing in the record indicates he had an alcohol problem. Ms. Finley's allegation does not establish an abuse of discretion.
Ms. Finley further argues that under RCW 26.09.191, the court should have considered Mr. Rus's age, type of work, and out-of-town trips. RCW 26.09.191 does set forth restrictions in parenting plans, but they do not include a parent's age, type of work, or out-of-town trips. RCW 26.09.191 applies to neither Ms. Finley nor Mr. Rus. The court did not abuse its discretion by not considering these factors.
Ms. Finley contends Mr. Rus's counsel committed misconduct depriving her of a fair trial. She argues counsel violated the Rules of Professional Conduct by making false allegations about her. But she fails to indicate what allegations were false. In these circumstances, there is no showing she was deprived of a fair trial.
She next claims counsel committed further misconduct by filing two affidavits of prejudice and failing to appear for a hearing. Ms. Finley, however, does not explain how this conduct caused an unfair trial. We therefore decline to address it. RAP 10.3(a)(5); see also State v. Johnston, 100 Wn. App. 126, 135, 996 P.2d 629, review denied, 141 Wn.2d 1030 (2000).
Ms. Finley contends counsel failed to produce documents that were the subject of a motion to compel. The record does not contain an order requiring the production of the document to which she refers. There is no showing of misconduct.
Ms. Finley argues counsel tampered with a witness. Because this allegation is unsupported by the record or any legal authority, we will not address it. RAP 10.3(a)(5).
Ms. Finley also claims the GAL failed to provide her with his qualifications and training pursuant to GALR 2(a). But GALR 2(a) does not require the GAL to serve each party with a statement of his training and experience.
Ms. Finley also claims the GAL failed to do a full and complete investigation. The record shows otherwise. Moreover, she has not pointed to any evidence in the record showing the GAL committed misconduct.
She next contests the court's evidentiary rulings at trial. Admissibility of evidence is within the broad discretion of the court and will not be reversed on appeal absent a showing of manifest abuse of discretion. J.H., 112 Wn. App. at 495.
Ms. Finley contests the admission of photographs of Mr. Rus's home. This evidence, however, was relevant to whether he could provide a safe and stable home environment for his child. The photographs of him with his child also provided information relevant to his parenting.
She challenges the court's consideration of her financial information. But this was relevant to her ability to provide a stable home. The court did not err.
Ms. Finley also argues the court erred by denying her request to admit two documents, a client narrative from Columbia Basin Domestic Violence and a medical report by a doctor. The statements in the narrative, which were made by Ms. Finley, were duplicated in her declarations and testimony in any event. There was thus no need to admit the document.
As for the medical report, Ms. Finley claimed it was a psychological evaluation of Mr. Rus. To the contrary, it was an evaluation of Ms. Finley. The doctor concluded she appeared to be in an abusive relationship. But this conclusion was based on her own statements. The document does not prove she was abused. The court did not err by excluding it.
Ms. Finley asserts the custody decision was contrary to law because the court failed to consider the factors set forth in RCW 26.09.187(3). But it did.
She appears to suggest the court's decision was based solely on the financial position of the parties. Review of the record indicates otherwise. The court properly considered all the statutory factors and the best interest of H.R. when making its decision. There was no error.
Ms. Finley claims the court erred by permitting her counsel to withdraw. She again fails to provide any argument or legal authority to support her claim. Thus, we do not consider it. RAP 10.3(a)(5).
Ms. Finley also claims prejudice because the court reporter lost transcripts of the temporary custody proceeding. But she cannot appeal the temporary order. RCW 26.09.191(4) also prohibits the court from drawing any presumptions from the temporary parenting plan when entering a permanent parenting plan. Furthermore, the transcripts of the temporary parenting plan hearing would have no bearing on the decision as to the final parenting plan. There was no prejudice.
Ms. Finley further claims the court erred by permitting Mr. Rus to bring a custody action without DNA proof he was H.R.'s father. This action was started as a parentage action. Ms. Finley and Mr. Rus both acknowledged his paternity. A DNA test was not required.
Ms. Finley asserts the court lacked jurisidiction because the GAL did not testify. The court has jurisdiction in divorce matters. In re Marriage of Gannon, 104 Wn.2d 121, 123, 702 P.2d 465 (1985). Whether the GAL testified or not has no effect on the court's jurisdiction. She also claims the court erred by not entering findings. Written findings, however, were entered.
Ms. Finley contends the court erred by not mandating parenting classes. But she cites no authority requiring a court to order parents to attend mandatory parenting classes. Accordingly, we do not review this issue. RAP 10.3(a)(5).
Finally, she claims the court erred by not amending the birth certificate. The court did, however, order that the birth certificate be amended to designate Mr. Rus as the natural father.
Both parties have requested fees. Because Ms. Finley has not prevailed, she is not entitled to fees. RCW 26.26.140 permits this court to award fees to Mr. Rus, without considering his need or her ability to pay in this parentage action. Mr. Rus claims Ms. Finley's conduct has been intransigent and her appeal meritless. But her appeal is not frivolous. The record also does not show her intransigence, but rather an earnest attempt to obtain custody of her daughter. In these circumstances, an award of fees to Mr. Rus is unwarranted.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and THOMPSON, J. Pro Tem., concur.