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Topics - 4honor

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Father's Issues / Father's Day uninterrupted - Finally
« on: Jun 02, 2011, 09:14:38 AM »
Haven't posted in a long while, but I lurk every week.

I just wanted to encourage you all to keep up the good fight for your children's sake. It is worth it. We will be having our first uninterrupted Father's Day with SS this year. He is 20 now. I came to this site when he was 6 or 7. Up until last year, BM was interfering. Then apparently SS did something that made her turn to him say, "you are every bit as bad as your father ever was" and he left. His rose colored glasses were off. I am sad that SS had to be hurt in order for that to happen, but he is also learning to deal with a mother that has unresolved emotional issues in a way that keeps some healthy boundaries... something we sought for him for years.  He is asking questions -- I promised him years ago that I would never lie to a direct question  -- sometimes it is hard not to play the blame game and keep my explanations to what we absolutely know.

SS calls 3-4 times a week to ask his Dad if he can come hang out... to ask if they can go do something together...to ask for advice. It is so NORMAL that it brings a tear to my eye.

Like many others here before us, we are passing on the torch.

Father's Issues / No more CS
« on: Jun 29, 2009, 12:45:32 AM »
everybody happy dance for us a minute. CS is done. DH has paid CS for 17 out of SS's 18 years (they were married for one year).

Second Families / Drama. Always Drama.
« on: Jun 25, 2009, 10:50:38 PM »
Background: I have been in SS's life since he was 5. DH and his ex had been divorced over a year when I met him. We were married 5 months later and we've been married ever since (13 years this November).
BM was a hostile agressive parent. SS seemed to buy every word she uttered. She told him that only the people you live with are your REAL family. He even rationalized sodomizing his little brothers because they weren't real. She demonized me for making sure SS was convicted so that he could get the counseling he needed. It has been a long living hell. SS turned 18 in NOV.
The last CS payment was June 1 and as of last Tuesday, BM kicked SS out of the house... wait, thats not entirely true, cause BM let her drug addicted older son come home and he was beating up SS, so SS asked her to make older half brother leave. She instead decides that since the gravy train is over, SS can shut up and take it or leave (apparently BM is getting some money from older son.)
Tonight while chatting online (SS was at the library) he admitted to knowing his mom was a hostile agressive parent and that he was better on the street than going back to her home.
Also found out that SS dropped out of school in April 2009. BM got an extra month of support. I am pissed. I am so almost done and now I have to help this kid (he is about 15 mentally) who is 18 learn to use the system to survive, cause I cannot bring him back to our home. My in-laws probably would have helped, but my FIL had 2 heart attacks lately, so that is not an option right now. SS's conviction makes it hard to get him help through shelters. SS needs to finish high school, and wants to, but without somewhere to live and food to eat, he is not likely to go... survival comes first.
DH will not be back from Iraq until August. He is trying to deal with things, but 11 hours and many miles make it HARD.
Yeah, Drama. I think I will go find my panic meds, cause my blood pressure is spiking and my chest hurts.

Father's Issues / Sad but true saying
« on: Jun 22, 2009, 10:19:00 PM »
Recently while watching one of the myriad of court shows, I heard the following statement and I just had to nod and say sad but true...
"You keep bellyaching about me stepping up, I got no problem with that, but first you gotta get the hell off the stairs!"

Chit Chat / The importance of fathering
« on: Dec 14, 2008, 10:22:54 AM »
I just finished a new book out there called The Shack. For fiction, it is a thought provoking work. It is written by William P. Young. (To read more about the book go to www.theshackbook.com.) I am not going to try to sell anyone on reading it or buying it.
That being said, the one thing that was excruciatingly clear is that despite our own perceived failings, God as Father is so incredibly important to our own personal healing,  our spiritual and mental health, and our ability to create and maintain relationships with our families, friends and fellow man.
In one part, Mack, the main character asks God, ".. why is there such an emphasis on you being a Father? I mean, it seems to be the way you most reveal yourself."
"Well," responded Papa, turning away from him and bustling around the kitchen, "there are many reasons for that and some of them go very deep.Let me say for now that we knew once Creation was broken, true fathering would be much more lacking than mothering. Don't misunderstand me, both are needed -- but an emphasis on fathering is necessary because of the enormity of its absence."
Now some may think the author is again going down the men bad/woman good path, but having read the rest of the book, I see it as saying that a human being's relationship with one's father is so important, so essential, that God choses to reveal Himself to us as a surrogate Father in order that we not go entirely without. I beleive that God is neither male nor female. And to know that the God of creation choses to limit Himself to one gender to make sure I have a loving father in my life... that is how important fathering is.
During the years after my mother had successfully performed her fatherectomy, I was not much more than a lost child. I turned to God to get through the day to day stuff. I clung to the promise that God will be a father to the fatherless. (And He was, never failing to love me, care for me, provide just what I needed and just when I needed it.) However, in God's infinite wisdom, He provided a reconciliation with my father. My true healing came when I learned to forgive my father for all the hurts, either real or imagined. That moment of restoration of my relationship with my father has been a turning point for me.

Washington State Forum / How do we stop support?
« on: Nov 01, 2008, 05:14:01 PM »
SS turned 18 today. He is set to graduate in June 2009. CS order say through graduation. How do we stop the order without making a big deal?

DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division I
                               State of Washington

                            Opinion Information Sheet

Docket Number:       56152-9-I
Title of Case:       Saiyin Haggerty, Respondent v. T. Bret Haggerty, Appellant
File Date:           04/17/2006

                                SOURCE OF APPEAL
Appeal from Superior Court of King County
Docket No:      04-3-00375-3
Judgment or order under review
Date filed:     04/20/2005
Judge signing:  Hon. Joan B Allison

Authored by Susan Agid
Concurring: Anne Ellington
            C. Kenneth Grosse

                                COUNSEL OF RECORD
Counsel for Appellant(s)
            T. Bret Haggerty (Appearing Pro Se)
            13222 29th Avenue S.E.
            Mill Creek, WA  98012

Counsel for Respondent(s)
            Karma L Zaike
            Michael W Bugni & Associates
            11320 Roosevelt Way NE
            Seattle, WA  98125-6228


In the Matter of the Marriage of    )
                                                 ) No. 56152-9-I
SAIYIN PHASAVATH, f.k.a.           )
SAIYIN HAGGERTY,                     ) DIVISION ONE
             Respondent,                  )
          and                                  )
             Appellant.                      ) FILED: April 17, 2006

     PER CURIAM - The trial court issued a protection order against Bret Haggerty.  He appeals, arguing that insufficient evidence supports the trial court's factual findings and its conclusion that he engaged in domestic violence against his ex-wife, Saiyin.  Although he presents a close question, the evidence is sufficient to support the court's determination that Haggerty stalked Saiyin.  The trial court did not abuse its discretion by issuing the protection order.  We affirm.


     On February 1, 2005, Saiyin Phasavath, f.k.a. Saiyin Haggerty,
(Saiyin) filed a petition for an order of protection against her ex-husband
and the father of two of her children, Bret Haggerty (Bret).*1  Saiyin
stated in her petition that Bret relentlessly harassed her by phone and in
person.  She claimed he constantly pressured her for time with the children outside of that provided in the parenting plan, and that he continued to violate the plan by keeping the children longer than allowed or showing up at their schools to see them during the week.*2  She stated that Bret's demeanor intimidated her and that she feared him because of his conduct.  A court commissioner entered a temporary order and set a return hearing for February 15.

     On February 9, Bret filed a motion to dismiss the petition and realign
the parties.  He disputed Saiyin's claims, arguing none of his actions
constituted domestic violence and Saiyin actually caused most of the
conflict.   At the February 15 hearing, the court commissioner dismissed
Bret's motion but considered his declaration supporting his motion as his
response to Saiyin's petition.  As in his declaration, Bret argued at the
hearing that none of his conduct amounted to domestic violence, and he was in fact the victim of domestic violence by Saiyin.  The commissioner issued the protection order and awarded Saiyin $500 in attorney fees.

     Bret moved to revise the order, and the trial court held a hearing on
March 30, 2005.  Judge Michael Spearman denied the motion and awarded Saiyin $500 in attorney fees.  He concluded that a preponderance of the evidence showed Bret engaged in domestic violence against Saiyin by stalking her.


I.  Sufficiency of the Evidence*3   Bret argues that the trial court erred
by issuing the protection order because the  evidence was insufficient to
support it.  We review the trial court's decision to grant or deny a
protection order for abuse of discretion.*4  A trial court abuses its
discretion when its decision is manifestly unreasonable or based on
untenable grounds.*5  We determine whether the trial court's findings are supported by substantial evidence in the record, and, if so, whether those findings support the conclusions of law.*6  Substantial evidence is that sufficient to persuade a fair-minded person of the truth of the asserted premise.*7   Substantial evidence may support a finding of fact even if the reviewing court could interpret the evidence differently.*8

     A protection order is a civil remedy.*9  Civil cases require proof of
the statutory elements by a preponderance of the evidence.*10  After notice and a hearing, RCW 26.50.060 authorizes the court to issue a protection order.*11  A party seeking a protection order must "allege the existence of domestic violence() and . . . (declare) the specific facts and circumstances from which relief is sought."*12  Here, the Order for Protection states the trial court "finds that the respondent committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner . . . ."  RCW 26.50.010 defines domestic violence as:

(a) Physical harm, bodily injury, assault, or the infliction of fear of
imminent physical harm, bodily injury or assault, between family or
household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.

     The trial court commissioner issued the protection order because she
found Bret had a pattern of taking "extreme measures to inflict himself" on Saiyin and the children,  based on his multiple harassing phone calls and "at least 11" unfounded referrals to Child Protective Services (CPS).  She also found he failed to comply with the parenting plan and violated the February 1 temporary protection order by having his mother call Saiyin to request visitation.  She ruled that Saiyin had a reasonable fear of Bret's continued "infliction of imminent physical harm or assault on her and the children directly and/or indirectly."

     In denying Bret's motion for revision, Judge Spearman found that the
evidence was "sufficient to conclude by a preponderance of the evidence
that (Bret) did engage in domestic violence against (Saiyin) by committing the act of stalking as it is defined in RCW 9A.46.110."  He cited an April 2004 letter from Saiyin to Bret as putting him on notice that she considered his conduct, particularly his multiple phone calls, to be harassment.  Judge Spearman also cited Bret's failure to follow the
parenting plan and repeated CPS referrals as further proof of harassment.

     Substantial evidence supports the majority of the trial court's
findings.  The parenting plan authorized Bret to talk by phone with the
boys on Sunday and Wednesday evenings from 7:00 to 7:45 p.m.  It granted him visitation rights for one weekend per month, from 4:00 p.m. Friday until 7:00 p.m. Sunday, along with various birthdays, holidays, and school vacations.  Saiyin sent Bret a letter on April 22, 2004, indicating her concerns about the increasing conflict between them and specifically telling him that his frequent phone calls and messages were not welcome.

She told him he could talk to the boys as provided in the parenting plan
and he should not call her more than once a day.  In support of her
petition, she claimed that he ignored this letter and continued to call
outside of the designated times and harass her.  Bret denied making
frequent and harassing calls, but we will not disturb the commissioner's
credibility determinations.*13

     Bret's various letters to Saiyin and/or her attorney between August
2004 and January 2005 establish that he consistently tried to pressure
Saiyin into giving him more time with the children than was provided in the parenting plan.  They also demonstrate his willingness to threaten legal action to get what he wants.  For example, on October 4, 2004, Bret wrote Saiyin telling her that he would be in her area working on his house for most of October and November.  He asked if they could "work out a more appropriate visitation schedule between us or do we need to go before a court.  Every other weekend I feel would be appropriate during this time frame and some time during the week.  What are you willing to work on?"  He then says "Your position that I cannot take TJ and Sam out of school and the daycare during the week for lunch is violating my rights as their father. . . . If you will not take care of this on your own I will have no choice but to take legal action against you."

     The CPS Status Report lists 18 referrals since November 2000.  It
identifies Bret as making nine of the referrals.  Of those nine, four
resulted in investigations or safety assessments, and CPS ultimately deemed only one of those four as unfounded.  CPS took his other five referrals as information only and did not investigate.*14  The evidence does not support the commissioner's specific finding that he made at least 11 unfounded referrals to CPS.  But it does show that he made repeated CPS referrals. We cannot say that the trial court erred by considering the sheer number of referrals along with his other conduct in finding that he harassed Saiyin.

     Substantial evidence does not support the commissioner's finding that
Bret failed to comply with the temporary protection order issued on
February 1, 2005.  The fact that his mother called Saiyin after entry of
the temporary order cannot be imputed to Bret to show that he violated the protection order.  There was no evidence that he instructed his mother to call Saiyin or that he even knew about it ahead of time.  Further, the call his mother made after February 1 was in the course of apparently amicable communications about a possible visit with the grandchildren.  And Saiyin testified that his mother did not call her back after Saiyin told her to contact her attorney from then on.  However, the finding that Bret failed to comply with the temporary protection order was not essential to the ultimate determination that Bret engaged in domestic violence.  Judge Spearman did not even mention the alleged violation of the temporary order in denying Bret's motion for revision.

     Bret contends that his conduct does not satisfy the elements of
domestic violence, specifically, that he "stalked" Saiyin.  RCW 9A.46.110
defines stalking:
(1)  A person commits the crime of stalking if, without lawful authority
and under circumstances not amounting to a felony attempt of another crime:
     (a) He or she intentionally and repeatedly harasses or repeatedly
follows another person; and
     (b) The person being harassed or followed is placed in fear that the
stalker intends to injure the person, another person, or property of the
person or of another person.  The feeling of fear must be one that a
reasonable person in the same situation would experience under all the
circumstances; and
     (c) The stalker either:
     (i) Intends to frighten, intimidate, or harass the person; or
     (ii) Knows or reasonably should know that the person is afraid,
intimidated, or harassed even if the stalker did not intend to place the
person in fear or intimidate or harass the person.

"Harasses" means "unlawful harassment" as defined in RCW 10.14.020. *15

     (1) "Unlawful harassment" means a knowing and willful course of
conduct directed at a specific person which seriously alarms, annoys,
harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose.  The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.

     (2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose.  "Course of conduct" includes, in addition to any
other form of communication, contact, or conduct, the sending of an
electronic communication.  Constitutionally protected activity is not
included within the meaning of "course of conduct."

     Bret's knowing and willful conduct, typified by his frequent phone
calls outside the parenting plan's designated times and his constantly
pressuring her for additional time with the children, annoyed and harassed Saiyin such that it qualified as "unlawful harassment."*16  He knew or should have known that she felt harassed by his conduct.  The record indicates that they were in continuous conflict over the last several years, especially concerning the children.  And in her April 2004 letter, Saiyin explicitly told him she was concerned about the increasing conflict and annoyed with the repeated phone calls.

     It is less clear that Bret's conduct placed Saiyin in fear that he
intended to injure her.  While his phone calls, letters, and CPS referrals
constitute harassment, they are not in and of themselves evidence that Bret placed Saiyin in fear of being injured.  However, in a June 2004
declaration, Saiyin said Bret made exchanges of the children as difficult
as possible.  She said that he "regularly invades my personal space during exchanges just to be physically intimidating to me."  Leslie Jones, one of Saiyin's Bank of America co-workers, stated that she and other co-workers noticed Saiyin was "frightened" whenever Bret came to the bank or called or faxed her at the bank about doing something for the children.  Jones stated that Saiyin knew Bret would be mad if Saiyin did not respond to him as quickly as possible.  Further, at the February 15 hearing, Saiyin's attorney stated there was a history of "physical violence which is not referenced in any of the paperwork here because it happe(ned) before the parenting plan was entered."*17  Although the evidence is not overwhelming, it is enough to support the trial court's finding that Saiyin had a fear of injury that a reasonable person would experience under the same circumstances.  We cannot say the trial court erred in finding as it did.*18

     In sum, substantial evidence supports the court's determination that
Bret stalked Saiyin and thus engaged in domestic violence against her.*19 The court did not abuse its discretion by issuing the protection order.*20

II.  Cross-Examination

     Bret also argues that the commissioner denied him his constitutional
right to confront and cross-examine the witnesses against him.  He contends the commissioner erred by cutting short his cross-examination of Saiyin during the February 15 hearing.  Saiyin testified briefly, and only about Bret's mother's calls seeking visitation with the children.  On cross-examination, the commissioner ordered Bret to look at her rather than at Saiyin while he questioned Saiyin in order to prevent intimidation.*21  Bret asked several questions about the calls between his mother and Saiyin.  He elicited that his mother had not called Saiyin after Saiyin told her to call her attorney in the future.  The commissioner then inquired whether the parenting plan provided for visitation between the children and Bret's mother.  When Bret
said no, the commissioner ended his cross-examination.

     We will not disturb the trial court's limitation of the scope of cross-
examination unless it is the result of manifest abuse of discretion.*22
Saiyin's testimony was quite limited.  Bret had already asked her several
questions about his mother's calls.  Apparently the commissioner thought
that further explanation of the calls was irrelevant given that Bret's
mother had no visitation rights under the plan.  Bret had already
established that his mother had not called Saiyin back once she knew Saiyin wanted her to go through her attorney.  He fails to explain why further questioning was necessary.  The commissioner properly limited Bret's cross-examination.

Attorney Fees

     Saiyin requests attorney fees on appeal, citing RAP 18.1, RCW
26.09.140,23 and RCW 26.50.060(1)(g).  Under RAP 18.1, we may award attorney fees "(i)f applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, before either the Court of Appeals or Supreme Court . . . ."  Under RCW 26.50.060(1)(g), we may award fees to a party who obtains a protection order.*24  We grant Saiyin her reasonable attorney fees and costs on appeal.

     The trial court is affirmed.

     For the Court*:

1 On January 31, 2005, Bret obtained an ex parte temporary restraining
order (TRO) against Saiyin. It is unclear exactly what happened to this
order.  Initially a show cause hearing on the TRO was set for February 11, but this was changed to the next day, February 1.  On February 1, the parties appeared in court, and Saiyin petitioned for the order of
protection against Bret.  The trial court commissioner entered a temporary order of protection for Saiyin and apparently dismissed Bret's restraining order, although there is no record showing that the restraining order was even discussed.

2 A parenting plan entered in Montana states that the children will reside
with Saiyin.  It granted Bret various visitation rights.

3 As a preliminary matter, Bret argues that the trial court commissioner
erred by striking as untimely his motion to dismiss the petition and
realign the parties.  But he fails to show how this alleged error
prejudiced him.  The commissioner stated both during the hearing and in the docket judgment that although she struck Bret's motion, she considered his declaration supporting his motion as his response to Saiyin's petition for the protection order.  Judge Spearman stated that he considered Bret's pleadings in denying his motion to revise the protection order.  If his pleadings were insufficient to defeat Saiyin's petition for a protection order, they would not have been sufficient to support his motion to dismiss her petition and realign the parties.

4 RCW 26.50.060(1); Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002).

5 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).

6 Scott v. Trans-Sys., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003) (citing
Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986)).

7 Pilcher v. Dep't of Revenue, 112 Wn. App. 428, 435, 49 P.3d 947 (2002), review denied, 149 Wn.2d 1004 (2003).

8 Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 314 P.2d 622 (1957)).

9 City of Tacoma v. State, 117 Wn.2d 348, 351-52, 816 P.2d 7 (1991).

10 Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995).

11 Spence v. Kaminski, 103 Wn. App. 325, 331, 12 P.3d 1030 (2000).

12 RCW 26.50.030(1).

13 We defer to the trier of fact on the persuasiveness of the evidence,
witness credibility, and conflicting testimony.  State v. Ainslie, 103 Wn.
App. 1, 6, 11 P.3d 318 (2000) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)).

14 Seven of the 18 referrals do not identify the referrer.  Saiyin and a
daycare employee, respectively, made the other two referrals.

15 RCW 9A.46.110(6)(b).

16 Bret claims that he frequently contacted Saiyin because he has a constitutional right to associate with his children and she was not providing him access to them as required in the parenting plan.  But Bret can address this problem through the courts without harassing Saiyin.  And there is no lawful reason for him to insist on spending time with the children beyond what is provided in the parenting plan.  If he wants more time with them he must pursue available legal avenues to amend the parenting plan.

17 Courts may consider Saiyin's attorney's allegations because the rules of evidence need not be applied to protection order proceedings.  ER

18 See Pilcher, 112 Wn. App. at 435.

19 On appeal, Bret continues to focus on Saiyin's actions rather than his
own in arguing against the protection order.  While the record shows that
both parties engaged in inappropriate behavior, we again note that for
purposes of her petition, Saiyin needed only to prove by a preponderance of the evidence that Bret's actions constituted domestic violence.

20 Bret also contends the protection order modifies the parenting plan and eliminates his spring, summer, and winter vacation visitation time.  But the order requires that the parties follow the parenting plan despite the terms of the order.  It explicitly states '(t)his order does not modify or change the parenting plan,' and that '(t)he parenting plan entered in
Montana remains in effect.'  Bret's concerns likely arise from paragraph 15 of the order, which states in part that his 'contact with the children
shall be only as set forth in the parties' Parenting Plan, specifically one
weekend per month, provided that the Mother receives . . . 14 days advance notice from the Father.'  But paragraph 15 mentions the weekend visitation rights not to the exclusion of the plan's other visitation rights, but in order to designate specific methods and drop off/pick up locations for the weekend visitations to prevent contact between the parties.  The order does not modify the parenting plan.

21 Bret cites nothing to support his claim that this requirement violated
his constitutional rights.

22 State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) (citing State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984), review denied, 471 U.S. 1094 (1985)).

23 RCW 26.09.140 does not provide a basis upon which we may award fees in this case.  It states a court may award attorney fees for 'any proceeding under this chapter,' but Chapter 26.09 RCW covers dissolution of marriage. This is a protection order proceeding commenced long after the parties divorced.

24 Gourley v. Gourley, 124 Wn. App. 52, 59, 98 P.3d 816 (2004), review
granted, 154 Wn.2d 1012 (2005).

Washington State Forum / New court ruling - unpublished
« on: Apr 05, 2006, 12:57:59 PM »
Dad and mom divorce, Mom gets custody, but Dad ends up with custody and or shared custody. Mom agrees to no CS, but Dad fails to go get CS order dropped. Mom tells WA she does not want CS enforcement. Mom gets mad at Dad and takes him back to court for unpaid  CS - though Dad has physical custody at the time. Court says dad has to pay in excess of $65K in back support. Dad appeals. This is the ruling:

   Courts Home  | Opinions Search | Site Map |  eService Center    

   DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division II
                               State of Washington

                            Opinion Information Sheet

Docket Number:       32621-3-II
Title of Case:       Linda Marie Simpson, Respondent v. Adam Del
                     Wade Simpson, Appellant
File Date:           04/04/2006

                                SOURCE OF APPEAL
Appeal from Superior Court of Pierce County
Docket No:      94-3-04334-9
Judgment or order under review
Date filed:     11/05/2004
Judge signing:  Hon. Stephanie a Arend

Authored by Christine Quinn-Brintnall
Concurring: Marywave Van Deren
            J. Robin Hunt

                                COUNSEL OF RECORD
Counsel for Appellant(s)
            Timothy R. Gosselin
            Attorney at Law
            1145 Broadway Ste 400
            Tacoma, WA  98402-3584

Counsel for Respondent(s)
            John Theodore Jr Robson
            Attorney at Law
            2554 Locust Ave W Ste B
            University Place, WA  98466-3561



In re the Marriage of            No.  32621-3-II






     QUINN-BRINTNALL, C.J.   Adam Del Wade Simpson appeals an order finding him in contempt for failure to pay back child support and entering judgment in favor of his former wife, Linda Simpson.  He argues that the court erred by (1) refusing to enforce the parties' alternative custody/support agreement as against public policy; and (2) failing to consider fully his laches argument.  We reverse and remand for additional proceedings.

     Adam and Linda* divorced in April 1996.  At that time, the court
awarded primary custody of the couple's only child to Linda and ordered
Adam to pay $454 per month in child support.  Although it appears that Adam periodically assumed primary, if not exclusive, custody of the child,* neither party has ever asked the court to modify the 1996 order.

     Linda twice accused Adam of violating the parenting plan by failing to
return the child after scheduled visitation.  The state once charged Adam
with felony custodial interference, but the charge was dismissed when the jury was unable to reach a unanimous verdict at trial.  The state also
attempted to enforce the child support obligations, but Linda apparently
requested that the state terminate these enforcement proceedings.
In June 2004, Linda filed a contempt action asking that the court find Adam in contempt of the 1996 child support order for failure to pay support. She requested a judgment in her favor for back child support, prejudgment interest, and costs and fees.3  In her supporting declaration, she asserted that the 1996 order had not been modified; that Adam had made only 12 partial child support payments since the 1996 order was entered; that he never paid child support voluntarily; and that he was hiding his income in order to avoid making the child support payments.

     In response, Adam filed a pro se motion to dismiss, arguing
insufficiency of process and failure to state a claim on which relief can
be granted.  He also pleaded three 'affirmative defenses':  (1) prior
agreement of the parties; (2) collateral estoppel;4 and (3) laches.  In
support of his prior agreement defense, Adam argued that as early as 2000, he and Linda had agreed to share custody equally and to waive any child support.  In support of his laches argument, he asserted that Linda knew of the facts constituting the claim of action, that her delay in pursuing the claim was unreasonable, that she had led him to believe they had an operative alternative agreement about child support, and that her representations caused him to rely on this apparent agreement.  He also asserted that Linda's failure to participate in the earlier state enforcement actions supported his laches argument.

     In a supplemental declaration, Linda denied agreeing to modify the
parenting plan or child support obligation.  She asserted that Adam had
regularly interfered with the custody arrangements; that they had
consistently fought over custody issues; that she did not previously pursue enforcement through the courts because Adam was mentally unstable, abusive, and threatening and she was afraid of him; that Adam believed he was the custodial parent and claimed that Linda had to have his permission to contact the child; and that when she initiated the current proceedings he once again took the child.  She further stated that she had not attempted to recover the child through the courts 'because of expense and futility.' Clerk's Papers (CP) at 56.

     On October 12, 2004, a commissioner heard Linda's motion.  Adam's
recently retained counsel argued that Adam was not in contempt because the parties had reached an alternative agreement and laches applied.

Specifically, he asserted that Linda's refusal to pursue enforcement
through the State's earlier proceedings established unreasonable delay.
The commissioner, apparently addressing this specific argument, stated that the delay in bringing this particular action was 'not unusual.'  See Report of Proceedings (RP) (Oct. 12, 2004) at 15.

     After considering the pleadings and argument,5 the commissioner stated on the record that he found Adam in contempt and that he refused to consider the purported alternative agreement because such agreements were against public policy.6  In his written findings, the commissioner found that Adam 'intentionally failed to comply' with the 1996 order by failing to pay child support as ordered, CP at 59, and entered a judgment in favor of Linda for $44,961.63 for child support arrearages and $20,362.04 in prejudgment interest.  The commissioner's written findings of fact and conclusions of law did not address Adam's defenses or either party's compliance with the parenting plan's residential provisions.

     Adam moved pro se for revision of the commissioner's ruling.  The
superior court denied the motion for revision and adopted the
commissioner's decision.  Adam appeals.


     Adam challenges the contempt order on grounds that the court failed to properly consider his defenses.7  Specifically, he argues that (1) the
court erred in concluding that it could not consider the effect of the
purported alternative agreement between the parties because such agreements were void as against public policy, and (2) the court erred by not considering his laches defense.8

     When reviewing a commissioner's ruling on revision, the superior court examines all of the evidence and issues presented to the commissioner de novo.  It then applies a de novo review standard to the commissioner's findings of fact and conclusions.9  State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004).  Once the superior court makes a decision on revision, any further appeal is from the superior court's decision, not the commissioner's ruling.  Ramer, 151 Wn.2d at 113.  On appeal, we review a superior court order denying a motion for revision to determine whether the superior court abused its discretion and authority under RCW 2.24.05010 when it denied the motion for revision.  In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).  Under this standard, we do not substitute our judgment for that of the superior court unless its decision rests on unreasonable or untenable grounds.  Griffin, 114 Wn.2d at 779.

     Adam argues that it was error for the commissioner to refuse to
consider the purported alternate agreement between him and Linda and that the superior court should have granted his motion to revise the
commissioner's decision on that basis.  We agree.

     The commissioner's oral ruling indicates that he refused to consider
the purported alternate agreement because such agreements are against
public policy.  The commissioner was correct that prospective agreements to alter child support obligations are against public policy because child support is for the child's benefit and the custodial parent has no personal interest in the child support money.  Hartman v. Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984); Ditmar v. Ditmar, 48 Wn.2d 373, 374, 293 P.2d 759 (1956); In re Marriage of Pippins, 46 Wn. App. 805, 808, 732 P.2d 1005 (1987).  But this prohibition on prospective enforcement of alternate child support agreements does not necessarily extend to prohibit the court from considering such agreements for any purpose, such as calculating the proper amount of any past due child support.

     Public policy does not bar agreements affecting retrospective child
support payments.  Because payment of past due support reimburses the custodial parent for moneys actually expended, a cause of action for past due support 'lies with the custodial parent--not with the child.'  Hartman, 100 Wn.2d at 768.  Although retrospective support payments are not generally subject to modification because each payment 'vests when due,' Hartman, 100 Wn.2d at 768, Washington courts will, under the proper circumstances, apply 'equitable principles to mitigate the harshness of particular claims for retrospective support if it will not work an injustice to the custodian or the child.'11  In re Marriage of Capetillo, 85 Wn. App. 311, 316-17, 932 P.2d 691, review denied, 132 Wn.2d 1011 (1997).

     To the extent the commissioner ruled that an agreement between Adam and Linda purporting to end or alter Adam's continuing child support obligation was void as against public policy, the commissioner did not err.

But the commissioner's refusal to consider any agreement between the
parties for any purpose was improper because the purported agreement was potentially relevant to equitable defenses that Adam was entitled to raise such as laches or equitable estoppel.  Adam clearly raised a laches defense and, although his pro se pleadings did not specifically state that he was raising an equitable estoppel argument, his 'prior agreement' argument could be construed as such an argument.  Because this error prevented the court from fully examining the merits of Adam's equitable arguments, remand is required.12  We note that on remand the trial court should also address when and to what extent each parent acted as the child's residential parent; whether they actually shared custody; and what effect, if any, the actual custody of the child should have on any child support obligations.

     Linda requests attorney fees on appeal under RCW  Because Linda is not the prevailing party at this time, her request for attorney fees under RCW 26.18.160 is denied.

     Accordingly, we reverse and remand for further proceedings consistent with this opinion.

     A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.

                                 QUINN-BRINTNALL, C.J.
We concur:


1 We use the parties' first names for clarity.

2 The record suggests that Adam may have had primary custody of the child as of the time of the contempt hearing in October 2004, but it is unclear whether his custody was exclusive or when it began.  Additionally, the record suggests that Adam may have had primary custody of the child (1) from sometime in December 1996, to at least February 12, 1997; and (2) from July 5, 1997, until at least mid-December 1997.

3 Linda also requested 'make up residential time, as may be appropriate.' Clerk's Papers (CP) at 4.  Nothing in the record shows that the commissioner considered any custody or visitation issues and neither party raises any custody or visitation issues on appeal.

4 Adam does not raise any issues related to his collateral estoppel
argument on appeal.

5 The commissioner did not hear any testimony.

6 The commissioner stated:
     As far as I'm concerned, there is a contempt finding in this case; and
I will enter the Judgment of $65,323.67 for unpaid support.  I think it's
consistent with (Decker v. Decker, 52 Wn.2d 456, 326 P.2d 332 (1958)),
(Corrigeux v. Corrigeux, 37 Wn.2d 403, 224 P.2d 343 (1950)), (In re
Marriage of Young, 26 Wn. App. 843, 615 P.2d 508 (1980)), State ex rel.
Foster v. Superior Court (for Yakima County, 193 Wash. 99, 74 P.2d 479
(1937), overruled in part on other grounds by Decker, 52 Wn.2d at 467)
. . . Certainly Decker is the first case when any child support or spousal-
support-related issues come before the Court on contempt.  They're subject to contempt, as such. . . .
     . . . And certainly, the Court can entertain that at a later date; but
the fee request of $350 at this point -- I'm not going to award the $1,500
that you're asking for, but I think there's been a lot of horsing around in
this case.  Certainly, the child -- those monies, quite frankly, are not
your client's.  They are held in trust for the child --
     . . . .
     -- and that child can enforce the collection of that in her own right,
and so that's what we have to deal with, but that's a significant amount of support, and I'm satisfied that it hasn't been paid unless you have proof that there has been payment.  I'm not accepting these agreements of the parties.  I don't think they're -- I think they're against public policy, as far as I'm concerned.  All right. RP (Oct. 12, 2004) at 22-24.

7 'Once the superior court makes a decision on revision, 'the appeal is
from the superior court's decision, not the commissioner's.''  State v.
Ramer, 151 Wn.2d 106, 113, 86 P.2d 132 (2004) (quoting State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)).  Thus, even though Adam's arguments on appeal focus on the commissioner's actions, he is only entitled to appeal the denial of his motion to revise the commissioner's decision.

8 Linda asserts that Adam also argues that the superior court made its
decision without reviewing the entire file or the report of proceedings.
Although Adam mentions the possible lack of record on review, he does not raise any arguments related to this alleged deficiency.  Furthermore, even if he did, the record does not support such an assertion.

9 Linda argues that Adam failed to present these arguments below and cannot now raise them on appeal.  Although Adam does not appear to have raised these same issues in his motion to revise the commissioner's ruling, the record shows that he presented and argued essentially these issues before the commissioner.  Given that the superior court reviews all the evidence and issues presented to the commissioner, Adam has not waived these arguments.  See Ramer, 151 Wn.2d at 113 (citing In re Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999); State v. Wicker, 105 Wn. App. 428, 433, 20 P.3d 1007 (2001)).

10 RCW 2.24.050 provides:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court.  Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner.  Such revision shall be upon the
records of the case, and the findings of fact and conclusions of law
entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.

11 We note that, in this context, the 'trial court does not have unfettered
discretion to relieve the payor from past due support payment.  Rather, it must identify an equitable principle that justifies departure from the
general rule that support obligations will not be modified
retrospectively.'  In re Marriage of Hunter, 52 Wn. App. 265, 269, 758 P.2d 1019 (1988), review denied, 112 Wn.2d 1006 (1989).

12 Because we conclude that the court must consider Adam's laches argument in light of this purported agreement, we need not reach Adam's argument asserting that the commissioner did not properly resolve his laches claim. 13 RCW 26.18.160 provides:

In any action to enforce a support or maintenance order under this chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorney fees.  An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question.

Washington State Forum / Gotta watch them RO's in WA
« on: Dec 01, 2005, 11:51:30 AM »
WA state Supreme Court holds that you can be jailed on a the vioplation of a RO whether it is a vaild order or not:

"The elements of a crime are those facts 'that the prosecution must
prove to sustain a conviction.'  Black's Law Dictionary 559 (8th ed. 2004).

It is proper to first look to the statute to determine the elements of a
crime.  Cf. State v. Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845 (1953).
The statute says in relevant part that '(w)henever an order is granted . .
. and the . . . person to be restrained knows of the order, a violation . .
. . is a class C felony if the offender has at least two previous
convictions.'  RCW 26.50.110(1), (5).  

Nothing in the statute requires the State to prove the validity of a Washington no-contact order. "

taken from an unpublished opinion:

   Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       76156-6
Title of Case:       State of Washington, Respondent V Clay Jason
                     Miller, Petitioner.

Washington State Forum / In Pierce County, CS = Alimony
« on: Oct 12, 2005, 06:05:44 AM »

Pages: 12 3 ... 9
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