Marriage Of: John Mason v. Tatyana Mason ( 2015 )

FILED
COURT OF APPEALS
DIVISION Ii
2015 JUL - 7 AN 8., 45
STATI' AS 1 1uTGir
VY_
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In Re the Matter of the Marriage of No. 45835 -7 -II
JOHN ARTHUR MASON,
Respondent,
and
TATYANA IVANOVNA MASON, UNPUBLISHED OPINION
JOHANSON, C. J. — Tatyana Mason appeals from a trial court order modifying a parenting
plan in which the trial court ordered that John Mason assume responsibility as the primary parent
ofthe parties' children. Tatyanal argues that (1) the trial court' s ruling was not based on substantial
evidence, (2) the trial court erred by denying her motion for reconsideration based on the existence
of new evidence, ( 3) this court should reverse the trial court' s entry of the restraining order, and
4) this court should award her attorney fees. We hold that substantial evidence supports the trial
court' s ruling, the trial court did not err by denying Tatyana' s motion for reconsideration nor by
entering the restraining order, and neither party is awarded attorney fees. We affirm.
1
We refer to the Masons by their first names for clarity, intending no disrespect.
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FACTS
I. BACKGROUND
John and Tatyana married in 1999. They had two children, G.M. and D.M. John filed for
divorce in 2007, and the parties engaged in mediation, agreeing upon final orders including a
parenting plan. The orders specified that John and Tatyana would share custody of their children.
Contemporaneously with John' s 2007 dissolution filing, Tatyana filed a petition for a domestic
violence protection order. A court commissioner granted the petition.
After the dissolution, G.M. and D. M. participated in counseling with social worker Stephen
Wilson. During this time, John became concerned about Wilson' s treatment of G.M. following an
incident in which G. M. hit his younger brother. When the parties could not agree on a new
counselor, John filed a motion to the trial court to appoint one. The court appointed Sandra Hurd
to assume responsibility for the Mason family' s counseling needs. The court also ordered both
John and Tatyana to undergo counseling with Hurd, which they each did initially.
In February 2011, G.M. made disclosures to John alleging physical and emotional abuse
by Tatyana. D.M. corroborated G.M.' s allegations. John responded by taking the children to Hurd
and by contacting Child Protective Services ( CPS). The Mason children again made disclosures
of abuse. G.M. and D.M. also expressed fear about returning to their mother' s care.
John then filed a petition to modify the parenting plan, obtaining an emergency order
granting custody of G.M. and D.M. in his favor in the meantime. The order limited Tatyana' s time
with the children to professionally supervised visits. The trial court also. appointed Ralph Smith
to serve as guardian ad litem (GAL).
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Smith conducted an investigation into the children' s allegations and generated a report of
his findings. Smith concluded that Tatyana used fear and physical force against G.M. and that her
actions rose to the level of abuse. Smith recommended that the children remain with John and that
Tatyana maintain her supervised visitation. Smith also recommended that Tatyana undergo a
parenting evaluation regarding her " tendency for violence." Ex. 12 at 9.
Tatyana initially complied with the supervised visit requirement, but later ceased attending
the visits for extended periods of time. Following a number of reported incidents during the
visitations, Hurd composed a recommendation letter in which she determined that the visits were
stressful for G. M. and D. M. Smith then filed a motion urging the court to suspend Tatyana' s
visitation rights until she obtained the recommended parenting evaluation.
Rather than suspending Tatyana' s visitation rights entirely, the trial court ordered that
Tatyana' s visits be therapeutic in nature, but Tatyana never arranged or coordinated such visits.
Tatyana claimed she could not afford to pay for the therapeutic visits or other supervised visitation
time because she had lost her home and she had no income.2
Tatyana also failed to obtain the recommended parenting evaluation, instead filing a motion
asking the trial court to order an evaluation for both parents. Tatyana and John agreed that Dr.
Loren McCollom would conduct the evaluation, but Tatyana did not inform John when she began
the evaluation process. In light of Tatyana' s domestic violence allegations and when he became
2 Tatyana was generally uncooperative when asked about her finances or her living arrangement
at hearing. She admitted that she was living with a person with whom she was in
the time of the
a relationship, but refused to tell the court where she was living.
t
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aware of the court' s order to evaluate both parents, Dr. McCollom suspended the evaluation
process.
II. PROCEDURE
The parties proceeded to trial on the modification petition absent Dr. McCollom' s report.
There, John urged the court to adopt a modified parenting plan according to which he would have
sole custody of the children with therapeutic visitation sessions for Tatyana. The basis of John' s
proposed modification was Tatyana' s physical and emotional abuse of G. M. and D.M.
Tatyana opposed the modification at least insofar as the trial court would grant John' s
request without first obtaining Dr. McCollom' s evaluation report. The trial court heard testimony
from John, Tatyana, Hurd, Dr. McCollom, and Smith, among others. The trial court found credible
the testimony regarding Tatyana' s abuse of the children. Notwithstanding that determination,
however, the trial court granted Tatyana' s request to continue the hearing so that the parties could
complete the parenting evaluation with Dr. McCollom. The trial court ordered.John and Tatyana
to share the cost of the evaluation.
Dr. McCollom conducted the parenting evaluation. John complied with the court' s order
and paid his portion of the evaluation cost, but because Tatyana did not do so, Dr. McCollom
would not release the report, so the trial court again continued. the hearing on two additional
occasions. By October 2013, Tatyana still had not remitted payment, but the trial court refused to
continue the matter further.
The trial court heard additional testimony and considered new evidence, including a CPS
report finding that the allegations of abuse by Tatyana were " founded." The court made an oral
ruling during which it noted that there had been a previous finding of domestic violence against
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John, but concluded that there was no evidence to support an additional finding to that effect and,
in the court' s view, there were no concerns about future domestic violence from John.
The trial court entered findings of abuse by Tatyana pursuant to RCW 26. 09. 191 and
granted John' s request to modify the parenting plan under RCW 26. 09.260. The court expressed
concern that Tatyana had not exercised all of her visitation rights pursuant to the former court
orders and that at one time, she let nearly one year pass without contacting the children.
As part of its order, the court also remarked that the goal of the modified final orders was
to establish a system whereby Tatyana and the children can develop a healthy relationship through
the development and implementation of a reunification plan with a new counselor. The court
assigned a case coordinator to make sure that the reunification plan progressed satisfactorily. The
trial court also entered a restraining order, enjoining Tatyana from contacting G.M. and D.M. at
their school or day care.
Following the entry of the modified parenting plan, Tatyana entered into a payment
agreement with Dr. McCollom so that she could obtain the parenting evaluation report. Tatyana
then filed a motion for reconsideration. The trial court declined to reconsider its earlier ruling.
Tatyana appeals the trial court' s order modifying the parenting plan and its order denying
Tatyana' s motion for reconsideration.
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No. 45835 -7 -II
ANALYSIS
I. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT' S MODIFICATION ORDER
Tatyana contends that the trial court erred by entering the order granting John' s motion to
modify the parenting plan because the trial court' s findings of fact were not supported by
substantial evidence and because the court did not rule on " sufficient information." Br. of
Appellant at 20- 23. Because the trial court heard ample testimony, which it.found credible, from
various professionals who determined that Tatyana abused G. M. and D.M., we conclude
substantial evidence supports the trial court' s parenting plan decision.
Generally, we review a trial court' s rulings on a parenting plan for abuse of discretion. In
re Marriage of Christel, 101 Wn. App. 13, 20- 21, 1 P.3d 600 ( 2000) ( citing In re Marriage of
Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 ( 1996)). We do not reverse a trial court' s decision
to modify a parenting plan under RCW 26.09.260 unless the trial court exercised its discretion in
an untenable or manifestly unreasonable way. In re Marriage ofMcDole, 122 Wash. 2d 604, 610,
859 P.2d 1239 ( 1993).
Specifically, we review a trial court' s findings of fact to determine whether substantial
evidence supports the findings and whether those findings of fact support the conclusions of law.
Scott' s Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wash. App. 335, 341, 308 P.3d
791 ( 2013), review denied, 179 Wash. 2d 1011 ( 2014). " Substantial evidence" is the quantum of
evidence " sufficient to persuade a rational fair- minded person the premise is true." Sunnyside
Valley Irrigation Dist. v. Dickie, 149 Wash. 2d 873, 879, 73 P.3d 369 ( 2003).
We make all reasonable inferences from the facts in John' s favor as the prevailing party
below. Scott' s Excavating, 176 Wn. App. at 342. And we do not " disturb findings of fact
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supported by substantial evidence even if there is conflicting evidence." Merriman v. Cokeley,
168 Wash. 2d 627, 631, 230 P.3d 162 ( 2010). We defer to the trial judge on issues of witness
credibility and persuasiveness of the evidence. Boeing Co. v. Heidy, 147 Wash. 2d 78, 87, 51 P.3d
793 ( 2002).
RCW 26. 09.260 governs modifications of parenting plans. It provides in pertinent part,
1) Except as otherwise provided in subsections ( 4), ( 5), ( 6), ( 8), and ( 10) of this
section, the court shall not modify a prior custody decree or parenting plan unless
it finds, upon the basis of facts that have arisen since the prior decree or plan or that
were unknown to the court at the time of the prior decree or plan, that a substantial
change has occurred in the circumstances of the child or the nonmoving party and
that the modification is in the best interest of the child and is necessary to serve the
best interests of the child....
2) In applying these standards, the court shall retain the residential schedule
established by the decree or parenting plan unless:
c) The child' s present environment is detrimental to the child' s physical,
mental, or emotional health and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the child.
Here, in support of its decision that modification of the parenting plan was in the children' s
best interest, the trial court found that the children' s environment under the then -existing plan was
detrimental to their physical, mental, or emotional health. The court found further that CPS had
conducted an investigation resulting in a determination that abuse was " founded." Clerk' s Papers
at 207
The trial court heard testimony from Hurd, who discussed G.M.' s disclosures that Tatyana
had been abusing him physically for an extended period of time and that she did not always feed
him enough. Hurd found these disclosures credible. Hurd also observed bruises on G.M. And
D.M. made disclosures that corroborated G.M.' s version of the events.
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The trial court also heard testimony from Smith in his role as the GAL. Smith agreed that
Tatyana' s action instilled a fear of harm in the children and noted that although G.M. and D.M.
wanted to see their mother, they only wished to do so with supervised visits. Smith had no
concerns about the children living with John and recommended that they continue to do so. The
trial court found these aspects of Hurd' s and Smith' s testimony credible.
Tatyana takes issue with the trial court' s reference to the findings and recommendations of .
a previous GAL in 2008 in support of what appears to be a claim that the trial court erred by relying
on an outdated report. But the trial court simply mentioned that it had also reviewed [ the GAL' S]
report from 2008. Tatyana cites no authority to support the proposition that a trial court cannot,
on its own initiative, look into related material filed by an officer of the court in an earlier stage of
a concomitant proceeding. And as described above, the evidence absent any mention of the earlier
GAL report supports the trial court' s findings.
Accordingly, we hold that substantial evidence supports the trial court' s findings that
modification of the parenting plan was in the best interests of the children because the existing
arrangement was detrimental to their health. Therefore, we hold further that the trial court
necessarily did not abuse its discretion by ordering modification.
II. RECONSIDERATION
Tatyana asserts that the trial court abused its discretion by denying her motion for
reconsideration because she obtained Dr. McCollom' s evaluation report, which constitutes new
evidence for the purpose of a CR 59 motion. But with reasonable diligence, Tatyana could have
produced the McCollom report at trial, thus it is not new evidence. Therefore, the trial court did
not abuse its discretion in denying the reconsideration motion.
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We review a trial court' s decision granting or denying a motion for reconsideration for
abuse of discretion. City of Longview v. Wallin, 174 Wash. App. 763, 776, 301 P.3d 45, review
denied, 178 Wash. 2d 1020 ( 2013). CR 59 governs motions for reconsideration and provides in
relevant part,
a) Grounds for New Trial or Reconsideration. On the motion of the
party aggrieved, a verdict may be vacated and a new trial granted to all or any of
the parties, and on all issues, or on some of the issues when such issues are clearly
and fairly separable and distinct, or any other decision or order may be vacated and
reconsideration granted. Such motion may be granted for any one of the following
causes materially affecting the substantial rights of such parties:
4) Newly discovered evidence, material for the party making the
application, which the party could not with reasonable diligence have discovered
and produced at the trial.
Emphasis added.)
Here, Tatyana contends that the trial court abused its discretion because the McCollom
report was newly discovered evidence previously unavailable at the time the court made its
decision. But to the extent that the report was unavailable before the presentation of the final
orders, this was so only because of Tatyana' s failure to contribute to the cost of the evaluation per
the earlier court order.
The parties were well aware that the evaluation report existed at the time of trial and the
court continued the matter for nearly a year to allow Dr. McCollom to complete the evaluation and
to give the parties an opportunity to present their case in light of its conclusions. Tatyana would
have been able to present the evaluation report had she used reasonable diligence to satisfy her
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No. 45835 -7 -II
payment obligations in the months before the hearing concluded. Moreover, any argument to the
contrary is undermined by the fact that Tatyana ostensibly secured some kind of agreeable payment
arrangement almost immediately following the entry of final orders, such that she could file a
timely motion for reconsideration.
Significantly, Tatyana failed to inform the trial court in her motion for reconsideration how
the McCollom report would change the trial court' s determination that modification of the
parenting plan was warranted in light of substantially changed circumstances. Nor does she make
3
such an argument to this court. See Fishburn v. Pierce County Planning & Land Servs. Dep' t,
161 Wn. App. 452, 473, 250 P.3d 146 ( 2011). Accordingly, we hold that the trial court did not
abuse. its discretion by denying Tatyana' s motion for reconsideration.4
III. ATTORNEY FEES
RCW 26. 09. 140 permits this court to award appellate attorney fees on a discretionary basis.
Based on the record here, we decline to award fees to either party.
3 The McCollom report' s conclusions and recommendations are markedly similar to the conditions
contained in the trial court' s modified orders. There is nothing in the report that would cast doubt
on the relief that the trial court granted John or that is particularly favorable to Tatyana.
4 Tatyana also argues that this court should vacate the restraining order entered against her in
conjunction with the modified parenting plan. But as explained, there was substantial evidence to
support the court' s ruling modifying the parenting plan. The restraining order precludes Tatyana
from contacting G.M. and D.M. at their schools or home, which is entirely consistent with the
parenting plan' s requirement that Tatyana have only supervised visits.
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Affirmed.
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 in accordance with RCW 2. 06.040,
it is so ordered.
14NSON, C. J.
We concur:
MAXX, J.
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