In Re The Marriage Of: Becky Develle v. Marc Develle ( 2015 )

FILED
COURT OF APPEALS
DIVISION 11
X415 MAY 27 AM 9: 32
STATE OF WASHINGTON
BY
OP4TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Marriage of No. 44484 -4 -II
Consolidated with No. 44614 -6 -II
BECKY C. DEVELLE,
Appellant,
and
MARC G. DEVELLE, UNPUBLISHED OPINION
Respondent.
JOHANSON, C. J. - Becky Develle appeals several superior court orders entered in
connection with the dissolution of her marriage to her former husband, Marc Develle. We hold
that the parties' settlement agreement was valid, the trial court properly relied on the parties'
agreement regarding spousal maintenance, the trial court properly amended the parenting plan, and
the trial court lawfully found Becky' in contempt. In addition, the trial court did not err by ordering
the Develle children to attend public school. Accordingly, we affirm.
We refer to Becky and Marc by their first names for clarity, intending no disrespect.
Consol. Nos. 44484 -4 -II / 44614 -6 -II
FACTS
Marc and Becky were married in June 1986. Becky filed for legal separation in March
2011. Marc and Becky had eight children together, five of whom were dependents at the time of
trial. Throughout the marriage, Becky was a homemaker who also homeschooled the children.
Dr. Landon Poppleton, a clinical psychologist, conducted a custody evaluation for the
Develle family. The efficacy of Becky' s teaching methods were central to the resolution of the
parenting plan. Dr. Poppleton found that, notwithstanding intelligence quotients in the normal
ranges, each of the children scored unacceptably low in various domains of their academic
achievement. Citing complaints from the children, Dr. Poppleton noted serious concerns regarding
Becky' s ability to provide a healthy, supportive home routine including adequate nutrition. Dr.
Poppleton also had concerns about Becky' s live -in boyfriend' s son ( D. J.) who had propositioned
one of Becky' s young daughters for sex.
The trial court appointed Erin Wasley as guardian ad litem to serve as a liaison between
the court and the Develle children. Wasley' s subsequent investigations corroborated many of Dr.
Poppleton' s concerns.
The parties proceeded to trial in August 2012. On the second day of trial, the parties
announced on the record that they had reached " a global agreement on all of the issues at this
time." 2 Report of Proceedings ( RP) at 35. The parties agreed that the two youngest children,
H. D. and B.D., would remain primarily with Becky while Marc would retain custody over the
remaining three dependent children. The trial court adopted the parties' agreement including a
review hearing 45 days after entry of the order to determine whether the parenting schedule proved
successful for the family and also to reexamine the custody arrangement if necessary. The
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agreement provided that Marc would pay Becky $ 1, 000 per month in child support, but the trial
court made it clear that this amount was subject to review at a later date.
The agreement further specified that Marc had sole decision -making rights relating to the
children' s education and that Becky could no longer homeschool the children. Moreover, the
parties agreed that D.J. would not have unsupervised contact with H.D. or B.D.
The parties agreed that Marc would receive the family home. The trial court ordered Becky
to vacate the home and to leave it in a clean and habitable condition. The trial court permitted
Becky to take some of the personal property from the home provided she made a list of those items
and left the children' s possessions there. The court specifically warned Becky not to leave the
home empty of furnishings.
The trial court discussed each agreement provision, asking Becky and Marc separately
whether they agreed. Becky answered in the affirmative to each question, including the
maintenance and child support issue ( with the associated review period) as well as the custody
arrangement. Becky also answered affirmatively when the trial court asked her whether she
firmly believed" that she and Marc had an agreement. 2 RP at 60. The terms of the agreement
were accurately memorialized in a decree of dissolution, parenting plan, and order of child support.
The trial court instructed Wasley to monitor the children' s progress to determine whether
the parenting schedule and custody arrangement was working for the family. Before the first
review hearing, Marc filed a motion for contempt based in part on reports that there had been a
second incident involving D. J. making inappropriate sexual remarks to H.D. Marc alleged that
Becky continued to fail to protect H.D. from D. J. contrary to the court' s previous order. Marc also
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complained that the home was in disarray when Becky left and that she took the children' s personal
property.
The trial court set these matters over for a review hearing the following week. There,
informed initially by Wasley' s report, the trial court heard testimony from Becky regarding her
efforts to supervise her children around D.J. amidst allegations that there had been further
unseemly conduct. Becky conceded that she had left H.D. alone with D. J. for a short time on one
occasion. Becky also admitted that she allowed B.D. and D.J. to sleep in the same bedroom,
asserting ignorance as to that particular prohibition in the parenting plan.
The trial court awarded temporary custody of H.D. and B. D. to Marc pending an
evidentiary hearing. Wasley testified at the evidentiary hearing and recommended that Becky be
denied overnight visits from that point forward. Wasley' s recommendation was based on her
ongoing investigation and her interviews with the Develle children. Wasley noted that Becky
actively minimized the risk D.J. posed and that the children strongly preferred the current schedule
with Marc as the primary parent. Wasley also doubted whether Becky was willing to enforce the
court' s restrictions.
The trial court examined the factors contained in RCW 26. 09. 187( 3) and concluded that
Marc was best suited for primary custody of all the dependent children. The court expressed
several concerns, not the least of which was its uncertainty that Becky could provide a loving,
stable, and consistent relationship with each of the children. The trial court also noted that, in its
view, Becky had overlooked the emotional and developmental needs of the children and that,
unlike Marc' s home, there were allegations of recent emotional and physical abuse in Becky' s
home. The court awarded primary custody to Marc on a permanent basis.
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Becky moved for reconsideration, claiming that the children had been coached to lie. The
court denied Becky' s motion, ruling that she had not established her burden under either CR 59 or
CR 60. The trial court then found Becky in contempt for failing to leave the family home in a
clean and habitable condition and because she defied the same order by taking the vast majority of
the parties' personal property, including the children' s personal property. The trial court allowed
her to purge the contempt finding by returning specific items belonging to the children. Becky
appeals.
ANALYSIS
I. VALID SETTLEMENT AGREEMENT
Becky argues that the parties' settlement agreement was invalid because ( 1) she agreed
under duress, ( 2) the agreement is void for vagueness, and ( 3) the agreement creates an illusory
contract. We hold that these claims fail.
A. DURESS
A party asserting duress must produce evidence that the other party' s wrongful or
oppressive conduct deprived her of her free will at the time she entered into the agreement. Retail
Clerks Health & . Welfare Trust Funds v. Shopland Supermarket, Inc., 96 Wash. 2d 939, 944 -45, 640
P.2d 1051 ( 1982). But Becky alleges no duress caused directly by Marc. Instead, she claims that
she felt coerced to agree to the settlement because her attorney told her off the record that the court
was displeased with her for continuing to run homeschool classes. But as Becky acknowledges,
there is no proof of such a conversation, and even assuming the truth of her allegation, it would
not establish that Becky agreed under duress because animosity alone does not constitute wrongful
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or oppressive conduct sufficient to deprive Becky of her free will.2 Retail Clerks, 96 Wash. 2d at
944 -45.
After the parties finalized the terms of their agreement, the trial court discussed each
provision, asking Becky and Marc separately whether they agreed. Becky answered in the
affirmative to each question, including the maintenance and child support issue, with the associated
review period, as well as the custody arrangement. Becky answered affirmatively when the trial
court asked her whether she " firmly believed" that she and Marc had an agreement. 2 RP at 60.
In light of these facts, Becky' s claim of duress must fail.
B. VAGUENESS
Becky' s void -for -vagueness claims also fail because she misapprehends the nature of such
a challenge. A void -for -vagueness claim involves legislation that either forbids or requires the
doing of an act in terms so vague that persons of common intelligence must necessarily guess as
to its meaning and differ as to its application. Am. Legion Post No. 149 v. Dep' t ofHealth, 164
Wash. 2d 570, 612, 192 P.3d 306 ( 2008). Here, Becky' s argument relates to a provision in a marriage
settlement agreement and she cites to no authority that the void -for -vagueness doctrine applies
here. 3 We reject this claim.
2
Becky also argues that she agreed in part due to fear of losing her children. But her fear does not
prove duress because her fear is not the product of a wrongful act of another.
3
Becky also argues that the trial judge violated the appearance of fairness doctrine and one or
more of the codes of judicial conduct. But what she cites as examples of alleged misconduct or
bias are run -of the
- -mill rulings or credibility determinations that are not favorable to her. This
argument lacks merit.
Consol. Nos. 44484 -4 -II / 44614 -6 -I1
C. ILLUSORY CONTRACT
Becky' s contention that the settlement agreement constitutes an illusory contract is equally
unavailing. A contract is illusory when its provisions make performance optional or discretionary.
Zuver v. Airtouch Commc' ns, Inc., 153 Wash. 2d 293, 317, 103 P.3d 753 ( 2004). Here, the parties'
settlement agreement was memorialized as a court order. Nothing in the agreement made
performance optional or discretionary. Accordingly, the trial court properly enforced its
provisions. Rejecting Becky' s arguments, we hold that the settlement agreement was valid.
II. SPOUSAL MAINTENANCE
Becky argues that she is entitled to maintenance because of the marriage' s length and the
disparity in income between herself and Marc. But because Becky agreed to forego spousal
maintenance, there is no error.
We review a trial court' s maintenance award for an abuse of discretion. In re Marriage of
Estes, 84 Wash. App. 586, 593, 929 P.2d 500 ( 1997). The trial court abuses that discretion if it bases
a denial of maintenance on untenable grounds or for untenable reasons. In re Marriage ofFoley,
84 Wash. App. 839, 845, 930 P.2d 929 ( 1997).
Becky voluntarily agreed to forego an award of maintenance when she entered into the
settlement agreement with the understanding that she would receive $ 1, 000 in child support. At
the time the parties reached their agreement, Becky had custody of the two younger children, H.D.
and B. D. The agreement included an award of $1, 000 monthly child support pending a review
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hearing where Becky' s employment efforts and the residential schedule would be considered.4
The following exchange occurred on the record:
THE COURT: And do you agree on the child support number of 1, 000,
whether we call it maintenance or child support, it' s a number that we' re going to
put in place today. It will not be fixed; that we' ll continue to review that number
based upon the residential schedule ofthe children?
BECKY] : Yes.
THE COURT: And you firmly believe that we do have an agreement?
BECKY] : Yes.
2 RP at 59 -60.
Later, Becky' s attorney said that she " probably shouldn' t have forfeited maintenance on a
25 -year marriage. She did it with the thought that she was getting the 1, 000 in child support." 3
RP at 119. The trial court' s unchallenged findings of fact state that maintenance should not be
ordered "[ p] er the agreement of the parties." Clerk' s Papers ( CP) at 8. Furthermore, the agreed
decree of dissolution states that maintenance "[ d] oes not apply." CP at 17.
Becky agreed to forego maintenance in lieu of a variable child support award. We hold
that the trial court did not abuse its discretion by entering orders consistent with the parties'
agreement.
III. PARENTING PLAN
Becky appeals the trial court' s adjustment to the parenting plan contending that the court
erred by altering the custody arrangement without following the parenting plan modification
4 On the record before us, there is no review hearing specifically regarding Becky' s employment
status.
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statute. We hold that the trial court properly reserved a final decision on the residential schedule
and adjusted, rather than modified, the parenting plan.
Generally, we review a trial court' s rulings about the provisions of a parenting plan for
abuse of discretion. In re Marriage of Littlefield, 133 Wash. 2d 39, 46, 940 P.2d 1362 ( 1997).
Similarly, a trial court exercises its discretion in ruling on a motion for reconsideration and this
court will only overturn such a ruling for an abuse of discretion. Rivers v. Wash. State Conference
ofMason Contractors, 145 Wash. 2d 674, 685, 41 P.3d 1175 ( 2002).
Under the Parenting Act of 1987, ch. 26.09 RCW, the best interests of the child continues
to be the standard by which the trial court determines and allocates parenting responsibilities.
RCW 26. 09. 002; In re Marriage of Possinger, 105 Wash. App. 326, 335, 19 P.3d 1109, review
denied, 145 Wash. 2d 1008 ( 2001). Accordingly, our courts have held that
the trial court is not precluded by the Parenting Act from exercising its traditional
equitable power derived from common law to defer permanent decisionmaking
with respect to parenting issues for a specified period of time following entry of the
decree of dissolution of marriage.E51
Possinger, 105 Wash. App. at 336 -37.
Here, the trial court accepted the parties' settlement agreement that conditioned a joint
custody arrangement on its ability to pass muster under two scheduled review periods. The nature
of the review was to " detail if the parenting schedule is working for the children and the family,
including a review of custody if necessary." CP at 27. Upon review, the trial court determined
that the arrangement was not functioning in the best interests of the children, so it applied the
5 Our Supreme Court has endorsed the reasoning in Possinger, but it has declined to do so when
the period for review is completely open ended. See In re Parentage of C.M.F, 179 Wash. 2d 411,
427, 314 P.3d 1109 ( 2013).
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standards in RCW 26. 09. 187( 3) and altered the parenting plan accordingly. Thus, we conclude
that Becky' s claim that the court failed to follow the procedures necessary to modify a parenting
plan fails.6 We hold that the trial court did not abuse its discretion by denying Becky' s motion for
reconsideration.
IV. CONTEMPT
Becky argues that the trial court unlawfully found her in contempt, in part by failing to
afford her the constitutional safeguards extended to criminal defendants. Because the court found
Becky in civil contempt and included an opportunity to purge the contempt finding, Becky is not
entitled to the constitutional safeguards extended to criminal contempt defendants. Accordingly,
we hold that Becky' s claim fails.
Contempt can either be civil or criminal with the latter requiring the constitutional
safeguards extended to other criminal defendants. In re Marriage ofDidier, 134 Wash. App. 490,
500, 140 P.3d 607 ( 2006), review denied, 160 Wash. 2d 1012 (2007). Our current statutes distinguish
between punitive and remedial sanctions for contempt. RCW 7. 21. 010, . 030, . 040. A " punitive
sanction" is " a sanction imposed to punish a past contempt of court for the purpose of upholding
the authority of the court." RCW 7. 21. 010( 2). A "remedial sanction" is " a sanction imposed for
the purpose of coercing performance when the contempt consists of the omission or refusal to
perform an act that is yet in the person' s power to perform." RCW 7. 21. 010( 3).
6
Becky also disputes the trial court' s conclusions regarding several factors our courts are required
to consider under RCW 26. 09. 187( 3). Despite Becky' s claims that these factors weigh in her
favor, the trial court considered each of them thoroughly on the record and came to a different
conclusion. Becky makes additional policy - based arguments that children should be with their
mothers generally. The trial court' s findings are supported by the record and the court did not
abuse its discretion.
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A court has civil contempt power in order to coerce a party to comply with its lawful order
or judgment. RCW 7. 21. 020. " Contempt of court" includes an intentional "[ d] isobedience of any
lawful judgment, decree, order, or process of the court." RCW 7. 21. 010( 1)( b). "' An order of
remedial civil contempt must contain a purge clause under which a contemnor has the ability to
avoid a finding of contempt and /or incarceration for non -compliance. "' In re Interest ofRebecca
K, 101 Wn. App. 309, 314, 2 P.3d 501 ( 2000) ( quoting State ex rel. Shafer v. Bloomer, 94 Wn.
App. 246, 253, 973 P.2d 1062 ( 1999)).
Here, the trial court found Becky in contempt based on her disregard of the court' s order
to leave the family home in a clean, habitable manner and on her decision to take a significant
amount of personal property from the home contrary to the court' s instruction. Marc requested
she return the children' s musical instruments and copies of the family photos. The trial court
explained to Becky that she could purge the finding of contempt and avoid further civil penalty by
returning the requested items before a court- imposed deadline.
Accordingly, each of Becky' s arguments are unavailing because the nature of the trial
court' s order was remedial civil contempt. The sanction here was remedial because the trial court
imposed it for the purpose of coercing performance that was yet in Becky' s power to perform; that
is, to return the items she had in her possession. Therefore, Becky is not entitled to the
constitutional safeguards that would be available to a criminal defendant and her claims necessarily
fail.
V. COMPULSORY EDUCATION
Becky argues that the trial court' s ruling restricted her right to raise her children according
to her beliefs, that B. D. was " not under the court' s jurisdiction," that she complied with all state
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homeschooling laws, and that "[ a] person cannot be found guilty of following a statute" without
denial of due process. Br. of Appellant at 48 -49. But Becky agreed that Marc would have sole
control of every decision relating to the children' s education and that she was no longer entitled to
conduct homeschooling. Marc opted to enroll the children in public education. Because Becky
agreed to allow Marc to make education decisions, we hold that no trial court error occurred.
VI. ATTORNEY FEES
Marc requests attorney fees pursuant to RAP 18. 1 and RAP 18. 9. But Marc presents no
legal authority to support his claim for attorney fees when he appeared pro se on appeal. In
addition, although we do not find Becky' s arguments persuasive, we also do not find her appeal to
be frivolous. Therefore, we deny Marc' s attorney fee request.
We affirm.
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.
We concur:
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