In Re The Marriage Of: Irlanda Diaz-rodriguez, V. Jose Marcelo Tenesaca ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
No. 81784-1-I
IRLANDA RODRIGUEZ DIAZ,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
and
JOSE MARCELO TENESACA ARPI,
Appellant.
APPELWICK, J. — Tenesaca Arpi appeals from final orders entered in the
dissolution of marriage after trial. He contends that to the extent the trial court’s
final orders were based on the mother’s testimony and her allegations of domestic
violence, they were not supported by substantial evidence. Tenesaca Arpi also
contends that the residential schedule is not in the children’s best interests and
that the trial court erred in determining maintenance and child support. He
contends that the parenting plan impermissibly allows the mother to obtain a
modification without showing a substantial change in circumstances. Finally, he
contends the trial court committed reversible evidentiary errors and was biased
against him. We affirm.
No. 81784-1-I/2
FACTS
Jose Tenesaca Arpi (the father) and Irlanda Rodriguez Diaz (the mother)
married in 2007 and separated in September 2018. They have two children
together, D.T. and E.T.
In January 2019, the mother petitioned for dissolution. She requested
limitations on the father’s time with D.T. and E.T. and alleged that the father “has
a history of domestic violence.” She indicated there was a pending domestic
violence protection order (DVPO) proceeding involving the children.
The mother also requested maintenance. According to her later testimony,
she was unable to work due to a disability, her income was $1,120.00 per month
consisting of disability benefits, and she had only a fifth-grade education.
According to an administrative child support order entered in February 2019, the
Social Security Administration had determined that the mother was completely
disabled and unable to work.
A dissolution trial took place on March 11, 2020. The father was
represented. The mother appeared pro se with the assistance of a translator. The
father requested a 50-50 residential schedule. The father also asked the court to
deny the mother’s request for maintenance and to deviate downward on child
support, indicating that he “now pays $400 per month for a child from outside of
this marriage.”
The mother requested that the father receive no residential time with D.T.
and E.T. She testified that the father was “very violent and aggressive” and
described an incident in March 2010 when the father sexually assaulted her. The
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mother also testified that “when [the father] couldn’t control his temper, he would
take his belt off and hit [E.T.] all over his body.” The mother recalled that in October
2018, after the parties separated, the father “threatened me that if I continued with
the process of the divorce, he would kill me.” She testified that she lived with her
sister and her sister’s husband, paid them $800.00 in rent, and helped to pay for
garbage and water utilities. When asked if she knew how much her sister and
brother-in-law made, the mother responded no.
One of the mother’s adult children, who lived with the parties for
approximately 12 years, described the father as “toxic to my entire family.” He
testified that the father “could be very rude to [the mother] at times” and would yell
at her and call her names. He also testified that he once witnessed the father
“shove[ the mother] into the bathroom thinking that no one would see” and recalled
that “it was definitely intentional to push her against the bathroom door.” He
testified that although the father never hit him, he thought the father “disciplined
the entire family by hitting [E.T. and that] by hitting [E.T.] he was punishing us and
intimidating us.”
After trial, the court entered a dissolution decree, final parenting plan, final
child support order, and findings and conclusions. It found the mother credible,
adopted the mother’s version of the facts regarding the father’s abusive behavior,
and found that the father “has a history of domestic violence.” The trial court
determined the children would reside with the mother the majority of the time,
except that the children would spend every other weekend with the father, plus
one week of uninterrupted time in the summer. The court ordered the father to
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complete a domestic violence evaluation and follow any recommendations it
required. The court also ordered that the mother “may petition for modification of
the parenting plan based upon the father’s failure to comply” with the domestic
violence evaluation and treatment requirements, and that “[i]f the mother shows
that the father has failed to comply, the mother need not show a substantial change
in circumstances.”
The court ordered the father to pay maintenance of $1,500.00 per month
through April 2022. It also ordered the father to make a monthly child support
transfer payment to the mother of $858.34 through April 2022 and $1,282.90
thereafter, based on the standard calculation. The court denied the father’s
request for a deviation downward, finding that “[t]he child for whom the father is
paying child support is about to turn 18” and a deviation would undermine the
mother’s financial ability to care for the children.
The father moved for reconsideration, which the trial court denied. The
father appeals.
DISCUSSION
The father challenges the trial court’s parenting plan, child support order,
and maintenance award.1 A trial court’s rulings concerning these matters are
1 Although the father was represented below, he maintains his appeal pro
se. Pro se litigants are held to the same standards as attorneys and must comply
with all procedural rules on appeal. See In re Marriage of Olson, 69 Wn. App. 621,
626, 850 P.2d 527 (1993). These rules require the appellant to provide “argument
in support of the issues presented for review.” RAP 10.3(a)(6). We address the
father’s assignments of error only to the extent they are supported by argument
and not inadequately briefed to warrant consideration. See Norcon Builders, LLC
v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (“We will
not consider an inadequately briefed argument.”).
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reviewed for abuse of discretion except to the extent they present issues of law,
which we review de novo. In re Marriage of Buchanan, 150 Wn. App. 730, 735,
207 P.3d 478 (2009); In re Marriage of Lee, 176 Wn. App. 678, 684, 310 P.3d 845(2013). A trial court abuses its discretion when its decision is manifestly
unreasonable, or its discretion is exercised on untenable grounds or for untenable
reasons. In re Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d 607 (2016).
A trial court’s unchallenged findings are verities on appeal, and challenged
findings are binding if supported by substantial evidence. In re Estate of
Langeland, 177 Wn. App. 315, 320, 312 P.3d 657 (2013). “‘Substantial evidence’
is evidence sufficient to persuade a fair-minded, rational person that the finding is
true.” Id.I. Substantial Evidence
The father first contends that the trial court’s orders must be reversed
because none are supported by substantial evidence. He asserts that the mother
was barred from claiming domestic violence in the dissolution proceeding and that
the mother was not credible. Accordingly, he contends, the trial court’s orders
must be reversed because they rely on the court’s domestic violence findings and
its belief in the mother’s testimony.
A. Domestic Violence Claims
The father contends that “[w]hen the mother voluntarily dismissed her
DVPO [petition] with prejudice, she waived any right to ever litigate claims of
violence that pre-dated [May 9, ]2019,” the date of the dismissal order. (Some
capitalization omitted.) The father relies on the doctrines of claim preclusion, issue
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No. 81784-1-I/6
preclusion, and judicial estoppel to support his contention.2 He fails to establish
that any of these doctrines apply.
Claim preclusion “prevent[s] a second assertion of the same claim or cause
of action,” and issue preclusion “bars relitigation of an issue in a subsequent
proceeding involving the same parties.” Ullery v. Fulleton, 162 Wn. App. 596, 602,
256 P.3d 406 (2011). A final judgment on the merits is a threshold requirement
under both doctrines. Id. at 603, 610 n.4. But, here, it is undisputed that the
dismissal of the mother’s DVPO petition was based on the agreement of the
parties. It was not a judgment on the merits. The father fails to establish that the
threshold requirement of issue or claim preclusion is satisfied. And, he does not
address the remaining elements of either doctrine.3 His reliance on these
doctrines is misplaced.
The father’s reliance on judicial estoppel is equally misplaced. “Judicial
estoppel is an equitable doctrine that precludes a party from gaining an advantage
2 The father raised these legal theories for the first time in his motion for
reconsideration. The mother does not contend that we should decline to reach
their merits for that reason.
3 See Hassan v. GCA Prod. Servs., Inc., 17 Wn. App. 2d 625, 634, 487 P.3d
203 (2021) (“[T]he ‘party seeking to apply [claim preclusion] must establish four
elements as between a prior action and a subsequent challenged action:
concurrence of identity . . . (1) of subject-matter; (2) of cause of action; (3) of
persons and parties; and (4) in the quality of the persons for or against whom the
claim is made.’” (first alteration added) (internal quotation marks omitted) (quoting
Weaver v. City of Everett, 194 Wn.2d 464, 480, 450 P.3d 177 (2019))); Dotson v.
Pierce County, 13 Wn. App. 2d 455, 466-67, 464 P.3d 563 (“Issue preclusion
applies if (1) the issue decided in the earlier proceeding was identical to the issue
in the later proceeding, (2) the earlier proceeding ended in a judgment on the
merits, (3) the party against whom issue preclusion is asserted was a party to, or
in privity with a party to, the earlier proceeding, and (4) the application of issue
preclusion does not cause an injustice to the party against whom it is applied.”),
review denied, 196 Wn.2d 1018, 474 P.2d 1050 (2020).
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by asserting one position in a court proceeding and later seeking an advantage by
taking a clearly inconsistent position.” Cunningham v. Reliable Concrete Pumping,
Inc., 126 Wn. App. 222, 224-25, 108 P.3d 147 (2005). Courts examine three
factors to determine whether judicial estoppel applies: (1) whether a party asserts
a position inconsistent with an earlier one, (2) whether acceptance of the position
would create the perception that a party misled a court in either proceeding, and
(3) whether the party asserting the inconsistent position would receive an unfair
advantage or impose an unfair detriment. Arp v. Riley, 192 Wn. App. 85, 92, 366
P.3d 946 (2015).
The father contends the mother took inconsistent positions by voluntarily
dismissing her DVPO petition but still asserting in the dissolution proceeding that
the father committed domestic violence. But, we are not persuaded that voluntarily
agreeing to dismiss a DVPO petition is, as the father suggests, equivalent to a
representation that no domestic violence occurred. Consequently, we also are
unpersuaded that the mother’s dismissal of her DVPO petition was “clearly
inconsistent” with her later assertions that domestic violence occurred. See
Cunningham, 126 Wn. App. at 224-25. Additionally, the father fails to explain how
the trial court was misled given that it was aware of, and specifically inquired about,
the circumstances surrounding the DVPO petition dismissal. Cf. Arp, 192 Wn.
App. at 91 (judicial estoppel “is intended to protect the integrity of the courts but is
not designed to protect litigants”). The father does not establish the trial court erred
in considering the mother’s assertions that the father committed domestic violence.
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No. 81784-1-I/8
B. The Mother’s Credibility
The father next contends that the trial court erred in finding the mother
credible. This contention fails for two reasons. First, it is well established that this
court does not review credibility determinations. See In re Marriage of Burrill, 113
Wn. App. 863, 868, 56 P.3d 993 (2002) (“[C]redibility determinations are left to the
trier of fact and are not subject to review.”). Second, the father’s contention relies
on his assertion that we reject above, that the mother’s dismissal of her DVPO
petition is irreconcilable with her later claim that domestic violence occurred.
C. Conclusion
The father argues that substantial evidence does not support the trial court’s
dissolution orders. But, his argument relies on his assertions that the mother was
barred from claiming domestic violence and the trial court erred by finding the
mother credible. Because these assertions fail, so too does the father’s substantial
evidence challenge.
II. Financial Orders
The father contends that the child support and maintenance orders must be
reversed because (1) the court erred in increasing child support beginning May
2022, (2) the mother did not disclose the income of the other adults in her
household, and (3) the father’s income has decreased.
A. Child Support Increase
The trial court found that the father earned a gross monthly wage of
$6,025.00 and that the mother receives social security disability benefits in the
gross monthly amount of $1,120.00. The trial court used these figures to calculate
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No. 81784-1-I/9
child support based on the standard calculation, finding further that the mother was
unable to work due to a disability, the father had a stable job, and there was no
evidence the father’s income would decrease in the foreseeable future.4
In applying the standard calculation, the trial court took into account that it
had ordered the father to pay maintenance of $1,500.00 per month through April
2022. Specifically, the court included the $1,500.00 monthly maintenance as
income to the mother, and a deduction from income for the father, through April
2022 but not thereafter. This resulted in a decrease in the mother’s monthly net
income and an increase to the father’s beginning May 2022. Consequently, it also
changed each party’s proportional share of income beginning in May 2022,
resulting in the father’s child support transfer payment increasing from $858.34 per
month to $1,282.90 as of May 2022. The father contends that “[n]othing in the law
allows” such an increase.
The father is incorrect. “Contemporaneously ordered maintenance must be
considered when determining income and net income for purposes of the child
support schedule.” In re Marriage of Condie, 15 Wn. App. 2d 449, 456, 475 P.3d
993 (2020); see also RCW 26.19.071(3)(q), 5(f) (providing that, in determining
income, maintenance received shall be included and maintenance paid shall be
deducted). Accordingly, we discern no abuse of discretion in the trial court’s taking
its maintenance order into account by ordering child support to increase as a
consequence of the father’s maintenance obligation ending. Cf. RCW
4 To the extent the father asserts that substantial evidence does not support
the findings described in this section, he is incorrect. Substantial evidence in the
record supports these findings.
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26.09.100(2) (authorizing trial court to require automatic modifications of child
support based on the child support schedule).
B. Household Income
The father contends that because the mother did not disclose the income
of the other adults with whom she lived, the trial court’s maintenance and child
support orders must be vacated.
As the mother points out with regard to child support, “[o]nly the income of
the parents of the children whose support is at issue shall be calculated for
purposes of calculating the basic support obligation.” RCW 26.19.071(1). And, to
the extent the father contends the trial court was required to deviate downward
based on additional income in the mother’s household, his contention is
unpersuasive: RCW 26.19.075(1)(a)(ii) provides that “[i]ncome of . . . other adults
in the household is not, by itself, a sufficient reason for deviation.” The father does
not meet his burden to show that the trial court abused its discretion in calculating
child support without including any income of other adults in the mother’s
household. See In re Marriage of Bowen, 168 Wn. App. 581, 586, 279 P.3d 885(2012) (“[T]he spouse who challenges [a trial court’s decisions in a dissolution
action] bears the heavy burden of showing a manifest abuse of discretion.”).
The father also fails to satisfy his burden to establish an abuse of discretion
with regard to the trial court’s maintenance award. “An award of maintenance is
‘a flexible tool by which the parties’ standard of living may be equalized for an
appropriate period of time.’” In re Marriage of Anthony, 9 Wn. App. 2d 555, 564,
446 P.3d 635 (2019) (quoting In re Marriage of Washburn, 101 Wn.2d 168, 179,
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No. 81784-1-I/11
677 P.2d 152 (1984)). “‘The only limitation on amount and duration of maintenance
under RCW 26.09.090 is that, in light of the relevant factors, the award must be
just.’” Id. (quoting In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394(1990)). “While the trial court must consider the factors listed in RCW
26.09.090(1), it is not required to make specific factual findings on all of the
factors.” Id. “Ultimately, the court’s main concern must be the parties’ economic
situations postdissolution.” Id.Here, the record reflects the trial court considered the relevant factors,
including the relative financial resources of the parties, finding that the father earns
significantly more than the mother. Furthermore, whatever the mother’s sister and
brother-in-law earn, the father points to no evidence that any such earnings are an
available financial resource to the mother. Indeed, the mother testified to the
contrary, stating, “I just live there with my children and pay rent.” And, while the
father claimed for the first time on reconsideration that the mother “lives with her
own current boyfriend who I believe makes $100,000+ per year,” he points to no
evidence to support that belief. The father fails to establish an abuse of discretion.
C. Decrease in Father’s Income
The father next contends that the trial court erred in declining to revisit its
financial orders based on an asserted decrease in his income beginning in March
2020 due to the COVID-19 (coronavirus disease 2019) pandemic.
The father first claimed an income decrease in his motion for
reconsideration. “Motions for reconsideration are addressed to the sound
discretion of the trial court and a reviewing court will not reverse a trial court’s ruling
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No. 81784-1-I/12
absent a showing of manifest abuse of discretion.” Wilcox v. Lexington Eye Inst.,
130 Wn. App. 234, 241, 122 P.3d 729 (2005).
As the mother points out, although the father challenges the trial court’s
reconsideration decision, he does not address CR 59, governing motions for
reconsideration. Consequently, he also does not explain why reconsideration was
appropriate under that rule, much less why the trial court’s denial of
reconsideration constituted an abuse of discretion. The trial court did not abuse
its discretion by denying the father’s motion for reconsideration.
III. Children’s Best Interests
The father contends that “[t]he parenting plan must be reversed with a new
trial to revisit an inquiry into the children’s best interests.”
The father first asserts that “[s]ince the mother is not permitted to spend a
great deal of her testimony on claims of [the] father[’s domestic violence] and
abuse, there was little to no evidence left before the court” to limit the father’s
residential time. This assertion fails because, as discussed, the trial court properly
considered the mother’s testimony regarding the father’s abuse.
The father next asserts that the trial court should have imposed RCW
26.09.191 restrictions on the mother because of her “flip flopping change of mind”
and abusive use of conflict. But, the father did not argue below that .191
restrictions were warranted. Furthermore, his contention that restrictions are
warranted is based on challenges to the mother’s credibility that we have already
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No. 81784-1-I/13
rejected and on evidence that was not presented to the trial court.5 The trial court
did not err by not imposing .191 restrictions on the mother. See RAP 2.5(a)
(appellate court may refuse to review issues raised for the first time on appeal);
State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995) (appellate court
will not consider matters outside the record).
Finally, the father asserts that in setting the residential schedule, the trial
court improperly relied on a presumption in favor of the mother as the primary
caregiver. But, although the trial court found that the children resided a majority of
the time with the mother under the temporary parenting plan, the record reflects
no presumption on this basis by the trial court. Rather, the record is clear that the
limitations on the father’s residential time were based on the father’s history of
domestic violence—not on the application of any presumption. The father’s
assertion fails.
IV. Parenting Plan Modification Provision
The father challenges the parenting plan’s provision that the mother “may
petition for modification . . . based upon the father’s failure to comply” with ordered
domestic violence evaluation and treatment. That provision also states, “If the
mother shows that the father has failed to comply, the mother need not show a
substantial change in circumstances.” The father contends that this language
impermissibly allows the mother to obtain a full hearing on modification without
5 The father claims that after trial, the mother falsely reported to police that
the father had molested the children.
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demonstrating adequate cause and to “have the P[arenting] P[lan] modified without
the need to show a substantial change in circumstances.”
“To satisfy the adequate cause burden for a major modification under RCW
26.09.260(1), the parent [seeking modification] must make a threshold showing
that, since the entry of the original plan, ‘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.’” In re Marriage of Snider, 6 Wn. App. 2d 310, 320, 430 P.3d 726 (2018)
(emphasis added) (quoting RCW 26.09.260(1)). The trial court’s order addresses
only the first part of the adequate cause inquiry. It does not, as the father avers,
allow the mother to bypass adequate cause and proceed to a full modification
hearing based solely on the father’s failure to comply with domestic violence
evaluation and treatment requirements.
It is clear from the context that the father’s compliance with domestic
violence evaluation and treatment was a condition of the parenting plan.
Specifically, the trial court found the mother credible and adopted her testimony as
to the father’s abuse. Yet, the trial court did not deny the father residential time as
the mother requested. Instead, it granted the father time on alternating weekends
based on his anticipated participation in domestic violence evaluation and
treatment. The trial court’s order does not allow the mother to proceed to a full
hearing, or obtain a modification, without showing a substantial change in
circumstances. Instead, it states the trial court’s intention that the father’s failure
to comply with a condition of the parenting plan should be regarded by a later court
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considering a modification petition as being a substantial change in circumstances.
While the father is correct that modifications are governed by statute, the statute
does not prohibit the trial court from expressing its intentions in this manner under
facts such as these. The father does not establish that the trial court erred in this
regard.
V. Evidentiary Errors
The father contends the trial court erred by testifying in violation of ER 602,6
ER 605,7 and ER 702.8 He contends further that the trial court erred by allowing
the mother to testify as to hearsay and matters outside of her personal knowledge
and qualifications in violation of ER 602, ER 702, and ER 802.9
But, although the father claims “[t]he judge testified that the mother could
not work,” he provides no citation to the record to support that claim, and our review
of the record reveals no such testimony by the trial court. See RAP 10.3(a)(6)
(requiring argument section of brief to include references to relevant parts of the
record). And, the father did not object to any of the other evidentiary errors he now
claims on appeal. See ER 103(a)(1) (“Error may not be predicated upon a ruling
which admits . . . evidence unless a substantial right of the party is affected,
6 ER 602 provides that “[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.”
7 ER 605 provides that “[t]he judge presiding at the trial may not testify in
that trial as a witness.”
8 ER 702 provides, “If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.”
9 ER 802 provides that hearsay is generally not admissible.
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and . . . a timely objection or motion to strike is made.”).10 For the foregoing
reasons, we decline to review the father’s claims of evidentiary error.
VI. Judicial Bias
The father contends that reversal is required because “[t]he judge’s rulings
and actions on their face, alone, show egregious bias.”
The father is correct that the appearance of fairness doctrine and principles
of due process require judicial officers to “be free of any taint of bias.” City of Lake
Forest Park v. Shoreline Hearings Bd., 76 Wn. App. 212, 217, 884 P.2d 614 (1994).
But, as the father also acknowledges, “[e]vidence of a judge’s actual or potential
bias is required” to establish a violation. In re Marriage of Meredith, 148 Wn. App.
887, 903, 201 P.3d 1056 (2009).
Here, the father does not point to any evidence of the trial judge’s actual or
potential bias. Instead, he contends the trial judge’s rulings in favor of the mother
demonstrate the judge’s bias. The judge’s unfavorable rulings are insufficient,
without more, to warrant reversal. See In re Pers. Restraint of Davis, 152 Wn.2d
647, 692, 101 P.3d 1 (2004) (“Judicial rulings alone almost never constitute a valid
showing of bias.”). Therefore, we reject the father’s claim of judicial bias.
VII. Fees on Appeal
The mother requests fees on appeal under RCW 26.09.140, which
authorizes an appellate court to award fees after “examin[ing] the arguable merit
of the issues on appeal and the financial resources of the respective parties.” In
10A party need not object to preserve error predicated on a judge’s
improperly testifying. ER 605.
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re Marriage of Booth, 114 Wn.2d 772, 779-80, 791 P.2d 519 (1990). Under RAP
18.1(c), “[i]n any action where applicable law mandates consideration of the
financial resources of one or more parties regarding an award of attorney fees and
expenses, each party must serve . . . and file a financial affidavit no later than 10
days prior to the date the case is set for . . . consideration on the merits.” Because
the mother did not timely file a financial affidavit as required by this rule, we deny
her request for fees on appeal.
We affirm.
WE CONCUR:
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