In Re The Marriage Of: Jennifer Corinne Anderson, Res. And Loren Heath Anderson, App. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
No. 79612-7-I
JENNIFER CORINNE ANDERSON,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
and
LOREN HEATH ANDERSON,
Appellant.
DWYER, J. — Loren Heath Anderson appeals a final parenting plan
entered after a dissolution trial. He claims that the trial court erred by imposing
restrictions on his residential time and a new trial is warranted because the court
granted a request to appoint a guardian ad litem (GAL) without sufficient time for
a GAL to file a report. Because the trial court acted within its authority to impose
restrictions under RCW 26.09.191, substantial evidence supports the court’s
findings, and no GAL was ever appointed, we affirm.
I
Jennifer and Loren Heath (Heath) Anderson1 were married in 2012 in
Issaquah, Washington. They have one child, G.A., who was three years old at
the time of trial. Heath also has a child from a previous marriage, A.A., who was
16 years old at the time of trial.
1 To avoid confusion we refer to the parties by their first names.
No. 79612-7-I/2
In 2013, Heath began working for Bank of America as a sales manager
and Jennifer began working at Allyis, where she currently works as a senior
project manager on a marketing contract with Microsoft. In January 2015, Heath
left his job at Bank of America. Jennifer was pregnant with G.A. at the time. In
May 2015, Heath tried to start a business and began selling juices and smoothies
at farmers markets. Heath eventually ran the juice business out of a shop in
Issaquah after G.A. was born.
In February 2017, Jennifer moved out and the parties separated. In
October 2017, Jennifer filed a petition for dissolution. No formal parenting plan
was in place, though the parties agreed to a schedule whereby Heath had G.A.
every other weekend from Friday at 5:30 p.m. until Monday drop off at school,
with additional visits during the week. There were conflicts over exchanges and
pick up times during which Heath sent Jennifer disparaging texts.
In March 2017, G.A. began attending a Montessori preschool across the
street from Jennifer’s home. She started in the toddler room and was enrolled
five days a week. In May 2018, following a teacher conference in which school
staff commented on G.A.’s reluctance to leave on days Heath picked her up,
Heath stopped taking G.A. to the school during his residential time, claiming the
school was biased against him. Instead, he took her to his workplace on days he
had to work. On one occasion she wandered out of the shop and into the alley.
In June 2018, Jennifer filed a motion for a temporary order to allow her to
move with G.A. to Oregon so she could be closer to her family. Jennifer’s
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employer was willing to allow her to work remotely to accommodate the move.
The court denied the motion.
A few months later, after the Labor Day weekend, Jennifer took G.A. on a
two-week trip to Portland. She notified Heath and let him know where she was
going and how long she would be gone. During the trip, Jennifer attempted to
facilitate G.A.’s nightly phone calls with Heath but he did not answer her calls on
three of those nights. He also sent texts to Jennifer accusing her of kidnapping
G.A.
On September 7, 2018, Jennifer moved for temporary orders and
requested that the court appoint a guardian ad litem (GAL) due to “grave
concerns for the safety and well-being of [G.A.].” Jennifer raised concerns about
Heath’s emotional abuse of G.A., his inability “to peaceably co-parent,” and risks
posed by Heath’s teenage son A.A., who had a pending At-Risk Youth petition in
juvenile court. She also raised concerns about Heath keeping G.A. home from
preschool and taking her to work with him during his residential time, during
which he was not able to properly supervise her. By this time, G.A. had been
moved to the preschool room because she had turned three years old. Heath
would not acknowledge that she was in preschool, asserting it was just daycare.
He refused to attend preschool events such as Dad’s night or tour her new
classroom.
On September 21, 2018, a commissioner ordered that a GAL be
appointed on the condition that the court continued the trial date currently set for
October 29, noting that a GAL is required to file a report 30 days before trial. The
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commissioner also entered an order that “[A.A.] will not be left unsupervised with
[G.A.]” and “the parties will continue to follow the same residential schedule
including preschool attendance if Petitioner provides [the] contract that identifies
[the] facility as preschool.”
Jennifer moved to continue the trial date. Heath objected. The trial court
denied the motion to continue. No GAL was appointed. The parties proceeded
to trial as scheduled on October 29, 2018.
After a five-day trial, the trial court entered a final parenting plan with a
finding that Heath’s residential time should be limited under RCW 26.09.191 “due
to emotionally abusive behavior.” Under the parenting plan’s residential
schedule, Heath had residential time with G.A. every other weekend from Friday
at 5:00 p.m. until Sunday at 5:00 p.m. Heath was restricted from bringing G.A. to
work as follows:
During the Father’s parenting time, [G.A.] is not to be at Father’s
shop or at the Farmer’s Market while Father is working at any time
until [G.A.] is at least 8 years old, and then only by agreement. The
Father shall notify the Mother by Noon the Wednesday before his
weekend should he need to work on a day he has [G.A.].
If Father needs to work on his Saturday with [G.A.], then the mother
will drop off [G.A.] at the shop on Saturday at 5 pm instead of
Friday at 5 pm. Father will forfeit this time and there will be no
makeup time allowed.
If Father needs to work on his Sunday with [G.A.], then the mother
will pick [G.A.] up at the shop at 9 am Sunday. Father will forfeit this
time and there will be no makeup time allowed.
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No. 79612-7-I/5
Under a section titled “Safe Environment,” the parenting plan provided that
“[G.A.] shall not be left alone with [A.A.].” The court gave Jennifer sole decision-
making on all major decisions, finding:
Major decision-making should be limited because one of the
parents does not want to share decision-making and this is
reasonable because of the history of each parent’s participation in
decision-making; the parents’ ability and desire to cooperate with
each other in decision-making; location considerations of the child.
Heath filed a motion for reconsideration, claiming among other things that
the evidence did not support a finding that he emotionally abused G.A. The trial
court denied in part and granted in part the motion to reconsider and amended
the parenting plan to add an abusive use of conflict finding in support of the
limitations imposed under RCW 26.09.191.
Heath appeals.
II
Heath claims that the trial court erred by entering a parenting plan with
restrictions under RCW 26.09.191 and granting Jennifer’s request to appoint a
GAL. He further contends that cumulative errors deprived him of a fair trial and
the “appearance of fairness” doctrine requires remand to a different judge.
A
Parenting Plan
Heath challenges the trial court’s imposition of restrictions under RCW
26.09.191, claiming (1) the court exceeded its jurisdiction because Jennifer did
not request them in her petition, and (2) the trial court’s findings of emotional
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No. 79612-7-I/6
abuse and abusive use of conflict are not supported by substantial evidence and
are unrelated to the restrictions imposed.2
We review parenting plans for an abuse of discretion, which occurs when
a trial court’s decision is manifestly unreasonable or based on untenable grounds
or untenable reasons. In re Marriage of Chandola, 180 Wash. 2d 632, 642, 327
P.3d 644 (2014). We accept the trial court’s findings of fact as verities on appeal
so long as they are supported by substantial evidence. In re Marriage of Katare,
175 Wash. 2d 23, 35, 283 P.3d 546 (2012). Substantial evidence is evidence
sufficient to persuade a fair-minded person of the truth of the matter asserted.
Katare, 175 Wash. 2d at 35. We defer to the trial court as the finder of fact to make
credibility determinations and weigh evidence. State v. Merritt, 200 Wash. App.
398, 408, 402 P.3d 862 (2017), aff’d, 193 Wash. 2d 70, 434 P.3d 1016 (2019).
Superior courts have original jurisdiction of “all matters . . . of divorce.”
WASH. CONST. art. IV., § 6. The trial court has broad discretion to fashion a
permanent parenting plan but must be guided by provisions in chapter 26.09
RCW. Katare, 175 Wash. 2d at 35-36. Among these are statutes requiring the
court to consider limitations upon a parent’s involvement with the child. Katare,
175 Wash. 2d at 35-36; RCW 26.09.187(3) (“The child’s residential schedule shall
be consistent with RCW 26.09.191.”). Under RCW 26.09.191(3), the court has
authority to limit any provisions of the parenting plan where a parent’s
involvement or conduct may have an adverse effect on the child’s best interests,
including “[t]he abusive use of conflict by the parent which creates the danger of
2 Heath does not assign error to or otherwise challenge the court’s finding that Jennifer
shall have sole decision-making on major decisions involving the child.
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No. 79612-7-I/7
serious damage to the child’s psychological development,” and “such other
factors or conduct as the court expressly finds adverse to the best interests of the
child.” RCW 26.09.191(3)(e), (g).
In In re Marriage of Fan & Antos, No. 77490-5-I (Wash. Ct. App. April 1,
2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/774905.pdf, an
unpublished decision cited by Jennifer, we rejected the same argument Heath
advances here:
Antos argues that the trial court did not have jurisdiction to
enter parenting plan restrictions under RCW 26.09.191, when Fan’s
pleadings did not request those restrictions. . . .
His arguments ignore the mandatory language of RCW
29.09.187(3)(a), requiring the trial court to create a parenting plan
consistent with RCW 26.09.191. Because the statutory scheme
requires the court to consider parenting plan restrictions, it was not
an abuse of the trial court’s authority or discretion to consider those
restrictions. Instead, failing to comply with the statute’s mandatory
language would have been an abuse of the trial court’s discretion.
Fan, No. 77490-5-I, slip op. at 4. We adopt that reasoning here. The court had
jurisdiction over the dissolution proceeding and properly considered restrictions
under RCW 26.09.191.
The cases cited by Heath do not require a different result. As he
acknowledges, In re Marriage of Leslie, 112 Wash. 2d 612, 772 P.2d 1013 (1989),
addresses the court’s authority to grant relief from a default judgment, which is
not at issue here. Nor is In re Marriage of Watson, 132 Wash. App. 222, 130 P.3d
915 (2006), applicable. As the court acknowledged in Katare, Watson “simply
indicate that restrictions cannot be imposed for unfounded reasons,” which was
not the case here. 175 Wash. 2d at 37.
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No. 79612-7-I/8
In Watson, following a trial on a petition to modify a parenting plan, the
trial court denied the modification petition but sua sponte entered a temporary
order imposing restrictions under RCW 26.09.191(3) on grounds not raised by
either party. 132 Wash. App. at 233. The mother alleged sexual abuse in her
petition and at trial but the court imposed restrictions based on substantial
impairment of emotional ties with the child. The evidence at trial showed that the
father’s impaired relationship with the child was only a result of severe
restrictions on his residential time based on the unfounded abuse allegations.
Watson, 132 Wash. App. at 235. On appeal, the court reversed, concluding that
“[u]pon denying [the mother]’s modification petition, the court lacked authority to
modify the parenting plan sua sponte on grounds that neither party had
contemplated or argued,” and that substantial evidence did not support the
restrictions. Watson, 132 Wash. App. at 233.
Unlike in Watson, the trial court here did not impose restrictions under
RCW 26.09.191 for unfounded reasons. The trial court did not impose
restrictions sua sponte after denying a petition for modification of a parenting
plan; rather, the trial court was tasked with creating a permanent parenting plan,
requiring it to consider limitations under RCW 26.09.191. Katare, 175 Wash. 2d at
35-36; RCW 26.09.187(3). And the record is clear that both parties
contemplated and argued the restrictions imposed. Jennifer raised issues of
emotional abuse and abusive use of conflict well before trial in her motion for
temporary orders and again at trial. Heath responded to those allegations before
and at trial. Indeed, Heath succeeded in preventing a GAL from investigating
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No. 79612-7-I/9
these allegations by opposing Jennifer’s motion to continue the trial to allow
appointment of a GAL. Moreover, as discussed below, substantial evidence
supports the court’s findings.
Heath next contends that the trial court’s findings of emotional abuse and
abuse of conflict are not supported by substantial evidence and do not support
the restrictions imposed. He does not assign error to the court’s findings of fact,
but argues the court’s findings and the trial record do not support imposition of
the restrictions.
The trial court made the following unchallenged findings of fact:
46. There was conflict over pickup times for visitation. Petitioner
had some flexibility due to her work schedule. When Respondent
stopped taking her to school, he felt he could decide what time
[G.A.] should go back to her Mother’s house.
47. Respondent has kept [G.A.] out of school without telling
Petitioner. On at least one occasion Petitioner went to the school to
take snacks and pick [G.A.] up, and she wasn’t there.
48. On 2/20/18 when Petitioner texted respondent asking whether
she was sick since she wasn’t in school, his response was “Not
really your business . . . .”
49. There were contentious emails about exchanges by both
parties.
50. There were many texts or emails from him comparing Petitioner
to [A.A]’s mother . . . with whom he also had a contentious
relationship, and calling Petitioner a “psychopath . . . 2.0.”
51. There were also texts accusing Petitioner of kidnapping [G.A.]
when she took her to Portland: “She was kidnapped, so even
though she is young you have caused some lifelong issues . . . like
what happened to [A.A.].”
52. Those statements constitute emotional abuse.
53. He took [G.A.] to work, believing it to be safe, even if he was
working and unable to give her his full attention.
54. His employees are high school students, and only work after
school.
55. He pays for employees to take care of the store sometimes
when he takes care of [G.A.], which takes money from the
business.
56. He texted her “what am I supposed to do with the business, it
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No. 79612-7-I/10
doesn’t support me, you do.”
57. Respondent believes [G.A.]’s school is unsafe, but has no
substantiated reason to believe that. She has appeared to have
normal childhood scrapes and scratches.
....
62. Petitioner went on a 2 week trip to Oregon with [G.A.] after the
Labor Day weekend, and texted Respondent where she was going
and how long she would be gone.
63. She called him at the designated nightly phone call time with
[G.A.], but he didn’t answer on three of those nights.
64. He repeatedly refers to that trip as kidnapping [G.A.].
We accept these unchallenged findings as verities on appeal. Estate of Nelson
v. Dep’t of Labor & Indus., 175 Wash. App. 718, 723, 308 P.3d 686 (2013).
In addition to these unchallenged findings, the evidence at trial supports
the court’s findings of emotional abuse and abusive use of conflict. The evidence
showed that Heath’s conflict with Jennifer had adverse effects on G.A. Heath
stopped taking G.A. to preschool because he felt the school was biased against
him. Instead, he took her to his workplace where he admitted he could not
always keep her within his sight while he was working and that on one occasion
she wandered into the alley on her own.3 He also testified that after G.A. was
moved to the preschool room, he refused to attend preschool events such as
Dad’s night and a tour of her new classroom because he did not agree to
preschool. G.A.’s preschool teacher testified that after Heath stopped taking
G.A. to school regularly, she noticed a shift in G.A.’s personality and G.A.
became “a little more unhappy and not sure of things.” The teacher testified that
“this was a big shift from a child that I saw who was a leader.”
3 Without citation to the record, Heath points to his testimony that the shop contained a
child’s play area and he was always within sight of G.A. We defer to the trial court to resolve
conflicts in testimony and assess credibility. Merritt, 200 Wash. App. at 408.
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No. 79612-7-I/11
Jennifer also testified that Heath withheld nightly calls with G.A. when he
was angry with Jennifer. In addition to withholding his calls during the Portland
trip, the weekend after Jennifer filed the relocation motion Heath turned his
phone off and would not allow Jennifer to talk to G.A. When G.A. returned to
Jennifer, she “came back a different child,” and did not understand why Jennifer
had not called. Jennifer further testified that after the Portland trip, G.A. spent
the weekend with Heath and when she returned to Jennifer, G.A. was
“distraught” and needed Jennifer to affirm that she loved her and was not going
to leave her. Jennifer also testified to a time when she was a few minutes late
bringing G.A. to Heath for an exchange and he came up to her car screaming at
her that she was late. She asked him to step back so G.A. would not see him but
G.A. had seen him and was in tears. Substantial evidence supports the court’s
findings of abusive use of conflict and emotional abuse.
The trial court’s findings and the evidence also support the restrictions
imposed. A court may impose restrictions under RCW 26.09.191(3) where
necessary “to protect the child from physical, mental, or emotional harm.”
Chandola, 180 Wash. 2d at 648. “[T]he trial court need not wait for actual harm to
accrue before imposing restrictions on visitation.” Katare, 175 Wash. 2d at 36.
“‘Rather, the required showing is that a danger of . . . damage exists.’” Katare,
175 Wash. 2d at 36 (quoting In re Marriage of Burrill, 113 Wash. App. 863, 872, 56
P.3d 993 (2002)). The restriction must be reasonably calculated to prevent such
a harm. Chandola, 180 Wash. 2d at 648.
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No. 79612-7-I/12
The trial court imposed limitations on Heath’s residential time based on its
finding that Heath’s conduct “may harm the child[ ]’s best interests.” As the
court’s findings and the evidence establish, Heath’s abusive use of conflict
presents a danger of damage to G.A.’s emotional well-being and physical safety.
Withholding his contact with G.A. and preventing her contact with her mother
damages the child-parent relationship. Refusing to take G.A. to preschool where
she was safe and engaged in age-appropriate activities, and taking her instead to
work where he could not realistically supervise a three-year-old adversely affects
G.A.’s social and emotional well-being and poses risks to her physical safety.
Heath’s refusal to participate in preschool events was further damaging to the
child-parent relationship.
The trial court did not abuse its discretion by limiting Heath’s residential
time to every other weekend and preventing him from taking G.A. to his
workplace. By minimizing opportunities for Heath to engage in conflict with
Jennifer and keeping G.A. in a safe environment, such limitations are reasonably
calculated to prevent harm to G.A..
Heath also challenges the parenting plan’s provision that “[G.A.] shall not
be left alone with [A.A.],” as a restriction “unrelated to the purported
impairments.” Heath mischaracterizes this provision as a restriction on his
involvement with the child imposed under RCW 26.09.191. Rather, this condition
was included under the “Safe Environment” provisions of the parenting plan and
relates to the child’s involvement with a sibling who, Heath acknowledges, does
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No. 79612-7-I/13
not live with him. Heath fails to show that the trial court abused its discretion by
including this provision in the final parenting plan.
In establishing a permanent parenting plan, the trial court shall consider
“[t]he emotional needs and developmental level of the child,” and “[t]he child’s
relationship with siblings and with other significant adults, as well as the child’s
involvement with his or her physical surroundings, school, or other significant
activities.” RCW 26.09.187(3)(a)(iv),(v). Here, the trial court found:
4. Respondent has a son, [A.A.], about 16 years old, from a prior
marriage.
5. Their daughter [G.A.], is 3 years old (DOB 8/16/15).
....
42. [A.A.] has pending juvenile court offender matters.
43. Respondent testified that [A.A.] has never been charged with
anything. Respondent either knew or should have known that he
has, in fact, been charged.
Heath does not challenge these findings.
Heath also testified at trial that A.A. has behavioral issues that warranted
filing an At-Risk Youth petition. Indeed, he agreed that G.A. should not be left
unsupervised with A.A., or anyone for that matter:
Q. Are you happy to agree that [G.A.] will not be left
unsupervised with [A.A.]?
A. I don’t leave [G.A.] unsupervised with anybody.
Q. So the answer is yes?
A. Yes.
The trial court did not abuse its discretion by including in the final parenting plan
a provision that prevents G.A. from being left alone with A.A..
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B
Appointment of GAL
Heath claims a new trial is warranted because the trial court granted
Jennifer’s request for a GAL in violation of RCW 26.12.175(1)(b), which requires
a GAL to file a report 60 days before trial. Heath’s claim has no basis in law or
fact. The record is clear that the commissioner’s order granting the request for a
GAL was conditioned on the court continuing the trial date, precisely because a
GAL report could not be filed within the required time limits:
This commissioner notes the trial date has been continued to
10/29/2018 and any GAL report would be due 30 days prior to
trial. . . . This court hereby makes the following self effecting order
– the parties shall appoint a GAL for this case within a week on
condition that Judge Mack grants a continuance of the current trial
date which is 10/29/2018.
At Heath’s insistence, the court denied Jennifer’s motion to continue and
no GAL was appointed. Accordingly, RCW 26.12.175(1)(b) does not apply. In
any event, Heath cites no authority requiring remand for a new trial where a GAL
report is not filed within the time limits of the statute. Where no authority is cited
in support of a proposition, the court is not required to search for it and may
assume counsel had diligently searched and found none. DeHeer v. Seattle
Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193 (1962).
C
Cumulative Error and Bias
Heath’s claim of “cumulative error” is likewise without basis. First, Heath
demonstrates no error, much less cumulative error. Moreover, he cites no
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authority applying the cumulative error doctrine in civil cases. See DeHeer, 60
Wash. 2d at 126.
Finally, Heath claims that remand to a different judge is required “to
preserve the appearance of fairness,” contending that the trial court
demonstrated bias against him. Because we affirm, we need not address the
issue.4
D
Attorney Fees
Jennifer requests an award of reasonable attorney fees on appeal,
claiming that Heath filed a frivolous appeal and was intransigent. We exercise
our discretion and decline to award appellate fees.
Affirmed.
WE CONCUR:
4 As Jennifer notes, the trial judge has since retired.
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