Opinion
No. 57949-5-I.
March 31, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-3-02209-0, Glenna Hall, J., entered February 27, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Dwyer, J., concurred in by Becker and Cox, JJ.
After a contentious marriage dissolution proceeding, the trial court granted Ana Barroso's request to relocate the parties' son with her in Brazil. Recognizing the disparity of incomes between the parties, the trial court ordered Vijay Patel to pay all travel expenses incurred in the exercise of his residential visitation time, rather than increasing his child support obligation. However, a trial court must first decide to deviate from the standard child support obligation before it can order one parent to pay all long-distance travel costs associated with a parenting plan.
Thus, we reverse the trial court's decision allocating all of the longdistance travel expenses to Patel, vacating associated portions of the parenting plan and order of child support, and remand the case to the trial court. On remand, the trial court may deviate from the child support schedule upon the entry of necessary findings and conclusions. We affirm the decisions of the trial court in all other challenged respects.
Facts
Barroso and Patel met online in October of 2000. At that time, Barroso was a bank manager in Brazil with two young sons from a previous marriage, RaH and RoH. Patel, a Canadian citizen who holds an engineering degree, worked in the telecommunications field in Texas. After several months of correspondence, Barroso began to look for a job in the United States and Patel unsuccessfully explored the possibility of transferring his employment to Brazil.
In February of 2006, when final orders were presented in the trial court, RoH was 9 years old and RaH was 7 years old.
In August of 2001, Barroso moved to Texas to be with Patel. They married on September 10, 2001. The following month, RaH and RoH joined their mother in Texas. The trial court found that Barroso's "entire life and professional career was disrupted when she moved from Brazil to the United States to marry [Patel]." Finding of Fact 2.12 (3). The parties have one dependent child, SP, who was born on May 6, 2002. In August 2003, Patel hit RoH with enough force to leave a handprint on the side of his face. About four months later, Patel got a new job and the family moved to Seattle. The parties separated on April 29, 2004.
The trial court found that Patel's testimony at trial that his hand inadvertently "landed on [RoH's] face" when he was trying to grab RoH was not credible. The trial court found that Patel hit RoH with some force and that the photographs entered into evidence accurately depicted what RoH looked like following the abuse.
PROCEDURAL HISTORY
Patel filed a petition for dissolution on May 10, 2004. On May 28, 2004, a protection order was issued on behalf of Barroso and her children against Patel. That matter was consolidated with the dissolution proceedings.
On January 31, 2005, Barroso filed a motion for an award of temporary attorney and expert witness fees and costs, arguing that Patel had the ability to pay for fees and costs associated with the case while Barroso did not. Submitted with Barroso's motion was a financial declaration showing her net income to be $100 a month from renting her home in Brazil. She also received $1,930.33 per month for child support and maintenance. Also submitted was Patel's earnings statement from December 12, 2003, to January 7, 2005, that showed his gross income for that period to be $193,902, including $28,397.75 in relocation pay.
On February 14, 2005, a superior court commissioner issued a temporary order requiring Patel to pay $30,000 toward Barroso's attorney fees and expert witness fees. The award was subject to final determination by the trial court as to whether the award should be treated as a predistribution of assets. Patel was to pay $5,000 by February 8, 2005, and the remaining balance by March 14, 2005. Patel filed a motion for revision. On March 18, 2005, the superior court denied revision and ordered Patel to pay the award by March 29, 2005.
On March 31, 2005, Barroso filed a motion for relief because Patel scheduled extensive discovery and depositions, but had "paid nothing and has not complied with the court's order in any way." Clerks Papers (CP) at 1321. On April 8, 2005, the trial court ordered Patel to "not conduct any further discovery without order of this court," including, "but not limited to, the scheduled depositions, contacting witnesses, sending [i]nterrogatories or issuing subpoenas." CP at 1428-29. The trial court also ordered Patel to "turn over any funds in his attorney trust account to [Barroso's] counsel and no further funds shall be paid to [Patel's] counsel until [Barroso's] attorney fee award is paid in full." CP at 1429. On April 18, 2005, Patel filed a motion for reconsideration and, in the alternative, clarification. The order denying that motion was entered on May 10, 2005.
The trial court also ordered Patel to not file any further motions until further order of the court, provide Barroso copies of all transcripts of depositions or witness interviews within four days of the entry of the order, pay all of Barroso's expert witness fees, pay all costs of production to Barroso for any records from any expert named as a witness by Patel, and pay fees and costs for mediation.
On May 12, 2005, Barroso brought a motion for a show cause hearing based on Patel's failure to comply with the court orders. On June 1, 2005, a superior court commissioner found that "Patel intentionally failed to comply with lawful orders of the court dated 2/14/05, 3/18/05, and 4/8/05." CP at 1620. The commissioner found that Patel "has the funds to pay for the attorney fees per the court orders," but that he "does not have the present willingness to comply." CP at 1621. The commissioner found Patel to be in contempt and remanded him to jail with the ability to purge the contempt by paying $18,000 in partial satisfaction of the attorney fee award. On June 3, 2005, the trial court, finding that Patel had paid the required $18,000, ordered his release from jail.
On June 2, 2005, Patel filed a motion for revision of the commissioner's order for contempt. Patel states in his appellate brief that this motion was denied, but the record on review is devoid of any such order.
Trial began on June 27, 2005. Both parties alleged abuse. Barroso alleged Patel sexually abused RoH and RaH, and physically abused RoH. Patel alleged Barroso physically abused RoH and RaH. The trial court granted Barroso's motion to exclude RoH and RaH from testifying. With few exceptions, the trial court excluded statements made by RoH and RaH as hearsay. Under the excited utterance exception, the trial court allowed Barroso to testify that RoH told her Patel hit him. The trial court also allowed a social worker from family court services to testify as to the results of her investigation of reports of incidents of physical abuse because it was the basis of her opinion; the testimony was not admitted as substantive evidence. Testimony concluded on July 15, 2005. The record is unclear as to whether closing arguments were heard on July 26, 2005, or July 27, 2005.
The trial court also allowed a social worker for the state's Division of Child and Family Services to testify as to statements made by RoH and RaH for the limited purpose of the protection order hearing. Patel does not assign error to entry of the order of protection.
The verbatim report of proceedings (VRP) indicates that closing argument was conducted on July 26, 2005. VRP at 1920. However, the trial court's findings of fact state that closing arguments were delivered on July 27, 2005. CP at 1117.
On August 25, 2005, Barroso filed a motion requesting permission to travel to Brazil with SP. Patel objected. The motion was denied and Barroso was ordered to not travel to Brazil with SP until further order of the court.
The trial court delivered its oral decision on September 16, 2005, which was consistent with its subsequent written findings of fact and conclusions of law. Among its many findings of fact, the trial court found that (1) Patel physically abused RoH and was emotionally abusive to RoH and RaH; (2) Patel has a long-term emotional impairment, which interferes with his performance of parenting functions; (3) Patel stalked Barroso, including following her in her car while driving, coming to her home on October 4, 2004, reading her emails, and reviewing her telephone records; (4) both parties had credibility problems; (5) Patel's allegations and testimony that Barroso physically abused RoH and RaH were not credible; (6) because of evidentiary rulings, the court could not affirmatively find that Patel either did or did not sexually abuse RoH and RaH, and it could not find that Patel either did or did not sexually or physically assault Barroso; and (7) Barroso had always been the primary custodial parent of SP. The trial court named Barroso as the primary parent of SP and granted Patel residential visitation time that increased upon proof of his completion of domestic violence treatment. The trial court also continued the protection order as to RoH and RaH.
In addition, the trial court considered the factors set forth in the relocation statute, RCW 26.09.520, and decided that SP would be allowed to relocate to Brazil with Barroso. Instead of increasing child support, the trial court ordered Patel to pay all travel expenses incurred in the exercise of his residential visitation time.
The trial court also found that (1) Patel caused the litigation to be much more expensive than it would otherwise have been; (2) Patel failed to follow court orders and failed to appear on two occasions for depositions, and that no explanations for his failure were satisfactory; (3) the sanctions the court ordered did not fully compensate Barroso for all the legal time and fees that Patel's wrongful actions caused to be incurred; and (4) Barroso had the need for the payment of fees and costs and Patel had the ability to pay an additional $85,000 of these fees and costs. The trial court also recognized that Patel had "paid $30,000 toward wife's fees and costs, pursuant to court orders, prior to trial." CP at 1120.
After the court announced its oral decision, and following a recess in proceedings, Barroso's attorney presented a proposed order allowing Barroso to immediately move to Brazil with SP. Counsel and Patel were present. Barroso was not present. Borroso's attorney explained that Barroso was able to obtain affordable airfare to Brazil ($520 for Barroso and $460 for SP) on a flight that was leaving in three days. Barroso's attorney also explained that Barroso's rent had been paid by church donations and was paid only through September 21. Barroso's attorney argued that if she missed this opportunity, Barroso would have to pay rent and it would be difficult to find similarly affordable airfare.
Patel objected to not having what he believed to be proper notice and argued that he needed to have more time for closure with his son. Barroso's attorney argued that regular airfare was $3,800 per person and that her rent was $1,000 per month. Barroso's counsel also offered to allow Patel extended visitation with SP over the next intervening days.
The trial court explained that "I don't think it's appropriate for her chance of leaving at those reasonable prices to be compromised by a hearing next Friday as opposed to a hearing today when there's no real showing of prejudice other than he doesn't want it to happen." VRP at 2082. The trial court told Patel that it would sign the order allowing SP to leave on September 19 unless Patel could post $8,600 in security to cover the cost of two regular fare tickets to Brazil and Barroso's rent. Patel claimed that he was unable to comply. The trial court then signed an order granting Patel extended visitation over the next few days and allowing Barroso to take SP to Brazil on September 19.
Patel filed for bankruptcy on October 14, 2005. Barroso obtained an order providing relief from stay on December 12, 2005. Three hearings were held on presentation of final documents. The order of child support, decree of dissolution, findings of fact and conclusions of law, and final parenting plan were entered on February 27, 2006. Patel appeals, raising several issues.
Barroso, while acting pro se, filed a notice of cross-appeal. In her briefing, she neither made any assignments of error nor raised any issues seeking affirmative relief. Thus, we consider her cross-appeal to be abandoned.
Discussion
Before addressing the merits of the issues raised, we must first clarify the record before us. Barroso contends that all of the trial court's findings of fact should be treated as verities on appeal because Patel failed to comply with RAP 10.3(g), which reads:
Barroso also asks us to affirm the trial court because Patel's brief failed to comply with RAP 10.3(g), was inadequate in its citations to the record and supporting authority, and was generally confusing. While Borroso is correct in these observations, our disposition of the issues raised is as explained in the balance of our opinion and is not otherwise premised upon these disconcerting deficiencies.
A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number. The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.
Assigning error to a trial court's entire findings of facts, without separately assigning error to each truly contested individual finding, is not a practice allowed by our rules and results in the trial court's findings being treated by us as the established facts of the case. Pederson v. Pederson, 41 Wn.2d 368, 249 P.2d 385 (1952); Olivo v. Rasmussen, 48 Wn. App. 318, 319 n. 1, 738 P.2d 333 (1987) (citing RAP 10.3(g)). When findings of facts are verities on appeal, our review is limited to determining whether the findings support the trial court's conclusions of law and judgment. In re Santore, 28 Wn. App. 319, 323, 623 P.2d 702 (1981).
Patel assigns error "[t]o the entry of the `Findings of Fact and Conclusions of Law' Entered February 27, 2006." Although Patel refers in his opening brief to the findings of facts concerning his relationship with Barroso and the children, he contends that the "entire Findings of Fact and Conclusions of Law were erroneously entered." (Emphasis added.)
Further, Patel boldly states that his "disclosure of the associated issues" comports with RAP 10.3(g). This is not so. Indeed, the only instance in which Patel clearly discloses "in the associated issue" that he claims a specific finding of fact was erroneously entered is where he challenges the trial court's finding that he has the ability to pay the additional amount of $85,000 in attorney fees. Thus, with the exception of that one finding of fact, the remaining findings of fact are deemed to be verities due to Patel's failure to comply with RAP 10.3(g).
Patel also contends that the trial court's inability to affirmatively find that he sexually abused RoH and RaH or that he physically or sexually assaulted Barroso should be interpreted as a negative finding, to Barroso's detriment. We disagree.
Patel's reliance on Douglas Northwest, Inc. v. Bill O'Brien Sons Construction, Inc., 64 Wn. App. 661, 828 P.2d 565 (1992), in support of his contention, is unavailing. While it is sometimes true that the absence of an affirmative factual finding may result in the presumption of a negative finding, an exception to that rule of construction applies where "there is ample evidence to support the missing finding, and the findings entered by the court, viewed as a whole, demonstrate that the absence of the specific finding was not intentional." Douglas Northwest, 64 Wn. App. at 682.
Patel's own citations to the record demonstrate that this was not a case wherein the record was devoid of relevant findings. The trial court found:
1. Because of evidentiary rulings during the trial resulting in insufficient evidence, the court cannot find that petitioner did sexually abuse RoH and RaH, nor can the court enter a finding of fact that he did not.
2. The court cannot find that petitioner sexually or physically assaulted respondent nor is the court convinced that he did not.
Finding of Fact 2.18 (1-2). Patel does not cite to portions of the record to support his contention that the evidence was sufficient to support either a finding that he did not sexually abuse RoH and RaH or a finding that he did not sexually or physically assault Barroso. Similarly, Patel does not address the significance of the evidentiary rulings made by the court. Instead, Patel simply argues that the findings that were entered by the trial court equate to the absence of a required finding, which we should interpret as a negative finding. He is wrong. This is not a situation wherein there is the absence of a required finding. To the contrary, the trial court specifically stated that because of certain evidentiary rulings, it could not affirmatively find that the evidence admitted supported either a positive or a negative finding as to the allegations in question. The evidence was in equipoise. Neither party met its burden of proof. There was no trial court error.
We next address the merits of the substantive issues in this appeal.
I. Transportation costs.
Patel correctly argues that the trial court cannot order him to pay all of the travel costs absent a decision to deviate from the standard child support obligation. He asks that the order be vacated and the case remanded to the trial court "for consideration of a deviation from the standard child support calculation."
Barroso concedes that "actual deviation of the child support obligation must be made in order for the court to exercise discretion regarding deviation of travel expense allocation." However, Barroso argues, without citation to supporting authority, that the trial court's decision in not ordering Patel to pay additional child support in exchange for bearing 100 percent of the travel expenses amounted to a constructive deviation and should, therefore, be affirmed. We disagree.
We review a trial court's decision on the provisions of a parenting plan for abuse of discretion. In re Marriage of Katare, 125 Wn. App. 813, 822, 105 P.3d 44 (2004) (citing In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997)). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Katare, 125 Wn. App. at 822. "A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard." Katare, 125 Wn. App. at 822-23 (citing Littlefield, 133 Wn.2d at 47).
Long-distance travel expenses and day care expenses are considered extraordinary expenses not accounted for in the basic child support obligation. RCW 26.19.080(1). Trial courts have the discretion to determine the reasonableness and necessity of extraordinary expenses. RCW 26.19.080(4). RCW 26.19.080(3) mandates that such extraordinary expenses "shall be shared by the parents in the same proportion as the basic child support obligation." In re Yeamans, 117 Wn. App. 593, 599, 72 P.3d 775 (2003); In re Marriage of Scanlon, 109 Wn. App. 167, 181, 34 P.3d 877 (2001); In re Paternity of Hewitt, 98 Wn. App. 85, 88-89, 988 P.2d 496 (1999); Murphy v. Miller, 85 Wn. App. 345, 349, 932 P.2d 722 (1997). "Once the trial court determines that extraordinary expenses are `reasonable and necessary,' it is required to allocate them in proportion with the parents' income." Yeamans, 117 Wn. App. at 600. Trial courts can make an exception and allocate 100 percent of travel expenses to one parent because of a disparity in the parents' incomes if the trial court properly exercises its discretion to deviate from the standard amount of child support. Yeamans, 117 Wn. App. at 600; Hewitt, 98 Wn. App. at 89-90; In re Marriage of Casey, 88 Wn. App. 662, 667, 967 P.2d 982 (1997). However, the trial courts cannot address disparity in incomes by allocating all of the travel expenses to one parent without first deciding to deviate from the standard child support obligation. Yeamans, 117 Wn. App. at 601.
In Yeamans, the trial court did not deviate from the basic support obligation, but ordered the father to bear 100 percent of the long-distance travel expenses. Yeamans, 117 Wn. App. at 601. The trial court explained "in its findings that it was ordering the 100 percent allocation partly because [the father's] decision to move made the expenses necessary and partly because it was denying [the mother's] request to reduce her basic support obligation from $192 to $25 per month." Yeamans, 117 Wn. App. at 601. The trial court "expressly stated that its decision to deny [the mother's] deviation request was to defray the travel costs to be imposed on [the father]." Yeamans, 117 Wn. App. at 601.
We reversed the trial court's order requiring the father to pay 100 percent of the long-distance travel expenses because "if a court does not deviate from the basic support obligation, then it cannot deviate from the extraordinary expenses." Yeamans, 117 Wn. App. at 601. Nevertheless, because the amount of child support ordered was determined in relation to the disproportionate travel expenses allocated, we held that the trial court could revisit the issue on remand and determine whether to grant or deny a deviation based upon the evidence before it. Yeamans, 117 Wn. App. at 601.
Yeamans is dispositive. Here, the trial court explained in its findings of fact that
[s]upport is based on [Patel's] salary plus bonus. Support is set at the presumptive amount in consideration of [Patel's] anticipated travel to Brazil for his residential time. The court is balancing the economic situation of what it would cost to travel against the needs of the child. If [Patel] does not travel to Brazil support shall be adjusted and set at a higher amount based on the economic circumstance of the parties and the needs of the child.
Finding of Fact 2.19 (3).
As with the trial court in Yeamans, the trial court herein improperly allocated all of the long-distance travel expenses to one parent without first deciding to deviate from the basic child support obligation. For that reason, we reverse the trial court's decision to allocate to Patel the entire travel costs incurred in the exercise of his residential visitation time. The associated portions of the parenting plan and order of child support must be vacated. However, on remand, the trial court remains free to deviate from the child support schedule upon the entry of necessary findings and conclusions.
II. Award of attorney fees.
Patel next contends that the trial court ordered excessive attorney fees without specific and clear findings of intransigence, and without analyzing whether Patel has the ability to pay.
Trial courts have the discretion to award attorney fees in a dissolution action. RCW 26.09.140 ; In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997). Generally, a trial court must consider a party's ability to pay its own legal costs before awarding it attorney fees, but the financial resources of the party seeking fees is irrelevant when the award of such fees is premised upon a need for additional legal services caused by the other spouse's intransigence. Foley, 84 Wn. App. at 846.
RCW 26.09.140 states:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.
Here, the trial court awarded attorney fees both because of Patel's intransigence and also because Patel had the ability to pay and Borroso did not have the ability to pay for fees and costs incurred in connection with the dissolution proceeding.
First, the trial court found that:
3. [Barroso] has incurred reasonable attorney's fees and costs in the amount of $162,000 to Cynthia Whitaker[,] $41,718.23 to Pat Johnston.
4. [Patel] made this litigation much more expensive for both parties.
. . . .
7. [Patel] failed to appear for his deposition twice, although appropriately served by petitioner's attorney and respondent's request for attorney fees and sanction for that action is granted.
On appeal, Patel attempts to improperly supplement the record with excuses for his failure to comply with his obligations as a litigant. Because his attempt to do so is itself improper, we decline to consider his belated explanations.
8. The sanctions for failure to follow court orders did not fully compensate respondent for her attorney fees and costs and further sanctions should be awarded to respondent for that reason and for the manner in which he has conducted himself in this litigation.
Findings of Fact 2.14 (3-4, 7-8).
Second, Patel incorrectly claims that the trial court did not analyze his ability to pay. The trial court, recognizing that Patel had already paid $30,000 toward Barroso's attorney fees and costs, expressly found that "[t]he wife has the need for the payment of fees and costs and the husband has the ability to pay $85,000 of these fees and costs." CP at 1120. In all, Patel was ordered to pay $115,000 in attorney fees and costs.
This award is supported by evidence in the record. In 2004, Patel earned gross pay of $183,726.01, including $19,125.90 for relocation costs. In his June 23, 2005, financial declaration, Patel stated that his gross monthly income was $9,033.48. Barroso's gross monthly income was $2,334, including $1,250 in spousal maintenance.
The trial court did not abuse its discretion in awarding attorney fees based both on Patel's intransigence and on its finding that Barroso did not have the ability to pay for costs and fees incurred in the action, but that Patel did have the ability to pay.
Patel also assigns error to the trial court's order denying his motion for revision of the commissioner's order requiring him to pay $30,000 in temporary attorney fees. Patel contends that this order should be reversed because neither the superior court commissioner nor the superior court judge entered findings and conclusions in support of the temporary order or in support of the order denying the motion for revision. An order that is entered without findings of fact or conclusions of law does not necessarily prevent effective review or constitute reversible error. See In the Matter of the Parentage of J.M.K., 155 Wn.2d 374, 395, 119 P.3d 840 (2005).
The trial court's order of denial stated that it "reviewed Petitioner's Motion for Revision and having reviewed it and the court's file" denied relief. CP at 1326.
In J.M.K., a superior court commissioner entered a temporary attorney fee award in favor of the mother and payable by the father. J.M.K., 155 Wn. 2d at 384. The superior court denied a subsequent motion for revision. J.M.K., 155 Wn. 2d at 384. The father appealed, arguing that the failure of either the commissioner or the superior court to enter findings of fact and conclusions of law in support of the order constituted reversible error. J.M.K., 155 Wn. 2d at 395. Our Supreme Court disagreed, noting that RCW 26.26.140 provides that "[t]he court may order that all or a portion of a party's reasonable attorney's fees be paid by another party" and that "[t]he trial court is granted broad discretion in determining an award of attorney fees under RCW 26.26.140." J.M.K., 155 Wn. 2d at 395. After looking at the "record as a whole," the court affirmed the trial court's award of attorney fees. J.M.K., 155 Wn. 2d at 395-96.
Patel argues that J.M.K. is distinguishable because it arose from the Uniform Parentage Act (ch. 26.26 RCW) rather than RCW 26.09.140. This distinction is not instructive. Just as trial courts have broad discretion under RCW 26.26.140, so do trial courts have such discretion under RCW 26.09.140. In re Marriage of Fernau, 39 Wn. App. 695, 708, 694 P.2d 1092 (1984).
Because the trial court's findings, based on the record as a whole, properly support its entire $115,000 attorney fees and cost award, it follows that the initial $30,000 award (the first part of the total award) was justified. There was no error.
III. Enforcement of the $30,000 attorney fees award.
A. Limitation on Discovery.
Patel next assigns error to the superior court's order denying his motion for reconsideration and, in the alternative, clarification of the superior court commissioner's order limiting his ability to conduct discovery. Patel contends that (1) the superior court had no authority to limit his ability to conduct discovery; (2) the superior court erred by failing to agree that he was unable to pay the $30,000 as ordered; and (3) the limited discovery improperly prevented him from proving at trial that Barroso was a liar who abused her children.
The order denying the motions stated that the court "reviewed the files and records herein and finds no basis to reconsider the order." CP at 1518.
Patel also argues that the superior court erred in not clarifying the commissioner's order to allow Patel to at least receive discovery that was requested prior to the entry of the order limiting discovery. Patel contends that Barroso wrongfully misused the order limiting discovery in order to unfairly sabotage his request for records from the state's Division of Child and Family Services (DCFS) initiated prior to the entry of the order. Patel is wrong on all counts.
Along with his motion to the superior court, Patel submitted a copy of a letter from Barroso's attorney to the state's DCFS informing them of the commissioner's order limiting Patel's ability to conduct discovery. Patel had requested but not received records from DCFS prior to the entry of the order limiting discovery.
Despite Patel's arguments to the contrary, trial courts have the authority to limit discovery when discovery "is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation." CR 26(b)(1). Here, Barroso brought a motion for such relief after Patel failed to pay the $30,000 by February 14, 2005, as ordered by the superior court commissioner, and again failed to comply with the superior court's further directive of March 18, 2005. This $30,000 was needed by Barroso to pay for her attorney fees incurred in the dissolution proceedings. As already discussed, Barroso had the need for such relief and Patel had the ability to comply.
Second, the trial court did not bar Patel from conducting discovery. To the contrary, Patel was simply restricted from conducting any discovery until he complied with the court's order. In fact, Patel ultimately did comply with the order and was able to present a motion for order on discovery prior to trial.
Patel does not explain and the record is unclear as to whether Patel attempted to obtain the DCFS records prior to trial after he complied with the court's order.
The superior court did not abuse its discretion by denying Patel's motion for reconsideration. The order limiting discovery was narrowly tailored. The court's concern, that Patel not be allowed to exploit his economic advantage over Barroso while simultaneously defying the authority of the court, was unquestionably legitimate. Restricting discovery limited the expenses incurred by Barroso during the period of time that Patel was in noncompliance with the court's dictates. The trial court's order properly maintained, as best as possible considering Patel's wrongful conduct, an "even playing field" between the litigants. There was no error.
B. Attorney client trust fund.
Without citation to supporting authority, Patel contends that the trial court erred by ordering that funds Patel caused to be placed in his attorney's trust account be used to partially satisfy the temporary attorney fee order. Patel contends that such an order violates public policy. To the contrary, public policy strongly favors full compliance with court orders. Patel would have us authorize a scheme whereby a party could shield from a trial court's authority money that would otherwise be available to comply with proper court orders. No public policy compels such a result. There was no error.
In his reply brief, Patel for the first time claims that the trial court should have first inquired whether the funds had already been earned by Patel's attorney prior to issuance of the order. We do not consider arguments raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
C. Contempt of court.
Patel next argues that he was wrongly placed in jail as a result of being found to be in contempt. This issue is moot. We cannot grant effective relief because Patel has already been released from jail after purging the contempt by complying with the court order. See In re Marriage of Farr, 87 Wn. App. 177, 187-88, 940 P.2d 679 (1997) (an appeal from an order requiring that one party serve a day in jail as a sanction for contempt was moot because the party had already served the time in jail and the appellate court could not, therefore, provide any effective relief).
In addition, Patel did not properly raise this issue on appeal. Once a superior court makes a decision on a motion for revision, any appeal must be taken from the superior court's decision, not the decision of the court commissioner. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004) (citing RCW 2.24.050). Here, Patel filed a motion for revision of the superior court commissioner's order finding him in contempt, but wrongly assigns error to the commissioner's order rather than to the trial court's order resolving his motion for revision. That order is not in the record on appeal.
IV. CR 54(f)(2) notice.
Patel next contends that because no emergency existed justifying waiver of the five-day notice of presentation requirement of CR 54(f)(2), the trial court erred by entering the order allowing SP to be relocated. Once again, his claim in this regard does not warrant appellate relief.
CR 54(f)(2) provides:
Notice of Presentation. No order or judgment shall be signed or entered until opposing counsel have been given 5 days' notice of presentation and served with a copy of the proposed order or judgment unless:
(A) Emergency. An emergency is shown to exist.
(B) Approval. Opposing counsel has approved in writing the entry of the proposed order or judgment or waived notice of presentation.
(C) After verdict, etc. If presentation is made after entry of verdict or findings and while opposing counsel is in open court.
First, the issue is moot. We cannot grant effective relief. Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984); State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983). Second, the requirements of CR 54(f) were not violated. CR 54(f)(2)(C) provides that notice of presentation is not required "[i]f presentation is made after entry of verdict or findings and while opposing counsel is in open court." Here, after the trial court's announcement of its oral decision, Barroso presented her proposed order. The announcement of the trial court's oral decision in a bench trial is the functional equivalent of the announcement of a jury's verdict in a jury trial. Thus, the requirements of CR 54(f)(2)(C) were met. There was no error.
V. Residential Parenting Plan.
Patel next contends that the court erred by entering a residential plan that effectively deprives him of his parental rights. He claims that the cost of traveling to Brazil and the time away from his work that this would require will prevent him from exercising his residential visitation time. According to Patel, this means that the trial court-ordered plan must be vacated. Once again, he is wrong.
The legislature requires that trial courts limit a parent's residential visitation time (and the manner of visitation) if that parent has engaged in physical abuse of a child. RCW 26.09.191(2)(a)(ii). That is exactly what happened here. There was no error.
The residential parenting plan entered herein was, in large part, influenced by two major factors. First, the trial court was simultaneously authorizing the relocation of the child to Brazil. Relocation decisions almost always cause a great economic burden to at least one of the parents. Second, Patel was found to be a parent who had engaged in wrongful abuse of a child. Thus, the applicable statute required that certain restrictions be placed upon his contact with the child. These restrictions, not surprisingly, result in increased cost to each party and inconvenience to Patel.
Trial courts are to presume that the intended relocation of the child will be permitted. RCW 26.09.520. The party opposing the request to relocate the child may rebut this presumption with evidence that demonstrates that the detrimental effect of child relocation outweighs the benefit of the change to the child based on 10 non-weighted factors. RCW 26.09.520. Patel did not assign error to any of the individual findings of fact entered by the trial court in support of its decision to allow SP to relocate to Brazil. Thus, these facts are verities on appeal. Furthermore, the findings support the trial court's conclusion that the benefit of relocation to the child outweighs the detriments of the child not relocating. There was no error.
The factors are:
(1) The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
(10) The financial impact and logistics of the relocation or its prevention . . .
RCW 26.09.520.
VI. Property Valuation.
Patel next contends that the trial court erred by valuing marital community property awarded to Barroso from different points in time.
Specifically, Patel challenges the trial court's decision to value certain bank accounts as of the date of separation rather than at the time of dissolution, at which time the funds had been depleted. That is inconsistent, Patel argues, with the trial court's decision to award a portion of his Nortel Networks long-term investment retirement plan to Barroso. Instead of fixing the amount of the award as of the date of separation, the trial court decided to include earnings and accumulations thereon from the date Patel left Nortel to the date of transfer of the asset to Barroso.
Patel does not proffer a point in time the trial court should have used to determine the value of the properties; he merely argues that the property should be distributed "based on consistent dates of valuation."
A trial court, however, has broad discretion in distributing property in a dissolution proceeding. We recognize that the trial court is in the best position to assess the assets and liabilities of the parties and determine what is fair, just, and equitable under all the circumstances. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999) (quoting In re Marriage of Hadley, 88 Wn.2d 649, 656, 565 P.2d 790 (1977)). The trial court has discretion to value property either at the time of separation or at the time of trial. Lucker v. Lucker, 71 Wn.2d 165, 166-68, 426 P.2d 981 (1967).
Patel misconstrues the holding in Lucker as requiring the trial court to affix the value of all property at the same point in time. This was not the issue in Lucker. Rather, the issue in Lucker was whether the trial court was required to consider appreciation and depreciation of property. Lucker, 71 Wn.2d at 168. The court in Lucker held that "[i]f the property is to be valued as of the date of trial rather than the date of separation, appreciation as well as depreciation in value should be considered in making an equitable division." Lucker, 71 Wn.2d at 168 (emphasis added).
Lucker does not require the trial court to apply the same valuation date for all property it distributes. There was no error.
Patel next contends that the trial court erred in disproportionately distributing both community property motor vehicles to Barroso. He provides no further argument other than citing the fact that the two vehicles were the only vehicles that the community owned. The trial court awarded Barroso two 2003 motor vehicles subject to encumbrances totaling $19,436.
The trial court is not required to divide community property equally. In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001). The trial court's distribution of property in a dissolution action is guided by statute, which requires it to consider multiple factors in reaching an equitable conclusion. These factors include (1) the nature and extent of the community property, (2) the nature and extent of the separate property, (3) the duration of the marriage, and (4) the economic circumstances of each spouse at the time the division of the property is to become effective. RCW 26.09.080. In weighing these factors, the court must make a "just and equitable" distribution of the marital property. RCW 26.09.080.
In doing so, the trial court has broad discretion in distributing the marital property, and its decision will be reversed only if there is a manifest abuse of discretion. In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002) (citing In re Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992)). A manifest abuse of discretion occurs when the discretion was exercised on untenable grounds. In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). If the decree results in a patent disparity in the parties' economic circumstances, a manifest abuse of discretion has occurred. In re Marriage of Pea, 17 Wn. App. 728, 731, 566 P.2d 212 (1977).
Here, with the exception of a portion awarded to Barroso as discussed above, the trial court awarded Patel all employment benefits from the two employers Patel worked for during the marriage. He also was awarded the $60,000 in proceeds from the house sale in Texas. The trial court found that Patel always earned lucrative salaries, whereas Barroso had significant debts and no ability to pay them. At the time the decree was entered, the court estimated Patel's grossly month income to be more than $11,800 compared to $1,000 for Barroso. Patel has not demonstrated that the trial court abused its discretion by awarding both vehicles to Barroso.
Patel also argues, without any support in the record, that the $30,000 he initially paid in attorney fees to Barroso should have been considered to be a predistribution of assets because the award was based on the fact that the sale of the house in Texas generated $60,000, which amount was awarded to Patel as separate property. The commissioner, in making the $30,000 attorney fees award, ruled that the temporary order was subject to a final determination as to whether it should be treated as a predistribution of assets. This did not require the trial court to so treat it. Patel does not demonstrate that the trial court abused its discretion by deciding not to view the assets in this manner. There was no error.
Along with her motion for temporary attorney fees, Barroso mentioned in her declaration that Patel had $60,000 in proceeds from the sale of the Texas home. However, nothing in the record supports Patel's contention that the award of $30,000 in temporary attorney fees was based on the $60,000 proceeds.
VII. ER 1101(c)(4).
ER1101(c)(4) allows courts to consider hearsay in a chapter 26.50 RCW protection order proceeding. Gourley v. Gourley, 158 Wn.2d 460, 467, 145 P.3d 1185 (2006). Patel assigns error to "ER 1101's relaxation of the rules of evidence during the trial," but fails to discuss how or if ER 1101 was actually applied in this trial. He also fails to assign error to the trial court's issuance of the protection order. Instead, Patel vaguely argues in the abstract that ER1101(c)(4) as applied to chapter 26.50 RCW violates due process. This claim of error was neither properly preserved for review in the trial court nor properly presented for review on appeal. We will not address it further.
Affirmed in part, reversed in part, and remanded.
We decline to award attorney fees on appeal to either party.
WE CONCUR: