Opinion
No. 56744-6-I.
December 11, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-12070-1, Mary Yu, J., entered August 15, 2005.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA, 98122.
Jennifer M Winkler, Nielson, Broman Koch, PLLC, Seattle, WA, 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, Seattle, WA, 98104.
Michael Paul Mohandeson, King Co Pros Office, Seattle, WA, 98104-2390.
Authored by ANN SCHINDLER, CONCURRING: MARY KAY BECKER, SUSAN AGID.
Honorable Mary I Yu.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Agid and Becker, JJ.
To convict a parent of custodial interference in the first degree, the State must prove the parent intentionally denied the other parent the right to time with the child under a court-ordered parenting plan. Deanna Church does not dispute that she intentionally absconded with the children in violation of a temporary court order designating the father, Kurt Eyler, as the primary residential parent. Church also does not dispute that the final parenting plan order contained the required statutory warning that violation of the residential provisions could result in criminal prosecution. But Church contends the temporary order is invalid because it does not contain the required statutory warning and, therefore, her conviction violates due process. By waiting until after the State rested to move to dismiss on the ground that the temporary order was invalid, rather than timely objecting to the trial court's decision to admit the order, we conclude Church waived any objection to the order's validity. Even if we considered Church's challenge to the temporary order, we would conclude that because the order only temporarily modified, but did not replace, the final parenting plan order, the order was valid and Church's due process rights were not violated. We affirm Church's conviction for custodial interference in the first degree.
FACTS
In 1988, Deanna Church and Kurt Eyler married for the first time. In 1992, Church's daughter N.E. was born. Eyler is not N.E.'s biological father. Church and Eyler separated after N.E.'s birth. In 1993, Church and Eyler divorced. After their son, D.E., was born in 1996, Church and Eyler married for the second time and Eyler adopted N.E. In 1997, Eyler pleaded guilty to fourth-degree assault of Church. In 1998, Church and Eyler separated. From 1998 until September 2001, the children lived with Eyler.
Both Church and Eyler struggled with alcohol. In 2000 and 2001, Church and Eyler were both convicted of driving under the influence (DUI). Eyler admitted to drinking everyday and on occasion driving with the children after drinking.
In August 2000, Eyler filed for dissolution of the marriage. On September 7, 2001, the court entered a decree of dissolution and final parenting plan order. The final parenting plan order designated Church as the primary residential parent. The order states that violation of the residential provisions in the parenting plan may subject the parent to criminal charges.
In 2002, after Church was incarcerated for failure to comply with her DUI probation, the children lived with Eyler. In May 2002, Eyler filed a motion to modify the parenting plan and designate him as the primary residential parent. The court ordered a family court report and recommendation. The report recommended the children live with Eyler pending trial on his motion to modify the final parenting plan order. On September 3, 2002, a court commissioner entered an order designating Eyler as the primary residential parent pending trial. The court also ordered another family court report and recommendation prior to trial. The September 3, 2002 order does not restate the statutory warning in the final parenting plan. The order provided weekend visitation for Church and sets forth a number of conditions.
Father shall enroll children in counseling — the counselor shall be a jointly chosen counselor. If either parent drinks alcohol then there is a basis to stop visitation if it's mother or change custody back to mother if it's father. Children to attend school in Shoreline. Children to reside primarily with Father beginning 9/03/02 and Mother shall have alternating weekends beginning Friday 9/6/02, and the parties shall alternate holidays per final parenting plan. Father shall continue in and complete treatment. Mother shall complete a SPII alcohol program. Only licensed and insured driver shall transport children. A GAL shall investigate and make recommendations on visitation prior to trial.
Exhibit 6.
At a status conference on September 30, the court entered an order reiterating that the father was the primary residential parent for the two children pending trial and authorizing law enforcement to assist Eyler in enforcing the order if necessary.
On November 29, 2003, Church took the children for a scheduled visit. When Church did not return with the children, Eyler contacted the police. Approximately nine months later, Church returned with the children and turned herself into the police.
The State charged Church with custodial interference in the first degree in violation of RCW 9A.40.060(2). Church asserted the statutory affirmative defense that she absconded with the children to protect them from imminent harm. During cross-examination, Church admitted that she "figured" there was "probably" a warrant out for her arrest.
Under RCW 9A.40.080(2)(a), it is a complete defense to custodial interference in the first degree if the defendant's purpose was to protect the children from imminent physical harm, the existence of the harm was reasonable, and the defendant sought the assistance of the police, the court or other agencies before absconding with the children.
After the State rested, Church moved to dismiss the charge. For the first time, Church claimed the September 3, 2002 order was not valid because it did not repeat the statutory warning language that was in the final parenting plan order. The court denied the motion to dismiss. The jury found Church guilty as charged.
Before sentencing, Church moved for an arrest of judgment arguing again that the temporary order was invalid because it did not include the statutory warning. But at the hearing on the motion to arrest, Church's attorney conceded that even if the order was invalid, because the mandatory language was in the final parenting plan order, the State could prove the elements of custodial interference.
I think that the law is probably pretty clear that, even if that order is not valid, that the State could probably still make out the elements. The only way that that would not be the case is if the 2001 parenting plan were also vacated or no longer in effect. The court sentenced Church to credit for time served. Church appeals.
ANALYSIS
To convict Church of custodial interference in the first degree, the State had to prove she intentionally denied access to the parent who had "the lawful right to time with the child pursuant to a court-ordered parenting plan." RCW 9A.40.060(2).
There is no dispute Church violated the terms of the final parenting plan order and the terms of the September 3, 2002 temporary order by absconding with the children for approximately nine months. But Church claims that the temporary order is invalid because it does not contain the mandatory warning language as required by RCW 26.09.165 and her conviction, therefore, violates due process. RCW 26.09.165 states that "[a]ll court orders containing parenting plan provisions or orders of contempt, entered pursuant to RCW 26.09.160, shall include" a warning to the parents that intentional violation of the residential provisions of the order may result in a criminal offense.
In State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005), the Washington Supreme Court held that the validity of a court order is a question of law which the trial court must decide as a part of its "gate-keeping function" when ruling on admissibility. In State v. Gray, 134 Wn. App. 547, 557-58, 138 P.3d 1123 (2006), we held the defendant waived his right to challenge the validity and admission of court documents by waiting until the end of the State's case to object.
Here, Church waited until after the State rested to challenge the validity of the September 3, 2002 court order on the grounds that it does not include the mandatory statutory language under RCW 26.09.165. The trial court denied Church's challenge to the temporary order. The court ruled the 2002 order was valid because it only modified, but did not supersede, the 2001 final parenting plan order which contained the mandatory warning as required by RCW 26.09.165. As in Gray, we conclude that by waiting until after the State rested, Church waived any objection to the validity of the September 3, 2002 order.
But even if we considered Church's argument that the September 3, 2002 order is invalid, we would disagree. Due process requires the government to provide fair warning that the charged offense constitutes a crime. State v. George, 132 Wn. App. 654, 661, 133 P.3d 487 (2006) (citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
The September 3, 2002 order conditionally changed the designation of the primary residential parent pending trial on Eyler's motion to modify the final parenting plan order. Although the September 3, 2002 order does not include the mandatory statutory warning, there is no dispute the final parenting plan order remained in effect and contained the mandatory warning. According to the express terms of the final parenting plan order, "[t]he provisions of this plan shall remain in effect until modified by an appropriate written order entered by a court of competent jurisdiction."
Exhibit 4, A ¶ 6.5.
The final parenting plan order states:
WARNING: VIOLATION OF THE RESIDENTIAL PROVISIONS OF THIS ORDER WITH ACTUAL KNOWLEDGE OF ITS TERMS IS PUNISHABLE BY CONTEMPT OF COURT AND MAY BE A CRIMINAL OFFENSE UNDER RCW 9A.040.060(2). VIOLATION OF THIS ORDER MAY SUBJECT A VIOLATOR TO ARREST. RCW 26.09.165
In addition, there is no question that the court had the authority to enter the temporary September 2002 order pending trial. RCW 26.09.002. There is also no dispute that Church was aware of the statutory warning in the final parenting plan order. And at trial, Church testified that she "figured" the court had issued a criminal warrant for her arrest after she absconded with the children.
On this record, we conclude the September 3, 2002 order was invalid and Church received fair harming that taking the children would result in criminal charges.
We affirm Church's conviction for custodial interference.
WE CONCUR: