Burrill v. Burrill

56 P.3d 993
CourtCourt of Appeals of Washington
DecidedOctober 10, 2002
Docket49205-5-I, 49817-7-I
StatusPublished
Cited by99 cases

This text of 56 P.3d 993 (Burrill v. Burrill) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burrill v. Burrill, 56 P.3d 993 (Wash. Ct. App. 2002).

Opinion

56 P.3d 993 (2002)

In re the Marriage Of Cynthia L. BURRILL, Appellant,
v.
Don R. BURRILL, Respondent.

Nos. 49205-5-I, 49817-7-I.

Court of Appeals of Washington, Division 1.

September 9, 2002.
Publication Ordered October 10, 2002.

*994 Jordan Gross, Seattle, for Appellant.

Brendan Finucane Patrick, Seattle, Non-party.

John Stocks, Van Siclen Stocks & Firkins, John Paul Bagley, Auburn, for Respondent.

BAKER, J.

In a consolidated appeal, Cynthia Burrill (Cindy) challenges a final parenting plan awarding primary residential care of the parties' children to the father, the trial court's attorney fee award, and Donald Burrill's (Don) postdissolution judgment for damages. Because substantial evidence supported the trial court's findings, which in turn supported its conclusions of law, we affirm.

I

At the time Cindy Burrill and Don Burrill dissolved their marriage, both had been equally providing for the care their daughters, E.B., age 9, and A.B., age 4. Because of his flexible work schedule, Don had cared for the girls during the day. Cindy had cared for them in the evenings.

Because both parties wanted to be the primary residential parent of the children, they agreed that Zany Milo should perform a parenting plan evaluation. Pending the completion of Milo's report, the parties agreed to continue sharing the care of the children. During the evaluation, Cindy made unsubstantiated reports that Don abused alcohol and marijuana. She also accused him of having an anger management problem and *995 succumbing to road rage. She described him as paranoid and suspicious.

Upon conclusion of her evaluation, Milo opined that both parents should participate in counseling and that Don should complete an alcohol and drug program. Don voluntarily entered T.A.S.C., but was excused early because no apparent problems existed. Milo recommended that Cindy have primary residential care of the children and, so long as the conflict between the parties did not escalate, Don should continue to care for the girls during the week while Cindy worked. If conflict between the parties made the arrangement impracticable, then Cindy was to arrange for a third party to care for the children during the day.

Four months after Milo issued her report, an incident occurred in the exchange of the children at the end of a workday. Tempers flared over an issue concerning one of the girl's shoes. The next morning, Cindy unilaterally terminated Don's contact with the children, citing Milo's report that Don's care of the children should stop if conflict escalated. After much effort, which included hiring a new attorney because his own was on vacation, Don regained contact.

Two weeks before trial, Cindy reported to a pediatrician that A.B. had complained of Don touching her genital area in the bathtub. The physician referred Cindy to Child Protective Services (CPS). A.B. was interviewed by the Harborview Hospital Center for Sexual Assault and Traumatic Stress. The matter was then referred to the King County Prosecutor's Office. Don was arrested and charged with first degree rape of a child. The trial in the dissolution of marriage action was continued for eight months.

For three months, Don was not allowed to see the children. Despite Cindy's strenuous opposition, he was eventually allowed one supervised visit per week with the oldest child for a space of two hours. Later, the younger daughter also joined these visits. Ultimately, the charges were dismissed because A.B.'s accounts of what occurred were vague and inconsistent. In total, the children's relationship with their father was disrupted for a period of nearly nine months.

During trial, the CPS worker who had declared the sexual abuse allegation to be "founded," testified that she based her conclusion on her misunderstanding of the initial physician's report. She thought the report stated that digital vaginal "penetration" had occurred, when in fact, the report said that vaginal contact had occurred. The CPS worker testified that vaginal contact is consistent with a parent washing his child during bathtime and is not sexual abuse.

The testimony also showed that the vocabulary the four-year-old had used to report what happened did not make clear what actually happened. The investigators, rather than clarifying with the child what "fingers in [her] body" meant, inferred that it meant either anal or vaginal penetration, although they could not conclude which. They dismissed the possibility that A.B.'s report that Daddy had "touched [her] pee-pee" simply meant that Don had washed between her labia and that, with her undisputed history of redness and irritation in the area, it had hurt.

The trial court concluded that the sexual abuse allegations were unfounded. It also concluded that Cindy had engaged in an abusive use of conflict and awarded the family home and primary residential care of the children to Don. She ordered that Don have sole decision-making authority for the children. Finally, Don was awarded $25,000 in attorney fees.

When Don assumed possession of the home, he discovered that Cindy had removed the kitchen appliances and all of the children's furniture, toys, clothing, and light switch cover. She left the house in a state of filth and disrepair. Don sought damages in a postdissolution motion to enforce the decree of dissolution. He was awarded $3,000 in damages. Cindy appeals the parenting plan, the award of attorney fees, and the postjudgment award of damages.

II

Cindy first argues that the trial court erred in finding that she supported unfounded allegations of sexual abuse. An appellate court will uphold a finding of fact if *996 substantial evidence exists in the record to support it.[1] Evidence is substantial if it exists in a sufficient quantum to persuade a fair-minded person of the truth of the declared premise.[2] So long as substantial evidence supports the finding, it does not matter that other evidence may contradict it. This is because credibility determinations are left to the trier of fact and are not subject to review.[3]

The evidence at trial showed that A.B. had a history of redness and irritation in her genital area prior to Cindy's allegation of abuse. Generally, Cindy treated A.B. with Desitin, attributing the condition to hygiene issues. But one night, when A.B. complained of irritation, her mother responded by asking her whether anyone had hurt her. To this question, A.B. answered that her Daddy had hurt her in the bathtub. Regardless of whether or not Cindy's judgment was questionable by asking A.B. such a leading question, her act of taking A.B. to a physician can only be characterized as prudent.

Nevertheless, it is her later conduct that supports the trial court's finding. To the CPS investigator, she reported that she and her husband were going through a "nasty" divorce. She alleged that Don regularly received homosexual pornographic material in the mail, which the girls had seen. But when interviewed, both girls said they had never seen "any magazines of people doing naked or grown-up things." Cindy averred that the children hated going to their father's home and were uncomfortable there. In fact, multiple witnesses testified that the girls were well bonded to their father and that they enjoyed spending time with him. She also made unsubstantiated claims that Don abused alcohol and drugs.

Finally, when Cindy took A.B.

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Bluebook (online)
56 P.3d 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burrill-v-burrill-washctapp-2002.