Caven v. Caven

966 P.2d 1247
CourtWashington Supreme Court
DecidedNovember 12, 1998
Docket66199-5
StatusPublished
Cited by7 cases

This text of 966 P.2d 1247 (Caven v. Caven) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caven v. Caven, 966 P.2d 1247 (Wash. 1998).

Opinion

966 P.2d 1247 (1998)
136 Wash.2d 800

In re the Marriage of Carolann M. CAVEN, Respondent,
v.
Daniel W. CAVEN, Petitioner.

No. 66199-5.

Supreme Court of Washington, En Banc.

November 12, 1998.
Reconsideration Denied December 23, 1998.

William A. Buchanan, Redmond, Catherine Smith, Seattle, for Petitioner.

H. Michael Fields, Seattle, for Respondent.

SMITH, J.

Petitioner Daniel W. Caven seeks review of a decision of the Court of Appeals, Division I, which reversed and remanded to the King County Superior Court a ruling interpreting the phrase "a history of acts of domestic violence" in RCW 26.09.191(1)(c) as being modified by the phrase "an assault or sexual assault which causes grievous bodily harm or the fear of such harm," and granting both parents mutual decision-making under a parenting plan. We granted review. We affirm.

*1248 QUESTION PRESENTED

The principal issue in this case is whether the portion of the sentence containing two phrases "a history of acts of domestic violence... or an assault or sexual assault which causes grievous bodily harm or the fear of such harm" in RCW 26.09.191(1)(c) modify each other or constitute alternatives.[1] A related issue is whether the trial court had discretion to determine mutual decision-making rights under a parenting plan if any of the circumstances recited in RCW 26.09.191(1)(c) were present in the case.

STATEMENT OF FACTS

Respondent CarolAnn M. Caven[2] and Petitioner Daniel W. Caven were married on May 13, 1989 in Seahurst, King County, Washington.[3] On January 30, 1995, Respondent served Petitioner with a summons and petition for dissolution of marriage.[4] Two children, ages 30 months and 6 months, were born of the marriage.[5]

On December 20 and 21, 1995, the parties participated in mediation conducted by Lowell K. Halverson.[6] Issues not resolved in mediation were addressed at trial before the Honorable Carol A. Schapira, King County Superior Court, during the period February 12-15, 1996.[7] Judge Schapira in oral remarks concluded that Petitioner Daniel W. Caven had engaged in acts of domestic violence against Respondent CarolAnn M. Caven which included "property destruction or the turning over of large objects, a bookcase, a couch, putting a hand through a wall, moving the mattress, picking up a corner of the mattress and Ms. Caven tumbles [sic] onto the floor."[8]

Despite that observation, Judge Schapira granted the parties mutual decision-making concerning their children. This was recited in the parenting plan incorporated in the decree of dissolution and signed by the court.[9] In explaining her decision based upon her interpretation of RCW 26.09.191(1)(c), Judge Schapira stated:

My finding that, although there was a history of acts of domestic violence that they, as it is paired in the statute with a single act of an assault, grievous bodily harm, or fear of such harm, that, that is a modification of the history of the acts of domestic violence. That it isn't merely the history, but that it is the fear that is produced or the grievous bodily harm that the legislature is addressing but, that is the ill that is sought to be cured.[[10]]

On March 28, 1996, Judge Schapira signed a decree of dissolution[11] which incorporated the parenting plan by reference. The final order was approved on that date but actually signed on April 10, 1996.[12]

The parenting plan approved by Judge Schapira, with significant changes by strike-outs and interlineations, stated in part:

IV. DECISION MAKING[[13]]

4.1 DAY TO DAY DECISIONS.

Each parent shall make decisions regarding the day-to-day care and control of each child while the children are residing with that parent. Regardless of the allocation of decision making in this parenting plan, either parent may make emergency decisions affecting the health or safety of the children.

*1249 4.2 MAJOR DECISIONS.[[14]]

Major decision regarding each child shall be made as follows:
Education decisions:     joint
Non-emergency health     joint
  care decisions:
Religious upbringing:    joint
4.3 RESTRICTIONS IN DECISION MAKING:[[15]]

Findings of Fact and Conclusions of Law:

Although there has been (a) a history of acts of domestic violence perpetrated by the father as referenced in Section VI below, and (b) conflict by both parties during the period of the separation between the parties during visitation exchanges, the purpose of RCW 26.09.187, to protect a parent who has fear of abuse or who fears of [sic] negotiating disputes about children, a protection which is not necessary in this case.
. . . .

VI. OTHER PROVISIONS[[16]]

There are the following other provisions:

Findings of Fact and Conclusions of Law:

The respondent, Daniel Caven, has engaged in acts of domestic violence, as defined in RCW 26.09.050, which occurred throughout the marriage and increased in number and intensity throughout the last two years of the marriage prior to the separation of the parties in January 1995.
The Court orders Mr. Caven to continue participate [sic] in the anger management and domestic violence treatment program, the particulars and conditions of which are outlined as follows:

. . . .

VIII. ORDER BY THE COURT[[17]]

It is ordered, adjudged and decreed that the parenting plan set forth above is adopted and approved as an order of this court.

On May 10, 1996, Respondent filed a notice of appeal to the Court of Appeals. The decision of the Court of Appeals is best summarized in the opening paragraph of the opinion dated July 21, 1997 (Judge Walter E. Webster writing):

[Respondent] appeal[ed] from the [trial] court's entry of a parenting plan. She argue[d] that the trial court erred in ordering joint decision-making after finding that her husband had engaged in a history of acts of domestic violence. The question presented is one of statutory interpretation: whether RCW 26.09.191(1) prohibits mutual decision-making whenever there is a history of acts of domestic violence or only when the violence causes grievous bodily injury or fear of such injury. We hold that the statute requires sole decision-making upon a finding of a history of acts of domestic violence regardless of whether those acts caused grievous bodily harm. Accordingly, we reverse.[[18]]

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Bluebook (online)
966 P.2d 1247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caven-v-caven-wash-1998.