IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Parenting and No. 86060-7-I Support of (consolidated with Nos. 86061-5-I, 86062-3-I, 86088-7-I)
D.M.K.-K., ORDER DENYING MOTION FOR RECONSIDERATION AND WITHDRAWING AND A minor child. SUBSTITUTING OPINION
Respondent Daniel Kirkland filed a motion for reconsideration of the opinion
filed on October 27, 2025 in the above case. Appellant Alison Knudson filed a
response to the motion. The panel has determined that the motion for
reconsideration should be denied. The panel has also determined that the
opinion filed on October 27, 2025 should be withdrawn to remove the last
sentence of the first paragraph on page 12 and a substitute opinion filed. Now,
therefore, it is hereby
ORDERED that respondent’s motion for reconsideration is denied. It is
hereby further
ORDERED that the opinion filed on October 27, 2025 shall be withdrawn
and a substitute opinion shall be filed. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Parenting and No. 86060-7-I Support of (consolidated with Nos. 86061-5-I, 86062-3-I, 86088-7-I)
D.M.K.-K., UNPUBLISHED OPINION
A minor child.
BOWMAN, A.C.J. — Alison Knudson appeals the trial court’s order
excluding evidence as a sanction for discovery violations. Because the trial court
made no Burnet1 findings in support of the harsh sanction and we cannot
determine from the record whether the excluded evidence was cumulative,
irrelevant, or otherwise inadmissible, we reverse the order issuing sanctions,
vacate the final parenting plan, and remand for a new trial.
FACTS
Daniel Kirkland and Alison2 began dating in 2017. At the time, Alison had
one minor son, G.K., from a prior relationship, and Daniel had three daughters
from a prior marriage.3 In 2018, Alison and G.K. moved into Daniel’s home. And
in June 2019, Alison and Daniel had a daughter, D.M.K.-K. In 2020, they bought
1 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). 2 For clarity, we refer to Daniel Kirkland and Alison Knudson by their first names. We mean no disrespect. 3 By the time of the 2022 trial, all three of Daniel’s daughters were adults and living on their own. No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/2
a home together. Two years later on January 10, 2022, Daniel moved out of
their home and broke off the relationship.
After the couple separated, Daniel proposed a 50/50 residential schedule
for two-year-old D.M.K.-K. Alison did not agree to the plan. Instead, on January
13, 2022, she sought a domestic violence (DV) protection order (DVPO),
protecting her, G.K., and D.M.K.-K. from Daniel. Alison alleged that Daniel
abused drugs and alcohol and was physically and verbally abusive to her and the
children. The court granted Alison a temporary ex parte DVPO the same day.
On January 28, 2022, the court held a hearing on Alison’s petition and
referred the parties to family court services (FCS) for a DV assessment. FCS
evaluator and social worker Nicole Bynum investigated Alison’s allegations and
determined that no information supported her request for a DVPO. On June 7,
2022, the court dismissed Alison’s petition.
Meanwhile, on January 27, 2022, Daniel petitioned for a parenting plan
and residential schedule.4 In June, a family law court commissioner issued a
temporary parenting plan. The court designated Alison as the primary custodial
parent with D.M.K.-K. residing with Daniel 5 out of every 14 overnights and
ordered joint decision making. In July, the court appointed clinical psychologist
and parenting evaluator Dr. Monique Brown to investigate issues related to DV,
mental health, and the safety of D.M.K.-K. The court ordered Dr. Brown to issue
her report by October 28, 2022.
4 Alison and Daniel also petitioned for distribution of their property. They resolved that issue at a separate trial, and property is not a subject of this appeal.
2 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/3
In June 2022, Alison stopped taking D.M.K.-K. to the parties’ childcare
provider, Millennium Childcare. On August 23, Daniel asked the court to order
Alison to continue taking D.M.K.-K. to Millennium. On September 6, the
commissioner granted his request. That same day, Alison took D.M.K.-K. to the
emergency department at Mary Bridge Children’s Hospital for a “severe diaper
rash.” After examining D.M.K.-K. and speaking to Alison, the doctor “suspected
sexual abuse” and reported it to Child Protective Services (CPS) and the police.
On September 9, 2022, Daniel moved for a restraining order, limiting
Alison’s contact with D.M.K.-K. Daniel said he had “grave concerns for the
immediate safety and wellbeing of [his] daughter” because after the doctor’s
suspicion of sexual abuse, Alison refused to provide him any more information.
Daniel maintained that no one abused D.M.K.-K. while she was in his care,
“which would mean that any sexual abuse would have had to take place while
[D.M.K.-K.] was in Alison’s care” or that Alison was fabricating the allegation. He
also alleged that Alison repeatedly made false allegations about him to the court
and CPS. The same day, the court issued a temporary restraining order, limiting
Alison’s contact with D.M.K.-K. The court set a hearing on Daniel’s petition for
October 3, 2022.
At the October 3 hearing, Alison denied that she suggested to medical
personnel that Daniel abused D.M.K.-K. But the court found that the medical
records “appear to document that the mother expressed concern to the medical
professionals that any alleged sexual abuse happened while the child was in the
3 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/4
care of the father.” Still, the court lifted the temporary restraining order,
concluding that the trial court could best resolve the matter.
On October 13, 2022, CPS completed its investigation into the allegations
of sexual abuse of D.M.K.-K. and concluded that there were “no physical findings
to support sexual abuse occurred.” And as October 28 approached, Dr. Brown
indicated she could not timely complete her parenting evaluation report because
she had not yet interviewed Alison or received any information from her. So, the
parties jointly moved to continue trial to April 24, 2023, which the court granted.
Then, in December 2022, the police closed their investigation of the sexual
abuse allegation as “inactive” because D.M.K.-K. did not disclose any sexual
abuse during a child forensic interview and Alison was “unwilling[ ]” to provide an
interview.
In January 2023, Dr. Brown interviewed Alison. But she noted that again,
she might be unable to complete her evaluation in time for the new trial date
because Alison still had provided no documents. Dr. Brown explained that
Alison’s counsel gave her some documents but they were mainly duplicative of
information Daniel had already provided.
On February 3, 2023, Dr. Brown e-mailed the parties to make a “last call
for documentation.” Then, on February 24, Daniel moved to continue the trial
until May so Dr. Brown could complete her evaluation. And he asked the court to
allow Dr. Brown to finish her report even if Alison did not timely comply with Dr.
Brown’s last call for documents. In response, Alison asked the court to continue
the trial until June or July based on her counsel’s availability. The court
4 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/5
continued the trial to June 20, 2023 and ruled that Dr. Brown could proceed with
the evaluation even if Alison did not provide more information.
On April 7, 2023, both parties served each other with their interrogatories
and requests for production of documents. Responses to the discovery requests
were due on May 8.5 Daniel also scheduled Alison’s deposition for May 18.
On May 15, 2023, Dr. Brown told the parties she planned to issue her
report on May 17. At the time, Dr. Brown had given Alison “multiple
opportunities” to provide her with information and documentation but Alison
remained “particularly guarded” in providing any information. The next day on
May 16, Alison e-mailed Dr. Brown that she had recently received “ ‘new relevant
information’ ” that she wanted Dr. Brown to consider before issuing her report.
But Alison did not give the new information to Dr. Brown.
Dr. Brown issued her report as scheduled on May 17, 2023. She told the
court that even without Alison’s documentation, she based her conclusions “on
convergent data collected from a significant amount of provided information,”
including the parents’ interviews, court records, police and CPS records, medical
records, and several witness declarations. Dr. Brown concluded that the “[d]ata
did not support a pattern of [DV] committed by [Daniel]” and that it was “more
probable than not” that he “did not engage in a pattern of domestic abuse against
Alison.” She also concluded that “particularly in 2022,” it appeared Alison “used
the medical system to support a narrative that [Daniel] is a neglectful and abusive
parent” and that her behavior appeared “willful and deliberate.” Dr. Brown also
5 The 30-day deadline to respond fell on Sunday, May 7, 2023, which by rule extended to May 8, 2023. See CR 33(a); CR 34(b)(3)(A); CR 6(a).
5 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/6
concluded that Alison appeared to be “engaging in behaviors that are consistent
with abusive use of conflict” and that she is “resistant to or unable to coparent in
a peaceful capacity.” Finally, Dr. Brown stated that Alison’s psychological test
scores “were consistent with individuals who may have a personality disorder.”
Dr. Brown discussed several possible parenting schedules but said she
“would not recommend anything more than a 60/40 schedule [in favor of Daniel]
at this time due to the level of conflict that appears . . . to be instigated by Alison.”
And she recommended that the court award Daniel sole decision making
authority for medical, education, and extracurricular activities. Dr. Brown also
attached Alison’s May 16 e-mail to her report, noting that it was the first time
Alison mentioned any documentation and that Alison did not provide her with the
new information. Still, Dr. Brown told the court that she would add an addendum
to her report if it determined that she should review Alison’s new information.
Meanwhile, the May 8, 2023 discovery deadline passed without either
party responding to each other’s requests.6 Alison also did not appear for her
May 18 deposition. On June 30, the parties held a CR 26(i) conference and
agreed to reschedule Alison’s deposition for July 10. On July 7, Alison moved to
continue the trial until October, and the court set trial for October 10, 2023.
Alison did not appear for her July 10 deposition.
On July 13, 2023, Daniel moved to compel Alison to respond to his
discovery requests and appear for her deposition. On July 26, the trial court
6 Daniel had answered Alison’s interrogatories and compiled documents responsive to her requests for production but refused to provide the information until Alison responded to his requests.
6 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/7
ordered both parties to produce their “complete responses” to discovery by 4:00
p.m. on July 31. And it ordered Alison to appear for an August 21 deposition
under the threat of sanctions.7 Then, on July 30, Alison’s attorney withdrew from
her case. The next day on July 31, Alison responded to Daniel’s interrogatories,
but she objected to most of his questions as premature, unrelated, or privileged.
And she refused to produce any documents.
On August 7, 2023, Daniel moved for CR 37(b) sanctions against Alison
for failure to comply with the court’s discovery order. He asked that she be
“sanctioned and prohibited from offering documents or testimony at trial which
would have been responsive to [his] discovery requests.”8 On September 5, the
trial court granted Daniel’s CR 37(b) motion. The court acknowledged that
“[e]xclusion of evidence is [a] harsh remedy per Burnet,” and it concluded that it
was “persuaded [Daniel] has shown prejudice [and] willfulness” and that “no
lesser sanction is adequate.” But the court did not conduct a Burnet analysis on
the record.9 The court prohibited Alison from “offering documents at trial which
would have been responsive to [Daniel]’s discovery requests (but which were not
answered).”
The trial on the parenting and support of four-year-old D.M.K.-K. began on
October 10, 2023. Alison appeared pro se and moved to continue trial so she
could get a lawyer. The court denied her request, explaining that the case had
been pending for “20 months, which does exceed our local court rules for
7 Alison appeared for her August deposition. 8 See CR 37(b)(2)(B). 9 See Burnet, 131 Wn.2d at 494.
7 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/8
timeliness in terms of what we expect to have happen and how we expect cases
to resolve that involve children.” It concluded that any further delay would not be
in D.M.K.-K.’s best interest and the trial proceeded. The main issues at trial were
establishing a residential schedule and awarding decision making authority. Both
parents sought to be the primary custodial parent and asked for parenting
restrictions under RCW 26.09.191.
Daniel testified at trial and called several witnesses. He alleged Alison
had untreated mental health issues and engaged in abusive use of conflict. Dr.
Brown testified about her parenting evaluation, residential schedule
recommendation, and her recommendation that Daniel retain sole decision
making authority. And FCS evaluator Nicole Bynum testified about her
investigation into Alison’s claims of DV and finding that no evidence supported
her allegations.
Alison also testified. She alleged Daniel engaged in acts of DV, had
issues with substance abuse, and engaged in abusive use of conflict. She
continued to allege that Daniel was abusive to her and G.K., denied that she
suggested to medical personnel and others that Daniel sexually assaulted
D.M.K.-K., and testified generally about her ability to parent. Alison did not move
to admit any documents at trial. But during her testimony, she told the court she
had exhibits she wanted to share. The court told her that other than illustrative
exhibits, per its September CR 37(b) sanction order, she “would not be allowed
to show any documents at trial that had not been disclosed in discovery.”
8 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/9
After trial, the court issued a final order, findings of fact, and conclusions
of law. It found that Daniel did not engage in DV or abusive use of conflict and
that Alison showed a “pattern” of “emotionally manipulative behaviors” harmful to
D.M.K.-K. Specifically, Alison appeared to delay the completion of the parenting
evaluation, discovery, her deposition, and mediation. And she gave inconsistent
information about D.M.K.-K. to medical care providers, social workers, and law
enforcement. Finally, the court found that Alison appeared to “exaggerate
events” and that she had “difficulty resolving conflict without court intervention
and then had difficulty following court orders.” The court ordered Alison to obtain
a mental health evaluation. And it ordered that D.M.K.-K. live with Daniel except
every Wednesday and every other weekend. The court also awarded Daniel
sole decision making authority.
Alison appeals.
ANALYSIS
Alison argues that the trial court abused its discretion by ordering a harsh
sanction under CR 37(b)(2)(B) without first conducting an adequate Burnet
analysis and that the error was not harmless, requiring reversal of the final orders
and remand for a new trial.10 We agree.
10 Daniel argues that we should refuse to hear Alison’s appeal because she did not assign error to the September 5, 2023 order granting his CR 37(b) motion in her notice of appeal. But on October 2, 2024, Alison moved to amend her notice of appeal, assigning error to the sanction order. And on December 23, 2024, a commissioner of this court granted the motion. So, we review Alison’s challenge to the trial court’s order.
9 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/10
1. Exclusion of Evidence
The trial court has broad discretion to impose sanctions for a violation of
discovery orders. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d
1036 (1997). So, we review an order imposing sanctions for abuse of that
discretion. Id. A trial court abuses its discretion when its decision is manifestly
unreasonable or exercised on untenable grounds or for untenable reasons.
State v. Thurlby, 184 Wn.2d 618, 624, 359 P.3d 793 (2015).
When a trial court imposes a “severe [discovery] sanction” under CR
37(b), it must explicitly consider the factors enumerated in Burnet. See Jones v.
City of Seattle, 179 Wn.2d 322, 338, 314 P.3d 380 (2013). A court imposes one
of the “harsher” remedies under CR 37(b) when it issues one of the sanctions as
described in CR 37(b)(2). In re Dependency of M.P., 185 Wn. App. 108, 115-16,
340 P.3d 908 (2014) (citing Mayer v. Sto. Indus., Inc., 156 Wn.2d 677, 688, 132
P.3d 115 (2006)). Those sanctions include “prohibiting the disobedient party
from introducing designated matters in evidence.” CR 37(b)(2)(B).
Under Burnet, before issuing harsher sanctions under CR 37(b)(2), the
trial court must first consider on the record whether the discovery violation was
willful or deliberate, whether the violation substantially prejudiced the opponent’s
ability to prepare for trial, and whether a lesser sanction would suffice to cure that
prejudice. 131 Wn.2d at 494. The court may conduct the analysis orally or in
writing. Teter v. Deck, 174 Wn.2d 207, 217, 274 P.3d 336 (2012). But failure to
clearly consider the Burnet factors before imposing a harsher sanction amounts
to an abuse of discretion. Blair v. TA-Seattle E. No. 176, 171 Wn.2d 342, 348-
10 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/11
49, 254 P.3d 797 (2011). And when the record does not reflect a Burnet
analysis, we may not substitute our own analysis to cure the trial court’s error.
Id. at 351.
Here, the parties do not dispute that the trial court’s order excluding from
trial any documents responsive to Daniel’s discovery requests amounts to one of
the harsher sanctions under CR 37(b)(2). But the record does not show that the
trial court explicitly considered the Burnet factors before issuing the sanction.
The court acknowledged only that “[e]xclusion of evidence is [a] harsh remedy
per Burnet,” that it was “persuaded [Daniel] has shown prejudice [and]
willfulness,” and that “no lesser sanction is adequate.” But it did not explain why
Alison’s failure to timely respond to discovery was willful or how the discovery
violation prejudiced Daniel’s ability to prepare for trial. And it did not consider on
the record potential lesser sanctions or explain why a lesser sanction would not
alleviate any prejudice.
The trial court erred by not considering the Burnet factors on the record
before prohibiting Alison from introducing certain documents at trial.
2. Harmless Error
Still, the trial court’s failure to comply with Burnet is subject to a harmless
error analysis. See Jones, 179 Wn.2d at 355-56 (failure to make proper Burnet
findings is subject to a harmless error analysis). “Under the harmless error test
in civil cases, an error is harmless when it does not materially affect the outcome
of the trial.” Lavington v. Hillier, 22 Wn. App. 2d 134, 148, 510 P.3d 373 (2022).
Excluded evidence does not materially affect the outcome of the trial when it is
11 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/12
irrelevant, unfairly prejudicial, or cumulative. Jones, 179 Wn.2d at 356, 360. To
be cumulative, the evidence need not be identical to the admitted evidence, but
the substance of the evidence must be the same. Mut. of Enumclaw Ins. Co. v.
Gregg Roofing, Inc., 178 Wn. App. 702, 731, 315 P.3d 1143 (2013).
Daniel argues that any error is harmless because the evidence excluded
under the trial court’s sanction order was cumulative of the documents he
admitted as trial exhibits, Alison testified about the contents of several
documents, and the court likely would have excluded some documents as
hearsay.11 But the admissibility of the documents Alison sought to admit was not
litigated below. And the record provides only general descriptions of a few
documents. So, we are unable to determine whether the documents Alison
sought to admit would have been cumulative, whether Alison testified about the
complete content of those she mentioned during testimony, or whether the court
would exclude any portion of her documents as hearsay.
M.P. is instructive. In that case, the State moved to exclude two expert
witnesses because they were not timely disclosed. 185 Wn. App. at 113-14.
The trial court granted the motion but made no Burnet findings. Id. On appeal,
we concluded the error was not harmless. Id. at 118. The parties did not litigate
the admissibility of the excluded testimony below, so the record on appeal did not
clearly specify “the nature of the testimony expected to be elicited from the
11 Daniel also argues that much of the evidence the court prohibited Alison from introducing at trial was not excluded by the sanction order because Alison was prohibited from offering only documents that Daniel had not “ ‘already seen.’ ” But the sanction order specifically prohibits Alison from “offering documents at trial which would have been responsive to [Daniel]’s discovery requests (but which were not answered).”
12 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/13
excluded witnesses.” Id. As a result, we could not determine whether the
excluded testimony would have been cumulative, irrelevant, or otherwise
inadmissible. Id.
Because the parties here did not litigate below the admissibility of any
documents Alison may have sought to admit at trial, this record contains only a
general description of the contents of some of those documents. So, we cannot
determine whether the documents would have been cumulative, irrelevant, or
otherwise admissible, and we cannot conclude that the trial court’s error was
harmless. As a result, we reverse the order issuing sanctions, vacate the final
parenting plan,12 and remand for a new trial.13
3. Attorney Fees
Both Daniel and Alison request attorney fees on appeal. Daniel requests
fees under RAP 18.1 and CR 37(d), and Alison requests fees under RAP 14.2
and RCW 26.09.140. RCW 26.09.140 gives this court discretion to award
attorney fees. Because we reverse and remand for a new trial, we decline to
award either party attorney fees and costs and reserve the issue for the trial court
to decide. See RAP 18.1(i).
12 The trial court also issued a final child support order. Because a new parenting plan may affect the calculation of child support, we authorize the trial court to modify the child support obligation accordingly. 13 Alison requests a new judge on remand. The remedy of reassignment has limited availability; “ ‘even where a trial judge has expressed a strong opinion as to the matter appealed, reassignment is generally not available as an appellate remedy if the appellate court’s decision effectively limits the trial court’s discretion on remand.’ ” In re Marriage of Kaplan, 4 Wn. App. 2d 466, 487 n.4, 421 P.3d 1046 (2018) (quoting State v. McEnroe, 181 Wn.2d 375, 387, 333 P.3d 402 (2014)). After reviewing the record in this case, we conclude that the trial court’s impartiality cannot “ ‘reasonably be questioned’ ” and decline to order reassignment on remand. Id. (quoting State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703 (2017)).
13 No. 86060-7-I (consol. with Nos. 86061-5-I, 86062-3-I, 86088-7-I)/14
In sum, we reverse the order issuing sanctions, vacate the final parenting
plan, remand for a new trial, and reserve issuing appellate fees and costs for the
trial court.
WE CONCUR: