In Re Marriage of Chua and Root

202 P.3d 367
CourtCourt of Appeals of Washington
DecidedMarch 3, 2009
Docket26842-0-III
StatusPublished
Cited by8 cases

This text of 202 P.3d 367 (In Re Marriage of Chua and Root) 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
In Re Marriage of Chua and Root, 202 P.3d 367 (Wash. Ct. App. 2009).

Opinion

202 P.3d 367 (2009)

In re the MARRIAGE OF Pearley D. CHUA, Respondent, and
Wayne Elwyn ROOT, Appellant.

No. 26842-0-III.

Court of Appeals of Washington, Division 3.

March 3, 2009.

*368 Wayne E. Root, Spokane, WA, pro se.

Gloria F. Porter, Attorney at Law, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

KULIK, J.

¶ 1 Pearley Chua and Wayne Root are the divorced parents of two children, Gabriel and Abbygale. After Ms. Chua remarried, she filed a notice of intended relocation of the children. Mr. Root filed an objection. The court allowed the relocation, entered a permanent restraining order, and placed restrictions on the parenting plan. On appeal, Mr. Root challenges the restraining order and the restrictions on the parenting plan. We affirm in part, reverse in part, and remand for entry of findings of fact related to the allocation of travel expenses.

FACTS

¶ 1 Pearley Chua and Wayne Root have two children, Gabriel and Abbygale. Since the dissolution of their marriage, the children have been primarily placed with Ms. Chua pursuant to the final parenting plan entered in May 2006.

¶ 3 One year after the final parenting plan was entered, Ms. Chua requested a sexual assault protection order for her daughter against Mr. Root. A court commissioner pro tem denied the request.

¶ 4 In April 2007, Ms. Chua filed a notice of intended relocation of the children and requested authorization to relocate her children to Florida. She attached to the notice a letter to Mr. Root explaining that Ms. Chua's husband, a member of the United States Air Force, was being transferred to MacDill Air Force Base in Tampa, Florida.

¶ 5 In May, Mr. Root filed his objection to the relocation. He alleged that Ms. Chua lied about prior allegations as to his behavior with the children. By raising these allegations and denying the claims, Mr. Root opened the door for Ms. Chua to argue his history with the children.

¶ 6 The matter was heard before a court commissioner. The commissioner granted temporary relocation and unsupervised visits between Mr. Root and the children. A guardian ad litem (GAL) was appointed and a psycho-sexual evaluation of Mr. Root was ordered.

¶ 7 The commissioner considered the same evidence that was later considered by the trial court. That evidence included the following incidents. On February 23, 2007, Abbygale made a disclosure in the emergency room at Deaconess Medical Center which prompted a referral for an evaluation of a sexual assault. Mr. Root was the alleged perpetrator. In June, Stacey Arquette, a Child Protection Services social worker, filed a declaration that Gabriel made a report against his father at school. Ms. Arquette's declaration referenced three more complaints by other children. Pamela Smith filed a declaration indicating that she had obtained a one-year protection order protecting her daughter, A.S., from Mr. Root.

¶ 8 In July, Detective Jan Pogachar of the Spokane Police Department, filed a declaration stating the allegations of an eight-year-old child that were made against Mr. Root. The detective's declaration also contained other referrals against Mr. Root. Bud J. O'Connor filed a declaration referencing a restraining order he obtained to protect his 12-year-old daughter from Mr. Root. Attached to the declaration was a note written by Mr. Root to a 12-year-old girl.

¶ 9 On September 11, the court entered an order allowing Ms. Chua to relocate to Florida with her children. In December, the GAL filed her report recommending that the children be allowed to relocate on a permanent *369 basis and that Mr. Root have only supervised visitation.

¶ 10 The trial was held on January 15, 2008. On the morning of trial, Mr. Root's counsel, Matthew Dudley, moved the trial court for an order allowing him to be released from representation. Mr. Dudley based his request on ethical considerations. Mr. Root did not object. Mr. Root also made it clear that he did not want a continuance and that he wanted to proceed.

¶ 11 Mr. Root testified at trial. He admitted writing the note to the 12-year-old girl. The GAL testified that she interviewed numerous persons who had made allegations against Mr. Root. One allegation involved a girl who reported that Mr. Root drove up to her in a van, asked her if she wanted a ride, pulled her into the van when she declined, locked the door, and molested her. The GAL testified that relocation to Florida was in the best interest of the couple's children.

¶ 12 The trial court found that Ms. Chua had met all of the statutory criteria and approved the relocation of the children. The court found that Mr. Root had shown a pattern of a lack of understanding of appropriate boundaries when communicating with minor females and that he used bad judgments in some of his communications. The court also found that Mr. Root used the telephone to put the children in the middle of disputes between Ms. Chua and Mr. Root.

¶ 13 The court entered a permanent restraining order preventing Mr. Root from having contact with the children except for supervised telephone calls and two supervised visits per year. The court ordered that the costs of the supervised visitations were to be split 50/50. All lodging, transportation, and other expenses incurred by Mr. Root when exercising his visitation rights were to be paid by Mr. Root. Mr. Root was allowed supervised telephone contact under the auspices of Ms. Chua. Additionally, the court allowed Ms. Chua to obtain passports for the children without Mr. Root's knowledge and to take the children out of the country without Mr. Root's permission.

¶ 14 The court placed restrictions on the parenting plan that were related to relocation. In the parenting plan, the court found that good cause existed to "suspend the duty of the mother under RCW 26.09.430-480 regarding further relocations of the children as the mother is married to a person in the U.S. Armed Forces." Clerk's Papers (CP) at 44.

¶ 15 Mr. Root appeals, challenging the permanent restraining order and the restrictions on the parenting plan.

ANALYSIS

¶ 16 A trial court's decision regarding the modification of a parenting plan will not be reversed absent an abuse of discretion. In re Marriage of Hansen, 81 Wash. App. 494, 498, 914 P.2d 799 (1996). The trial court's review of a matter concerning the rights of custody and visitation will not be disturbed absent an abuse of discretion. In re Marriage of Luckey, 73 Wash.App. 201, 208, 868 P.2d 189 (1994). Discretion is abused if the court's decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wash.2d 39, 46-47, 940 P.2d 1362 (1997). In addition, the reviewing court must determine if the findings of fact are supported by substantial evidence and whether the court made an error of law. Brandli v. Talley, 98 Wash.App. 521, 523, 991 P.2d 94 (1999). Issues of law are reviewed de novo. Hanson v. City of Snohomish, 121 Wash.2d 552, 556, 852 P.2d 295 (1993).

¶ 17 Withdrawal of Counsel. On the morning of trial, Mr.

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202 P.3d 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-chua-and-root-washctapp-2009.