IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter of the Marriage of ) No. 77065-9-I ) COURTNEY MOORE, ) Respondent, ) and ) UNPUBLISHED OPINION THOMAS MOORE, ) ) FILED: March 4, 2019 Appellant.
VERELLEN, J. — In the dissolution of Thomas and Courtney Moore’s1
marriage, the trial court entered a parenting plan that restricted Thomas’s decision
making based on a finding of domestic violence. Thomas appeals the parenting
plan, arguing that the trial court erred by limiting his decision making and ordering
a residential schedule in which the child resides primarily with Courtney. But our
review is precluded by various procedural deficiencies, including Thomas’s failure
to provide an adequate record on appeal. In addition, he disregards our standard
of review, arguing that the trial court should have deferred to his evidence. Even if
we could ignore these critical deficiencies, his underlying premise that the court
1 We use the first names of the parties for ease of reference. We refer to their son as ‘T.J.” No. 77065-9-1/2
premise that the court could not restrict his decision making or favor Courtney with
greater residential placement fails under the abuse of discretion standard of
review. We affirm.
FACTS
Courtney Moore and Thomas Moore married in 2005. They had two
children, Maria and T.J. Maria was diagnosed with leukemia in September, 2014,
and was hospitalized on and off over the next year. In July 2015, Courtney filed a
petition for dissolution. Before her petition, the parents spent a roughly even
amount of time at the hospital with Maria. After, Courtney spent less time there,
finding that Thomas created a hostile, uncomfortable environment. In order to
spend more time with Maria, Courtney obtained a protection order restraining
Thomas from visiting Maria for a two-and-a-half hour period each day. Ten days
later, the parties agreed to terminate the protection order. Tragically, Maria
passed away in November, 2015.
With her petition for dissolution, Courtney proposed a residential schedule
in which Thomas had visits every other weekend. Thomas proposed a residential
schedule in which Courtney had visits every other Saturday, and every Tuesday
and Thursday evening. Pending the outcome of the proceedings, the parents split
residential time, with four nights each week with Thomas and three nights each
week with Courtney.
The parties presented evidence in a trial lasting at least six days.
2 No. 77065-9-1/3
Courtney described domestic abuse during the marriage. She testified that “he
spit on me,” “he flipped the mattress over that I was laying on,” and he was
“punching doors and punching walls.”2 Once, in 2008, “he [was] trying to keep the
keys from me and not allowing me to leave the house, and when I tried to get the
keys back, he went for the door and we both [went] down the stairs.”3
The appointed guardian ad litem (GAL) also testified that “[t]here are
behaviors that I believe Mr. Moore engaged in such as . . . punching in doors and
pulling down curtains and things[,] property damage . . . that cause . . . the fear of
bodily harm or injury.”4 The GAL was concerned “that the father’s attitude and
actions regarding the mother impact the child and interfere with him having a
positive concept of his mother, and therefore having a positive, healthy
relationship with his mother.”5
Regarding these domestic violence incidents, Thomas testified that “there
was never any tumble down the stairs.”6 Rather, “I started to go down the stairs to
leave, and she jumped on my back, dug her nails in me and was screaming in my
ears.”7 With respect to an incident where the police were called because Thomas
aHegedly kicked in the door to the garage, Thomas testified that Courtney locked
2 Report of Proceedings (RP) (Feb. 2, 2017) at 230, 235. Id. at 238-39. ~ RP (Jan. 31. 2017) at 37. 5 Id. at 104. 6 RP (Feb. 3,2017) at 260.
~ Id.
3 No. 77065-9-1/4
him out of the house with the children in the car, so he “kind of pushed and the
door opened. I went in and got the things that I wanted to get.”8
The trial court entered a final divorce order, parenting plan, and child
support order in June 2017. The parenting plan found a domestic violence
limitation as to Thomas and substance abuse limitations as to both Thomas and
Courtney. But because of the unique circumstances related to Maria’s passing,
the court did not limit Thomas’s time with T.J. Instead, the parenting plan provides
that T.J. primarily lives with Courtney except for every other weekend and every
other Wednesday with Thomas. The court assigned sole decision making
authority to Courtney.
The trial court found that in spite of a substance abuse finding, “[nb
evidence was presented that. . . between 2008 to present there is a correlation
between the mother’s parenting and either her mental health or substance use.”9
Thus, the trial court declined to limit Courtney’s residential time.
With respect to Thomas’s domestic violence, it found that
[t]he father has never hit or threatened to hit the mother directly. However, the father’s actions and behaviors meet both the legal definition of domestic violence and the social definition. The father’s arrest in November 2008 and instances of property damage did place the mother in reasonable fear. The father also engaged in a pattern of financial control, surveillance of the mother, and isolation of the family and motherJ10~
8 Id. at 265. ~ CP at 530 (finding of fact 24). 10 CP at 529 (finding of fact 15).
4 No. 77065-9-1/5
The trial court further found that Thomas’s testimony was not credible in a number
of respects, including his descriptions of Courtney’s mental illness and his claim
that Courtney was frequently drunk or under the influence around the children.
The trial court also found that Thomas’s description of the incident in which he
broke down the garage door “does not appear reasonable or likely.”11
Thomas is self-represented in his appeal. Courtney is also self-represented
but elected not to file a responsive brief.
DISCUSSION
We review parenting plan decisions for manifest abuse of discretion.12 A
trial court abuses its discretion only if its “‘decision is manifestly unreasonable or
based on untenable grounds or untenable reasons.”13
“We treat the trial court’s findings of fact as verities on appeal so long as
they are supported by substantial evidence.”14 Evidence is substantial when it is
sufficient to “persuade a fair-minded person of the truth of the matter asserted.”15
“So long as substantial evidence supports the finding, it does not matter that other
evidence may contradict it.”16 This court does not review the trial court’s credibility
11 CP at 528 (finding of fact 2). 12 In re Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). 13kL (quoting In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014)). 14 Id.
15 Id. 16 In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
5 No. 77065-9-1/6
determinations or weigh conflicting evidence.17 Unchallenged findings are verities
on appeal.18
The law does not distinguish between litigants who choose to proceed pro
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter of the Marriage of ) No. 77065-9-I ) COURTNEY MOORE, ) Respondent, ) and ) UNPUBLISHED OPINION THOMAS MOORE, ) ) FILED: March 4, 2019 Appellant.
VERELLEN, J. — In the dissolution of Thomas and Courtney Moore’s1
marriage, the trial court entered a parenting plan that restricted Thomas’s decision
making based on a finding of domestic violence. Thomas appeals the parenting
plan, arguing that the trial court erred by limiting his decision making and ordering
a residential schedule in which the child resides primarily with Courtney. But our
review is precluded by various procedural deficiencies, including Thomas’s failure
to provide an adequate record on appeal. In addition, he disregards our standard
of review, arguing that the trial court should have deferred to his evidence. Even if
we could ignore these critical deficiencies, his underlying premise that the court
1 We use the first names of the parties for ease of reference. We refer to their son as ‘T.J.” No. 77065-9-1/2
premise that the court could not restrict his decision making or favor Courtney with
greater residential placement fails under the abuse of discretion standard of
review. We affirm.
FACTS
Courtney Moore and Thomas Moore married in 2005. They had two
children, Maria and T.J. Maria was diagnosed with leukemia in September, 2014,
and was hospitalized on and off over the next year. In July 2015, Courtney filed a
petition for dissolution. Before her petition, the parents spent a roughly even
amount of time at the hospital with Maria. After, Courtney spent less time there,
finding that Thomas created a hostile, uncomfortable environment. In order to
spend more time with Maria, Courtney obtained a protection order restraining
Thomas from visiting Maria for a two-and-a-half hour period each day. Ten days
later, the parties agreed to terminate the protection order. Tragically, Maria
passed away in November, 2015.
With her petition for dissolution, Courtney proposed a residential schedule
in which Thomas had visits every other weekend. Thomas proposed a residential
schedule in which Courtney had visits every other Saturday, and every Tuesday
and Thursday evening. Pending the outcome of the proceedings, the parents split
residential time, with four nights each week with Thomas and three nights each
week with Courtney.
The parties presented evidence in a trial lasting at least six days.
2 No. 77065-9-1/3
Courtney described domestic abuse during the marriage. She testified that “he
spit on me,” “he flipped the mattress over that I was laying on,” and he was
“punching doors and punching walls.”2 Once, in 2008, “he [was] trying to keep the
keys from me and not allowing me to leave the house, and when I tried to get the
keys back, he went for the door and we both [went] down the stairs.”3
The appointed guardian ad litem (GAL) also testified that “[t]here are
behaviors that I believe Mr. Moore engaged in such as . . . punching in doors and
pulling down curtains and things[,] property damage . . . that cause . . . the fear of
bodily harm or injury.”4 The GAL was concerned “that the father’s attitude and
actions regarding the mother impact the child and interfere with him having a
positive concept of his mother, and therefore having a positive, healthy
relationship with his mother.”5
Regarding these domestic violence incidents, Thomas testified that “there
was never any tumble down the stairs.”6 Rather, “I started to go down the stairs to
leave, and she jumped on my back, dug her nails in me and was screaming in my
ears.”7 With respect to an incident where the police were called because Thomas
aHegedly kicked in the door to the garage, Thomas testified that Courtney locked
2 Report of Proceedings (RP) (Feb. 2, 2017) at 230, 235. Id. at 238-39. ~ RP (Jan. 31. 2017) at 37. 5 Id. at 104. 6 RP (Feb. 3,2017) at 260.
~ Id.
3 No. 77065-9-1/4
him out of the house with the children in the car, so he “kind of pushed and the
door opened. I went in and got the things that I wanted to get.”8
The trial court entered a final divorce order, parenting plan, and child
support order in June 2017. The parenting plan found a domestic violence
limitation as to Thomas and substance abuse limitations as to both Thomas and
Courtney. But because of the unique circumstances related to Maria’s passing,
the court did not limit Thomas’s time with T.J. Instead, the parenting plan provides
that T.J. primarily lives with Courtney except for every other weekend and every
other Wednesday with Thomas. The court assigned sole decision making
authority to Courtney.
The trial court found that in spite of a substance abuse finding, “[nb
evidence was presented that. . . between 2008 to present there is a correlation
between the mother’s parenting and either her mental health or substance use.”9
Thus, the trial court declined to limit Courtney’s residential time.
With respect to Thomas’s domestic violence, it found that
[t]he father has never hit or threatened to hit the mother directly. However, the father’s actions and behaviors meet both the legal definition of domestic violence and the social definition. The father’s arrest in November 2008 and instances of property damage did place the mother in reasonable fear. The father also engaged in a pattern of financial control, surveillance of the mother, and isolation of the family and motherJ10~
8 Id. at 265. ~ CP at 530 (finding of fact 24). 10 CP at 529 (finding of fact 15).
4 No. 77065-9-1/5
The trial court further found that Thomas’s testimony was not credible in a number
of respects, including his descriptions of Courtney’s mental illness and his claim
that Courtney was frequently drunk or under the influence around the children.
The trial court also found that Thomas’s description of the incident in which he
broke down the garage door “does not appear reasonable or likely.”11
Thomas is self-represented in his appeal. Courtney is also self-represented
but elected not to file a responsive brief.
DISCUSSION
We review parenting plan decisions for manifest abuse of discretion.12 A
trial court abuses its discretion only if its “‘decision is manifestly unreasonable or
based on untenable grounds or untenable reasons.”13
“We treat the trial court’s findings of fact as verities on appeal so long as
they are supported by substantial evidence.”14 Evidence is substantial when it is
sufficient to “persuade a fair-minded person of the truth of the matter asserted.”15
“So long as substantial evidence supports the finding, it does not matter that other
evidence may contradict it.”16 This court does not review the trial court’s credibility
11 CP at 528 (finding of fact 2). 12 In re Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). 13kL (quoting In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014)). 14 Id.
15 Id. 16 In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
5 No. 77065-9-1/6
determinations or weigh conflicting evidence.17 Unchallenged findings are verities
on appeal.18
The law does not distinguish between litigants who choose to proceed pro
se and those who seek assistance of counsel.19 Both must comply with applicable
procedural rules.2° We generally will “not consider arguments that are
unsupported by pertinent authority, references to the record, or meaningful
analysis.”21 Further, the party presenting an issue for review has the burden of
providing an adequate record to establish the asserted error.22 The failure to
provide such a record may preclude our review.23
Thomas fails to comply with most of these requirements. His brief has few
citations to authority, limited citation to the record, and little, if any, meaningful
analysis. He does not assign error to any factual findings relevant to his
argument. In addition, he arranged for only a partial verbatim report of
17 Black, 188 Wn.2d at 127. 18 In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). 19 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993) (quoting Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155 (1983)). 20 Id.
21 Cook v. Brateng, 158 Wn. App. 777, 794, 262 P.3d 1228 (2010) (citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990); State v. Camarillo, 54Wn.App. 821, 829, 776 P.2d 176 (1989), affd, 115 Wn.2d 60 (1990); RAP 10.3(a)). 22 RAP 9.2(b); State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012). 23 Id.
6 No. 77065-9-117
proceedings of the trial and failed to designate key exhibits such as the GAL’s
report to be included in the record.24 These deficiencies preclude our ability to
fairly and fully apply the standard of review. Because Thomas fails to meet his
burden on appeal, we must affirm.
Even if we were able to somehow ignore these critical deficiencies, the
basic premise of Thomas’s appeal fails. Thomas contends that “[t]he court failed
to take a balanced approach to weighing the conflicting testimony about the
father’s demeanor and care for the children” and that the “[t]rial court findings
deemphasized all of [his] concerns about [Courtney’s] dependency problems and
mental health.”25 He points to the testimony of witness Dr. Christen Carson, who
was critical of the GAL investigation, and argues that the GAL report is biased and
incomplete.
These arguments reflect a misunderstanding of the role of an appellate
court. We do not reweigh the evidence as the weight and credibility of evidence
are issues within the sole discretion of the trial court.26 The trial in this case
involved conflicting testimony of the parents, the GAL, and Dr. Carson.
Determining the credibility of the witnesses and the weight to assign to conflicting
24 In addition, Thomas designated for transcription only his own attorney’s cross-examination of the GAL. The record does not contain the GAL report or any of the GAL’s testimony on direct examination. He provides only selected portions of Courtney’s testimony. 25 Appellant’s Br. at 1 9, 28.
26 In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
7 No. 77065-9-1/8
testimony is for the trial judge, whose findings we review only to determine
whether they are supported by substantial evidence.
Even if we overlooked this misunderstanding of our standard of review,
Thomas’s core arguments fail. Thomas argues that “[t]he trial court failed to
consider the best interest of the child” and “err[ed] in ordering a [p]arenting [p]lan
that removes the father’s ability to make decisions regarding parenting of the
child.”27 The trial court is authorized to limit a parent’s decision making and
residential schedule “if it is found that a parent has . . . a history of acts of
domestic violence.”28 The definition of “domestic violence” includes “the infliction
of fear of imminent physical harm, bodily injury or assault, between family or
household members.”29
The trial court limited Thomas’s decision making because it found that he
“has a history of domestic violence.”30 It found that Thomas’s “arrest in November
2008 and instances of property damage did place the mother in reasonable fear.
The father also engaged in a pattern of financial control, surveillance of the
mother, and isolation of the family and mother.”31 Substantial evidence justifies
the domestic violence finding. Courtney testified “the police were called in 2008
we were struggling and he went for the door and we both went down the
27 Appellant’s Br. at 6, 7. 28 RCW26.09.191(1), (2)(a). 29 RCW26.50.010(3). 30CPat518. 31 CP at 529 (finding of fact 15).
8 No. 77065-9-1/9
stairs.”32 The GAL testified that Thomas, in anger, punched holes in the wall and
broke down a door. The GAL described financial control including “put[ting] her on
an allowance. She didn’t have money. She had to borrow money from her parents
for basic things like gas, car maintenance, laundry. . . . [T}he bank statements I
reviewed supported that she was given very little money by her then husband to
live on each day.”33 Thomas points to his own testimony to undermine the
domestic violence finding, but “[s]o long as substantial evidence supports the
finding, it does not matter that other evidence may contradict it.”34 Thomas fails to
prove that the trial court abused its discretion when limiting his decision making
due to the domestic violence finding.
In spite of its finding of domestic violence, the trial court declined to limit
Thomas’s residential time under RCW26.09.191, finding thatT.J. “suffered a
significant loss with the passing of his sister. He has a strong bond with both
parents and limiting the Father’s time with him with the unique circumstances of
this case would be detrimental to his best interests as identified by the GAL and
adopted by the undersigned.”35 Rather, the trial court weighed the factors in
RCW26.09.187(3)(a) to determine the best interests of the child and ordered that
T.J. live primarily with Courtney, spending every other weekend and Wednesdays
with Thomas. The trial court found that
32 RP (Feb. 2, 2017) at 237. ~ RP (Jan. 30, 2017) at 65-66. ~ Burrill, 113 Wn. App. at 868. ~ CP at 519.
9 No. 77065-9-1/10
[t]he parenting plan entered in the separate order is in the best interests of TJ and encourages each parent to maintain a loving, stable, and nurturing relationship with the child Each parent has . . . .
historically met the child’s needs and has the future ability to do so with the ordered interventions and/or support. The records submitted and considering the testimony understanding that the circumstances of Maria’s hospitalizations placed these parents in a difficult situation to meet her needs as well as TJ’s and even discounting this timeframe as not representative of regular parenting, but crisis parenting the mother has historically taken greater responsibility for —
performing the parenting functions relating to the daily needs of the child [36]
The court’s finding that Courtney has historically taken greater responsibility for
T.J. is supported by substantial evidence. Courtney explained that if she had the
majority of residential time, she “would be able to continue what I have been doing
for my son[] the majority of his life . . . as the primary parent.”37 When discussing
her struggles with mental illness in 2008, Courtney said that Thomas “still didn’t
adjust his work schedule at all. I was still home with the kids all day and all
night.”38 Thomas argues that the trial court abused its discretion when
“discounting” the time of Maria’s hospitalizations as not representative of regular
parenting. But the trial court explained that this was a period of crisis parenting. It
was not manifestly unreasonable for the court to conclude that the period of crisis
parenting was not reflective of the parents’ past and potential for future parenting
functions.
36 CP at 530 (finding of fact 25). ~ RP (Feb. 1, 2017) at 154-55. 38 Id. at 180.
10 No. 77065-9-Ill 1
The procedural deficiencies in Thomas’s appeal preclude our review.
Further, Thomas applies the wrong standard of review, asking that we reweigh the
evidence. And even if we did entertain the merits of Thomas’s appeal, we would
find that the parenting plan restrictions and residential schedule were not an abuse
of discretion.
We affirm.
WE CONCUR: