In the Matter of the Marriage of: Jeanette E. Sirianni & Warren S. Sirianni

• Court: Court of Appeals of Washington
• Decided: February 4, 2021
• Docket: 37230-8
• Status: Unpublished

Opinion

FILED FEBRUARY 4, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Marriage of ) ) No. 37230-8-III JEANETTE E. SIRIANNI, ) ) Appellant, ) ) and ) UNPUBLISHED OPINION ) WARREN S. SIRIANNI, ) ) Respondent. )

KORSMO, J.P.T.1 — Jeanette Sirianni appeals the trial court’s order establishing a

parenting plan with 50-50 residential time and deviating from the standard child support

schedule. She also appeals repeated denials of her requests for a protection order.

Because substantial evidence supports the parenting plan and the trial court acted within

its discretion in denying a protection order, this court will not disturb these rulings.

1 Judge Kevin M. Korsmo was a member of the Court of Appeals at the time argument was held on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150. No. 37230-8-III In re Marriage of Sirianni

FACTS

Jeanette sought to dissolve her seven year marriage to Warren Sirianni2 in August,

2018. They have two elementary school-aged children. Warren, a retired Marine Corp

veteran, works for the City of Spokane full time. Jeanette spent the first few years of the

marriage mostly as a stay-at-home parent but took on increasing business responsibility

raising animals on the family property and as a caregiver outside the home. She also

began taking classes for a teaching degree.

Jeanette initially retained attorney Gina Costello, but retained attorney Craig

Mason about a month after filing. Though she did not allege any abuse in her initial

filing, she sought a protection order in September 2018, alleging that Warren was

“threatening” her. After a hearing, the court commissioner declined to issue a protection

order. The eventual trial judge upheld the denial on revision, but reserved the issue of a

permanent protection order for trial.

At the July 2019 trial, both parties, along with friends and family, testified about

the quality and style of each party’s parenting. Jeanette’s friends and mother testified

that she was a good parent and that Warren was standoffish and domineering. Warren

and his family testified that he was a loving and involved father and that Jeanette was

2 For convenience, we will sometimes refer to the parties by first name or as husband or wife.

2 No. 37230-8-III In re Marriage of Sirianni

sometimes emotionally absent. Two family friends testified that both were good parents,

though Warren had a strict military demeanor.

There was also testimony about two incidents involving Warren and firearms.

Warren denied one ever occurred and explained that in the other incident he merely

escorted an unexpected trespasser away from the family while carrying a rifle.

Jeanette also testified to at least one instance of physical abuse. During Jeanette’s

testimony the judge stopped her from providing hearsay testimony and warned her about

a potential waiver of attorney-client privilege if she continued. After the warning she

declined to offer further testimony about discussions with attorney Costello.

The court issued an oral ruling ordering finding no limitations on either parent and

directing shared decision-making and 50-50 residential time. The court ordered child

support be paid to Jeannette, but that a deviation from the standard child support schedule

would be made. The court also required that any third-party childcare would be with a

licensed provider. No domestic abuse was found, and no protection order issued.

Before entry of the final orders, the court denied post-trial motions to reopen the

record after additional allegations of abuse that allegedly occurred after trial but before

the oral ruling. In January 2020, Jeanette again requested a protection order after alleging

another incident of abusive behavior which Warren denied. This was once more denied

by the court commissioner.

3 No. 37230-8-III In re Marriage of Sirianni

ANALYSIS

Jeanette argues that (1) the parenting plan is not supported by substantial evidence,

(2) the court abused its discretion in deviating from the standard child support schedule,

and (3) the court erroneously excluded testimony that would have supported a protection

order and that a protection order should have issued. Warren requests attorney fees.

Parenting Plan

Trial courts have broad discretion when dealing with child welfare, and their

decisions will stand absent an abuse of discretion. In re Marriage of McDole, 122 Wn.2d

604, 610, 859 P.2d 1239 (1993). Abuse of discretion occurs when the court applies the

law incorrectly or relies on findings unsupported by evidence. Gildon v. Simon Prop.

Grp., Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006). Findings of fact are upheld if

supported by substantial evidence. Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d

162 (2010). Substantial evidence is that quantum of evidence “sufficient to persuade a

fair-minded, rational person of the declared premise.” Id. The presence of contradictory

evidence in the record does not mean a fact is not supported by substantial evidence. In

re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). When it comes to

matters of credibility and weight of the evidence—particularly “in proceedings affecting

the parent and child relationship”—appellate courts defer to the trier of fact. In re A.W.,

182 Wn.2d 689, 711, 344 P.3d 1186 (2015).

4 No. 37230-8-III In re Marriage of Sirianni

In dissolution proceedings, Washington courts are to allocate parental

responsibilities according to the best interest of the child. RCW 26.09.002. A child’s

best interest is ordinarily served by altering the existing pattern of interaction between

parent and child “only to the extent necessitated by the changed relationship.” Id.

Additionally, when fashioning the residential provisions of a parenting plan, courts are to

“encourage each parent to maintain a loving, stable, and nurturing relationship with the

child.” RCW 26.09.187(3)(a). Seven factors are set out for the court to consider,

including the nature of a child’s relationship with each parent, each parent’s past and

potential for future performance of parenting functions, and each parent’s employment

schedule. Id. The greatest weight is put on “the relative strength, nature, and stability” of

each parent’s relationship with the child. Id.

RCW 26.09.187 rejects any presumption in favor of residential placement with the

primary caregiver; instead, it requires the exclusive application of the seven factors in the

statute. In re Marriage of Kovacs, 121 Wn.2d 795, 800, 854 P.2d 629 (1993). In

Kovacs, although the mother was found to be the primary caregiver and responsible for

the day-to-day care of the children’s needs during the marriage, the court upheld the trial

court’s placement of the children with the father after considering the statutory factors.

Id. at 799-800. As the appellant points out, the legislature also has declined to create a

presumption in favor of a 50-50 parenting plan.

5 No. 37230-8-III In re Marriage of Sirianni

In this case, the trial court was presented with such starkly different pictures of the

Sirianni home that the court, in a question to Warren, confirmed that it would have to

conclude that at least one of the parents had lied in their testimony. According to Warren

and his witnesses, though he worked full time on weekdays, he cared for the children on

weekends, weekday mornings and evenings, and saw to any needs that might arise in the

middle of the night, while Jeanette was sometimes emotionally absent and increasingly

torn away from parenting duties by work on the farm and elsewhere. According to

Jeanette and her witnesses, it was she who cared for them all day, through the night, and

on weekends, while Warren—though a loving parent—was overly strict and only

responsible for the children for a couple hours in the evening. Jeanette also accused

Warren of abuse, which Warren strenuously denied. One of Jeanette’s witnesses testified

that he never saw any negative parenting from Warren and that Warren provided

“positive reinforcement” to both children.

In its oral ruling, the court recited the seven statutory factors and methodically

considered each one on the record. He found the children have a strong relationship with

both parents. He found that the parents have a relatively equal ability to perform

parenting functions. He found that Warren’s work gave him some flexibility and there

was testimony he was able to care for the children a full week at a time with some

daycare. There is substantial evidence to support these findings.

6 No. 37230-8-III In re Marriage of Sirianni

Especially in dissolution cases with parents who present dramatically different

pictures of a marriage, appellate courts are “in no position to find facts, reweigh the

evidence, or decide witness credibility.” Magnuson v. Magnuson, 141 Wn. App. 347,

351, 170 P.3d 65 (2007). There was no mention by the court at any point of a 50-50

presumption. While this plan may not preserve exactly the same balance of care hours

from before the divorce, our parenting plan statute clearly contemplates that a change in

the relationship necessitates some change in the parenting pattern. The trial court

correctly applied the statutory factors to facts supported by substantial evidence when it

ordered a shared parenting plan with 50-50 residential time.

Child Support Deviation

This court reviews child support orders for an abuse of discretion. In re Marriage

of McCausland, 129 Wn. App. 390, 406, 118 P.3d 944 (2005), rev’d on other grounds,

159 Wn.2d 607, 152 P.3d 1013 (2007). If the trial court fails to set forth adequate

reasons for deviating from the standard schedule, it has abused its discretion. In re

Marriage of Glass, 67 Wn. App. 378, 384, 835 P.2d 1054 (1992). The reasons for a

deviation must be written and supported by the evidence. Id. RCW 26.19.075(1)(d)

authorizes trial courts to deviate from the standard schedule based on the residential

schedule of a parenting plan, provided the receiving party still has sufficient funds to

meet the basic needs of the child.

7 No. 37230-8-III In re Marriage of Sirianni

Here, substantial evidence supports the trial court’s calculation of both parties’

income and the court correctly calculated the standard support schedule from those facts.

The court expressly found in its written order that the parents would split residential time

equally—clearly a significant amount of time with the transferring party, Warren. It also

found that a deviation would not result in a lack of resources in the receiving party’s

household. The trial court ordered a deviation in a written order and for a reason

authorized by statute. It did not abuse its discretion in deviating from the standard child

support schedule.

Relatedly, the appellant argues that the provision of the trial court’s order that all

third-party childcare be with a licensed provider is manifestly unreasonable. We

disagree. This provision must be viewed in light of the appellant’s contempt history for

denying respondent his right of first refusal, as well as testimony that the appellant’s

mother and other friends she desires to use as care givers made derogatory statements

about the respondent. Trial courts have broad authority to fashion provisions that restrict

conduct that prejudices a child against a parent. With the wife previously having failed to

permit the father the opportunity to provide child care under the temporary plan, the trial

court understandably was not going to permit further child care by those who did not

support both parents.

8 No. 37230-8-III In re Marriage of Sirianni

Denial of Protection Order

Appellate courts will not disturb a trial court’s discretion to enter permanent

protection orders absent an abuse of discretion. Hecker v. Cortinas, 110 Wn. App. 865,

869, 43 P.3d 50 (2002). Jeanette made increasingly serious abuse allegations at almost

every stage of the litigation. Her requests for a protection order have been denied by

multiple judicial officers on at least five different occasions. The judge that heard one

request for a restraining order stated that Jeanette’s first attorney was “a very good

attorney who is not shy about coming in and asking for restraining orders when she needs

them.” Clerk’s Papers at 245. Her first attorney did not request a restraining order and

each court that these requests have come before has determined, based on live testimony,

that a protection order was not warranted. Multiple judicial officers have heard

Jeannette’s allegations of abuse and Warren’s denials. This court is not in a position to

question the credibility determinations of courts that have the opportunity to listen and

observe testimony first-hand.

The appellant also assigns error to two evidentiary rulings bearing on her ability to

substantiate her allegations of abuse. This court reviews evidentiary rulings for an abuse

of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).

First, the appellant claims the court erred in refusing to admit child hearsay

evidence under ER 1101(c)(4). ER 1101 permits—but does not require—courts to waive

most rules of evidence in certain settings, including requests for a protection order. The

9 No. 37230-8-III In re Marriage of Sirianni

court clarified on the record that it understood this power and exercised its discretion to

not allow hearsay testimony. Additionally, this ruling was made in the context of a full

trial on a dissolution of marriage, not a hearing limited to granting a protection order. As

was discussed by respondent’s attorney, even in a bench trial “once the bell’s rung, the

bell’s rung.” Report of Proceedings at 262. Allowing the child hearsay for a limited

purpose at trial would open the door for it to be argued for every point at issue by both

sides. The court did not abuse its discretion in disallowing this evidence.

Second, the appellant claims the court erred when it did not allow her to testify

about attorney-client communications without waiving her privilege with respect to all

related subject matter. Under ER 502, when there is a deliberate disclosure of privileged

information, that waiver extends to all undisclosed material on the same subject that

fairness requires be considered alongside the deliberate disclosure.

In this case, the court interrupted Jeanette’s testimony as she was about to testify

to conversations with her previous attorney regarding this case. The court was correct

that this could comprise an intentional waiver of privilege in all communications

concerning the dissolution proceedings that “ought in fairness to be considered together.”

ER 502(a). If she testified to these conversations, fairness could require her to be

questioned on what she told her attorney about related issues. The court did not abuse its

discretion in warning Jeanette about these potential consequences. Appellant, not the

court, then decided to proceed without the testimony. There was no error.

10 No. 37230-8-III In re Marriage of Sirianni

Attorney Fees

Finally, the husband requests attorney fees under RCW 26.09.140. This court

exercises its discretion under the statute to decline the request.

The trial court did not abuse its discretion in crafting the parenting plan, deviating

from the standard child support schedule, or denying a protection order. Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________ Korsmo, J.P.T.

WE CONCUR:

_________________________________ Fearing, J.

_________________________________ Pennell, C.J.