In the Matter of the Marriage of: Michael Quentin Porter & Sarah Jessica Porter

Opinion

FILED APRIL 15, 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In the Matter of the Marriage of ) ) No. 37161-1-III MICHAEL QUENTIN PORTER, ) ) Respondent, ) ) and ) UNPUBLISHED OPINION ) SARAH JESSICA PORTER, ) ) Appellant. )

SIDDOWAY, J. — Sarah Porter appeals a modified final parenting plan that was

ordered for the children from her former marriage to Michael Porter. The order followed

a hearing in which she participated pro se. Now represented by counsel, she identifies

and asks us to review several alleged evidentiary errors, only one of which was raised in

the trial court. She argues that notwithstanding Washington law to the contrary, she

should not be held to the same standard as an attorney. We are not persuaded to exercise No. 37161-1-III In re Marriage of Porter

our discretion to review any unpreserved error. We affirm and award Mr. Porter

reasonable attorney fees against Ms. Porter.

FACTS AND PROCEDURAL BACKGROUND

At the time of Sarah and Michael Porter’s divorce in 2015, they had two young

children. A parenting plan was entered that awarded sole custody of the children to Ms.

Porter. Because of Mr. Porter’s then-existing mental health issues and issues of domestic

violence, the parenting plan left him with no visitation rights unless agreed to by the

parties.

Mr. Porter thereafter sought and underwent mental health treatment. A few years

later, in May 2018, he successfully petitioned for a modified, temporary, parenting plan

that would allow him to gradually reenter his children’s lives.

Ms. Porter refused to comply with the May 2018 parenting plan, continually

denying Mr. Porter visitation with the children. Her refusal to comply resulted in

multiple findings of contempt, multiple restraining orders, and multiple incidents

involving law enforcement, one of which resulted in Ms. Porter’s arrest.

Ms. Porter’s continued noncompliance led the trial court to enter a new temporary

plan in September 2018 that placed primary custody and decision-making authority for

the children solely with Mr. Porter. The new plan allowed Ms. Porter to have supervised

contact with the children and ordered her to obtain a mental health evaluation and comply

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with recommended treatment. Since entry of the September 2018 plan, the children have

lived with Mr. Porter.

When problems with Ms. Porter’s compliance continued, the trial court entered yet

another temporary plan in December 2018, under which Ms. Porter’s permitted contact

with the children was only through the U.S. Mail, with an exception for Christmas Day,

when she was permitted to have a two hour supervised video conference visit. The order

that Ms. Porter obtain a mental health evaluation and comply with recommended

treatment was carried forward into the new plan.

Shortly after entry of this third temporary plan, the trial court set a trial date for

deciding on a final parenting plan. Trial was originally scheduled for May 2019, but it

was continued several times. Following the first continuance, the trial court appointed a

guardian ad litem (GAL) whom the court ordered to investigate and report on “all issues

related to making a parenting plan.” Clerk’s Papers (CP) at 1394. The order specifically

identified the parties’ criminal history, domestic violence, mental health, physical health,

and substance abuse as issues to be investigated and reported on.

The GAL filed her report on August 27, 2019, and provided a copy to the parties.

The report recommended that Ms. Porter not have contact with the children until she

received mental health treatment. A copy of the report that is heavily annotated with Ms.

Porter’s objections was filed by Ms. Porter with the court about a week later.

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A two-day trial was conducted on September 2019. Mr. Porter was represented by

counsel and Ms. Porter appeared pro se. At the outset of the trial Mr. Porter moved for

the admission under ER 904 of his exhibits 1 through 18, all documents he had served on

Ms. Porter over five months earlier. They consisted of 15 police incident reports and 3

“Center for Family Renaissance” reports from October and November 2018 authored by

Tawnya Wright. CP at 1288-89. The Center for Family Renaissance provides

professionally supervised visits and family counseling. After Ms. Porter’s visits with the

children were court-ordered to be supervised, Ms. Porter had hired Ms. Wright to provide

the required supervision.

Ms. Porter had not served a written objection to the ER 904 notice, but the trial

court still asked her if she had any objections. Ms. Porter objected to the three documents

prepared by Ms. Wright, which had been marked for identification as exhibits 16, 17 and

18, but did not object to the police incident reports. The trial court expressed reservations

about whether Ms. Wright’s reports would be “covered in fact under 904(a)(1).” Report

of Proceedings (RP) at 11. It admitted only unobjected-to exhibits 1 through 15 under

ER 904.

Mr. Porter called four witnesses: himself, the GAL, and his parents. Ms. Porter

testified on her own behalf and called no other witnesses.

During the GAL’s testimony, Mr. Porter’s counsel had the GAL authenticate a

copy of her report and then moved for its admission. When the trial court asked Ms.

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Porter if she had any objection, Ms. Porter responded, “I would object, because I didn’t

have a copy of this. I was just now provided with this.” RP at 29. The trial court,

apparently having trouble hearing the objection, asked Ms. Porter to speak up. By the

time she did, Ms. Porter had apparently recognized the report because she made a

different objection: “I would object to it because I did respond to it and turn it in.” Id.

The court explained that Ms. Porter would be able to testify to her response to the report,

but asked if she had any objection based on the report’s inadmissibility. Ms. Porter

answered:

Well, I guess I would think that I know the best interests of the children and I know that, and I have known for, you know, ten years and the pregnancy. So I’m not trying to be rude, but, you know, a three-day training is not the same as knowing what is best for my kids as me that’s been there everyday [sic].

RP at 29-30. The trial court overruled Ms. Porter’s objection and admitted the report.

Mr. Porter’s counsel next had the GAL identify the three exhibits from Ms. Wright

that the trial court had not admitted under ER 904. The GAL testified that she recognized

them as documents that were part of the court file, and that she had reviewed them.

When Mr. Porter’s counsel offered exhibits 16 and 17, Ms. Porter objected to their

admission but struggled to explain the basis. When the trial court asked if she was

making a hearsay objection, Ms. Porter agreed that she was. The trial court ruled the

documents were hearsay, but admitted exhibits 16 and 17 for the limited purpose of

documenting one of the bases for the GAL’s recommendations.

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The GAL testified that she reviewed the case file, including about 600 pages of

documents detailing Ms. Porter’s mental health. Among matters she testified to learning

about in her investigation were two occasions when Ms. Porter had been involuntarily

committed and that Ms. Porter had been diagnosed with “[d]elusional disorder with

paranoia[, a]djustment disorder with mixed disturbance of emotions, other reactions to

severe stress[, o]ther specified trauma and stressor related disorder[,] and schizoaffective

disorder bipolar type.” RP at 64. She testified that “[t]here were, I would say half a

dozen police reports that at least alluded to her mentioning killing Mr. Porter.” RP at 60.

The GAL testified that in addition to reviewing Ms. Wright’s reports and mental

health records, she had interviewed Ms. Wright, who verified Ms. Porter did not comply

with visitation requirements. She testified that she had interviewed Ms. Porter. The

GAL testified that Ms. Porter told the GAL that if ever ordered that there should be visits

with the children and Mr. Porter she would not follow it, and she would take

“extraordinary measures” to make sure they did not have contact. RP at 37. The GAL

expressed the opinion that Ms. Porter “poses a potential risk of harm in her current state

if she had access to the children.” RP at 60.

Ms. Porter began her direct testimony by stating that she wanted “sole custody

with zero visitation.” RP at 281. The remainder of her exposition was rambling and

largely unrelated to the factors the trial court was required to apply in arriving at a final

parenting plan. The court asked her several times to explain what she was talking about.

6 No. 37161-1-III In re Marriage of Porter

Her testimony mostly focused on how unhappy she was since Mr. Porter ruined her life

by gaining custody of the children, how indifferent he had become in his dealings with

her, how unhappy she was in her community, and how “he will be fine if he doesn’t have

the kids, because he already was. And I’m not going to be fine.” RP at 289. When

cross-examined, she testified that she would never voluntarily submit to a psychiatric

evaluation and would not voluntarily take medication if recommended by a mental health

professional. When the trial court questioned Ms. Porter about what orders she would be

willing to follow in order to see her children, Ms. Porter said that she “would not do

visitation,” only “sole custody.” RP at 294.

Following the conclusion of the evidence and after orally addressing the statutory

factors set forth in RCW 26.09.187(3), the trial court stated it was “clear” Ms. Porter had

“significant mental health issues” that “subject[ ] the children to [a] negative

environment.” RP at 305. It announced it would place sole custody of the children with

Mr. Porter, but expressed hope that Ms. Porter could get professional help and convince

the court she would cooperate with what was in the best interests of the children. Ms.

Porter responded belligerently to the court’s oral ruling, to the point that the court told her

that in the event of “[o]ne more outburst, you’re going to be removed from the

courtroom.” RP at 314.

A final parenting plan was entered thereafter. Ms. Porter timely appealed.

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ANALYSIS

Ms. Porter, represented by counsel on appeal, assigns error to the trial court (1)

admitting as evidence exhibits 1 through 15, the police incident reports, (2) admitting as

evidence the GAL report, (3) allowing the GAL to provide an impermissible lay opinion

as to Ms. Porter’s mental health, (4) admitting as evidence “the mental health report

written by Tawnya Wright,” and (5) admitting as evidence “the correspondence from

Tawnya Wright’s office.” Appellant’s Opening Br. at 2.

Courts hold pro se litigants to the same standards as attorneys. E.g., In re

Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155 (1983) (“[T]he law does not

distinguish between one who elects to conduct his or her own legal affairs and one who

seeks assistance of counsel—both are subject to the same procedural and substantive

laws.”). This is an important aspect of impartiality. Edwards v. Le Duc, 157 Wn. App.

455, 460-64, 238 P.3d 1187 (2010). And we generally refuse to review a claim of error

that was not raised in the trial court. State v. O’Hara, 167 Wn.2d 91, 97-98, 217 P.3d

756 (2009). The applicable rule, RAP 2.5(a), encourages parties to make timely

objections, gives the trial judge an opportunity to address an issue before it becomes an

error on appeal, and promotes the important policies of economy and finality.

Ms. Porter anticipated that Mr. Porter would raise these challenges to her

assignments of error, and he does. But she argues we should look past these principles in

her case because opposing counsel “cannot take advantage of the fact that Ms. Porter is

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not trained in the rules of evidence” or “take advantage of the fact that she was clearly

flustered,” and the Code of Judicial Conduct permits a trial court to make “‘reasonable

accommodations to ensure pro se litigants the opportunity to have their matters fairly

heard.’” Appellant’s Opening Br. at 6; Appellant’s Reply Br. at 7-8 (quoting CJC Canon

2.2, cmt. 4).

One problem with this argument is that Ms. Porter does not demonstrate that Mr.

Porter’s lawyer did anything to “take advantage of” her, unless by that she means that the

lawyer used his knowledge and experience in representing his client. Nor does Ms.

Porter demonstrate that the trial judge was indifferent to her being fairly heard. The

record reveals the opposite: the trial court took pains to explain the process to Ms. Porter,

gave her a chance to make objections, and in a couple of instances, mildly assisted Ms.

Porter in specifying objections.

If it is shown that a trial court proceeding was truly unfair to a pro se litigant, we

can exercise our discretion under RAP 2.5(a) to entertain issues for the first time on

appeal. This is not such a case. We will not review Ms. Porter’s first and third

assignments of error (police incident reports and GAL testimony) because no objection

was made in the trial court. See RAP 2.5(a).

Ms. Porter’s second assignment of error is to admission of the GAL report as an

exhibit. After Ms. Porter realized she had seen the report, she objected that she had

already filed her response to the report and that the GAL’s perspective on the best interest

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of her children was not as well-informed as her own. Appellate counsel raises a new

ground for objection on appeal predicated, in error, on a belief that the report being

offered under ER 904. We will not review a new ground for objection made on appeal—

only the specific ground made at trial. E.g., State v. Kirkman, 159 Wn.2d 918, 926, 155

P.3d 125 (2007). Mr. Porter is willing to argue the new ground on the merits, viewing it

as particularly specious. We nonetheless refuse to consider it further.

Assignments of error 4 and 5 are to admitting exhibit 16, a mental health report

written by Tawnya Wright, and exhibit 17, correspondence from Tawnya Wright’s office.

Both were a part of the trial court record. The trial court acknowledged that the

documents were hearsay but admitted them for a limited purpose based on the GAL’s

testimony that she had reviewed and relied on them.

Ms. Porter argues on appeal that the reports were not eligible for admission under

ER 904, but the trial court did not admit them under ER 904. Ms. Porter further argues

that the trial court treated her trial objections to the exhibits as hearsay objections, and

inadmissible hearsay does not become admissible simply because it corroborates other

testimony.

Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted. ER 801(c). In general, evidence that is hearsay is inadmissible at trial unless it

falls under an exception. ER 802. We review a trial court’s evidentiary rulings for an

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

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The GAL was appointed in accordance with RCW 26.09.220 and 26.12.175. The

GAL’s role “is to investigate and report factual information regarding the issues ordered

to be reported or investigated to the court.” RCW 26.12.175(1)(b). Washington cases

hold that while a GAL is not a traditional expert, she or he is treated by statute and can be

treated under the evidence rules as an expert on the subject matters of her investigation

and report. Fernando v. Nieswandt, 87 Wn. App. 103, 107, 940 P.2d 1380 (1997) (GAL

appointed in parenting plan proceeding); In re Guardianship of Stamm, 121 Wn. App.

830, 837, 91 P.3d 126 (2004) (GAL appointed in guardianship proceeding).

In combination, ER 703 and ER 705 function as exceptions to the hearsay rule that

permit disclosure of the facts or data upon which an expert witness relies in forming her

or his opinion. State v. Hamilton, 196 Wn. App. 461, 476, 383 P.3d 1062 (2016). If facts

or data on which a testifying expert relies are found in a hearsay report—that is, a report

containing an opinion of a nontestifying expert—“‘the evidence of the report is not

admitted as substantive proof of the report’s truth; rather, the report is admitted for the

limited purpose of showing the basis of the expert’s opinion.’” Id. at 477 (quoting

EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS § 9.03[4][c] at 402 (9th ed.

2015)). Ms. Porter fails to demonstrate any error or abuse of discretion by the trial court

in admitting Ms. Wright’s reports for this limited purpose.

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Mr. Porter requests attorney fees and costs under RAP 18.9, and RAP 18.1.1 He

asks that we impose them jointly and severally against Ms. Porter and her counsel.

RAP 18.1(a) authorizes us to award attorney fees and costs on appeal “[i]f

applicable law grants to a party the right to recover reasonable attorney fees or expenses.”

RAP 18.9 authorizes this court to award sanctions against a party or counsel who uses the

Rules of Appellate Procedure for the purposes of delay, files a frivolous appeal, or

otherwise fails to comply with the rules.

An appeal is frivolous if an appeals court is convinced that it presents no debatable

issues on which reasonable minds could differ and is so lacking in merit that there is no

possibility of reversal. In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929

(1997). A civil appellant has a right to appeal under RAP 2.2, and all doubts as to

whether the appeal is frivolous should be resolved in favor of the appellant. See Streater

v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980).

Ms. Porter raises no debatable issue on appeal. We award Mr. Porter reasonable

attorney fees and costs against Ms. Porter under RAP 18.9, subject to his timely

1 Mr. Porter also asks that we award him reasonable attorney fees under RCW 26.09.140, under which we may award fees in our discretion after considering the parties’ relative ability to pay and the merit of the issues on appeal. In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005). Where applicable law mandates consideration of the financial resources of one or more parties regarding an award of attorney fees, the party requesting attorney fees must serve and file a financial affidavit no later than 10 days before the date the case is set for consideration on the merits. RAP 18.l(c). No current financial affidavit was filed.

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compliance with RAP 18.1(d). This is not the type of extraordinary situation in which we

would impose fees jointly and severally on counsel and we deny Mr. Porter’s request for

such an award.

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.

____________________________ Siddoway, A.C.J.

WE CONCUR:

_____________________________ Staab, J.

_____________________________ Fearing, J.