IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter of the Marriage of ) No. 81236-0-I ) BEILEI GUO, ) ) DIVISION ONE Respondent, ) ) and ) ) JIE REN, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — Under RCW 26.09.191(2)(a)(iii), a trial court can limit a
parent’s residential time due to a history of domestic violence. Because
substantial evidence establishes that Jie Ren physically abused his former wife,
Beilei Guo, makes ongoing threats to her, suffers decompensating mental health
because of a delusional disorder, lacks anger management, and causes Guo and
his two daughters to fear him, the court did not abuse its discretion in entering a
parenting plan restricting his residential time.
Ren fails to establish the trial court abused its discretion or denied due
process in its management of the trial, or erred in its division of property.
Therefore, we affirm. No. 81236-0-I/2
FACTS
On February 21, 2004, Jie Ren married Beilei Guo in Shanghai, China.
Before moving to the United States, Ren physically abused Guo twice. In 2013,
Ren, Guo, and their two daughters moved to Bellevue, Washington.
On October 10, 2018, Guo filed for divorce. Jude McNeil, a parenting plan
evaluator and guardian ad litem, was appointed to make recommendations to the
court as to the parenting plan and Ren’s mental health.
That November, Guo moved into an apartment with their two daughters and
obtained a temporary domestic violence protection order (DVPO) against Ren. In
December, Ren was arrested for violating the temporary DVPO when he
attempted to pick up one of his daughters from the bus stop.
After the temporary orders were entered, Ren’s mental health deteriorated.
Ren kept guns “everywhere” in the house.1 Ren sent Guo threatening messages,
including that he would “never let her go,” that he would “come to find” her, and
that he found a cemetery for her body.2 Ren called himself an “amazing American
superhero” and “God’s messenger.”3
In January 2019, the trial court ordered a one-year DVPO that suspended
Ren’s visitation with his daughters and entered an order to surrender weapons.
Ren surrendered 22 guns and 33 knives to the Bellevue Police Department.
1 Report of Proceedings (RP) (Oct. 24, 2019) at 583. 2 Id. at 594-96. 3 Clerk’s Papers at 336-37.
2 No. 81236-0-I/3
McNeil referred Ren to Dr. Yie-Wen Kuan for psychological testing. Dr.
Kuan, a native Mandarin speaker and an immigrant from Taiwan, evaluated Ren
and diagnosed him with a persecutory type of delusional disorder.
After a six-day bench trial, the trial court entered oral findings and
conclusions, which were later supplemented by written findings of fact and
conclusions of law. Based upon the recommendations of McNeil and Dr. Kuan,
the court entered a phased parenting plan, allowing Ren to begin limited daytime
residential visits upon completing six months of treatment if the psychiatrist
recommends visits and confirms the visits pose no safety threat to his daughters.4
The plan provides that a post-decree guardian ad litem (GAL) evaluation is
required before any overnight visits are allowed. The court noted that these
restrictions were “for both domestic violence and Mr. Ren’s long struggle with his
mental health.”5 The trial court entered a final divorce decree.6
The trial court also imposed a “lifetime” DVPO that included Guo and their
daughters, but expressly provided that if Ren was “fully compliant with all of the
treatment set forth in the parenting plan . . . then [he] may ask the court to modify
the protection order.”7
Ren appeals.
4 McNeil had recommended an initial phase of four months’ treatment. 5 RP (Dec. 5, 2019) at 1013. 6On January 13, 2020, the court entered an amended divorce decree, which corrected the address of the parties’ residential home. 7 RP (Dec. 5, 2019) at 1048.
3 No. 81236-0-I/4
ANALYSIS
I. Parenting Plan
Ren argues that the trial court failed to “reasonably calculate” the
restrictions imposed on the parenting plan in accordance with RCW 26.09.191.
We review a trial court’s determinations on the provisions of a parenting
plan for abuse of discretion.8 A trial court abuses its discretion when its decisions
are based on untenable grounds or made for untenable reasons.9
RCW 26.09.191(2)(a)(iii) permits a trial court to impose restrictions in a
parenting plan when a parent has engaged in “a history of acts of domestic
violence.” Domestic violence is defined as “[p]hysical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury or assault, sexual
assault, or stalking.”10 A “showing [of] past violence” and “present fear” are
sufficient to support a finding of domestic violence.11
Ren does not challenge the trial court’s findings of fact about domestic
violence, making them verities on appeal.12 Instead, he appears to argue that the
trial court’s finding of domestic violence was inadequate because the court did not
make a finding in accordance with the “clinical definition of domestic violence.”13
8 Katare v. Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012); In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). 9 Katare, 175 Wn.2d at 35. 10 RCW 26.50.010(3). 11 Barber v. Barber, 136 Wn. App. 512, 516, 150 P.3d 124 (2007). 12 Brewer v. Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999) (citing Moreman v. Butcher, 126 Wn.2d 36, 39, 891 P.2d 725 (1995)). 13 Appellant’s Br. at 21.
4 No. 81236-0-I/5
But section .191(2)(a)(iii) allows restrictions upon a finding of “a history of domestic
violence as defined in RCW 26.50.010(3),” and, as noted above, it is well-
established that a history of domestic violence and a showing of present fear allow
a finding of statutory domestic violence.14 Ren provides no controlling authority to
support the proposition that a finding of abuse must satisfy the clinical rather than
legal definition of domestic violence. The issue is whether the court abused its
discretion by imposing .191 restrictions.
Guo testified that Ren was physically violent with her twice in China. The
first incident occurred when Guo was watching a movie with a friend and forgot to
return Ren’s phone call. When she returned home, he slapped her “hard” across
the face.15 Ren does not dispute this happened. She stated the second incident
occurred when Ren wanted to “go out with friends.”16 She took his keys away in
an attempt to stop him, and “he tried to choke” her.17 Guo stated that Ren has
not been physically violent with her since they arrived in the United States, but
when he loses his temper, he will “speed up the car . . . threatening [to] crash” or
“yell at us.”18 She also testified “[h]e threatened, that I should have the cemetery
for myself or use a weapon to solve the problems.”19 Guo testified that even after
14 Barber, 136 Wn. App. at 513. 15 RP (Dec. 5, 2019) at 1005. 16 RP (Dec. 5, 2019) at 1004-05; RP (Oct. 29, 2019) at 632-33. 17 RP (Oct. 29, 2019) at 632. 18 Id. at 633. 19 Id. at 634.
5 No. 81236-0-I/6
moving into an apartment with her daughters, she still feels “scared” because
Ren has appeared at her apartment building “many times.”20
McNeil testified that Guo was “really scared” about the amount of guns
and knives Ren had.21 McNeil thought Guo’s fear was credible because in
domestic violence cases “if there ever was physical abuse, then what happens
is the people—it’s a control tactic in that the victim can remember the abuse
and so they’re fearful that could happen again.”22 McNeil also testified that
both daughters told her that they were fearful and nervous when Ren was
around. And Dr. Kuan diagnosed Ren with a persecutory type of delusional
disorder.
The trial court’s unchallenged finding is that Ren has a history of
physical abuse, and trial testimony demonstrated Guo and her daughters still
fear him. The older daughter does not feel safe with him “due to his confusing
behavior and problems with anger.”23 The younger daughter was especially
upset about Ren kicking the family dog and was scared when he shouted.
This is sufficient to support a finding of statutory domestic violence. As a
result, the trial court found it was “appropriate to enter limitations in the
parenting plan for both domestic violence and Mr. Ren’s long struggle with his
20 Id. at 605-06. 21 RP (Oct. 22, 2019) at 185. 22 Id. at 185-86. 23 Id. at 191.
6 No. 81236-0-I/7
mental health.”24 Ren fails to establish that the court abused its broad
discretion.
Ren contends that the court’s RCW 26.09.191 restrictions violated his
right to parent because .191(2)(a) does not give the court the “‘authority to
[completely] eliminate residential time.’”25 Ren appears to argue that when the
trial court granted Guo a “lifetime” DVPO that included their daughters, the
court “effectively eliminated” Ren’s residential time. But Ren’s argument is
misguided.
The court found that Ren engaged in domestic violence under
.191(2)(a)(iii), which allowed it to limit his residential time. The court also
found that Ren was suffering from a “long struggle” with his mental health,
which “gets in the way of his ability to parent.”26 Contrary to Ren’s assertion,
the court did not completely eliminate Ren’s residential time. Instead, in
accordance with the recommendations of McNeil and Dr. Kuan, the court
entered a phased parenting plan. The parenting plan provides for residential
time to begin phasing in after six months of successful treatment; Ren controls
whether he will comply with the parenting plan’s requirements.27 If he
24 RP (Dec. 5, 2019) at 1013. Appellant’s Br. at 8-12 (quoting In re Marriage of Underwood, 181 Wn. 25
App. 608, 611, 326 P.3d 793 (2014)). 26 CP at 55; RP (Dec. 5, 2019) at 1013-14. 27 To the extent Ren argues the trial court doomed any efforts to comply with treatment requirements by failing to award him adequate assets to obtain the required therapy, we note that in response to similar arguments raised in his motion for reconsideration, the trial court suggested “checking with Dr. Muagan
7 No. 81236-0-I/8
complies, he can petition the court to modify the DVPO and resume residential
time with his daughters. The trial court did not abuse its discretion in entering
the parenting plan or the DVPO.
II. Trial Management
Ren appears to contend that the court’s management of the trial denied him
due process because the six-day bench trial was inadequate, and he was not
afforded sufficient time to confer with his counsel prior to trial.
“‘The fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.’”28 Ren appears to
challenge the court’s management of trial and does not argue he was denied any
specific statutory or procedural protection.
We review the judge’s trial management decisions for abuse of discretion.29
A trial court abuses its discretion when its decision is based on untenable grounds
or made for untenable reasons.30 Whether those decisions violated Ren’s
procedural due process rights are a question of law reviewed de novo.31 When
and Asian Counseling and Referral” to find an available psychiatrist. CP at 52. The record on appeal does not establish treatment is unavailable to Ren. 28Gourley v. Gourley, 158 Wn.2d 460, 467, 145 P.3d 1185 (2006) (internal quotation marks omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). 29 Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 69, 155 P.3d 978 (2007); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). 30 Rehak, 67 Wn. App. at 162. 31Aiken v. Aiken, 187 Wn.2d 491, 501, 387 P.3d 680 (2017) (citing Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 149 Wn.2d 17, 24, 65 P.3d 319 (2003)).
8 No. 81236-0-I/9
evaluating an alleged procedural due process violation, we weigh “(1) the private
interest impacted by the government action; (2) ‘the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards,’ and (3) the government
interest, including the additional burden that added procedural safeguards would
entail.”32
Here, the first Mathews factor favors Ren because he has a fundamental
interest in parenting his daughters.33 The third Mathews factor does not, however,
because the “government has an equally compelling interest in protecting children
and preventing domestic violence or abuse.”34 Regarding the second Mathews
factor, Ren argues three trial management decisions were deficient: the court’s
decision to grant a 30-day, rather than 90-day, continuance, the court’s allocation
of trial days between the parties, and the court’s reliance on Dr. Kuan’s evaluation
and testimony. Thus, this question turns on whether the court’s exercise of
discretion in managing the trial risked erroneously depriving Ren of his right to
parent.
Ren argues he was unable to prepare for trial because the court did not
grant him a 90-day continuance. A trial court’s decision to deny a motion to
32 Gourley, 158 Wn.2d at 468 (quoting Mathews, 424 U.S. at 333). 33 Aiken, 187 Wn.2d at 502. 34 Id. (citing Gourley, 158 Wn.2d at 468).
9 No. 81236-0-I/10
continue will be affirmed “‘unless no reasonable judge would have reached the
same conclusion.’”35
Ren sought a 90-day continuance because he obtained new counsel. In
response to Ren’s counsel’s motion to continue, Guo submitted a declaration
stating that the divorce had been pending for over a year, that “[a]t least ten times
Jie Ren came to the apartment where my children live and I live and stayed there
for hours,” and “[t]he fear and harm of his behaviors are terribly affecting me and
my children from living a normal life.”36 The court balanced these interests by
granting Ren a 30-day continuance. Because Ren fails to demonstrate any
specific prejudice from the duration of this continuance or that the outcome of trial
would have been different had a 90-day continuance been granted,37 Ren fails to
establish the court abused its discretion.
Ren argues the court allocated Guo more time to present her case,
preventing him from meaningfully arguing his position. The trial court conducted a
six-day bench trial. The court was very flexible, accommodating witness’s
schedules by allowing them to testify when available rather than requiring them to
testify during their party’s case in chief. Additionally, witnesses that were listed by
both parties were only called once, and the court requested declarations from
35In re Welfare of N.M., 184 Wn. App. 665, 673, 346 P.3d 762 (2014) (quoting In re Marriage of Landry, 103 Wn.2d 807, 809-10, 669 P.2d 214 (1985)). 36 CP at 89. 37 See N.M., 184 Wn. App. at 673 (to show a procedural due process violation from denial of a continuance, a parent must demonstrate specific prejudice or that the outcome of trial would have been different) (citing In re Welfare of R.H., 176 Wn. App. 419, 425, 309 P.3d 620 (2013)).
10 No. 81236-0-I/11
witnesses on both sides whose “live testimony” would not be beneficial to the
case.38 And when Ren’s counsel told the court that he was unavailable for one of
the scheduled trial days because he was moving, the trial court accommodated his
schedule. Notably, Ren’s counsel never objected to the amount of time he was
provided at trial. Because the record establishes both parties had an adequate
opportunity to present their cases due to the trial court’s accommodations, Ren
fails to show the court abused its discretion.
Ren argues the court’s reliance on Dr. Kuan’s evaluation was improper and
denied him due process because Dr. Kuan was not “culturally competent.” Even
assuming a parent in this setting has a right to a culturally competent evaluator,
Ren fails to show Dr. Kuan was not culturally competent. Dr. Kuan is a fluent and
native Mandarin speaker, administered her evaluation in Mandarin, and
demonstrated knowledge of political and cultural concerns raised by Ren. Ren
specifically challenged Dr. Kuan’s fluency in Mandarin, a claim rejected by Dr.
Kuan as “laughable.”39 The trial court is in the best position to determine whether
there was a language barrier and the cultural suitability of the evaluation.40 The
court viewed Dr. Kuan’s evaluation as credible by choosing to rely upon it. The
trier of fact is solely responsible for making credibility determinations.41 Ren fails
38 RP (Oct. 24, 2019) at 477-80. 39 RP (Oct. 23, 2019) at 370. 40 State v. Sisouvanh, 175 Wn.2d 607, 628-29, 290 P.3d 942 (2012). 41 Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003).
11 No. 81236-0-I/12
to establish he was deprived of a culturally competent evaluation or that the court
abused its discretion by relying upon Dr. Kuan.
Because Ren fails to show any risk of deprivation from the trial court’s
chosen procedures or that the court abused its discretion, the second Mathews
factor weighs against him. Ren fails to establish a violation of his procedural due
process rights or an abuse of discretion in the trial court’s management of the trial
or reliance upon Dr. Kuan.
III. Division of Property
Ren contends that the trial court’s division of property was not just and
equitable.
“A trial court in dissolution proceedings has broad discretion to make a just
and equitable distribution of property based on the factors enumerated
in RCW 26.09.080.”42 The court can make a just and equitable division without an
equal division of assets.43 The factors a court must consider under
RCW 26.09.080 include, but are not limited to, the nature and extent of community
and separate property, the duration of the marriage, and the economic
circumstances of each spouse.44 The trial court can also consider other factors
such as the parties’ age, health, future earnings, employment history, necessity,
42 In re Marriage of Wright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013). 43 Id. at 262 (citing In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001)). 44 Urbana v. Urbana, 147 Wn. App. 1, 11, 195 P.3d 959 (2008).
12 No. 81236-0-I/13
and financial abilities.45 We will affirm unless the appellant demonstrates a
manifest abuse of discretion by the trial court.46
Here, the trial court ordered a 65 percent to 35 percent split, favoring Guo,
of the proceeds from the court ordered sale of the couple’s $2,275,000 home. The
trial court awarded each party the accounts in their name and the joint account to
Ren. The court noted that Guo’s separate accounts were “significantly depleted”
because she was using them to support her and her daughters while the divorce
was pending and pay for attorney fees.47 Even so, the court also acknowledged
that there “was a disparity” in the amounts in Guo and Ren’s separate accounts
and, given that disparity and to promote a timely sale of the residence, the court
found that “Ms. Guo shall allot from her account to Mr. Ren $15,000 when he signs
a lease for a new apartment [by February 1, 2020] and an additional $15,000
when he actually moves out of the house.”48 Ren was also awarded all of the
assets in China, except the interest in the Shanghai apartment owned by Guo and
her family. The trial court imputed both Ren and Guo’s future incomes at minimum
wage. The court also noted that Guo would be supporting their daughters by
herself “with little or no child support to assist.”49 On this record, the court
45 Id. 46 Id. at 10. 47 RP (Dec. 5, 2019) at 1021. 48Id. at 1027-28. Because Ren did not move out of their residential home by February 1, 2020, the trial court reduced the amounts he would receive. If Ren signed a leased by March 1, he would receive $7,500, and if he moved out by March 15, he would receive another $7,500. 49 Id. at 1026-27.
13 No. 81236-0-I/14
considered the factors in RCW 26.09.080. Ren fails to show the court abused its
broad discretion in how it weighed them when it divided the couple’s assets.
V. Fees on Appeal
Ren contends that he is entitled to attorney fees under RAP 18.1,
mentioning but not citing authority regarding need and ability to pay. He fails to
satisfy the requirements of RAP 18.1 for an award of fees.50
Guo requests attorney fees on appeal under RAP 18.9 for a frivolous
appeal and under RCW 26.50.060(1)(g) for defending the DVPO. Because
arguable issues are raised, the appeal is not frivolous.51 But as the prevailing
party, Guo is entitled to reasonable attorney fees under RCW 26.50.060(1)(g) for
defending the DVPO, subject to her compliance with RAP 18.1(d).52
Therefore, we affirm.
WE CONCUR:
50 Osborne v. Seymour, 164 Wn. App. 820, 865, 265 P.3d 917 (2011); RAP 18.1(b). 51 Streater v. White, 26 Wn. App. 430, 434, 613 P.2d 187 (1980). 52 In re Gourley, 124 Wn. App. 52, 59, 98 P.3d 816 (2004), aff’d sub nom. Gourley v. Gourley, 158 Wn.2d 460, 145 P.3d 1185 (2006).