Matter of Marriage of Kovacs

840 P.2d 214, 67 Wash. App. 727, 1992 Wash. App. LEXIS 446
CourtCourt of Appeals of Washington
DecidedNovember 17, 1992
Docket11319-1-III
StatusPublished
Cited by5 cases

This text of 840 P.2d 214 (Matter of Marriage of Kovacs) 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
Matter of Marriage of Kovacs, 840 P.2d 214, 67 Wash. App. 727, 1992 Wash. App. LEXIS 446 (Wash. Ct. App. 1992).

Opinions

[728]*728Thompson, J.

Marcia Jean Kovacs appeals the superior court decree dissolving her marriage. She assigns error to the portion of the decree designating her former husband, John E. Kovacs, the primary residential parent for their three minor children. We hold the evidence relied upon by the Superior Court was insufficient to support a change in the children's primary residence. See RCW 26.09.187(3). We therefore reverse and remand.

Mr. and Mrs. Kovacs met in Alaska and married in 1982. For the most part, theirs was a traditional marriage: he worked full time and she cared for the home and the children. In September 1984, Mr. Kovacs sold the maintenance company he owned to a major company in the same field, then worked for it until he was fired in the spring of 1988. In 1989, Mr. and Mrs. Kovacs decided to relocate in Southern California where the economy was stronger. Rather than move the whole family at once, they agreed Mrs. Kovacs and the children would stay with her parents in Spokane while Mr. Kovacs located a house for them and found a job.

Mrs. Kovacs and the children moved to Spokane at the end of April 1989. They lived with Mrs. Kovacs' parents until their furniture arrived, then moved into a duplex owned by the parents. Mr. Kovacs joined them May 22, remained about 2 weeks, then went on to California. In August, he was hired as Director of Environmental Services at Anaheim Memorial Hospital. He found a 3-bedroom townhouse in a planned, self-contained community in Irvine.

While Mr. Kovacs was in Cafifomia, Mrs. Kovacs became romantically involved with a man who lived in Olympia. She also received two traffic citations, including a charge of driving while under the influence (DWI). Her children, who were in the car, were removed to a foster home for 2 days. When Mr. Kovacs drove to Spokane in November 1989 to pack and move the family, he learned the marriage was over. Mrs. Kovacs filed a petition for dissolution. The children remained with her, but spent scheduled visitation periods with Mr. Kovacs.

[729]*729Trial was held January 2 and 3, 1991. Johnny Kovacs was then almost 8, Courtney was 6, and Billy was 3.

The parents and their various friends and relatives who testified all stated that Mrs. Kovacs was the children's primary caretaker. She prepared the family's meals, and was at home most of the day. Ruth and David Gray socialized with the family while they lived in Alaska. They described Mrs. Kovacs as a "good mother" and as an "excellent mother" who "[did] things with her children". Mr. Kovacs played and roughhoused with his children, but worked long hours and frequently was gone until late at night. For the year and a half prior to trial, Mr. Kovacs lived in California and saw the children only during holidays and for 6 weeks during the summer.

Donna Gort, a mental health practitioner, testified in Mrs. Kovacs' behalf; E. Clay Jorgensen, a clinical psychologist, testified in Mr. Kovacs' case. Both professionals observed the children. Ms. Gort found them "well-behaved" and "well-mannered". Dr. Jorgensen described them as "doing fine". Ms. Gort affirmatively stated the children "are very clearly attached and bonded to their mother". When she mentioned to the children that she thought it would be hard to choose between a mother and a father, the two oldest looked at her and said, "We want to live with our mom." Dr. Jorgensen recommended the court place the children with their father because, in his opinion, Mr. Kovacs had a more stable personality and would provide more structure for the children than Mrs. Kovacs, whom he characterized as dependent.1 Nevertheless, he admitted that a person with a personality disorder can be an adequate parent, that the best predictor of future behavior is past behavior, and that the children presently were "adequately adjusted".

RCW 26.09.187(3)(a) requires the court to consider seven factors in determining a child's primary residence:

[730]*730(i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child',
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.

(Italics ours.) Also, RCW 26.09.002 provides:

[T]he best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.

(Italics ours.)

Mrs. Kovacs assigns error to the trial court's findings that "[t]he strength, nature and stability of the children's relationship with [Mr. Kovacs] is healthier and more evident than with [Mrs. Kovacs]", and that "[i]t is in [their] best interests . . . that they be placed with their father . . .". The court's oral decision cited Dr. Jorgensen's opinion that Mrs. Kovacs is a dependent personality and provides a less structured environment for her children than does Mr. Kovacs.

Because the trial court has the opportunity to observe and determine the credibility of witnesses and of the parties, the appellate court reviews its disposition of a custody case using an abuse of discretion standard. In re Marriage of Cabalquinto, 100 Wn.2d 325, 327, 669 P.2d 886 (1983); In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982), review denied, 99 Wn.2d 1001 (1983). Abuse of discretion occurs when the court makes findings which are not [731]*731supported by the record. Woffinden, at 330-31; In re Stell, 56 Wn. App. 356, 369-70, 783 P.2d 615 (1989). The question here is whether evidence of Mrs.

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Matter of Marriage of Kovacs
840 P.2d 214 (Court of Appeals of Washington, 1992)

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Bluebook (online)
840 P.2d 214, 67 Wash. App. 727, 1992 Wash. App. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-marriage-of-kovacs-washctapp-1992.