IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Marriage of Nos. 69920-2-1 70420-6-1 THERESA IBRAHIM GOHAR,
Appellant,
and UNPUBLISHED OPINIONS
SAMIR GOHAR,
Respondent. FILED: December 8, 2014
Schindler, J. — Theresa Gohar, acting pro se, appeals the "Amended Decree of
Dissolution," "Final Parenting Plan," "Final Order of Child Support," and the "Findings of
Fact and Conclusions of Law." In the separate linked appeal, Theresa challenges the
order of contempt for violating the parenting plan.1 Because Theresa fails to establish
any legal error or abuse of discretion, we affirm.
DISSOLUTION ACTION
In 1999, Samir and Theresa Gohar were married in Massachusetts. Before the
marriage, Samir lived in Massachusetts and owned a restaurant and duplex with his
1We use the parties' first names for purposes of clarity and mean no disrespect by doing so. Nos. 69920-2-1 and 70420-6-1/2
brother. Theresa lived in Washington with her parents and worked at a fast food
restaurant. After they married, Theresa and Samir lived in Massachusetts. In 2001,
Theresa and Samir had a daughter, C.G., and in 2005, a son, M.G.
After the birth of C.G., Theresa sought mental health treatment. Theresa took an
antidepressant medication for approximately two years. During this two-year period,
Samir described Theresa as having one bad day for every ten good days. Theresa
stopped taking the medication. Theresa said the medication did not help her, and she
could effectively manage her depression and anxiety by getting out of the house and
engaging in activities. According to Samir, after Theresa stopped taking the medication,
she had mostly bad days. Samir described her behavior as erratic and said that
Theresa often slept until the afternoon.
In 2007, Samir and Theresa moved to the Seattle area to be near Theresa's
family. Samir sold the interest in his restaurant business and the duplex to his brother
for $285,500.
In 2008, Samir purchased the family home in Lynnwood for $400,000. Samir
used $80,000 of proceeds from the sale of his Massachusetts property for the down
payment and took out a mortgage in his name only for the balance. That same year,
Samir purchased a restaurant in Marysville, Washington. Samir used $200,000 from
the proceeds of the sale of his Massachusetts property for the down payment and
secured a loan for the balance of the $1,015,000 purchase price for the business and
the real property. The restaurant and real property is in Samir's name only. Samir
managed the restaurant alone. Theresa never worked in the restaurant and, for the
most part, did not work outside the home during the marriage.
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In September 2011, Samir moved out of the family home. In February 2012,
Samir filed a petition for legal separation. The court later granted Samir's motion to
convert his legal separation petition to a petition for dissolution of the marriage. Samir
initially proposed that the children reside with Theresa the majority of the time. The
court entered a temporary order requiring Samir to pay $6,000 per month for
maintenance and child support.
After the separation, the children missed a significant amount of school. Samir
became concerned about Theresa's mental health, the children's well-being, and
Theresa's attempts to sabotage his relationship with the children. Samir requested
designation as the primary residential parent until Theresa engaged in mental health
treatment.
In July 2012, the trial court appointed guardian ad litem (GAL) Martha
Wakenshaw to act in the children's best interests and make recommendations as to the
parenting plan. While Theresa was "largely non-cooperative," the GAL was eventually
able to interview both parents, 11-year-old C.G., and 6-year-old M.G.
Samir raised concerns with the GAL about Theresa's mental health, the
children's school attendance, and their emotional health and physical safety if Theresa
insisted on refusing treatment. Samir admitted he developed a gambling addiction in
2011. Samir also said he was attending Gamblers' Anonymous and was being treated
for depression.
Theresa told the GAL she wanted "nothing more" than for Samir to "return to the
home as her husband and father to the children." Theresa did not allege that Samir was
abusive to her or the children, but she felt that Samir neglected the children's feelings.
3 Nos. 69920-2-1 and 70420-6-1/4
Theresa admitted that she let the children stay home from school when they had a
runny nose or stomachache. Theresa would not sign a release to obtain school records
or allow the GAL to speak to her treatment providers. Instead, Theresa provided the
GAL with a declaration from a therapist who confirmed that Theresa had been
diagnosed with depression, anxiety, and obsessive-compulsive disorder but stated there
was no evidence to support a diagnosis of paranoia or delusions. The therapist said
that although some of Theresa's concerns went beyond the normal level, they were
grounded in rational concerns.
GAL Report
The GAL prepared a report in October 2012. The GAL reported that Theresa
was "extremely suspicious, guarded, and depressed." The GAL stated that during the
home visit, Theresa had almost no interaction with the children, and Theresa and her
mother openly discussed the court case in front of the children. The GAL described
C.G. as "articulate, anxious, and depressed." C.G. told the GAL that her mother tells
her "everything" about court so as not to leave her in the dark, and lets her read the
documents. C.G. said she was "mad at dad" after reading court documents containing
Samir's allegations about Theresa's mental health issues. The GAL described M.G. as
obese and having a "sadness and despondency" about him.
M.G. reported that his mother gets frustrated about "court stuff' and that his mom's
judge was "really mean."
Neither child reported abuse by either parent, and C.G. affirmatively denied it.
C.G. told the GAL that Samir was the person who helped her with schoolwork, and M.G. Nos. 69920-2-1 and 70420-6-1/5
said he liked it at Samir's house best. The GAL concluded the children were the victims
of abusive use of conflict by the mother.
Clearly, both [C.G.] and [M.G.] are the victims of an extreme abusive use of conflict on the part of the mother. Both children have stated that she has talked to them about the court case and it was a strong theme in both of their interviews, especially [C.G.j's interview.
Both children present as confused, depressed, and anxious and could both benefit from intensive, individual psychotherapy.
It is unconscionable that the mother has permitted her eleven-year-old daughter to read the court documents and pleadings. The daughter has become so fearful that she was worried that the GAL might take her away from her parents and put her in foster care.
The GAL recommended that the court designate Samir as the primary residential
parent, the children stay with Theresa every other weekend and one weekday every
week, and Theresa be prohibited from sharing court information with the children. The
GAL recommended supervised visitation with the children if Theresa continued to
engage in abusive use of conflict. The GAL also recommended that each parent obtain
a psychological assessment and individual counselling for the children.
Samir obtained a psychological assessment. The evaluator concluded that
Samir was being appropriately treated for his mild depression and his previous
gambling addiction, and expressed no concerns about his parenting. The same
evaluator contacted Theresa to arrange an evaluation but she did respond.
After the GAL filed her report, Theresa filed a motion to remove the GAL. On
October 23, a court commissioner struck Theresa's motion because she had not served
the GAL. Nos. 69920-2-1 and 70420-6-1/6
Protection Order
On October 24, Theresa went to C.G.'s middle school and told the school
counsellor that the previous night, C.G. had disclosed that Samir touched her sexually.
Child Protective Services (CPS) and the police initiated an investigation. Theresa filed
a petition for a protection order. The court entered a temporary protection order.
On October 26, Theresa took C.G. to the emergency room because of a sore
throat but did not mention the sexual abuse allegation. On October 29, Theresa took
C.G. to the doctor for a previously scheduled appointment and asked the doctor to
examine C.G. for possible injuries stemming from abuse.
On October 30, a commissioner held a hearing on the protection order. Samir,
Theresa, and the GAL appeared at the hearing. Theresa told the commissioner that
C.G. said, "My dad touch [sic] me down there." Theresa said she was also concerned
because some weeks earlier, there was blood on C.G.'s underwear. Theresa admitted
she did not immediately take C.G. to the doctor or inform the GAL following the
disclosure.
Upon learning that C.G. was in the courthouse, the commissioner asked the GAL
to privately interview the child and report back. The GAL told the commissioner itwas a
stressful interview for C.G. and described "chaos and interference" by Theresa and her
family members. At first, Theresa's mother refused to leave the interview room. After
she was forced to do so, Theresa and her family members hovered outside the glass
window of the interview room, stating loudly that the GAL was a "liar."
C.G. told the GAL that her mother had told her about the GAL's report and that
as a result, she might live with her father. C.G. said that while she and her mother were
6 Nos. 69920-2-1 and 70420-6-1/7
discussing menstruation, her mother asked if her father had ever touched her. C.G.
said yes. C.G. said her father touched her twice between the legs, over her clothing, for
no more than three seconds. The GAL questioned the validity of the reported abuse
because the allegation was vague, contained inconsistencies about timing, and arose
from Theresa's suggestive questioning. Noting the lack of evidence about what C.G.
reported to others, the suspicious circumstances of the allegations, and the fact that the
allegations themselves lacked credibility, the commissioner determined the allegation of
sex abuse was not supported by a preponderance of the evidence. The commissioner
dismissed the petition to issue a protection order without prejudice to refiling if"more
clear-cut information were to arise."
Dissolution Trial
The two-day dissolution trial took place in early November. The court considered
the testimony of Theresa, Samir, the GAL, and brief testimony ofTheresa's brother-in-
law.
Theresa's position at trial was that the children should reside with her and have
no visitation or contact with Samir because of the alleged sexual abuse. Theresa
testified about C.G.'s disclosure. Theresa also claimed Samir was emotionally abusive
to her and to C.G., and for the first time, she mentioned incidents of physical abuse.
Theresa disputed many facts in the GAL's report. For instance, Theresa denied discussing the pending dissolution with the children. But Theresa admitted that on
occasion, she asked C.G. the meaning of a word that she did not understand in court
documents. Theresa also claimed that M.G. had been sexually assaulted when he was
three or four. But Theresa admitted that M.G. merely answered yes to a leading
7 Nos. 69920-2-1 and 70420-6-1/8
question about abuse and she never took the child to the doctor or otherwise reported
the incident.
In addition to the information and recommendations in the report, the GAL
testified about the recent sexual abuse allegations and recommended that visitation with
the children be supervised until Theresa obtained a psychological evaluation.
The court found Theresa "not credible." The court found that Theresa's
testimony was deceptive because she often indicated that she was confused and could
not remember details to evade questions. The court found that Theresa is "in need of
psychological services," and that she "attempted to falsely accuse the father of sexual
abuse" in order to discredit the GAL and her recommendations. The court found the
GAL was credible and concluded both children were victims of extreme abusive use of
conflict by the mother.
The court entered a parenting plan designating Samir as the primary residential
parent and imposed limitations on Theresa's contact with the children under RCW
26.09.191(3)(a) ("A parent's neglect or substantial nonperformance of parenting
functions;); (3)(b) ("A long-term emotional or physical impairment, which interferes with
the performance of parenting functions as defined in RCW 26.09.004); and (3)(e) ("The
abusive use of conflict by the parent, which creates the danger of serious damage to the
children's psychological development."). The court ordered visitation with Theresa to be supervised by a designee selected by Samir. The court ordered Theresa to obtain a
psychological evaluation within 30 days. The November 30 order provides that upon completion ofthe evaluation, Theresa may file a motion for unsupervised visitation. The court also ordered that both children should be enrolled in therapy.
8 Nos. 69920-2-1 and 70420-6-1/9
With respect to the division of assets, the court determined that although Samir
contributed separate funds toward the purchase of the family home, it was a community
asset. The court ruled the restaurant was a separate asset and awarded it to Samir.
The court noted that the debt associated with the business outweighed its value,
Theresa had not participated in running the restaurant, and the testimony indicated she
was unwilling to assume any debt associated with the business. The court awarded the
family home to Samir and awarded the parties' three retirement accounts to Theresa.
According to the court's calculation, the value of community assets awarded to Samir
was $109,900 and the value of community assets awarded to Theresa was $102,500.
The court ordered Samir to pay monthly maintenance to Theresa for two and a half
years ($2,500 for six months; $2,000 for six months; $1,500 for six months; $1,000 for
six months; and $500 for six months).
In calculating child support, the court found that Samir's monthly gross income
was $10,430 and Theresa's income was $2,350. After subtracting deductions, the
combined monthly net income was $8,711 and the proportional share of the combined
income for Samir and Theresa was 75.3 percent and 24.7 percent. The court calculated
Theresa's proportional share of the basic support obligation and health care expenses
for both children as $546 per month, but deviated downward to $300 per month
because "[t]he mother is not employed at this time and will be living primarily offthe
maintenance obligation so as to maximize her ability to create a new household."
On February 7, 2013, Theresa filed a notice of appeal challenging entry of the
amended decree of dissolution, final parenting plan, order of child support, and findings
of fact and conclusions of law. Nos. 69920-2-1 and 70420-6-1/10
CONTEMPT ACTION
Samir paid $2,500 toward a psychological evaluation for Theresa, but Theresa
did not obtain an evaluation within 30 days as ordered. Theresa did not meet with the
psychologist until February 2013. Theresa also did not request visitation with the
children until December 2012, over two months after the court entered its order. Samir
suggested using three people who offered to supervise for free. Theresa's attorney
responded that she preferred to use a professional supervisor. However, Theresa did
not follow up to arrange visitation.
In February 2013, Samir learned from the children that Theresa met each of
them at the school bus stop. M.G. said his mother told him she was "fighting" for him.
Samir's attorney contacted Theresa's attorney about the contact and warned that Samir
would be forced to file a motion for contempt ifTheresa continued to violate the
parenting plan. Theresa's attorney responded that Theresa said the problem was that "Samir isn't allowing her to see the children—at all," and requested that Samir provide
suggested names for supervised visitation. Samir's attorney pointed outthat Samir had already provided names for supervised visitation and that Theresa rejected the
suggested supervisors and decided to hire a professional. Samir later offered to pay for the first supervised visit and split the cost thereafter. Theresa refused the offer. Theresa took the position that she was not required to pay for the costs of supervision. Samir learned that on March 18 and 19, Theresa contacted the children again at
the bus stop. M.G. said his mother told him she had just received the psychological evaluation report, she was not "not sick anymore," and she would be able to see him again in about two weeks. Samir said C.G. came home "angry with him" because her 10 Nos. 69920-2-1 and 70420-6-1/11
mother told her the same thing and C.G. demanded to know "the details" about what
was happening in court.
Samir filed a motion to show cause why Theresa should not be held in contempt
for violating the parenting plan. A court commissioner entered a show cause order
that required Theresa to appear in court on April 10. Theresa's attorney accepted
service of the contempt motion in exchange for an agreement to continue the hearing
until April 25.
Theresa appeared at the contempt hearing on April 25 without an attorney. The
court commissioner continued the hearing, in part so Theresa could obtain a court-
appointed attorney. The order continuing the hearing directs Theresa to appear at the
Office of Public Defense. At Theresa's request, the court revised the order, finding that
Theresa was "adamant" that she did not want an attorney and had waived her right to
counsel.
Theresa represented herself at the hearing on the contempt motion. Theresa
argued that the motion should be dismissed because she was not personally served.
Theresa denied visiting her children at the bus stop and pointed to lack of "physical
proof." Theresa admitted she had not had any visits with the children as contemplated
by the parenting plan but argued it was because Samir and his attorney "refuse to let
me see my children."
The commissioner held Theresa in contempt, finding that she was properly
served with the contempt motion, violated the parenting plan by having unauthorized
contact with the children on more than one occasion, and unreasonably rejected
arrangements for supervised visitation. The commissioner also found that Theresa's
11 Nos. 69920-2-1 and 70420-6-1/12
noncompliance with the parenting plan was in bad faith. The order allows Theresa to
purge the contempt by remaining at least 100 yards away from the children's bus stops,
home, and schools. The order requires supervised visitation with a professional
supervisor at Theresa's expense. The commissioner awarded $1,500 in attorney fees to
Samir. A superior court judge denied Theresa's motion for revision. Theresa filed a
notice of appeal challenging the contempt order and orderdenying revision.2
Parenting Plan
Theresa primarily challenges the trial court's decision designating Samir as the
primary residential parent and the imposition of supervised visitation.
We review a trial court's parenting plan for abuse of discretion. In re Marriage of
Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012), cert, denied, 133 S. Ct. 889 (2013). A
trial court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons. Katare, 175 Wn.2d at 35. We defer to the trial court because of its unique opportunity to observe the parties, determine their
credibility, and sort out conflicting evidence. In re Marriage ofWoffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982). Because of the trial court's unique opportunity to
observe the parties, the appellate court should be extremely reluctant to disturb
decisions with regard to child placement decisions. In re Parentage ofSchroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001).
2 In June 2013, Theresa filed another notice of appeal challenging the October 30, 2012 dismissal of her petition for a protection order to prohibit contact between Samir and C.G. See No. 70594-6-I. A commissioner of this court dismissed the appeal as untimely. Because we previously denied Theresa's motion to modify the commissioner's ruling dismissing review, her arguments related to the protection order are not properly before us.
12 Nos. 69920-2-1 and 70420-6-1/13
The best interests of the child is the standard "by which the court determines and
allocates the parties' parental responsibilities." RCW 26.09.002; Schroeder, 106 Wn.
App. at 349. In establishing a residential schedule for children in a parenting plan, RCW
26.09.187(3) identifies the following factors a trial court must consider:
(i) The relative strength, nature, and stability of the child's relationship with each parent; (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 . . . , including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child; (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.
Theresa's arguments do not reference any of the relevant statutory factors. And
contrary to Theresa's apparent belief, there is no presumption in favor of the historic
primary caregiver. In re Marriage of Kovacs, 121 Wn.2d 795, 800, 854 P.2d 629 (1993).
Rather, the statute requires the court to consider both past and potential future
performance of parenting functions.
While restrictions in a parenting plan are mandatory under some circumstances,
the court imposed supervised visitation in this case under RCW 26.09.191 (3)(g), a
discretionary provision that permits a trial court to limit the terms of a parenting plan.
Katare, 175 Wn.2d at 36. This discretionary authority is conditioned on the existence of
13 Nos. 69920-2-1 and 70420-6-1/14
specific factors or conduct that the court expressly finds adverse to the best interests of
the child. Katare, 175 Wn.2d at 36.
Theresa contends that the trial court (1) ignored evidence of sexual abuse,
(2) made its decision without allowing appropriate state agencies to investigate the
abuse allegations, (3) failed to consider Theresa's historic role as the day-to-day
caretaker, (4) ignored the fact that Samir abandoned the family, (5) gave undue weight
to the opinions and recommendations of the GAL, and (6) disregarded evidence that the
children were performing well in school when she was the primary caretaker. Theresa's
arguments rely entirely upon her subjective interpretation of the conflicting evidence and
reflect a fundamental misunderstanding of the role of the appellate court.
An appellate court may not substitute its evaluation of the evidence for that made
by the trier of fact. Goodman v. Boeing Co., 75 Wn. App. 60, 82-83, 877 P.2d 703
(1994), affd, 127Wn.2d401,899P.2d 1265(1995). If they are supported by
substantial evidence, we accept the court's factual findings. In re Marriage of Thomas,
63 Wn. App. 658, 660, 821 P.2d 1227 (1991). Evidence is substantial when there is a
sufficient quantum of evidence "to persuade a fair-minded person of the truth of the
declared premise." In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993
(2002). So long as a finding is supported by substantial evidence, it does not matter
that other evidence may contradict the finding. Burrill, 113 Wn. App. at 868. This court
does not review the trial court's determinations as to the credibility and persuasiveness
of the evidence. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
The record shows that the trial court considered and weighed the evidence in
accordance with the factors under RCW 26.09.187(3)(a) and made specific findings of
14 Nos. 69920-2-1 and 70420-6-1/15
the presence of factors under RCW 26.09.191(3)(a) (substantial nonperformance of
parenting functions), (3)(b) (emotional or physical impairment), and (3)(e) (abusive use
of conflict) that adversely affected the best interests of C.G. and M.G. The imposition of
restrictions is supported by substantial evidence. The evidence showed that Theresa
continually involved the children in the legal proceedings, attempted to alienate them from Samir, and made unsubstantiated abuse allegations. There was evidence that the
children were adversely affected by Theresa's conduct and were anxious, stressed,
fearful, and depressed. Evidence supports the court's findings that Theresa suffered from mental health issues that interfered with her parenting. Specifically, since the
parties separated, the mother was sleeping much ofthe time, allowing the children to miss school, keeping the children up at night, and isolating them. Theresa's insistence
upon unsubstantiated sexual abuse allegations with regard to both children also supports the court's finding of mental health impairment that interfered with parenting. The evidence supports the court's decision to limit Theresa's residential time under RCW 26.09.191(3) and order supervised visitation until she completed an evaluation
and followed treatment recommendations.
Although Theresa obviously disagrees with the court's decision, the court did not abuse its discretion, and substantial evidence supports the provisions of the parenting
plan.
In addition to her argument that the GAL was not credible or persuasive, Theresa also contends the court should not have considered the GAL's report because it was not
filed 60 days before trial as reguired by RCW 26.12.175(1 )(b). But nothing in the record suggests that she was prejudiced by the delay. The GAL testified at trial and the report 15 Nos. 69920-2-1 and 70420-6-1/16
was admitted as evidence without objection. We do not consider arguments raised for
the first time on appeal. RAP 2.5(a); Lunsford v. Saberhaqen Holdings, Inc., 139 Wn.
App. 334, 338, 160 P.3d 1089 (2007).
The record indicates that the court and the parties had access to the report
before it was filed on the first day of trial. Although Theresa sought to have the GAL
removed from the case, the basis for her request was her claim that the GAL reported
false facts and she disagreed with the GAL's recommendations. The court concluded
that Theresa's motion to remove the GAL was not properly before the court because
she failed to serve the GAL, a fact she does not dispute. Theresa also twice moved to
continue the trial but did not mention needing more time to respond to the GAL's report.
The court did not err in considering the GAL's report.
Division of Property
Theresa challenges the court's division of property. Theresa claims the court
awarded all of the parties' community property to Samir, followed all of Samir's requests
with respect to property, and denied all of her requests. Theresa argues the court
awarded all the primary assets to Samir including the restaurant, the marital home, and
the children's college fund.
The trial court's objective when dividing property is to divide and distribute the
parties' property in a manner that is "just and equitable." RCW 26.09.080. The statute
requires the trial court to consider
all relevant factors including, but not limited to: (1) The nature and extent of the community property; (2) The nature and extent of the separate property; (3) The duration of the marriage; and
16 Nos. 69920-2-1 and 70420-6-1/17
(4) The economic circumstances of each spouse ... at the time the division of the property is to become effective ....
RCW 26.09.080. A just and equitable distribution does not mean that the court must
make an equal distribution. In re Marriage of DewBerry, 115 Wn. App. 351, 366, 62
P.3d 525 (2003).
We review the division of property for abuse of discretion. In re Marriage of
Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). The trial court has "broad
discretion," which will be reversed only ifexercised on untenable grounds or for
untenable reasons. In re Marriage of Rockwell, 141 Wn. App. 235, 242-43, 170 P.3d
572 (2007). "The trial court is in the best position to assess the assets and liabilities of the parties . . ." and to determine what constitutes an equitable outcome. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).
Theresa disregards some critical facts. In arguing that the court awarded all the
property to Samir, Theresa fails to acknowledge that the court awarded all ofthe retirement savings to her. The value ofthe retirement accounts was $87,000 and is nearly equal to the equity in the parties' home of$92,000. The difference in value in the property awarded to Samir and the property awarded to Theresa was approximately $7,000. And as the court pointed out, despite the slight discrepancy in favor of Samir, the distribution was equitable in light of the prior distribution of $15,000 in community assets to Theresa for legal expenses and Samir's payment of $6,000 per month in
temporary maintenance and child support during the pendency ofthe proceedings. While the court's division of property does not include Samir's restaurant nor
account for the stream of income it provides, there is no dispute that Samir used
17 Nos. 69920-2-1 and 70420-6-1/18
separate property to purchase the business and the evidence showed that the debts
associated with the restaurant outweighed its value. The court found that the net value
of the restaurant was negative $21,000. Theresa's claim that the court awarded
property of over $1 million in assets to Samir is apparently based on the purchase price
of the restaurant, $1,015,000, without adjustment for the substantial mortgage debt and
the current value of the real property.
Theresa also contends that the court erred in relying on valuations of property
prepared by Samir or his nonprofessional acquaintances. But the record shows there
were two expert valuations of the restaurant, and the trial court used the valuation figure
assigned by Theresa's expert. And while the court did assign value to the parties' home
based on a market analysis submitted by Samir and prepared by a real estate broker,
Theresa fails to explain why the broker was unqualified to render an opinion about the
likely sales price of the home. There was no other evidence of the current value of the
home before the court. The trial court did not abuse its discretion by assigning values to
property within the scope of the evidence. See In re Marriage of Soriano, 31 Wn. App.
432, 435, 643 P.2d 450 (1982).
Further, it is not true, as Theresa suggests, that the trial court adopted all of
Samir's requests for distribution of property. The court rejected Samir's request that the
award reflect his contribution of separate funds toward the purchase of the family home.
And contrary to Samir's request, the court awarded the two retirement accounts in
Samir's name to Theresa.
18 Nos. 69920-2-1 and 70420-6-1/19
Child Support and Maintenance
Theresa argues the trial court did not award sufficient maintenance to allow her
maintain the lifestyle she had before the dissolution. Theresa also contends that for
purposes of determining maintenance and child support, the court erred in calculating
Samir's income by not using the income figure listed on the 2011 tax return. Theresa
also asserts the court erroneously imputed an "amplified" income to her and appears to
argue that the court erred in ordering her to pay child support because by doing so, the
court effectively reduced her maintenance.
The purpose of spousal maintenance is to help support a spouse until he or she
is able to become self-supporting. In re Marriage of Irwin, 64 Wn. App. 38, 55, 822 P.2d
797 (1992); In re Marriage of Luckev, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).
Under RCW 26.09.090(1), the trial court may award maintenance to either spouse in an
amount and for a duration deemed just, considering six nonexclusive factors: (1) the
respective financial resources and ability to independently meet needs; (2) the length of
the marriage; (3) the time necessary for the spouse receiving maintenance to acquire
employment-related education or training; (4) the standard of living established during
the marriage; (5) the age, health, and financial obligations of the spouse receiving
maintenance; and (6) the ability of the spouse paying maintenance to support himself or
herself as well as the spouse receiving maintenance. We review a spousal
maintenance award for abuse of discretion. In re Marriage of Washburn. 101 Wn.2d
168, 179, 677P.2d 152(1984).
The court's calculation of Samir's income is supported by the testimony and
evidence at trial, including documentation of the business revenue and expenses.
19 Nos. 69920-2-1 and 70420-6-1/20
Although Theresa claims the court should have calculated the monthly income based on
the annual income figure listed on the 2011 joint tax return, the evidence shows this
figure includes sizable gambling winnings that were later treated as a deduction and
also includes money transferred by the business to Samir to pay the mortgage on the
real property where the restaurant is located. The record supports the income figures
used by the court for both parties, and the court did not abuse its discretion in
determining the amount of maintenance.
With respect to child support, parents have a legal obligation to support their
children. RCW 26.19.001; Childers v. Childers. 89 Wn.2d 592, 599, 575 P.2d 201
(1978). The child support obligation "should be equitably apportioned between the
parents." RCW 26.19.001.
While, in appropriate circumstances, a trial court may grant a deviation from the
standard child support calculation under RCW 26.19.075, a deviation is an "exception to
the rule and should be used only when it would be inequitable to do otherwise." In re
Marriage of Oakes. 71 Wn. App. 646, 652 n.4, 861 P.2d 1065 (1993). A decision
regarding a deviation is within a trial court's sound discretion and "will seldom" be
disturbed on appeal. In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519
(1990). Here, the trial court exercised its discretion to deviate downward, recognizing
that maintenance was Theresa's sole source of income. However, the court was not
reguired to deviate, much less reguired to deviate to a zero transfer payment.
Continuance of the Trial
Theresa contends that the court abused its discretion in denying her two motions
to continue the trial. According to Theresa, the court's denial was based on the
20 Nos. 69920-2-1 and 70420-6-1/21
erroneous belief that the GAL report had been filed on time. But Theresa's motions did
not mention the timing of the GAL report, and again, Theresa fails to explain how she
was prejudiced by the delay in filing the report. The court did not abuse its discretion in
determining that it was not in the children's best interests to delay the trial. See Lewis v.
Bell, 45 Wn. App. 192, 196, 724 P.2d 425 (1986) (this court will not disturb a decision
denying a continuance absent manifest abuse of discretion).
Motion for a New Trial
After the trial, Theresa hired another attorney, the fifth attorney to represent her
in these proceedings, and filed a CR 59 motion for a new trial or reconsideration. The
court granted the motion in part, agreeing that maintenance should be subject to modification, but otherwise denied the motion. On appeal, Theresa reiterates the same
arguments she raised below. But as the trial court ruled, Theresa's claim of "irregularity" based on her trial counsel's representation is unavailing. CR 59(a)(1); Nicholson v. Rushen, 767 F.2d 1426 (9th Cir.1985) (plaintiff in a civil case generally has
no right to effective assistance of counsel). In any event, we disagree that her attorney's performance deprived the trial court of sufficient information to render a decision. Both parties presented evidence and effectively utilized cross-examination.
The court acted well within its discretion in denying Theresa's motion. See Sommer v.
Dep't of Soc. & Health Servs., 104 Wn. App. 160, 170-71, 15 P.3d 664 (2001)
(appellate court reviews denial of CR 59 motion for abuse of discretion). We affirm the Amended Decree of Dissolution, Final Parenting Plan, Findings of
Fact and Conclusions of Law, and Order of Child Support.
21 Nos. 69920-2-1 and 70420-6-1/22
Contempt Order
In her linked appeal, No. 70420-6-1, Theresa claims the court erred in holding her
in contempt based on "false claims" and the evidence does not support the trial court's
findings that she had unsupervised contact with her children and unreasonably refused
to engage in visitation with them. Theresa also challenges the award of attorney fees to
Samir.
In the context of compliance with a parenting plan, contempt is governed by
RCW 26.09.160. Under RCW 26.09.160(2)(b), a court "shall find" a party in contempt if,
after a hearing, the court enters a written finding "that the parent, in bad faith, has not
complied with the order establishing residential provisions for the child .. . ." In re
Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995).
We review a trial court's decision in a contempt proceeding for abuse of
discretion. James, 79 Wn. App. at 440. A court's decision is manifestly unreasonable if it is outside the range of acceptable choices given the facts and the applicable legal standard and it is based on untenable grounds if the factual findings are unsupported by
the record. In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
When, as here, an appeal is taken from an order denying revision of a court
commissioner's decision, we review the superior court's decision, not the
commissioner's. In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010).
Samir submitted a declaration in support of the motion for contempt. In it, Samir
states that in February 2013 and several weeks later in March 2013, both children reported that their mother contacted them at the bus stop and talked to them about the court case. While Theresa denied the contact at the contempt hearing, the court was
22 Nos. 69920-2-1 and 70420-6-1/23
not required to believe her in light of the conflicting evidence and her attorney's implicit
acknowledgement that she had visited the children but had a legitimate reason to do so.
Theresa also claims the court ignored evidence of her good faith efforts to exercise
supervised visitation and evidence that Samir rejected all her attempts to arrange visits
with them. But to the contrary, the evidence shows that Samir and his attorney made
significant efforts to facilitate Theresa's supervised visitation in accordance with the
parenting plan. Theresa, on the other hand, rejected the visitation supervisors Samir
suggested, objected to proposed locations, refused Samir's offer to share the cost ofa professional supervisor, and even rejected his offer to pay the full cost for the initial
supervised visit.
Theresa provides no authority that supports her argument that Samir was
required to personally serve her with the motion for contempt even though the attorney representing her accepted service. It appears that Theresa was unhappy when she learned that her attorney accepted service of the motion in exchange for a continuance of the contempt hearing. However, she does not dispute the fact that the attorney was
representing her in this matter or argue that the scope ofthe representation did not
include the authority to accept service.
Theresa argues that the amount awarded to Samir for attorney fees was
unreasonable because Samir was ordered to pay attorney fees of only $1,000 in a
previous finding ofcontempt prior to the dissolution. RCW 26.09.160 (2)(b)(ii) provides that upon finding a parent in contempt, the court "shall" order that parent to pay "all court costs and reasonable attorney fees" incurred as a result of the noncompliance to
the moving party. No evidence shows that the two different findings of contempt
23 Nos. 69920-2-1 and 70420-6-1/24
resulted in the same amount of fees and costs, nor is there any evidence to support her
claim of bias. The superior court did not abuse its discretion in denying Theresa's
motion to revise the commissioner's order of contempt and award of attorney fees.
In sum, we affirm the amended decree of dissolution, final parenting plan,
findings of fact and conclusions of law, and child support order. We also affirm the
order of contempt and the award attorney fees to Samir under RCW 26.09.160 in the
linked appeal. Subject to compliance with RAP 18.1, we grant Samir's request for
attorney fees on appeal under RCW 26.09.160 and RCW 7.21.030, See In re Marriage
of Rideout. 150 Wn.2d 337, 359, 77 P.3d 1174 (2003) ("[A] party is entitled to an award
of attorney fees on appeal to the extentthe fees relate to the issue of contempt.").
•Jlv^cQft. , WE CONCUR:
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