Sara Valencia v. Gustavo Adolfo Valencia
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Opinion
Filed Washington State Court of Appeals Division Two
October 13, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Marriage of: No. 53184-4-II
SARA VALENCIA,
Appellant,
and
GUSTAVO VALENCIA, UNPUBLISHED OPINION
Respondent.
SUTTON, A.C.J. — Sara and Gustavo Valencia are the parents of two teenage girls, VV and
NV. They have been involved in a protracted conflict over their children since 2013. After a trial
on a petition for modification of the parenting plan and an objection to Sara’s proposed relocation
of the children out of state, the trial court entered detailed findings of fact, conclusions of law, a
final parenting plan, and final orders. The trial court placed VV and NV with Gustavo and imposed
RCW 26.09.191 restrictions on Sara’s decision-making and residential time with the children due
to her repeated withholding and alienation of the children, abusive use of conflict, obstruction, and
refusal to obey court orders for visitation and contact. Sara1 appeals the trial court’s orders2 that
1 We refer to Sara and Gustavo by their first names to avoid confusion; we intend no disrespect.
2 The orders on appeal are: Final Order and Findings on Objection about Moving with Children and Petition about Changing a Parenting/Custody Order (Relocation), Clerk’s Papers (CP) at 11; Final Order and Findings on Petition to Change a Parenting Plan, Residential Schedule or Custody Order, CP at 18. No. 53184-4-II
denied relocation, granted modification, imposed restrictions on her, and changed residential
placement of the children. She also appeals a judgment awarding Gustavo attorney fees and costs
due to Sara’s intransigence.
Sara argues that the trial court misapplied the law regarding relocation, modification, RCW
26.09.191 limitations, and intransigence. She argues that the trial court erred by making Gustavo
the residential parent when their children had no established relationship with him and had been
living with her since the marriage dissolution in 2013. Sara argues that the court manifestly abused
its discretion by entering unsupported findings of fact, by not stating the evidence it relied upon,
and by not addressing each relocation factor. Additionally, Sara claims that the court erred by
allowing counselor Jennifer Knight to testify about actions Sara may have taken in 2014, by
placing 100 percent of the blame on Sara, and by finding that Gustavo participated in Triple P
counseling, but Sara did not. Sara also argues that the trial court’s findings do not support the
entry of a judgment awarding Gustavo attorney fees based on her intransigence. Both parties
request an award of appellate attorney fees and costs.
We hold that substantial evidence supports the findings, and that the trial court did not
misapply the law or abuse its discretion. Thus, we affirm the trial court’s orders denying
relocation, granting modification, imposing RCW 26.09.191 restrictions on Sara, entering a new
parenting plan, and entering a judgment for attorney fees and costs based on Sara’s intransigence.
We award Gustavo reasonable appellate attorney fees and costs. Sara’s request for appellate
attorney fees and costs is denied.
2 No. 53184-4-II
FACTS
I. BACKGROUND
A. ESTABLISHMENT OF THE 2013 PARENTING PLAN
Sara and Gustavo divorced in 2013 when their daughters, VV and NV were ages 7 and 6
respectively. The parenting plan designated Sara as the custodial parent and contemplated co-
parenting by joint decision-making for health care, daycare, and educational decisions. At the
time, Gustavo worked as a carpenter and lived in Chula Vista, California, and Sara worked in the
U.S. Army Reserves and lived in Everett, Washington. The parenting plan granted Gustavo
regular visitation and alternating holidays with the children.
Paragraph 3.14 of the parenting plan contained the statutory notice requirements for child
relocation, RCW 26.09.430-.480. It included the following relevant provisions:
6.1 Both parents desire to remain responsible and active in their children’s growth and development consistent with the best interest of the child. The parents will make a mutual effort to maintain open, ongoing communication concerning the development, needs and interests of the children and will discuss together any major decisions which have to be made about or for the children.
6.2 The children shall have liberal telephone privileges with the parent with whom the children are not then residing without interference of the residential parent. If the parents cannot agree on the definitions of “liberal” it shall be defined as one telephone call per day at a reasonable hour and for a reasonable duration. The daughters have their own cell phone (one) which shall be accessible to both parents. The children shall also have liberal email and Skype and/or FaceTime privileges as well. None of these modes of communication shall be monitored or interfered with by the parent who has the children in his or her home at the time.
6.3 Each parent shall have equal and independent authority to confer with school, daycare and other programs with regard to the children’s progress and each parent shall have free access to school, daycare, and other records. All education and daycare decisions must be jointly made by the parents (see also 4.2).
3 No. 53184-4-II
6.4 Each parent is to provide the other parent promptly upon receipt with information concerning the well-being of the children, including, but not limited to, copies of report cards, school meeting notices, vacation schedules, class programs, requests for conferences, results of standardized or diagnostic tests, notices of activities involving the children, samples of school work, order forms for school pictures, all communications from health care providers, the names, addresses and telephone numbers of all schools, health care providers, regular daycare providers, and counselors, unless this information is available to both parties.
....
6.11 The children shall engage in counseling with an agreed-upon counselor covered by mother’s insurance. The children shall not be seen by Pamela Elderain or any other counselor or therapist who has seen mother or father in a therapeutic setting. The children shall remain in counseling as long as it’s recommended by their counselor.
6.13 Each parent shall keep the other apprised of his or her current residence address and residence telephone number. Notification of any change must be provided within 24 hours of the change.
Ex. 1.
B. COMPLIANCE WITH THE 2013 FINAL PARENTING PLAN
The final parenting plan’s requirements for joint decision-making and regular contact and
visitation by Gustavo with VV and NV never materialized. Between November 2013, shortly after
the plan was entered, and October 2018, when trial began, Sara regularly interfered with Gustavo’s
relationship with the children. After the girls returned from their 2014 spring break visit with
Gustavo, VV refused to see or talk to Gustavo and would not participate in counseling to address
the issue.
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Filed Washington State Court of Appeals Division Two
October 13, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Marriage of: No. 53184-4-II
SARA VALENCIA,
Appellant,
and
GUSTAVO VALENCIA, UNPUBLISHED OPINION
Respondent.
SUTTON, A.C.J. — Sara and Gustavo Valencia are the parents of two teenage girls, VV and
NV. They have been involved in a protracted conflict over their children since 2013. After a trial
on a petition for modification of the parenting plan and an objection to Sara’s proposed relocation
of the children out of state, the trial court entered detailed findings of fact, conclusions of law, a
final parenting plan, and final orders. The trial court placed VV and NV with Gustavo and imposed
RCW 26.09.191 restrictions on Sara’s decision-making and residential time with the children due
to her repeated withholding and alienation of the children, abusive use of conflict, obstruction, and
refusal to obey court orders for visitation and contact. Sara1 appeals the trial court’s orders2 that
1 We refer to Sara and Gustavo by their first names to avoid confusion; we intend no disrespect.
2 The orders on appeal are: Final Order and Findings on Objection about Moving with Children and Petition about Changing a Parenting/Custody Order (Relocation), Clerk’s Papers (CP) at 11; Final Order and Findings on Petition to Change a Parenting Plan, Residential Schedule or Custody Order, CP at 18. No. 53184-4-II
denied relocation, granted modification, imposed restrictions on her, and changed residential
placement of the children. She also appeals a judgment awarding Gustavo attorney fees and costs
due to Sara’s intransigence.
Sara argues that the trial court misapplied the law regarding relocation, modification, RCW
26.09.191 limitations, and intransigence. She argues that the trial court erred by making Gustavo
the residential parent when their children had no established relationship with him and had been
living with her since the marriage dissolution in 2013. Sara argues that the court manifestly abused
its discretion by entering unsupported findings of fact, by not stating the evidence it relied upon,
and by not addressing each relocation factor. Additionally, Sara claims that the court erred by
allowing counselor Jennifer Knight to testify about actions Sara may have taken in 2014, by
placing 100 percent of the blame on Sara, and by finding that Gustavo participated in Triple P
counseling, but Sara did not. Sara also argues that the trial court’s findings do not support the
entry of a judgment awarding Gustavo attorney fees based on her intransigence. Both parties
request an award of appellate attorney fees and costs.
We hold that substantial evidence supports the findings, and that the trial court did not
misapply the law or abuse its discretion. Thus, we affirm the trial court’s orders denying
relocation, granting modification, imposing RCW 26.09.191 restrictions on Sara, entering a new
parenting plan, and entering a judgment for attorney fees and costs based on Sara’s intransigence.
We award Gustavo reasonable appellate attorney fees and costs. Sara’s request for appellate
attorney fees and costs is denied.
2 No. 53184-4-II
FACTS
I. BACKGROUND
A. ESTABLISHMENT OF THE 2013 PARENTING PLAN
Sara and Gustavo divorced in 2013 when their daughters, VV and NV were ages 7 and 6
respectively. The parenting plan designated Sara as the custodial parent and contemplated co-
parenting by joint decision-making for health care, daycare, and educational decisions. At the
time, Gustavo worked as a carpenter and lived in Chula Vista, California, and Sara worked in the
U.S. Army Reserves and lived in Everett, Washington. The parenting plan granted Gustavo
regular visitation and alternating holidays with the children.
Paragraph 3.14 of the parenting plan contained the statutory notice requirements for child
relocation, RCW 26.09.430-.480. It included the following relevant provisions:
6.1 Both parents desire to remain responsible and active in their children’s growth and development consistent with the best interest of the child. The parents will make a mutual effort to maintain open, ongoing communication concerning the development, needs and interests of the children and will discuss together any major decisions which have to be made about or for the children.
6.2 The children shall have liberal telephone privileges with the parent with whom the children are not then residing without interference of the residential parent. If the parents cannot agree on the definitions of “liberal” it shall be defined as one telephone call per day at a reasonable hour and for a reasonable duration. The daughters have their own cell phone (one) which shall be accessible to both parents. The children shall also have liberal email and Skype and/or FaceTime privileges as well. None of these modes of communication shall be monitored or interfered with by the parent who has the children in his or her home at the time.
6.3 Each parent shall have equal and independent authority to confer with school, daycare and other programs with regard to the children’s progress and each parent shall have free access to school, daycare, and other records. All education and daycare decisions must be jointly made by the parents (see also 4.2).
3 No. 53184-4-II
6.4 Each parent is to provide the other parent promptly upon receipt with information concerning the well-being of the children, including, but not limited to, copies of report cards, school meeting notices, vacation schedules, class programs, requests for conferences, results of standardized or diagnostic tests, notices of activities involving the children, samples of school work, order forms for school pictures, all communications from health care providers, the names, addresses and telephone numbers of all schools, health care providers, regular daycare providers, and counselors, unless this information is available to both parties.
....
6.11 The children shall engage in counseling with an agreed-upon counselor covered by mother’s insurance. The children shall not be seen by Pamela Elderain or any other counselor or therapist who has seen mother or father in a therapeutic setting. The children shall remain in counseling as long as it’s recommended by their counselor.
6.13 Each parent shall keep the other apprised of his or her current residence address and residence telephone number. Notification of any change must be provided within 24 hours of the change.
Ex. 1.
B. COMPLIANCE WITH THE 2013 FINAL PARENTING PLAN
The final parenting plan’s requirements for joint decision-making and regular contact and
visitation by Gustavo with VV and NV never materialized. Between November 2013, shortly after
the plan was entered, and October 2018, when trial began, Sara regularly interfered with Gustavo’s
relationship with the children. After the girls returned from their 2014 spring break visit with
Gustavo, VV refused to see or talk to Gustavo and would not participate in counseling to address
the issue.
The following year, in June 2015, Sara filed a petition to modify the parenting plan and
preclude Gustavo from visitation with VV. In her petition, Sara alleged:
4 No. 53184-4-II
The children’s environment under the custody decree/parenting plan/residential schedule is detrimental to the children’s physical, mental or emotional health and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the children.
Gustavo Valencia has a history of acts of domestic violence against [Sara] of which [VV] is aware. [VV] has expressed her desire not to spend time with her father and forcing her to do so may cause irreparable emotional harm to her.
The older child, [VV], has expressed her wishes not to spend time with her father to both her counselor and her mother. Requiring her to continue to have visitation with her father will be detrimental to her emotional well-being and is not in her best interest.
Ex. 3.
Gustavo denied the allegations and asked that the modification petition be denied due to
no adequate cause. Gustavo alleged that Sara was violating the parenting plan by committing
custodial interference and alienation. She then requested an ex parte temporary restraining order
on June 8, 2015.
A court commissioner granted Sara’s petition for a temporary restraining order against
Gustavo as to VV. The order required Gustavo to undergo a psychological evaluation and further
required both Gustavo and VV attend reunification counseling sessions prior to resuming
visitation. Dr. Mariela Shipley, Psy.D., prepared the report on Gustavo’s psychological evaluation.
Dr. Shipley found that Gustavo had been very involved with both girls and that while Sara was
deployed overseas, he also was the primary parent for Sara’s two older children. Dr. Shipley also
found that Gustavo was sad and frustrated that he could not be more involved with his children.
Based on the evaluation, Dr. Shipley found that there was “no evidence of major psychological
5 No. 53184-4-II
disturbances in Mr. Valencia’s overall presentation, or any propensity for harmful behavior or
problems . . . . Consequently, it does not appear that there are any factors that would render [him]
unfit to care of his young children.” Ex. 50.
C. COURT APPOINTED GUARDIAN AD LITEM (GAL) AND REUNIFICATION PROFESSIONALS
In March 2016, the trial court appointed GAL Suzanne Dircks to evaluate the Valencia
family. The court also appointed a number of professionals to provide reunification counseling
and supervised visitation.
Sara continually violated the parenting plan by monitoring and interfering with Gustavo’s
text message, email, and telephone communications with the children. Sara read the text messages,
did not allow private text messages to be sent, and lost the girls’ cell phones and did not replace
them. Sara violated the joint decision-making provision by not keeping Gustavo apprised of the
decisions regarding the children’s healthcare and by not including him in the decisions. Sara also
violated the parenting plan by moving and not providing Gustavo with addresses where the
children were living or attending school.
In May 2016, Gustavo moved back to Washington to focus on reunification with VV,
whom he had not seen or spoken to since the summer of 2014. The court ordered Sara to take VV
to reunification counseling with Rochelle Long, which Sara did. Long interviewed NV who
described her dad as “loving, kind, and a good dad” and wished her sister VV could be with her
when NV visited Gustavo. Ex. 204. VV described her dad as “being nice, loving, and can expect
a lot from him at times.” Ex. 204; Report of Proceedings (RP) at 267. Long recommended a
transition plan to reunify the children with their father, and recommended that Sara obtain a
psychological evaluation to assist with the reunification therapy process and address parental
6 No. 53184-4-II
alienation. Shortly after Long’s recommendation, Sara “raised bias and licensing issues” against
Long, and as a result, Long was removed as a counselor for the family. RP at 876.
The court next appointed reunification counselor, Jennifer Knight. Knight met with the
family 22 times; two additional sessions were scheduled, but Sara refused to deliver the children
to these sessions. Knight testified that Sara described Gustavo as a “monster” and said he “wasn’t
capable of being a nurturing father.” RP at 376. Knight testified that Gustavo’s “response[s]
[were] appropriate given the circumstances.” RP at 376-77. Knight also testified that no “domestic
violence [was] ever reported by the girls from the time the divorce was done through any point in
counseling.” RP at 414-15. Knight found that Sara encouraged the girls to write letters threatening
suicide if they had to visit their father, which they later admitted to Knight were not true.
Knight concluded that both girls showed classic signs of “parental alienation.” RP at 379,
406. The girls “parroted” Sara’s negative comments about Gustavo, called him a monster, and
could not recall any good memories of their childhood with him. RP at 381. The girls had not
seen their father with any regularity, nor could they provide Knight with any reason why they
could not or would not see their father. Knight testified that removing the girls from the offending
parent, here Sara, was the only option for reversing the effects of alienation—otherwise they would
not be able to overcome the alienation from their father.
The court ordered Kate Lee to provide supervised visitation for the girls with Gustavo from
March to May of 2017. During this time, Sara expressed confusion as to dates and times, causing
Lee to cancel supervised visitation dates. During one visitation, Lee observed one of the children
attempting to bait Gustavo by being extremely disrespectful and surreptitiously recording his
response on her cell phone. The other child made a false accusation of physical abuse against
7 No. 53184-4-II
Gustavo claiming that he grabbed her arm at the end of a supervised visit, which visit Lee
witnessed and testified that the incident had not occurred.
The court also ordered Sara and Gustavo to attend co-parenting classes. The first co-
parenting counselor, Bev Polhamus, provided co-parenting “communication tools” and acted as a
“mediator.” RP at 524. Counseling with Polhamus abruptly ceased due to Sara objecting to
Polhamus’s services because her office was located in the same building as Long. The court
appointed another co-parenting counselor, Lori Harrison, in November 2017. Harrison expressed
concern that the two girls were being subjected to a loyalty-bind. She explained that a loyalty-
bind exists when “the children perceive their residential parent has having difficulty with the other
parent or not liking the other parent, they will also adopt that thought pattern.” RP at 470.
After individual sessions and one joint session, no additional co-parenting sessions
occurred with Harrison. Sara refused to schedule sessions that did not interfere with Gustavo’s
work schedule, during times when the counselor had appointments available, or when Gustavo
wanted to schedule appointments. Thus, due to Sara’s refusal to schedule in good faith, co-
parenting counseling with Harrison ceased. When Gustavo suggested an alternative counselor,
Sara did not respond.
In December of 2017, Gustavo initiated another reunification counseling program, called
Triple P. Both Sara and Gustavo communicated with a Triple P provider, but scheduling issues
with Sara again caused this reunification program to end.
GAL Dircks conducted an investigation, reviewed all relevant records, and interviewed the
following: Sara and Gustavo; VV and NV; references for Sara and Gustavo; Gustavo’s sister,
8 No. 53184-4-II
mother, and father; and the court ordered professionals. In her report to the court, GAL Dircks
stated the following:
This has been a very drawn out contentious case. Contributing factors were negative comments from the older siblings and Sara which negatively influenced the girls and Gustavo comes across as extremely intense and I think this frightens the girls. The girls have been given a lot of power . . . which needs to change. In my opinion, the girls need to be told that they have no choice in the visitation.
Ex. 202.
In September 2017 the GAL recommended a detailed plan for the girls to have regular
contact and visits with Gustavo. This detailed plan was never fully implemented due to Sarah’s
scheduling issues and conflicts with the court ordered professionals.
D. SARA’S RELOCATION PETITIONS – GUSTAVO’S OBJECTION AND REQUEST TO MODIFY THE PLAN
On May 24, 2018, Sara filed her third relocation notice of intent to move with children
from Joint Base Lewis-McChord to Fort Hunter Liggett in California.3 The notice stated that Sara
was moving with the children, now 13 and 12 years of age, due to receiving work orders changing
her permanent duty station and that the orders directed her to report to the new duty station by July
9, 2018. The notice listed no contact information regarding the move other than a phone number.
The notice also stated that the reason that only 5 days’ notice was given instead of the required 60
days’ notice was due to Sara “not know[ing]” and that Sara could not “postpone th[e] move.” Ex.
109. In the notice, Sara also stated that she wanted to change the current parenting/custody order
which was pending with the court.
3 The first notice of intent to move with the children was filed shortly after the 2013 parenting plan was entered, locating Sara to Snohomish/ King County. The second notice listed intent to move with children to Joint Base Lewis-McChord.
9 No. 53184-4-II
One week before, on Gustavo’s motion, the court entered a stipulated temporary family
law order. The order reinstated that the parties: engage in co-parenting counseling, maintain the
children’s therapy, and resume Gustavo’s telephone communications and supervised visitations
with the children.
On June 27, 2018, Gustavo filed for an immediate restraining order listing irreparable harm
to his relationship with his children and to the ongoing reunification process. He alleged that Sara
has continually engaged in a pattern of abusive use of conflict and parental alienation to impair his
relationship with the children. Gustavo also filed an objection and response to Sara’s request to
change the current parenting/custody order. Gustavo’s objection listed the facts that he had moved
back to Washington in May 2016 to focus on reunification, he would be unable to find employment
in the remote area in California, the children’s education in Washington would be disrupted, the
children would be removed from their Washington friends, family, and counselors, and irreparable
harm to his current relationship with NV and the on-going reunification process with VV would
occur.
II. TRIAL
Trial occurred in the fall of 2018. Sara and Gustavo testified, as did the following court
ordered professionals: Jennifer Knight, Kate Lee, and Lori Harrison. Their testimonies are
consistent with the facts above.
A. SARA’S TESTIMONY
Sara testified that four months after the 2013 parenting plan was entered, Gustavo emailed
her inquiring as to where she had moved. Sara testified that she “did not” respond or provide
Gustavo with the children’s address. RP at 568. Sara testified that even one year later, in 2015,
10 No. 53184-4-II
she still had not provided Gustavo with the children’s physical address. Sara testified that the court
ordered her in 2016 to provide Gustavo with her updated address, and she again refused to provide
the address, stating “safety concerns.” RP at 350. In April 2017, Sara provided a relocation notice
to the Pierce County Superior Court, but failed to provide her home address or school address for
the children, and never updated the information. In May 2018, Sara again provided a notice of
relocation through the court, but the notice did not provide any contact information and only
provided 5 days’ notice of the move. Sara had not provided Gustavo with an address or where the
children were living or going to school, until the first day of trial in October 2018, after having
relocated to California with the children.
Sara testified that she did not provide Gustavo with the children’s school information. In
fact, she had never listed Gustavo as an emergency contact on any of the children’s school records.
Sara acknowledged that per the court’s order, the girls were to have their own phones to
freely communicate with Gustavo and she was not to monitor their communication with their
father. Sara admitted that she consistently read the children’s text messages to verify whether the
messages were “fine” and “what was happening.” RP at 567.
As to visitation with the girls, Sara explained that there was no visitation issues and that
Gustavo had his 2014 spring and summer break visitations with the girls. Upon her return from
the summer visitation of 2014, VV did not want to speak with Gustavo. Sara indicated that upon
their return, the girls were “happy” and “didn’t report anything unusual.” RP at 301. VV never
told Sara the reason why she did not want to speak to her father and Sara did not know the reason.
Sara testified that the 2013 parenting plan provided for joint decisions on non-emergency
healthcare. But she admitted that she did not provide Gustavo with the names of all the counselors,
11 No. 53184-4-II
doctors, and medical providers of the girls. Sara also took VV to a counselor, Kathi Jackson, in
December 2014, and enrolled her in counseling for purposes other than as ordered in the parenting
plan without telling Gustavo. Sara acknowledged that she was “wrong” by not disclosing this
information to Gustavo. RP at 561.
Sara alleged that, after NV had a visit with Gustavo in 2015, NV had a medical issue. She
admitted that she did not follow-up treatment after it was diagnosed, nor did she inform Gustavo
of NV’s condition. Upon questioning by the court, the court confirmed that there was no evidence
that indicated “anything awry here occurred.” RP at 342-343. Sara testified at trial that she was
“not alleging” any sexual abuse. RP at 619.
The parenting plan required that the children “engage in counseling with an agreed-upon
counselor covered by mother’s insurance.” Ex. 1. Sara testified that she and Gustavo scheduled
with Knight immediately after being ordered to do so, and that there were no other issues in the
summer of 2016. Sara stated that she “was not aware . . . of why [Knight] ceased her counseling
for the girls.” RP at 503, 508. Sara explained that Lee was assigned for supervised visits once a
week, but “[u]fortunately, it didn’t happen.” RP at 509. Sara did not participate in the visits, but
testified that the children did not want to participate and were “disengaged.” RP at 510. She stated
that she encouraged the visits and drove the girls two hours each way for the supervised visits.
After finding out that one visitation included watching movies, Sara stated, “I was concerned that
there was no interaction . . . my understanding of these visits were meant to engage them in
communication, building a relationship, building that trust, and there was no communication
during the movies. They’re just sitting in a room together watching a movie.” RP at 515. Sara
12 No. 53184-4-II
testified that it was her understanding that the reason the visitation stopped “was that [they] were
waiting on Mr. Valencia” to schedule. RP at 515.
B. GUSTAVO’S TESTIMONY
Gustavo testified that Sara interfered with his relationship with the girls beginning right
after the dissolution, citing numerous examples of Sara’s continual pattern of abusive use of
conflict and parental alienation to impair his relationship with the children. He explained that he
had residential time scheduled with both children for spring break in 2014, but Sara could not
afford to pay her portion of the required transportation. The children’s paternal grandfather
intervened and paid for Sara’s share of the air fare, but Sara did not reimburse the grandfather.
Sara also gave Gustavo the wrong dates for the children’s summer vacation in 2014.
Gustavo testified that the 2014 summer visit with the children was “a blast. It was probably
the best summer of my life. Probably theirs too. They were amazing with me. They were amazing
with their family. They were loving. They were warm. They were happy. We had an amazing
summer.” RP at 65. The day after VV returned from summer 2014 visitation, she allegedly did
not want to speak to him on the phone. Gustavo testified, “This was the first time that [he] knew
that [VV] didn’t want to talk to [him]” and that he was “still waiting for a reason why.” RP at 66;
99.
Gustavo testified that he had visitation with only NV since the summer of 2015. Sara
shortened his spring break visit in 2016 and tried to give him the wrong summer vacation dates.
By trial in October 2018, Gustavo had not had any regular visitation with VV for over four years,
and had only had irregular visitation with NV since the summer vacation of 2016. Regarding
Gustavo’s after school Wednesday visitation with NV, Sara often refused to deliver NV to
13 No. 53184-4-II
Gustavo, and refused to provide him with a school or physical address so that he could pick her
up.
As to telephone communication, Gustavo testified
I never was able to have private conversations with my daughters ever. They were always to be monitored by either Sara or her [sic] older brother and sister. Talking to them on the phone was always uncomfortable for both me and my daughters. It was just I could tell somebody was there. In fact, they would tell me on the phone that somebody was there.
RP at 720. Gustavo and NV mostly communicated by text messaging. Sara monitored their
telephones so he and NV had to be secretive when communicating and NV would delete text
messages so that Sara would not be unaware of their communication.
Sara took approximately four cell phones from VV and NV that were provided by Gustavo.
Gustavo would lose contact with the girls for weeks, and sometimes months, at a time. Lost or
non-working cell phones were constantly an issue. In February 2016, Gustavo flew from
California to Washington to personally deliver a cell phone to them after Sara had cut off all
contact between him and the children. Another phone that was missing was discovered hidden in
a drawer under Sara’s control at a later date.
As to travel arrangements, Gustavo testified that Sara refused to make joint decisions and
instead created issues with Gustavo’s attempts to exercise visitation, including him having to “buy
plane tickets . . . the whole 100 percent of it, and still not knowing if [the] girls were going to be
on the plane or not.” RP at 91. Sara refused to respond to Gustavo about the timing of travel and
flights for the children which escalated the cost of travel.
Gustavo testified that he had no idea about how many times his daughters may have been
to the hospital, dentist, or orthodontist. He explained that in 2015, he “flew from San Diego to
14 No. 53184-4-II
meet with the counselor, Kathi Jackson, in Snohomish County [because he] thought [it] was going
to be a co-counseling with [him,] [VV] and Mrs. Jackson, but [VV] did not show up to that
meeting.” RP at 82. Gustavo testified that Jackson was only going to work with Sara, she refused
to work with him, and a judge ruled that because Jackson’s counseling was not joint, they were
not to utilize her for counseling. Gustavo testified regarding his participation in the court ordered
counseling, co-parenting counseling, supervised visitation, and to the multiple scheduling conflicts
that occurred with Sara.
Gustavo testified that he paid $1,125.00 to GAL Dircks, approximately $1,000.00 to Kate
Lee, approximately $400.00 to Beverly Polhamus, approximately $2,000.00 to Jennifer Knight,
approximately $200.00 to Lori Harrison, approximately $200.00 to the Triple P program,
approximately $1,000.00 to Rochelle Long, approximately $200.00 to Kathy Jackson, $18,832.84
in attorney’s fees to his trial counsel, and approximately $40,000.00 to his two previous attorneys.
Gustavo’s testimony regarding these expenses and fees was unrebutted.
III. TRIAL COURT’S FINDINGS AND CONCLUSIONS
The trial court entered written findings and conclusions about each relocation factor. The
court denied Sara’s relocation petition, concluding that relocation would have a detrimental effect
that outweighed any benefit to Sara and the children, and that allowing relocation would stop all
reunification efforts and irreparably impair Gustavo’s relationship with his children. The court
granted modification of the parenting plan, changing the primary residential placement of the
children from Sara to Gustavo. The court concluded that there had been a substantial change in
the circumstances of the children and the modification was in the best interest of the children. The
trial court’s order stated that:
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[Sara’s] intentional, consistent, insidious efforts to alienate the children from [Gustavo], create conflict and impede [Gustavo’s] normal and loving relationship with his children rises to the level of an abusive use of conflict. Based upon the actual detriment to the children and the potential for future harm, the children shall be placed in the primary residential care of [Gustavo]. The court finds this change is in the best interests of the children. This transition shall occur as soon as possible. The father shall enroll the children in school and individualized counseling as soon as possible.
CP at 5. The court imposed RCW 26.09.1914 restrictions on Sara’s residential time after finding
she engaged in an abusive use of conflict which had the potential to be harmful to the children.
The court ordered that all of Sara’s parenting time be professionally supervised for four hours on
weekends and ordered her to obtain a psychological evaluation with a parenting component to
address the conflicts she created regarding the parenting plan, and acknowledge her role in
alienating VV and NV from Gustavo.
The trial court also found that Sara had engaged in abusive use of conflict and intransigence
which includes “engaging in obstruction, refusal and interference with court orders concerning
visitation and contact.” CP at 40. The court further found that Sara engaged in a continual pattern
of obstruction “involving refusal to cooperate with the [GAL], refusing to allow visitation,
interfering with court ordered visitation, threatening administrative action against witnesses, and
falsely alleging sexual abuse of a child.” CP at 40. Based on Sara’s intransigence, the court
awarded Gustavo attorney fees and costs of $40,000.00 and entered a judgment.
Sara appeals the orders denying relocation, granting modification, and awarding Gustavo
attorney fees and costs.
4 The legislature amended RCW 26.09.191 in 2019. LAWS OF 2019, ch. 46 § 5020. Because these amendments are not relevant here, we cite to the current version of this statute.
16 No. 53184-4-II
ANALYSIS
I. STANDARDS OF REVIEW
We review a trial court’s decisions dealing with the welfare of children for an abuse of
discretion. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). Relevant here, a
court has authority to modify a parenting plan and impose restrictions under RCW 26.09.191
including in the context of a relocation, to the same extent it has such authority at the time of
dissolution. In re Marriage of Watson, 132 Wn. App. 222, 232, 130 P.3d 915 (2006). Discretion
is abused if the court’s decision is manifestly unreasonable or based on untenable grounds or
reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). “Given the
strong interest in the finality of marriage dissolution proceedings, we defer to the trial court and
will affirm [its decision], ‘unless no reasonable judge would have reached the same conclusion.’”
In re Marriage of Rostrom, 184 Wn. App. 744, 750, 339 P.3d 185 (2014) (quoting In re Marriage
of Kim, 179 Wn. App. 232, 240, 317 P.3d 555 (2014)).
We uphold trial court’s findings if supported by substantial evidence. In re Marriage of
Raskob, 183 Wn. App. 503, 510, 334 P.3d 30 (2014). Substantial evidence exists if the record
contains evidence of a sufficient quantity to persuade a fair-minded person of the truth of the
declared premise. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). “Our role
or function is not to substitute our judgment for that of the trial court or to weigh the evidence or
credibility of witnesses.” In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
The person challenging the findings of fact bears the burden of demonstrating that substantial
evidence does not exist. In re Marriage of Grigsby, 112 Wn. App. 1, 9, 57 P.3d 1166 (2002). We
review de novo whether the trial court’s findings of fact support its conclusions of law. Raskob,
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183 Wn. App. at 510. Unchallenged findings of fact are verities on appeal. In re Marriage of
Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011).
A trial court also may impose restrictions on a parent’s residential time upon finding that a
parent has engaged in:
The abusive use of conflict by the parent which creates the danger of serious damage to the child’s psychological development; A parent has withheld from the other parent access to the child for a protracted period without good cause; or Such other factors or conduct as the court expressly finds adverse to the best interests of the child.
RCW 26.09.191(3)(e), (f), and (g).
II. RELOCATION
Washington’s child relocation act (CRA), RCW 26.09.405–.560 governs child relocation.
“The CRA shifts the analysis away from only the best interests of the child to an analysis that
focuses on both the child and the relocating person.” Horner, 151 Wn.2d at 886-87. The CRA
creates a presumption that the relocation will be allowed. RCW 26.09.520.5 To rebut the
presumption, the objecting party must prove by a preponderance of the evidence that “the
detrimental effect of the relocation outweighs the benefit of the change to the child and the
relocating person.” RCW 26.09.520. The court is required to consider the following relevant
relocation factors:
(1) The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
5 The legislature amended RCW 26.09.520 in 2019. LAWS OF 2019, ch. 79 § 3. Because these amendments are not relevant here, we cite to the current version of this statute.
18 No. 53184-4-II
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also; and
(10) The financial impact and logistics of the relocation or its prevention[.]
RCW 26.09.520(1)-(10). When making a determination about a child’s relocation, the record must
indicate that the trial court has considered every relevant statutory factor in RCW 26.09.520.
Horner, 151 Wn.2d at 894.
Sara argues that the court misapplied the law regarding relocation, modification of
residential placement, imposition of restrictions on her, and intransigence. She argues that the trial
court abused its discretion because the findings she challenges are not supported by substantial
evidence and conflict with or are contradictory to the evidence, and that the court failed to
19 No. 53184-4-II
articulate the evidence relied upon, failed to provide for the children’s best interests, did not
consider all relocation factors, and based its decisions on untenable grounds. Most of Sara’s
arguments ask us to reweigh the evidence and the witnesses’ credibility. Below we review each
relevant relocation factor, the trial court’s related findings, and a summary of the evidence
presented in support.
A. RCW 26.09.520(1) – CHILD’S SIGNIFICANT RELATIONSHIPS
Regarding relocation, the trial court first considers “[t]he relative strength, nature, quality,
extent of involvement and stability of the child’s relationship with each parent, siblings, and other
significant persons in the child’s life.” RCW 26.09.520(1). Here, the record shows that the court
considered this factor and entered appropriate findings which we hold are supported by substantial
evidence. Sara did not support Gustavo’s reunification efforts with VV in good faith, and her
abusive use of conflict and parental alienation was harmful to the children’s best interests. The
court found that Gustavo had a good relationship with NV up until his move to Washington in
May 2016, but Sara resisted his efforts to visit NV after summer vacation of 2016 until trial.
The court’s findings detail Gustavo’s repeated unsuccessful attempts to maintain
relationships with the children between 2013 and 2018. The court found that Sara’s obstruction
created an environment where the children believed that they had a choice in visiting Gustavo.
The trial court found the professionals’ testimony—that there was no legitimate reason why the
girls should not be reunified with Gustavo except for Sara’s interference—credible. We do not
reweigh the evidence or witness credibility on appeal. In re Marriage of Rockwell, 141 Wn. App.
235, 242, 170 P.3d 572 (2007).
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B. RCW 26.09.520(2) – PRIOR AGREEMENTS OF THE PARTIES
The trial court must next consider the prior agreements of the parties. RCW 26.09.520(2).
Substantial evidence supports the court’s finding that “the parties agreed to attempt to reunify the
father’s relationship with the children through co-parenting counseling therapy and assistance by
professionals. All professionals are here in Washington. If the mother was allowed to relocate it
would block the entire reunification process.” CP at 12.
C. RCW 26.09.520(3) – DISRUPTION OF CONTACT
The trial court next must consider “[w]hether disrupting the contact between the child and
the person seeking relocation would be more detrimental to the child than disrupting contact
between the child and the person objection to the relocation.” RCW 26.09.520(3). Substantial
evidence supports the court’s finding that disrupting the children’s contact with Sara, the moving
parent, would not be more detrimental to the children than disrupting their contact with Gustavo.
The court found it would be extremely disruptive to the reunification of the children with Gustavo
if the move were allowed and that allowing Sara to relocate would make it virtually impossible for
Gustavo’s relationship with his daughters to be repaired.
D. RCW 26.09.520(4) – LIMITATIONS
The trial court also must consider “[w]hether either parent or a person entitled to residential
time with the child is subject to limitations under RCW 26.09.191.” RCW 26.09.520(4). The
court found that Sara’s “intentional, consistent, insidious efforts to alienate the children from
[Gustavo], create[d] conflict and imped[ed] the father’s normal and loving relationship with his
children” and that it rose “to the level of an abusive use of conflict.” CP at 5. The court further
21 No. 53184-4-II
found that Sara’s abusive use of conflict “has the potential to harm the children.” CP at 19. The
court properly imposed RCW 26.09.191 restrictions on Sara’s residential time.
The court entered specific findings citing numerous examples of Sara’s refusal to support
reunification. Substantial evidence was presented at trial that Sara (1) refused to cooperate with
Gustavo’s residential time, including traveling and scheduling arrangements; (2) refused to
provide Gustavo with her current home address when she relocated; (3) refused to provide Gustavo
information related to the children’s health care and mental health needs; (4) restricted phone
contact by the children; (5) refused to fully cooperate with co-parenting and reunification
counseling; and (6) neglected to adequately provide for the children’s mental health needs.
Sara admitted at trial that she refused to cooperate and provide Gustavo with her home
address, or information about the children’s schools, health care or mental health. Substantial
evidence supports the trial court’s findings and they support the RCW 26.09.191 restrictions
imposed on Sara’s residential time.
E. RCW 26.09.520(5) – GOOD FAITH AND REASONS FOR SEEKING OR OPPOSING RELOCATION
Next, the trial court must consider “[t]he reasons of each person for seeking or opposing
the relocation and the good faith of each of the parties in requesting or opposing the relocation.”
RCW 26.09.520(5). Substantial evidence supports the court’s finding that Sara’s request to
relocate was made in bad faith and Gustavo’s objection was based on good faith to reunify with
his children. Although the evidence was conflicting regarding a hardship waiver, the court found
that, based on Sara’s testimony, she could have requested a hardship from the Army to stay in
Washington for the purposes of the reunification therapy and co-parenting counseling as well as
for VV’s counseling needs.
22 No. 53184-4-II
The court found that Gustavo objected to relocation in good faith. Gustavo could not
follow Sara because she was relocating to an isolated area of California. Gustavo would not be
able to find employment and had no family in the area. Further, the court found that granting
relocation would impair reunification. The court found that Gustavo had moved back to
Washington in 2016 specifically to engage in reunification counseling with VV and that he had a
very good relationship with NV.
Although counselor Long recommended a transition plan for reunification, Sarah did not
support reunification in good faith; she also had the children write letters, which were not true,
threating suicide. The court also found that Sara’s pattern of alienation and abusive use of conflict
and intransigence had prevented Gustavo from successfully reunifying with his children over the
past six years, despite the efforts by the court ordered professionals. Sara had moved twice without
providing her home address, school and daycare providers’ information, and sought relocation
again without providing updated contact information. The court concluded that allowing Sara to
relocate would “result in further alienation,” make the children’s relationship with their father,
“irreparable” and impossible to restore. CP at 13. Substantial evidence was presented at trial to
support these findings, and they support the court’s conclusions of law as to this factor.
F. RCW 26.09.520(6) – IMPACT OF RELOCATION
Next, the trial court must consider “[t]he age, developmental stage, and needs of the child,
and the likely impact the relocation or its prevention will have on the child’s physical, educational,
and emotional development, taking into consideration any special needs of the child.” RCW
26.09.520(6).
23 No. 53184-4-II
The trial court found that:
[Sara’s] intentional, consistent, insidious efforts to alienate the children from [Gustavo], create conflict and impede the fathers normal and loving relationship with his children rises to the level of an abusive use of conflict. Based upon the actual detriment to the children and the potential for future harm, the children shall be placed in the primary residential care of their father. The court finds this change is in the best interests of the children. This transition shall occur as soon as possible. [Gustavo] shall enroll the children in school and individualized counseling as soon as possible.
CP at 5. The record shows that the court considered that Gustavo made repeated efforts at regular
contact and visitation to reunify with VV and NV, and that Sara interfered with these efforts for
six years by engaging in an abusive use of conflict and alienation, which was harmful to the
children’s best interests. Substantial evidence supports the court’s findings as to this factor.
G. RCW 26.09.520(7) – QUALITY OF LIFE IN CURRENT AND PROPOSED LOCATIONS
The trial court must consider “[t]he quality of life, resources, and opportunities available
to the child and to the relocating party in the current and proposed geographic locations.” RCW
26.09.520(7). The court entered specific findings as to the children’s schooling proposed in
California and found that there were no resources for the children because the area was isolated
and remote. Specific data regarding the children’s current school district was considered and the
court entered findings related to schools and resources. The court also found that Sara had not
provided any details concerning the children’s school or home so that it was unknown what
opportunities or quality of life could be afforded the children at that location. The schools where
Gustavo resided in Washington State were newer and more up to date. Based on the record
considered by the trial court, these findings are supported by substantial evidence.
24 No. 53184-4-II
H. RCW 26.09.520(8) – ALTERNATIVES TO CONTINUE RELATIONSHIP
The trial court must consider “[t]he availability of alternative arrangements to foster and
continue the child’s relationship with and access to the other parent.” RCW 26.09.520(8). Here,
the court considered this factor and based on the evidence found that there were no legitimate
alternatives to foster the reunification therapy and co-parenting counseling, and also found that
further alienation of the children from their father would occur. Substantial evidence supports the
trial court’s finding that there were no reasonable alternatives.
I. RCW 26.09.520(9) – ALTERNATIVES TO RELOCATION
The court must also consider whether there are any alternatives to relocation or if the other
party could relocate as well. RCW 26.09.520(9).
[Sara] could request a hardship [from the U.S. Army] to stay in Washington for the purposes of the reunification therapy and co-parenting counseling as well as [NV’s] counseling needs. Additionally, [Sara] has two children from a prior relationship that are young adults who may be staying in Washington. It is unknown if they are relocating to California or not. There could be alternatives for the children to stay in Washington.
CP at 15. Although there was conflicting testimony by Sara regarding a hardship waiver and
whether her older children would also move with her to California, the court found Gustavo’s
testimony in this regard to be more credible, and we do not reweigh credibility on appeal.
Rockwell, 141 Wn. App. at 242. The court also found that all of the reunification counselors were
in Washington and that moving again would disrupt the reunification process. However, Gustavo
testified that he could relocate back to Chula Vista to have the support of extended family on both
sides or remain in Washington if that is what the judge ordered. These findings are supported by
25 No. 53184-4-II
the conditions at the time of the trial and Gustavo’s testimony that he could relocate, does not
change that. Further, the findings are supported by substantial evidence and they support the
court’s conclusions.
J. RCW 26.09.520(10) – FINANCIAL IMPACT
Finally, the trial court must consider “the financial impact and logistics of the relocation or
its prevention.” RCW 26.09.520(10). Here, the trial court found that there would be a negative
impact if Gustavo had to move again, after relocating in May 2016 back to Washington. It would
be harder for him to restart and he would lose all of his seniority at work, family and friends. There
was ample evidence at trial of the impact on Gustavo, the court’s consideration of the impacts, and
thus, the court’s findings are supported by substantial evidence.
In sum, we hold that the trial court’s findings on relocation were supported by substantial
evidence based on the entire record and these findings demonstrate that the court considered each
relocation factor. These findings support the court’s conclusion that relocation was not in the
children’s best interests. Thus, the trial court did not err by denying Sara relocation, and we affirm
the relocation order.
III. MODIFICATION
RCW 26.09.260 addresses the grounds for modifying a parenting plan consistent with the
provisions in RCW 26.09.184 and .187 for formulating a permanent parenting plan. RCW
26.09.260(2) allows for modification of a parenting plan when:
(c) The child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child[.]
26 No. 53184-4-II
Relevant here, RCW 26.09.260(6) provides that the court may modify residential
placement under the relocation statute without a showing of adequate cause. RCW 26.09.260(6)
also states that in determining whether to modify a parenting plan pursuant to a relocation,
[T]he court shall first determine whether to permit or restrain the relocation of the child using the procedures and standards provided in RCW 26.09.405 through RCW 26.09.560. Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the parenting plan or custody order or visitation order.
The court may draw a reasonable inference that destructive behavior by a parent that
constitutes a detrimental environment at the time the petition for modification was filed would
continue absent evidence that it had ceased. In re Marriage of Velickoff, 95 Wn. App. 346, 356,
968 P.2d 20 (1998). Specifically, in Velickoff, restricting access to medical records and telephone
contact was a factor in finding detriment. 95 Wn. App. at 355. Fostering post-dissolution
relationships between a child and each parent is paramount and a parent’s interference with such
relationship is detrimental to the child’s best interests. Velickoff, 95 Wn. App. at 357; RCW
26.09.002.
Here, the trial court found that the children’s environment with Sara was detrimental to
their physical, mental, or emotional health and that the harm likely to be caused by a change of
environment was outweighed by the advantage of a change to the children. Based on its findings,
the court modified the parenting plan, changed residential placement to Gustavo, and imposed
RCW 26.09.191 restrictions on Sara’s residential time. Sara argues that the findings are not
supported by substantial evidence, do not support the trial court’s decisions, and are based on
“untenable grounds.” Br. of Appellant at 29-30. We disagree and hold that the court did not err
and thus, we affirm the modification order.
27 No. 53184-4-II
The parenting plan provided for joint decision-making and regular visitation and contact
between Gustavo and the children. Sara was required to provide Gustavo updated home addresses,
school, health care, dental, and counseling information. The trial court, citing numerous examples,
found that for six years Sara blatantly failed to comply with these provisions despite Gustavo’s
repeated efforts and as a result, the children were being harmed and the current residential
placement with Sara was not in their best interests. Further, the trial court’s findings imposing
RCW 26.09.191 restrictions are also supported by substantial evidence. These findings support
the court’s conclusion to modify residential placement of the children from Sara to Gustavo.
In sum, we hold that the trial court did not err and we affirm the modification order.
IV. OTHER TRIAL ISSUES
A. TESTIMONY OF JENNIFER KNIGHT
Sara also argues that the trial court erred by overruling an objection based on speculation
and improper foundation and allowing counselor Knight to opine as to what actions Sara may have
taken when VV would not speak to Gustavo on the phone in 2014. We disagree and hold that the
trial court did not abuse its discretion by allowing this opinion testimony.
ER 704 establishes that an expert may provide her opinion on an ultimate issue. “A trial
court’s decision to admit expert testimony is reviewed for abuse of discretion.” State v. Kirkman,
159 Wn.2d 918, 927, 155 P.3d 125 (2007).
At trial, Knight was asked about what actions should have occurred after VV stopped
speaking to Gustavo. Sara’s counsel objected based on lack of foundation and speculation, which
objections the court overruled. Knight testified that, in her opinion, the best thing would have been
to encourage VV to speak with Gustavo. Knight had met with the family 22 times and was in a
28 No. 53184-4-II
position therapeutically to opine about the issues surrounding the family and the children’s
relationship with Gustavo. She spoke from a therapeutic perspective about a series of actions that,
if taken, might have led to a better result for VV’s treatment. She also discussed a pattern of
alienating behavior by Sara that she observed. We hold that the trial court did not abuse its
discretion by permitting Knight to testify as to this opinion.
B. TRIAL COURT ALLEGEDLY PLACED 100 PERCENT OF THE BLAME ON SARA
Sara also argues that the court erred by placing 100 percent of the blame on her. Sara’s
argument here asks us to reweigh witnesses’ credibility which we do not do on appeal. Rockwell,
141 Wn. App. at 242. Thus, her argument fails.
C. PARTICIPATION IN TRIPLE P PROGRAM
Sara also argues that the court erred by finding that she did not participate in the Triple P
program for counseling. Substantial evidence supports this finding because Sara testified at trial
that she, in fact, did not attend the Triple P program, she canceled two appointments, and she never
scheduled a third one. Thus, we hold that Sara’s argument fails.
V. AWARD OF ATTORNEY FEES AND COSTS BASED ON INTRANSIGENCE
Sara argues that the trial court erred when it awarded Gustavo attorney fees and costs due
to her intransigence and that there was no evidence of unreimbursed costs. We disagree and hold
that the court did not err.
“[A] trial court may consider whether additional legal fees were caused by one party’s
intransigence and award attorney fees on that basis.” Raskob, 183 Wn. App. at 517. “Intransigence
is the quality or state of being uncompromising.” Schumacher v. Watson, 100 Wn. App. 208, 216,
997 P.2d 399 (2000). “‘Awards of attorney fees based upon the intransigence of one party have
29 No. 53184-4-II
been granted when the party engaged in foot-dragging and obstruction . . . or simply when one
party made the trial unduly difficult and increased legal costs by his or her actions.’” Raskob, 183
Wn. App. at 517-18 (internal quotation marks omitted) (alternation in original) (quoting In re
Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992)).
Here, the trial court entered three sets of findings related to intransigence. First, the court
found that Sara engaged in a “continual pattern of obstruction” because she refused to cooperate
with the GAL, refused to allow visitation, interfered with court ordered visitation, threatened
administrative action against witnesses, and falsely alleged sexual abuse of a child. CP at 40.
Second, Sara started these proceedings in 2013 immediately following the dissolution trial and did
not present any credible evidence of domestic violence by Gustavo at the 2013 trial or the 2018
trial, and when directly asked, she admitted that she was not accusing him of this or of sexual
abuse. Third, Sara engaged in manipulation of the children, the courts, and Gustavo.
Gustavo testified that he incurred the following unreimbursed costs: $1,125.00 to GAL
Dircks, approximately $1,000.00 to Kate Lee, approximately $400.00 to Beverly Polhamus,
approximately $2,000.00 to Jennifer Knight, approximately $200.00 to Lori Harrison,
approximately $200.00 to the Triple P program, approximately $1,000.00 to Rochelle Long,
$200.00 to Kathi Jackson, $18,832.84 in attorney’s fees to his trial counsel, and approximately
$40,000.00 to his two previous attorneys.
Sara does not specifically contest the substance of these findings, but argues that they did
not amount to intransigence. Sara’s dispute is over the credibility of the witnesses, which we do
not review on appeal. Rockwell, 141 Wn. App. at 242. Further, Gustavo’s testimony on the
attorney fees, costs, and unreimbursed expenses was not rebutted. The trial court’s detailed
30 No. 53184-4-II
findings of intransigence support both the court’s award and its entry of judgment in the amount
of $40,000.00. Because the trial court did not err, we affirm the order and the judgment.
APPELLATE ATTORNEY FEES AND COSTS
Both parties request an award of appellate attorney fees and costs under RAP 18.1. Under
RAP 18.1, the prevailing party is entitled to appellate attorney fees and costs when applicable law
authorizes the award. McGuire v. Bates, 169 Wn.2d 185, 191, 234 P.3d 205 (2010). Here, Gustavo
prevails. Therefore, we award Gustavo his appellate attorney fees and costs and deny Sara’s
request.
CONCLUSION
We hold that the court did not abuse its discretion or err, and thus, we affirm the trial court’s
orders. We award Gustavo reasonable appellate attorney fees and costs and deny Sara’s request.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, A.C.J. We concur:
WORSWICK, J.
MELNICK, J.
Related
Cite This Page — Counsel Stack
Sara Valencia v. Gustavo Adolfo Valencia, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sara-valencia-v-gustavo-adolfo-valencia-washctapp-2020.