Teresa Brescia Werner, V. Joseph Christian Werner

• Court: Court of Appeals of Washington
• Decided: March 21, 2022
• Docket: 82369-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of: No. 82369-8-I TERESA BRESCIA WERNER, AKA TERESA BRESCIA, DIVISION ONE

Respondent, UNPUBLISHED OPINION

v.

JOSEPH CHRISTIAN WERNER SR.,

Appellant.

MANN, C.J. — Joseph Werner appeals a Whatcom County Superior Court order

denying revision of a commissioner’s order that registered out-of-state court orders

concerning child protection and custody. Because events that occurred after Werner

filed his notice of appeal render his appeal moot, we dismiss the appeal.

FACTS

A Whatcom County Superior Court dissolved the marriage of Joseph Werner and

Teresa Brescia in 2010. The court ordered that the parties’ two children would live

primarily with the father. The following year, after the father relocated with the children No. 82369-8-I/2

to Virginia, the same court entered a parenting plan that provided for the mother to have

residential time with the children periodically on weekends and for extended periods

during school breaks.

In 2020, the Commonwealth of Virginia initiated dependency proceedings

involving the children, removed them from the father’s custody, and temporarily placed

them in the care of a relative in Virginia. In July 2020, a juvenile and domestic relations

district court in Virginia entered orders as to each of the children. The court found that

the children had been abused and neglected by the father due to his chronic alcoholism

and that residing with the mother in Washington was in the children’s best interest. The

court transferred custody of the children to the mother, and in a protection order, limited

the father’s contact with the children to electronic visitation to be supervised by the

mother. Several months later, the mother filed a motion in Whatcom County Superior

Court to register the Virginia court orders. By this time, the father had relocated to

Washington.

The father appealed the Virginia court orders. He also opposed registration of

the Virginia orders in Washington. He argued that the Virginia court lacked jurisdiction

to enter the orders under the Uniform Child Custody Jurisdiction and Enforcement Act

(UCCJEA), ch. 26.27 RCW, because a Washington court made the initial determination

of custody and had not subsequently declined jurisdiction. See In re Parentage of Ruff,

168 Wn. App. 109, 114, 275 P.3d 1175 (2012) (The UCCJEA “aims to prevent

conflicting [child] custody orders by determining when a state can modify a custody

order entered in another state.”).

2 No. 82369-8-I/3

After a hearing, a superior court commissioner confirmed registration of the

Virginia court orders, concluding that the father did not establish a defense to

registration under RCW 26.27.441(4) (individual contesting registration of out-of-state

orders must establish 1) lack of jurisdiction, 2) the custody determination sought to be

registered has been modified or vacated, or 3) lack of required notice prior to entry of

the out-of-state order). The commissioner also awarded attorney fees of $2,272.50 to

the mother.

The father filed a motion to revise the commissioner’s decision. See RCW

2.24.050 (superior court commissioner decisions are subject to revision by a superior

court judge). The superior court held a hearing on the motion and entered an order

adopting the commissioner’s order, denied the motion to revise, and awarded $843.75

in attorney fees to the mother. 1 The father appealed.

After the father filed his notice of appeal in this case, in April 2021, a Virginia

circuit court concluded on appeal that the parties’ children do not reside in Virginia and

had not resided there for more than six months. As a result, that court determined that

it lacked jurisdiction over the parties identified in the dependencies because “[t]he

children and both parents are residents of Washington State, and a Court of competent

jurisdiction in Washington State has entered orders relating to the custody and/or

visitation of the children subsequent to the entry of the Virginia Beach [juvenile and

domestic relations court] order.” In a separate, subsequent “final order,” the same court

dismissed the dependencies filed by the State.

1The court later awarded fees to the father of $300, effectively reducing the mother’s second fee award to $543.75.

3 No. 82369-8-I/4

Three months later, in July 2021, the Whatcom County Superior Court issued

several orders in the Washington family law case (Whatcom County Superior Court

Cause No. 09-3-00055-7). Specifically, the court entered a temporary restraining order

as to each child, prohibiting the father from “disturb[ing] the peace” of each child and

from being within 500 feet of the children’s home or school. The court also entered an

order finding, upon the parties’ stipulation, adequate cause to modify the parenting plan.

Finally, the court entered a temporary parenting plan. Consistent with the Virginia

court’s prior orders, the plan provides for the children to reside with the mother—and

based on a finding of neglect as to the father—provides for electronic visitation with the

father, and requires him to undergo an evaluation and treatment for alcohol and

substance abuse.

ANALYSIS

The father claims the court erred in denying revision because the Virginia court

lacked UCCJEA jurisdiction and its orders could not be registered and enforced in

Washington. But even assuming the father met his burden to establish a defense to

registration of the orders under RCW 26.27.441(4)(a), it is clear from the record that the

Virginia dependency proceedings are now dismissed and the associated underlying

court orders are no longer in effect. The father is not aggrieved at this point by the

registration in Washington of the Virginia court orders.

Perhaps more importantly, the father fails to recognize that the Whatcom County

Superior Court has subsequently entered its own orders pertaining to the custody and

protection of the children. Therefore, the Washington court is now enforcing its own

orders in this matter, not the previously registered Virginia court orders. In these

4 No. 82369-8-I/5

circumstances, reversal of the order on revision would provide no effective relief to the

father. See Blackmon v. Blackmon, 155 Wn. App. 715, 71920, 230 P.3d 233 (2010) (“A

case is moot if a court can no longer provide effective relief.”). This case is moot.

We will sometimes review the legal merits of a moot case based on substantial

public interests. See Blackmon, 155 Wn. App. at 720 (review of expired protection

order warranted because whether parties to a domestic violence protection order have a

constitutional right to a jury trial was of substantial public interest). No broader public

interests are implicated here and the father does not argue otherwise.

Both parties request fees on appeal. The father cites no legal basis for his

request and, as a general matter, pro se litigants are not entitled to attorney fees for

their work representing themselves. See Mitchell v. Wash. State Dep’t of Corrections,

164 Wn. App. 597, 608, 277 P.3d 670 (2011). The mother requests attorney fees on

appeal under RCW 26.09.140. “RCW 26.09.140 authorizes an award of [attorney] fees

after consideration of one party’s need and the other party’s ability to pay.” Burrill v.

Burrill, 113 Wn. App. 863, 874, 56 P.3d 993 (2002). The mother relies on outdated

financial documents in the record and neither party submitted a current financial

declaration in connection with the appeal. We deny both parties’ requests.

We dismiss the appeal as moot.

WE CONCUR: