Clare v. Clare

• Decision Date: 28 December 2021
• Docket Number: 36814-9-III,36911-1-III
• Court: Washington Court of Appeals
• Parties: ANDREA J. CLARE, Respondent, v. KEVIN P. CLARE, Appellant.

ANDREA J. CLARE, Respondent,
v.
KEVIN P. CLARE, Appellant.

Nos. 36814-9-III, 36911-1-III

Court of Appeals of Washington, Division 3

December 28, 2021

UNPUBLISHED OPINION

Staab, J.

After a protracted dissolution proceeding and trial, both parties appeal the trial court's final orders. Kevin Clare argues that the trial court went too far in finding statutory limiting factors that supported a restriction on his residential time and decision-making. He also challenges the stalking no-contact order issued at trial. Andrea Clare argues that the trial court did not go far enough, claiming that the court failed to make findings of domestic violence even though the evidence supported this finding. Both parties submitted briefing that was deficient in several respects.

We deny the appeal and cross-appeal and affirm the trial court's decisions. We begin our analysis in light of the oft-cited standard of reviewing family law decisions under an abuse of discretion lens:

We once again repeat the rule that trial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are

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difficult at best. Appellate courts should not encourage appeals by tinkering with them. The emotional and financial interests affected by such decisions are best served by finality. The spouse who challenges such decisions bears the heavy burden of showing a manifest abuse of discretion on the part of the trial court

In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985) (citing In re Marriage of Kozen, 103 Wn.2d 470, 478, 693 P.2d 97 (1985).

BACKGROUND

A. The Marriage

The following facts are drawn primarily from testimony at trial and the trial court's findings of fact.

Andrea Clare and Kevin Clare married on June 25, 2005. Approximately two years later, Ms. Clare disclosed to Mr. Clare that she had another relationship shortly before the wedding. This created trust issues in the marriage. After that conversation, Mr. Clare insisted that Ms. Clare let him know if she was going out with anyone other than a client or partner.

Thereafter, the couple had three children together, ages 9, 8, and 5, at the time of trial. Mr. Clare acted as the primary stay-at-home parent. Ms. Clare ran the family finances. Ms. Clare is an attorney, and Mr. Clare is a crop-dusting pilot. For the most part, the marriage was unremarkable save an incident in 2013 when Mr. Clare pushed Ms. Clare in a parking lot. Ms. Clare testified that Mr. Clare never physically hit her.

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In the spring of 2015, Mr. Clare suspected Ms. Clare of having an affair and began monitoring her location with a cell phone application (app). In May 2015, he drove to Ms. Clare's office and showed her the app, indicating that he could see where she was located. In August 2015, Ms. Clare traveled to her grandmother's home. Convinced she was with someone else, Mr. Clare demanded that Ms. Clare put her grandmother on the phone in the middle of the night to confirm Ms. Clare was with her grandmother. When she returned from this trip, Mr. Clare went through her travel garments, looking for evidence of an affair.

In December 2015, Mr. Clare looked through Ms. Clare's phone without her permission and forwarded several of her work e-mails to his own account.

The parties separated on February 6, 2016, and Ms. Clare moved into her own apartment. Initially, the children spent equal time with each parent. Ms. Clare changed phone providers to prevent Mr. Clare from tracking her location. In April 2016, she was showing Mr. Clare child support worksheets on her phone. When she became distracted, Mr. Clare looked through her phone and read text messages confirming that Ms. Clare was having a relationship with her law partner, George Telquist. Mr. Clare said he was so angry he could "Pop George" and "Pop You." Clerk's Papers (CP) at 2468.

After this, Mr. Clare continued to monitor Ms. Clare's activities through mutual friends and acquaintances. At the advice of his attorney, Mr. Clare began keeping a journal of incidents that he thought would be relevant to the dissolution.

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B. The Litigation

Ms. Clare filed for divorce in Franklin County Superior Court on August 11, 2016. While Ms. Clare sought a relatively equal residential schedule, Mr. Clare argued that he had been the primary parent during the marriage and insisted on being named the primary residential parent. Mr. Clare moved for the appointment of a guardian ad litem (GAL) to investigate the children's best interest. Ms. Clare objected, arguing there was no need for a GAL since there were no limiting factors.

In July 2018, the GAL submitted a 178-page report. The GAL noted that Ms. Clare was no longer seeking joint custody but instead was seeking primary custody because Mr. Clare would not work with her on co-parenting. The GAL attached a copy of Mr. Clare's journal as an exhibit to her report. In her report, the GAL recommended against designating Mr. Clare as the primary parent:

Given Mr. Clare's past and current behaviors it is more likely than not that primary placement of the children would result in them being denied the benefit of their mother's input into their lives. This would be to the actual detriment of the children. Therefore, this GAL doesn't believe this option to be in the best interest of the children.

CP at 979. The GAL noted that Mr. Clare's journal exposed the extent of his questioning, which she believed was emotionally abusive to the children. She provided several examples of improper questioning. The GAL also pointed out that Mr. Clare has a history of refusing to allow Ms. Clare to participate in decisions for the children and

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overriding her decisions. "When she would try to make choices for the children, he would find passive[-]aggressive ways to punish her." CP at 982.

Ultimately, the GAL recommended a joint residential schedule so long as Mr. Clare would "submit to a forensic psychological evaluation for the purpose of determining if his behaviors are the result of a mental illness that may be rectified by treatment." CP at 993, 1001. The GAL recommended that sole decision-making authority be granted to Ms. Clare to alleviate parental alienation and chaos concerns.

Shortly after this report was submitted, the court moved the trial date from July 31 to October and authorized depositions of the parties and the GAL. On August 2, Mr. Clare had his deposition taken. On August 14, the GAL filed an amendment to her July 23 report. She indicated that in light of Mr. Clare's deposition testimony and the new trial date, she was no longer recommending shared custody.

At trial, the GAL explained why she changed her recommendation. She testified that shortly before she filed her July report, she spoke with Mr. Clare about her upcoming report. Mr. Clare was apologetic, upset, and crying during this call because the GAL would be recommending shared residential time. At his deposition a few weeks later, the GAL observed that Mr. Clare was not contrite or concerned. Instead, he was smug, arrogant, and unapologetic for his actions. During the deposition, not only did Mr. Clare admit to checking on Ms. Clare's location, having her put her grandmother on the phone,

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and checking her travel garments for evidence of an affair, but he did not see anything wrong with these actions.

As the litigation continued, each parties' respective positions on custody changed. As the trial court found:

[Ms. Clare] began to perceive that the [Mr. Clare's] aggressiveness in litigation and his insistent behavior in dealing with the children and in other issues following separation mirrored the controlling behavior that characterized their relationship during the marriage, as described in the Findings. Her position at trial was that she should have primary custody and sole decision-making because of his ongoing abusive behavior characterized by stalking and coercive control.

CP at 2439.

On the other hand, Mr. Clare continued to maintain his position that he should be named primary custodial parent up until shortly before trial. The court found that "[f]aced with the possibility that his insistence on primary custody perhaps might not put him in the best light, at trial he requested that the parties have equal residential time." CP at 2439. Mr. Clare also suggested that decision-making authority be split among the parents based on subject matter.

C. Stalking No-Contact Petition

In her petition for dissolution, Ms. Clare asked for a protection order. In August 2016, she filed a request for an ex parte restraining order. In March 2018, Ms. Clare and her law firm filed a federal complaint against Mr. Clare, alleging that he had been accessing Ms. Clare's work e-mails and calendar through an iPad she had previously used

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during the marriage, and that such actions violated the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2523. In June, Ms. Clare filed a petition for an anti-harassment or stalking no-contact order based on the same allegations. The trial court issued a temporary anti-harassment order under RCW 10.14.080.

D. The Trial

Because of conflicts and recusals, Judge John Lohrmann from Walla Walla presided over all preliminary matters and the trial. The trial began in January 2019, and lasted 11 days. Parenting matters took up 8 of the 11 days. At the beginning of trial, the parties stipulated to the admission of the GAL's reports. Along with the GAL, both parties called numerous witnesses and experts. Ms. Clare called Charles Deery, ^[1] and Mr. Clare called Dr. Kenneth Cole, Ph.D., and Dr. Marnee Milner, Ph.D.

At the conclusion of the evidence, the court issued a significant letter opinion. In addition, the court combed through the proposed findings of each party and modified or deleted them according to the court's determinations. The court acknowledged...