Clarke v. Dike (In re Z.C.)

• Docket Number: 84897-6-I
• Decision Date: 13 November 2023
• Parties: In the Matter of: The Parenting and Support of Z.C., A minor child. v. TAYLOR ANN DIKE [†] Appellant. CORY HUGH EDGAR CLARKE, Respondent,
• Court: Washington Court of Appeals

1

In the Matter of: The Parenting and Support of Z.C., A minor child.

CORY HUGH EDGAR CLARKE, Respondent, v. TAYLOR ANN DIKE ^[†] Appellant.

No. 84897-6-I

Court of Appeals of Washington, Division 1

November 13, 2023

UNPUBLISHED OPINION

DÍAZ, J.

Taylor Savage appeals the trial court's entry of a parenting plan. She claims there was insufficient evidence for the trial court's factual findings and that the court failed to make required findings, as well as other claimed irregularities. We remand the case for the trial court to modify the parenting plan so it is compliant with RCW 26.09.191(1). To do so, the trial court will need to (1) choose which parent will be awarded sole decision-making and (2) specify the t At the time the petition was filed, the mother was known as Taylor Dike. We refer to her using her current name, Taylor Savage court's role in the dispute resolution process. Otherwise, we affirm.

I. BACKGROUND

Taylor Savage and Cory Clarke met in 2014. Their child, ZC, was born in 2016.^[1] It is undisputed that instances of domestic violence has strained this family's bond. Domestic violence has included incidents where the couple fought in July and November 2017, the latter of which resulted in Clarke's arrest and the entry of a no-contact order. And, in June 2022, ZC reported to his counselor, Dr Jayme Fergoda, that Savage slapped him in the face.

In December 2017, Clarke petitioned the trial court for a formal parenting plan. In March 2018, the court entered an order appointing a guardian ad litem ("GAL"), however the order did not list the name of a GAL. The court addressed this with a nunc pro tunc order listing Sandra Holtzman as the GAL in January 2019. Holtzman already had released her investigation report in December 2018.

After trial, the court issued its findings of fact and conclusions of law in November 2022. After the court denied Savage's motion for reconsideration, she appealed the court's findings in January 2023. The final parenting plan was entered in February 2023, awarding the parties equal residential time with ZC (on a one week on, one week off schedule) and ordering Savage to address her anger issues. The plan also ordered joint decision-making on education and healthcare as well as "mediation" with "an agreed mediator" for dispute resolution.

I. ANALYSIS

As a preliminary matter, Clarke alleges that Savage, now appealing pro se made two procedural errors that foreclose our review. Pro se litigants are bound by the same rules of procedure and substantive law as licensed attorneys. Holder v. City of Vancouver, 136 Wn.App. 104, 106, 147 P.3d 641 (2006). Failure to comply with the Rules of Appellate Procedure may preclude appellate review. State v. Marintorres, 93 Wn.App. 442, 452, 969 P.2d 501 (1999). However, we liberally interpret our Rules of Appellate Procedure "to promote justice and facilitate the decision of cases on the merits." RAP 1.2.

First Clarke argues Savage appealed from the trial court's findings of fact and conclusions of law, not the final parenting plan entered after this court accepted review. This fact does not foreclose our review. "The scope of a given appeal is determined," not only by the notice of appeal, but by "the assignments of error, and the substantive argumentation of the parties." Clark County v. W. Wash. Growth Mgmt. Hr'gs Review Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013). "In a case where the nature of the appeal is clear . . . so that the Court is not greatly inconvenienced and the respondent is not prejudiced, there is no compelling reason for the appellate court not to exercise its discretion[.]" State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995). Here, no prejudice is apparent and, by appealing the trial court's findings, Savage necessarily implicated the validity of the resulting parenting plan and made the nature of the appeal clear. Thus, we choose to exercise our discretion to hear the matter.

Second, Clarke argues Savage did not provide the complete verbatim transcripts of trial testimony. Her filed record of proceedings ("RP") left out the direct examination of Clarke, the cross examination of Savage, and the testimony of numerous witnesses.^[2] Indeed, it is the appellant's burden "to ensure that the reviewing court is apprised of all necessary evidence to decide the issues presented." Tacoma S. Hosp., LLC v. Nat'l Gen. Ins. Co., 19 Wn.App. 2d 210, 220, 494 P.3d 450 (2021). And "[w]here the appellant has failed to meet its burden . . . the reviewing court may decline to address the merits of an issue." Id. (emphasis added). These omissions do not foreclose our review as we can still adequately assess the errors alleged, however. In August 2023, Clarke supplemented the record with additional trial documents, but not transcripts of trial testimony. That said, we believe we still are able to adequately address the issues presented despite any remaining omissions. Thus, we choose to exercise our discretion to hear the matter. We need not delay the resolution of this case any further.^[3]

By way of summary, Savage claims (A) there was insufficient evidence to support the findings the court affirmatively made; (B) the trial court failed to make required findings, including a failure under RCW 26.09.191(1) to identify one decision-maker despite a finding of domestic violence, and in failing to identify the court's role in any dispute resolution process; (C) there were irregularities in the appointment of the GAL; and (D) she is entitled to attorneys fees.

A. Sufficiency of the Evidence for the Trial Court's Findings

Savage contends that the trial court erred (1) by finding "Dr. Fergoda has recommended . . . a week on and week off schedule," (2) because it did not articulate how this proposed plan was in ZC's best interest, (3) by finding that "neither party was free from fault with regard to the chaotic and combative nature of the parties' relationship," and (4) that by finding "it was critical to the child's welfare that Taylor Savage address her anger and parenting issues[.]"

"Findings of fact are reviewed under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true." Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). "We will not substitute our judgment for the trial court's, weigh the evidence, or adjudge witness credibility." In re Marriage of Greene, 97 Wn.App. 708, 714, 986 P.2d 144 (1999). "We need determine only whether the evidence most favorable to the prevailing party supports the challenged findings, even if the evidence is in conflict." Thomas v. Ruddell Lease-Sales, Inc., 43 Wn.App. 208, 212, 716 P.2d 911 (1986). "So long as substantial evidence supports the finding, it does not matter that other evidence may contradict it. This is because credibility determinations are left to the trier of fact and are not subject to review." Burrill v. Burrill, 113 Wn.App. 863, 868, 56 P.3d 993 (2002).

Savage first challenges the trial court's finding that Dr. Fergoda recommended a week on week off schedule. The trial court found that

Dr. Fergoda has recommended a parenting schedule that has less exchanges of the child, recommending a week on and week off schedule, but which includes a 2-4 hour midweek visitation by the parent who does not have primary residential time with the child that week, roughly covering the hours immediately after school through the dinner hour, but in any event not to extend past 7 PM.

Savage disputes this finding by citing to numerous portions of Dr. Fergoda's testimony, where she carefully tailored and qualified her testimony.^[4] However, the record is clear that she still "recommended" fewer transitions between the households.^[5]

In turn, it was still reasonable for the trial court to find Dr. Fergoda made recommendations on the structure of ZC's living schedule rather than the character or parenting ability of Savage or Clarke. Further, Dr. Fergoda based this recommendation on a lengthy discussion of ZC's behavioral issues which she stated were caused by the stress from frequent transitions. As such, taking the evidence as a whole, a rational fair-minded person would be persuaded that the trial court fairly interpreted Dr. Fergoda's testimony as a recommendation for a week on week off schedule. Sunnyside Valley, 149 Wn.2d at 879.

Savage next alleges the trial court "has not clearly stated on which basis the parenting plan proposed by [Clarke] is in the best interest of the child." However, the court did make a finding that "[t]he parenting plan proposed by Cory Clarke is consistent with the parenting schedule recommended by Dr. Fergoda and is in the best interests of the child." As already discussed above, the court heard lengthy testimony from Dr. Fergoda, who has worked extensively with ZC since September 2021, on the merits of the week-on week-off plan, the behavioral needs of the child, and the capacities of each parent. As such, a rational-minded person could be persuaded the plan was in ZC's best interest. Id.

Third, Savage disputes the trial court's finding that neither parent was "free from fault" for the "mutual combat" in their relationship.^[6] Specifically, the court found

that the admissions made by Taylor Savage to CPS and to police agencies that the parties engaged in mutual combat and that Taylor Savage was not without fault in the acts of domestic violence alleged, indicates that neither party is free from fault with regard to the chaotic and combative nature of the parties' relationship.

This finding appears to be referencing a "Children's Administration Intake Report" issued by the Washington State Department of Social and Health Services ("DSHS")...