Cowan v. Cowan
| Docket Number | 83082-1-I,83860-1-I,84148-3-I |
| Decision Date | 26 December 2023 |
| Parties | AMANDA R. COWAN, Respondent, v. JOSHUA T. COWAN, Appellant. |
| Court | Washington Court of Appeals |
1
AMANDA R. COWAN, Respondent,
v.
JOSHUA T. COWAN, Appellant.
Nos. 83082-1-I, 83860-1-I, 84148-3-I
Court of Appeals of Washington, Division 1
December 26, 2023
ORDER WITHDRAWING AND SUBSTITUTING OPINION
The panel having determined that the opinion should be withdrawn and substituted, it is hereby
ORDERED that the opinion of this court in the above-entitled case filed August 28, 2023 be changed as follows.
Page 20, line 3 shall be changed to: A court abuses its discretion when it does not follow the statutory procedures or modifies a parenting plan for reasons other than the statutory criteria.
The remainder of the opinion shall remain the same.
Coburn, J.
A mother obtained a one-year Domestic Violence Protection Order (DVPO) against the father following a spanking incident of one of their children. Neither parent petitioned to modify their then-existing parenting plan. At a later relocation trial, the court granted the mother's requests to preclude the father from introducing any evidence challenging the spanking incident while also imposing mandatory conditions against the father that mirrored those from the DVPO. The court granted the relocation and considered the father's abusive use of conflict but not the spanking incident in its consideration of relocation factors. The father appeals both the trial court's order on relocation and modification of the parenting plan.
We hold that a DVPO is not the type of "court order" contemplated by RCW
26.09.525(2) to determine whether the presumption in favor of relocation applies. The trial court also abused its discretion in precluding the father, under res judicata, collateral estoppel, and law of the case from introducing evidence challenging the spanking incident in the relocation trial. Because the errors were harmless as to the relocation order, we affirm the trial court granting the mother's request to relocate the children. However, because the court modified the parenting plan beyond what is permitted pursuant to a relocation, we reverse that order. The current residential schedule will remain until the trial court can enter a parenting plan consistent with this opinion on remand.
FACTS and PROCEDURAL HISTORY
In 2019, Joshua and Amanda Cowan separated after being married for 10 years. A court entered an agreed permanent parenting plan in 2020 ordering equally sharing residential time with their three children.[1] The order provided,
Both parents will have equal 50/50 share custody of the children. While the parenting time calendar is not an equal time share schedule, both parents have agreed that this is what makes the most sense for the children for the foreseeable future so one parent can work full time while the other parent is the primary caregiver. If either parent decides that they would like to petition the court to change the schedule, they should be granted up to 50% of the children's time per this agreement. At all times, the parent that has the children will be the primary caregiver Outside of vacations, neither parent will have a significant other taking care of the children except with one-off extenuating circumstances that do not extend overnight.
The agreed parenting time calendar provided that the children were with Amanda[2] 16 out of 28 nights, or approximately 57 percent of the residential time.
In April 2021, under a separate cause number, Amanda filed for a domestic violence protection order (DVPO) against Joshua based on a March 15 event. She recalled that the children came home from a weekend with Joshua. When she was giving her 2-year-old daughter, E.C., a bath, she noticed severe bruising on her hip and thigh. Amanda called Joshua and he explained he had to "spank her" repeatedly because she was not obeying him and kept getting out of bed. Amanda sent a picture of the bruising to her pediatrician, who contacted Child Protective Services (CPS). CPS then contacted the police. The court entered a temporary DVPO, prohibiting contact between Joshua and the children.
In May, Amanda filed a notice of intent to move the children to St. George, Utah. She provided the reasons for the move: (1) to provide a better environment for her children; (2) she could no longer afford to live in the greater Seattle area; (3) she had a job offer in St. George; and (4) she could afford a new town-home in St. George. In the attached proposed parenting plan, Amanda requested the court prohibit Joshua from having any contact with the children pending the outcome of the CPS and police investigation from the spanking incident. Amanda also requested Joshua be evaluated for substance abuse and anger management and/or domestic violence, that he start and comply with treatment as recommended by the evaluation, that he provide a copy of the evaluation and compliance reports, and that his residential time be suspended for noncompliance.
Amanda planned to move in August. She indicated that she planned to reside with her parents in Union, Washington, in between selling her home in King County and moving to Utah.
Joshua filed a motion for a temporary order preventing the move with the children. The court heard his motion on July 15. At the hearing, the court learned that Amanda had already moved with the children out of King County to Union. Amanda conceded that she "jumped the gun" and moved without permission of the court, but explained that the children were not in school and Joshua could not have contact with the children because of the temporary DVPO. Joshua asked the court to order the children to be brought back to King County and that Amanda reside there until the relocation issue was resolved. The court explained that it had no authority to order Amanda to live in King County, and though it could order the children be returned to King County, they would not be able to reside with Joshua because of the temporary DVPO. The court explained that the only reasonable temporary order that the court could impose given the unusual circumstance was to order Amanda not to leave the state of Washington with the children on a permanent basis. The parties agreed.[3] At this hearing Amanda declined to have the DVPO matter and the relocation matter consolidated.
At the July 21 hearing on the DVPO, a trial court commissioner found that Joshua's excessive corporal punishment of E.C. constituted domestic violence. The commissioner explained that although corporal punishment is legal in Washington, excessive corporal punishment is not. The court issued a DVPO that expired July 21, 2022. The commissioner limited Joshua's contact with his children by prohibiting any overnight visits, but otherwise allowed contact as permitted by the then-existing parenting plan schedule. The commissioner also ordered Joshua either participate in a
domestic violence perpetrator treatment program or obtain a domestic violence assessment and comply with its recommendation. The same day, Joshua filed a motion for revision of the DVPO, and the court denied it. Joshua filed a notice of appeal of that decision (the first of three consolidated appeals).
In August, Amanda filed an amended notice of intent to move the children to Utah with an attached proposed parenting plan. She revised her reasons for moving to be: (1) providing a better environment for the children; (2) moving to Mapleton, Utah to marry her new fiancé; and (3) moving will allow her to cease working outside the home and be available for the children. In her attached proposed parenting plan, she requested that all residential time with Joshua be professionally supervised at his expense. She maintained her previous evaluation and treatment requests. Joshua filed an amended objection to Amanda's request to relocate. Neither she nor Joshua filed a petition to modify the parenting plan.
Joshua moved to vacate the DVPO under CR 60(b). The court denied the motion in March 2022. Joshua filed a notice to appeal that decision (the second of his three consolidated appeals).
In April, the court held a five-day trial regarding the mother's request to relocate the children to Utah. Amanda attached the DVPO to her trial brief and requested the court place RCW 26.09.191 findings and limitations on Joshua and order the same conditions required by the DVPO.[4] Joshua asserted in his trial brief that he intended to contest any allegation of child abuse and that he intended to introduce evidence to
dispute that claim. Specifically, Joshua offered that Dr. Carl Wigren, a forensic pathologist, would testify regarding the lack of evidence of physical abuse and the deficient criminal and CPS investigation. Joshua would also be calling Dr. Marsha Hedrick to testify regarding Amanda's influence on the children's forensic interviews and their lack of credibility.
Amanda moved in limine for the court to preclude Joshua from introducing any evidence related to the excessive spanking incident. Amanda argued under res judicata that Joshua should not be able to relitigate this issue. Amanda asserted that the DVPO should stand on its own and that she should be able to rely on it at trial. The court granted the motion, ruling that it would accept the DVPO finding under res judicata (claim preclusion), collateral estoppel (issue preclusion), and "the law of the case." The court excluded Wigren's testimony explaining that it was not going to allow Joshua to "relitigate" the DVPO, and that it accepted the previous DVPO finding that an assault had occurred because it had "already been proven as the law of the case." The court allowed Hedrick to testify about how the relocation might affect the children, but prohibited any testimony "about whether the assault happened, how the assault might effect [sic] the children." The court clarified, however, that while it accepted the fact that Joshua excessively spanked E.C., how that fact would weigh into the court's...
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