H.A.A. v. Father
| Decision Date | 15 July 2014 |
| Docket Number | No. 43920-4-II,43920-4-II |
| Court | Washington Court of Appeals |
| Parties | In re the Parentage of: H.A.A., A.K.A., and B.M.A. Minor Children, and MICHAEL J. AMARAL, Appellant/Father, and DEBORAH M. PARLARI, Respondent/Mother. |
MAXA, J. — Michael Amaral appeals a final parenting plan appointing the children's mother, Deborah Parlari, as the primary residential parent. He assigns error to many of the trial court's factual findings in the final parenting plan, the trial court's conclusion that Parlari should be the primary residential parent, and various other rulings and pretrial decisions. Finding no errors, we affirm.
Amaral and Parlari are the parents of three minor children, HAA (born 2000), AKA (born 2002), and BMA (born 2006). Amaral and Parlari had a tumultuous relationship during which they separated and reconciled a number of times between 1998 and 2008.
In May 2008, Parlari accused Amaral of forcing her to have sex against her will. As a result, Amaral was charged with rape, false imprisonment, and assault. Parlari and the children moved to her parents' home in Buckley. The felony charges against Amaral were dismissed, apparently after Amaral produced a tape of an illegally recorded telephone conversation in which Parlari made statements that arguably called into doubt her rape allegations.
In September 2008, Amaral filed this parentage action seeking to establish his parentage and to develop a parenting plan for the three children. The case was extremely contentious and took nearly four years from its filing date to the trial date. Amaral ultimately moved for summary judgment on the parentage issue. The trial court granted his motion and entered an order adjudicating him the father of all three children. That order is not challenged on appeal.
The case went to trial on the parenting plan issues. Both Amaral and Parlari sought to be the children's primarily residential parent. Amaral, Parlari, and the court-appointed Guardian Ad Litem (GAL) testified at the trial.1 The parties' testimony about their relationship with each other and with the children conflicted. Amaral testified that he was a devoted father and had served as the children's primary caretaker until the parties separated in May 2008. He testifiedthat Parlari usually left for work about 2:30 p.m. and worked until midnight, and that he stayed home and watched the kids full time because he did not want them in daycare. According to Amaral, Parlari neglected the children, inflicted domestic violence upon him, and fabricated rape allegations against him in May 2000 and again in May 2008.
On the other hand, Parlari testified that she was the children's primary caretaker and that she arranged for child care while she was at work even though Amaral only worked sporadically. She stated that Amaral watched the children only during a three month period in the fall of 2006. According to Parlari, Amaral was interested in spending time with the children only in public, he ignored the children in private, and he was controlling and abusive to her. The GAL testified that the children were doing well in Parlari's care and recommended that Parlari continue to be the primary residential parent and that Amaral receive supervised visitation.
In its oral ruling, which was incorporated by reference into the final findings of fact and conclusions of law, the trial court analyzed the requisite factors under RCW 26.09.187(3) and made detailed findings of fact. The court ruled that based on the statutory criteria as well as other factors, it would be in the best interest of the children to primarily reside with Parlari. The court stated that Amaral's proposed parenting plan would be a material disruption in the children's routine and could potentially separate siblings, and that transferring custody would not outweigh the advantage of keeping the children in their current home and family setting.
Based on its findings, the court issued a final parenting plan designating Parlari as the primary residential parent for the children. The court limited Amaral's residential time to every other weekend. The court also made a finding that pursuant to RCW 26.09.191, Amaral's residential time and decision making authority must be limited because of his (1) history of actsof domestic violence or an assault or sexual assault, and (2) abusive use of conflict. The court further ruled that Amaral was required to submit to a complete psychological evaluation and a domestic violence assessment before a full residential schedule was designated. Amaral unsuccessfully moved for reconsideration, a new trial, reopening of the trial, amendment of the findings and conclusions, and presentation of additional findings and conclusions. Amaral appeals.
Amaral argues that allowing Parlari to "present her version of the facts and argument" at every motion hearing, despite failing to file documents responsive to his motions, violated basic principles of due process of law and the court rules. Br. of Appellant at 18-21. Specifically, he alleges that the trial court violated Pierce County Local Rule (PCLR) 94.04(c)(1), which provides that family law motions shall be "heard on the basis of affidavit and/or declaration." He argues that the trial court's allowing Parlari to respond orally at the hearing deprived him of an opportunity to present a formal written reply, and it prejudiced him because Parlari was not forced to go on the record with a written response, which would have confirmed her responsive . allegations and pinned down her testimony.
However, Amaral does not contend, and nothing in the appellate record indicates, that he brought the alleged rule violation to the attention of the trial court by objecting to Parlari's oral argument at motion hearings. Therefore, the issue is waived unless it is a manifest error affecting a constitutional right. RAP 2.5(a). Amaral alleges that the procedure violated dueprocess, but he provides no authority for this argument. State v. Bonds, 174 Wn. App. 553, 567 n.3, 299 P.3d 663 (2013) () (citation omitted) (quoting State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)). Therefore, we do not further consider Amaral's argument.2
Amaral argues that the trial court erred by denying his motion to remove the GAL, based on his allegations that the GAL failed to treat him in a fair and impartial manner, failed to perform her job, was unprofessional in her conduct, and was prejudiced against him in violation of RCW 26.12.175 () and the Guardian ad Litem Rules (GALR) adopted by our Supreme Court. We hold that the trial court did not abuse its discretion in denying Amaral's motion.
Initially, Amaral did not provide us with either the trial court's written order or the transcripts of the hearing on his motion to remove the GAL. Therefore, we do not have the benefit of the trial court's reasoning for its decision and do not know if the trial court instructed the GAL to take any specific action in response to Amaral's grievances. Under RAP 9.2(b) the appellant has the burden to provide a record sufficient to review the issues raised on appeal, and the trial court's decision must stand if this burden is not met. State v. Tracy, 158 Wn.2d 683, 690-91, 147 P.3d 559 (2006); Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9, review denied, 175 Wn.2d 1016 (2012). Because Amaral has failed to provide a record to support his challenge to the order denying his motion to remove the GAL, we are not required to address this claim.
Nevertheless, based on the record we do have, Amaral's argument fails. The decision to remove a GAL is within the trial court's discretion. In re Marriage of Bobbin, 135 Wn. App. 8, 23, 144 P.3d 306 (2006). The trial court's decision will not.be disturbed absent an abuse of discretion, which occurs when the court's discretion is " 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' " Bobbitt, 135 Wn. App. at 24 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Amaral argues that the trial court should have removed the GAL because she failed to treat him in a fair and impartial manner, failed to perform her job, and was prejudiced against him in violation of RCW 26.12.175 and the GALRs. In the trial court, Amaral referenced a grievance letter he filed with the WSBA making several similar allegations. Amaral also provides numerous examples of the GAL's alleged shortcomings throughout the case in his appellate briefing. The majority of Amaral's grievances concern his disagreement with theGAL's judgment and his view that the GAL was prejudiced against him and unfairly supported Parlari. A thorough review of the record reveals that the trial court did not abuse its discretion in denying Amaral's motion to remove the GAL despite Amaral's allegations of misconduct.
We do note Amaral's troubling allegation that the GAL did not meet or interview him which, if true, would violate GALR 2(b), (f), and (g). See Bobbin, 135 Wn. App. at 26 (). Although the limited record before us on appeal confirms that the GAL did not meet Amaral in person or interview him over the phone, it does show that she had substantial contact with him by e-mail, that she had frequent contact with both parties, and that she reported both parties' positions to the trial court. As a result, the trial court's refusal to remove the GAL on this basis was not an abuse of discretion. Nevertheless, the GAL...
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