In re Gibson
| Decision Date | 03 December 2012 |
| Docket Number | NO. 66833-1-I,66833-1-I |
| Court | Washington Court of Appeals |
| Parties | In re Parenting and Support of BRITTON LAWRENCE HARPER GIBSON Child, MARIE-CLAIRE HARPER PAGH, Respondent, and WILLARD GIBSON, Appellant. |
UNPUBLISHED OPINION
Lau, J. —Washington's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), chapter 26.27 RCW, confers subject matter jurisdiction on superior courts to determine child custody when the child's home state declines jurisdiction on inconvenient forum grounds, the child and at least one parent have a significant connection to Washington, and substantial evidence concerning the child's care is available in Washington. RCW 26.27.201(1)(b). Because Britton Harper Gibson's home state of Nevada declined jurisdiction on inconvenient forum grounds, the trialcourt properly assumed jurisdiction over this action. And, finding no error in Willard Gibson's numerous claims, we affirm. But because the court made no factual findings to support its intransigence conclusion and the amount of the fees and costs, we vacate the award and remand for entry of findings consistent with this opinion.1
FACTS
Parties' Relationship and Domestic Violence History
Marie-Claire Pagh and Willard Gibson started dating in Seattle in 2004 when Pagh was 18 years old and Gibson was 27. They moved in together in December 2004 and lived in Seattle until 2008. They moved briefly to San Diego, California and then to Las Vegas, Nevada, less than a month before the birth of their son, Britton, on June 23, 2008. Pagh and Gibson never married. When the parties lived in Nevada, Gibson controlled Pagh's access to financial resources.
Gibson's history of domestic violence against Pagh is well documented. Pagh first petitioned for a domestic violence protection order (DVPO) against Gibson in November 2005, claiming that Gibson hit and slapped her and threatened to kill her. She also petitioned for a DVPO in June 2006, alleging multiple instances of domestic violence. Gibson has an extensive criminal record of violating the DVPOs.2 Each time,Gibson persuaded or threatened Pagh to terminate the DVPOs and resume their relationship.
According to Pagh, Gibson engaged in acts of domestic violence against Britton when he was less than three months old. Pagh testified that Gibson had a short temper and spanked and/or banished Britton to his crib for lengthy periods of time. Pagh described an incident where Gibson pinched Britton while boarding a flight so that Britton would cry and dissuade others from sitting next to them. Pagh also described occasions when Gibson became angry while driving with her and Britton in the car. She claimed that Gibson drove fast and threatened to drive the car off the road and kill them all. Gibson has repeatedly threatened to take Britton away from Pagh and to kill Pagh.
On December 15, 2009, Pagh, Gibson, and Britton returned to Seattle to visit family. They stayed with Gibson's mother in Redmond, Washington, during this trip. Although they had booked return tickets, Pagh testified multiple times that the December 2009 trip's purpose was not only to spend the holidays, but to prepare to move back to Seattle.3 While in the Seattle area, the couple looked at apartments.
January 2010 Petitions, Jurisdictional Decisions, and Trial
Pagh petitioned for the DVPO at issue here after an incident that occurred in late December 2009 at the home of Gibson's mother in Redmond. Pagh claimed that Gibson was angry when she returned home late from shopping. He yelled at her, accused her of cheating, and shoved her against the wall and the guest room bed. On January 2, 2010, Gibson flew to Las Vegas for 24 hours to finalize a real estate deal and pick up clothes for job interviews in Seattle. Gibson called Pagh that night and told her he was gambling and that he had lost all their money. Pagh decided to leave Gibson. She claimed this was the first opportunity for her and Britton to safely escape Gibson's violence and anger. Pagh took Britton to her sister's house in Edmonds, Washington. Pagh told Gibson over the phone that he could not see Britton until he obtained domestic violence and anger management treatment. When Gibson returned to Seattle on January 3, Pagh cut off contact with him.
Pagh filed a pro se DVPO petition4 on January 14, 2010, under RCW26.50.070.5 She alleged that Gibson "becomes extremely angry and violent and I fear for our son's and my safety and well being." In her supporting declaration, she described Gibson's prior acts of domestic violence against her and disclosed the December 2009 incident described above. King County Superior Court issued a temporary emergency DVPO finding: "For good cause shown, the court finds that an emergency exists and that a Temporary Protection Order should be issued without notice to the respondent to avoid irreparable harm." The order also granted Pagh temporary custody of Britton and set a January 28 hearing date.
In response, Gibson argued Nevada had jurisdiction under the UCCJEA.
Meanwhile, the temporary DVPO was reissued on January 28, February 12, February 19, and March 2 to accommodate rescheduled hearing dates. At the March 11 hearing, King County Superior Court Judge James Doerty assigned both the DVPO and the parenting plan/child support actions to himself. After argument from the parties' counsel, Judge Doerty noted that Gibson never submitted a factual declaration rebutting Pagh's assertion in the DVPO matter. Judge Doerty found Pagh's unrebutted factual account adequate to establish jurisdiction for the DVPO and emergency jurisdiction under the UCCJEA. "I think that the facts that are asserted here and are essentially unrebutted because there's no responsive declaration from Mr. Gibson on the facts are sufficient to constitute an emergency and jurisdiction." Report of Proceedings (RP) (Mar. 11, 2010) at 21. He reissued the DVPO pending the outcome of the UCCJEA matter.
Also on March 12, Judge Doerty and Nevada District Court Judge Cynthia Giuliani held an initial UCCJEA telephone conference.6 The judges agreed thatNevada, as the child's home state, would retain jurisdiction without prejudice pending a March 18 return hearing. At that telephonic hearing—Pagh and her counsel and Gibson's counsel appeared, but Gibson did not—the Nevada court "advised counsel it had spoken with the Washington Court regarding the jurisdiction and Temporary Protective Order (TPO) issues." The court informed the parties that "Nevada will retain jurisdiction, however, Washington will issue temporary emergency custody orders." The court ordered the parties to confer regarding the jurisdictional issues and to brief the issues for the court.
The parties' counsel each submitted comprehensive briefing and other documents regarding UCCJEA jurisdictional issues. On April 7, 2010, after reviewing the parties' UCCJEA submissions and participating in a second telephone conference with Judge Doerty pursuant to the UCCJEA, Judge Giuliani declined jurisdiction in favor of Washington state based on inconvenient forum and dismissed the Nevada proceedings. The Nevada court's minute order stated:
Gibson filed no motions or appeal challenging the Nevada court's order declining jurisdiction and dismissing the Nevada action.7
In May 2010, Judge Doerty granted Pagh's motion to consolidate the DVPO and parenting plan/child support actions. Also in May 2010, Pagh petitioned for reissuance of the protective order and requested it be made permanent. In support, she submitted a new declaration describing, "[Gibson's] violence has extended to our son, Britton."8She described the pinching incident discussed above and another incident in late December 2009 when the parties were staying with Gibson's mother. During that incident, Pagh and Gibson were eating dinner when Britton started crying. According to Pagh, Gibson picked Britton up, walked into the back bedroom, and aggressively threw him down on the bed. When Pagh asked what happened, Gibson said he threw Britton on the bed to startle him and stop him...
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