In re Marriage of DeFelice
| Decision Date | 23 October 2003 |
| Docket Number | No. 19616-0-III.,No. 20544-4-III.,No. 20896-6-III.,19616-0-III.,20544-4-III.,20896-6-III. |
| Parties | In Re the Marriage of JOYCE H. DeFELICE, Appellant, and DENNIS J. DeFELICE, Respondent and Cross-Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Franklin County, Docket No: 93-3-50121-4, Judgment or order under review, Date filed: 09/05/2000.
Larry C Stephenson, Attorney at Law, Kennewick, WA, Counsel for Appellant(s).
Dennis J. Defelice, (Appearing Pro Se), Fresno, CA, Counsel for Respondent/Cross-Appellant.
Robert George Velikanje, Law Ofc of Robert G Velikanje Yakima, WA, Counsel for Respondent/Cross-Appellant.
This case involves multiple motions, orders, and issues relating to the ongoing efforts of Joyce and Dennis DeFelice to parent their two children after their dissolution. Dennis DeFelice first filed a petition for modification of the custody decree (No. 19616-0-III). The trial court refused to grant Mr. DeFelice a hearing regarding his petition, ruling that he had failed to establish adequate cause. The court also denied Ms. DeFelice's request for an award of attorney fees on the basis that the petition was advanced in bad faith. Ms. DeFelice appealed that ruling. Mr. DeFelice cross-appealed, contending that the court erred by (1) considering an affidavit of the oldest child's mental health counselor; (2) finding no adequate cause existed; (3) failing to appoint a guardian ad litem; (4) failing to grant a default or strike Ms. DeFelice's tardy filings; and (5) failing to consider Ms. DeFelice's violations of the parenting plan in determining whether adequate cause existed.
Shortly after his petition was dismissed, Mr. DeFelice filed a motion to hold Ms. DeFelice in contempt for failing to follow the parenting plan. Ms. DeFelice, in turn, filed a petition for modification of the parenting plan. After a comprehensive hearing, during which many motions and issues were raised and decided, the court ultimately granted Ms. DeFelice's petition and awarded her the attorney fees she incurred in responding to the contempt motion, as well as for those fees related to her successful petition to modify the parenting plan. Mr. DeFelice appealed,1 contending that the visiting judge had no authority to hear the case because the judge had been selected by the court administrator's office. He also contends that the court erred by denying his motion to continue the hearing and by awarding attorney fees to Ms. DeFelice.
Subsequently, Mr. DeFelice filed a new petition to modify his support obligations, based upon the changed circumstances relating to the birth of his child from his current marriage (No. 20896-6-III). The court dismissed the petition. Mr. DeFelice appeals, contending the court erred by failing to honor the affidavit of prejudice and by dismissing the petition because it was untimely.
No. 19616-0-III. In May 2000, Dennis DeFelice filed a petition for modification of custody. He sought custody of his children who lived with their mother, Joyce DeFelice. The children were ages 12 and 10 at the time. Mr. DeFelice lived in California, while Ms. DeFelice and the children live in Pasco, Washington. The affidavits he submitted in support of his petition to establish adequate cause were from himself, his brother, and his current wife. Mr. DeFelice claimed that Ms. DeFelice had not cooperated with him in the joint parenting of the children, and that she failed to comply with the terms of the parenting plan. He also alleged that the oldest child's counselor, Ken Cole, supported his request for a change of custody. Finally, Mr. DeFelice claimed that the two children wanted to live with him.
Joyce DeFelice filed a response to the petition, requesting that it be dismissed. Ms. DeFelice also submitted her own affidavit and that of Ken Cole, the oldest child's counselor, supporting her position that adequate cause for a trial did not exist. In substance, Ms. DeFelice responded that Mr. DeFelice's behavior made it impossible to reach any agreements with him related to the parenting of the children. Ms. DeFelice stated that she thought the children did not want to live with their father, but only said so to please him. Mr. Cole's affidavit indicates his opinion was that a custody change would not be in the best interest of the oldest child, Anthony.
Neither party requested the appointment of a guardian ad litem to represent the children.
A hearing was held to determine if adequate cause had been established before the Honorable Philip M. Raekes on July 24, 2000, in Franklin County Superior Court. Mr. DeFelice appeared pro se,2 telephonically. The court found that Mr. DeFelice did not establish adequate cause, and the court dismissed the petition. Subsequently, the court entered an order denying the petition and Ms. DeFelice's request for attorney fees. Ms. DeFelice appealed the denial of attorney fees, and Mr. DeFelice cross-appealed the court's finding that adequate cause was not established.
No. 20544-4-III. On October 20, 2000, Mr. DeFelice began a contempt proceeding alleging that Ms. DeFelice should be held in contempt for her failure to abide by several parenting plan requirements.
On December 5, 2000, Ms. DeFelice filed a summons and petition seeking to modify the parenting plan to remove monthly reporting requirements and to give her sole decision-making authority. She also requested that the children return from the summer visitation with Mr. DeFelice a few days early and that they fly in and out of Pasco, instead of Spokane. Later in the month, Ms. DeFelice filed a motion requesting a modification of child support.
All the above motions and petitions were assigned to be heard before the Honorable Philip M. Raekes. Judge Raekes, however, was retiring and at an in-chambers hearing,3 Judge Raekes referred the matters to the court administrator's office for the appointment of a judge.4 Initially, Judge Donald Schacht was assigned to preside over the matters by the court administrator's office. Mr. DeFelice objected to Judge Schacht's assignment and requested that Judge Schacht recuse himself. Mr. DeFelice indicated that Judge Schacht had presided over the parties' dissolution trial and that his appointment to hear this petition was the result of an improper delegation of judicial function to the court administrator, after she had ex parte discussions about the selection of this judge with Ms. DeFelice's counsel.
Mr. DeFelice's motion for recusal was denied. Mr. DeFelice sought review in the Supreme Court of Judge Schacht's appointment and an order staying the trial that was scheduled for late March 2001. Mr. DeFelice argued that Judge Schacht's appointment was inappropriate under RCW 4.12.040. The Supreme Court summarily denied the motion on March 22, 2001.
Subsequently, Judge Schacht recused himself and the trial date was stricken due to the unavailability of a judge. The court administrator's office then notified the parties that Judge William Acey would preside over the case. The trial was scheduled for June 12-14, 2001. The parties received notice of the new trial date in late April 2001.
In discovery, Ms. DeFelice requested that Mr. DeFelice provide income information for himself and his new wife; Mr. DeFelice never complied. On May 4, 2001, Ms. DeFelice moved to compel discovery.
On June 4, 2001, the parties participated in a telephonic hearing initiated by Judge Acey. By this time, Robert Velikanje had appeared for Mr. DeFelice. Mr. DeFelice initially raised the issue of Judge Acey's assignment to preside over the case. Mr. DeFelice argued that the judge's assignment to the case was unlawful under RCW 4.12.040. Judge Acey rejected this argument and ruled that he would preside over the trial that would begin June 12.
The judge then addressed Ms. DeFelice's motion to compel Mr. DeFelice's financial information. Mr. DeFelice did not request that this decision be continued or deferred, pending his appeal of the court's ruling on whether the judge's selection was proper. Judge Acey ordered Mr. DeFelice to furnish his income information by June 7, 2001. Presiding Judge Vic L. VanderSchoor wrote a letter to Judge Acey confirming Judge Acey's appointment to the case. The letter was filed with the court on June 8.
On June 12, 2001, trial began on all the motions filed by both parties. At the beginning of the trial, Mr. DeFelice again raised the issue of the propriety of Judge Acey's selection to hear the case. He moved to file an affidavit of prejudice, which the court denied. Mr. DeFelice also moved to continue the trial, which was denied.
The court ruled on all of Mr. DeFelice's motions which were:
1. Affidavit of Prejudice
2. Motion for Appointment of Guardian Ad Litem
3. Motion to Require Testimony of Mediator
4. Motion for Assignment of Judge
5. CR 12 Motions Re: Petition for Modification of Parenting Plan
6. Issues Regarding Insufficiency of Process
7. Motion for Contempt
8. CR 60(b) Motion for Relief from Judgment
9. Motion for Protective Order Re: Discovery
The court denied all of Mr. DeFelice's motions.
During trial, Ms. DeFelice testified about her income and her reasons for seeking an increase in child support payments. The court increased the support for the two children to $719.20 per month on a 12-month year in accordance with Washington State Child Support Guidelines.
Mr. DeFelice argued that he should receive a deduction for a pension plan payment and thus reduce his net income by his contribution amount. The court refused to allow for such a deduction because it ruled the pay stubs provided by Mr. DeFelice did not show he was making pension plan payments.
Mr. DeFelice also noted for the record that his current wife was expecting a child in July 2001.
Ms. DeFelice requested that the court modify the parenting plan regarding joint decision making and remove the monthly reporting requirements. The court granted these...
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