In re Marriage of Quintanar

• Decision Date: 16 December 2019
• Docket Number: No. 78294-1-I,78294-1-I
• Court: Washington Court of Appeals
• Parties: In the Matter of the Marriage of CHRISTINA MARIA QUINTANAR, n/k/a ROBERTS, Appellant, and GREGORIO QUINTANAR, Respondent.

In the Matter of the Marriage of CHRISTINA MARIA QUINTANAR, n/k/a ROBERTS, Appellant,

and

GREGORIO QUINTANAR, Respondent.

No. 78294-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 16, 2019

UNPUBLISHED OPINION

LEACH, J. — Christina Roberts appeals the trial court's decision to change the primary residence of her son, M.Q. Roberts challenges several findings of fact. She also asserts that the court exceeded its authority, abused its discretion, made incorrect evidence decisions, and violated her right of procedural due process when it modified the parenting plan. Finally, she contends that a biased guardian ad litem (GAL) tainted the court's decision.

Substantial evidence supports the challenged findings. The trial court had authority to retain jurisdiction for a year to review the efficacy of its initial decision and, within that year, to implement a major modification. Because the court found grounds for a major modification and appropriately balanced the impact of relocation on M.Q. against the harm of not relocating him, it did not abuse its discretion when it changed M.Q.'s primary residence. The trial court did not abuse its discretion in applying the missing witness rule, in making determinations about the weight of evidence, or in refusing to consider a letter sent directly to the court. Because Roberts had notice that the court had reserved making a final decision about changing M.Q.'s primary residence and intended to conduct a review hearing before making a final decision, the trial court did not violate Roberts's right to procedural due process. She also fails to establish that the GAL was biased. We affirm.

FACTS¹

Gregorio Quintanar and Christina Roberts divorced in 2009. They had one child, three-year-old M.Q. At that time, they agreed to a final parenting plan assigning primary residential time to Roberts. From 2009 to mid-2014, the parties did not follow the plan but agreed on scheduling M.Q.'s residential time with each parent. Sometime after the divorce, Deforest Brown, Roberts's current fiance, began living with her.

At the time, Quintanar served in the Army. In June 2014, the military ordered him to relocate to Alaska. After Quintanar and his girlfriend, JoannHazard, moved to Alaska, he and Roberts were unable to work together to parent M.Q. Quintanar and Hazard married in 2016. In 2017, Quintanar retired from the Army. He accepted a civilian job with an Alaskan communications company.

In November 2014, Roberts filed a petition requesting a minor modification in the parenting plan under RCW 26.09.260(5)(a) and (5)(b). She alleged that Quintanar's move to Alaska made it difficult to follow the existing plan. Quintanar did not object but reserved the right to amend his answer. In late December, the court found Roberts in contempt because she failed to make M.Q. available during Quintanar's residential time. The court adopted a temporary parenting plan that allocated M.Q.'s residential time with each parent during Quintanar's local, adjacent, and remote postings.

In May 2015, the court again found Roberts in contempt for failing to make M.Q. available to Quintanar during his residential time. In August 2015, Quintanar amended his answer to Roberts's petition to include a counterpetition requesting a major modification of the parenting plan under RCW 26.09.260(1), (2)(c), and (2)(d). He requested a temporary parenting plan placing M.Q.'s primary residence with him. The court appointed Cynthia Bemis as GAL. The parties stipulated to adequate cause for a trial on Quintanar's major modification request.

In late 2015, as a result of a misunderstanding about Roberts's payment of Bemis's retainer, the court commissioner struck Roberts's pleadings and granted Quintanar ex parte relief, modifying the parenting plan and placing M.Q.'s primary residential time with him. The same day, Quintanar picked M.Q. up from school and moved him to Alaska. The court later vacated the default relief and entered a temporary parenting plan that restored M.Q.'s primary residence to Roberts.

In early March 2016, Quintanar asked the court to modify the temporary parenting plan and appoint a GAL for M.Q. The court modified the plan to allow video phone calls, discharged Bemis as GAL, and appointed Margaret Fowler as GAL. The court also reinstated Roberts's stricken pleadings.

The court held a trial in May 2017. Neither Brown nor Hazard testified. The court applied the missing witness rule to Brown because he did not testify. It did not apply the rule to Hazard, who was absent because of a work-related event. The court explained that Hazard did not seem to the court "to be central to this case as was . . . Brown [g]iven his history and the fact that he automatically brings [RCW 26.09]. 191 factors to the petitioner's side."

The trial court found grounds for both a minor and major modification of the parenting plan. It made extensive findings. It summarized much of its decision in these paragraphs:

The Court has considered the factors in RCW 26.09.260. The Court finds, based upon facts and circumstances that have arisen since the divorce decree and parenting plan entered in 2009, that a substantial change has occurred in the circumstances of the child and Ms. Roberts. The Court finds that modification is in the best interests of [M.Q.], and is necessary to serve his best interests. The Court has found limiting factors with regarding to Ms. Roberts under RCW 26.09.191 that did not exist in 2009, that she has been found in contempt of court twice in the past three years, and that the level of conflict she and Mr. Brown engage in, particularly with [M.Q.] present, is detrimental to his mental and/or emotional health. The Court is not convinced this detrimental behavior has ceased on the part of Ms. Roberts and Mr. Brown.

Nevertheless, the Court is not, at this time, transferring the primary residence of [M.Q.] due to concerns that the negative impact of uprooting the child from his home and social system would outweigh the benefit to him at this time. However, the court is reserving ruling on whether the child's living situation with petitioner is so harmful to his physical, mental, or emotional health that it would be better for him to move to Alaska with his father.

The court entered a final parenting plan modifying the original 2009 parenting plan but maintaining primary residence with Roberts. The plan included increased residential time allocated to Quintanar and also placed limitations on Roberts and Brown. It required that Roberts "work to actively promote a positive relationship between" Quintanar and M.Q. It ordered her to "[a]ttend at least 10 hours of parenting classes focused on parenting children of divorce and the emotional impact of conflict between divorced parents on a child" and "to attend counseling sessions with" M.Q.'s Washington-based therapist,Charles Bartlett, and M.Q. It stated that it would transfer primary residential time to Quintanar if Roberts failed to follow these treatment requirements.

The parenting plan contained a review provision:

This plan is subject to review and change without additional findings of adequate cause for up to one year from today's date. Any violation of a provision of this order by Petitioner will be adequate cause for modification. This Court retains jurisdiction for one year to review the efficacy of this order.

A Review Hearing is set for January 12, 2018 at 9:00 am. The Guardian Ad Litem Report is due to the parties and the court two weeks before that date.

The court directed the guardian ad litem to report to the court about the parties' compliance with its order, the status of M.Q.'s relationship with his father, and "thorough information about whether Petitioner's living situation is harmful to the child's physical, mental, or emotional health, to include thorough background checks and investigation of De Forest Brown or anyone else living in the home, interviews of neighbors, and other collateral sources." The court also directed the guardian ad litem to provide additional information about Hazard and her fitness to parent.

Neither party appealed.

The court held a three-day review hearing starting on January 12, 2018.² Hazard testified, but Brown did not. In its analysis, the court again applied themissing witness doctrine to Brown and inferred that "Roberts thought that calling Mr. Brown as a witness would have been damaging to her case."

The court incorporated its June 23, 2017, findings of fact and entered additional findings. It reiterated "that the 2017 Final Parenting Plan was 'subject to review and change without additional findings of adequate cause for up to one year.'" It stated that it found, "based on the evidence presented at trial on January 12, February 12 and 15, 2018, that there has been a substantial change in circumstances since entry of the June 23, 2017 Final Parenting Plan warranting further modification of the parenting plan." The court entered a final parenting plan modifying the 2017 plan and placing M.Q.'s primary residence with Quintanar. It maintained limitations on Roberts under RCW 26.09.191(2)(a), (2)(b), and (3) based on its concerns about Brown. The court ordered Quintanar to "continue to attend therapy with [M.Q.] until such time as the therapist determines that it is no longer beneficial."

Roberts appeals.

ANALYSIS

Roberts contends the trial court should not have adopted the March 16, 2018, order and parenting plan changing M.Q.'s primary residence from her home to Quintanar's. Because substantial evidence supports the trial court's findings, the trial court did not exceed its authority, and the trial court did notviolate her procedural due process rights or abuse its discretion in its evidentiary or final decisions, we affirm.

Substantial Evidence Supports the Findings

Roberts assigns error to various findings of facts made by the trial court on June 23, 2017, and March 16, 2018.³

This court reviews the record to...