In re Marriage of Mason

• Decision Date: 09 March 2021
• Docket Number: C/W No. 52959-9-II,No. 50009-4-II,50009-4-II
• Parties: In the Matter of the Marriage of JOHN ARTHUR MASON, Respondent, and TATYANA IVANOVNA MASON, Appellant.
• Court: Washington Court of Appeals

In the Matter of the Marriage of JOHN ARTHUR MASON, Respondent, and TATYANA IVANOVNA MASON, Appellant.

No. 50009-4-II

C/W No. 52959-9-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

March 9, 2021

UNPUBLISHED OPINION

WORSWICK, J. — In this consolidated case, Tatyana Mason appeals the trial court's denial of three different motions over two years, all relating to disputes with her husband John Mason over a 2013 parenting plan. She appeals the trial court's denial of her 2017 motion to compel payment of funds held in a supersedeas bond, her 2017 CR 60 motion to vacate a 2013 parenting plan, and a 2018 motion for the trial court to enter findings and conclusions from a prior trial that was pending appeal.

Tatyana¹ argues that (1) the trial court did not properly consider her motion to release funds in a supersedeas bond; (2) the trial court abused its discretion when it denied her motion to vacate the parenting plan; (3) the trial court's denial of her motion to vacate the parenting plan infringes on her constitutional liberty interest in raising her children; (4) the trial court's denial of her motion to vacate the parenting plan violated federal immigration regulations; (5) the trial court failed to consider the parties' financial circumstances when it denied her motion to vacate and during the 2013 trial that resulted in the parenting plan; (6) the trial court erred when it denied her 2018 motion to enter new findings on an issue that was pending appeal; and (7) the now-retired trial court judge who presided over her 2016 trial, the results of which we reviewed in a 2018 appeal, should be ordered to appear as a judge pro tempore to enter findings on remand from our 2018 decision. Tatyana requests sanctions and attorney fees under RAP 18.9. John also requests attorney fees and costs under RAP 18.1 and 18.9.

We hold the following: (1) Tatyana's argument that the trial court erred when it did not release funds in the supersedeas bond is moot because we vacated those fees in a prior appeal, (2) the trial court did not abuse its discretion when it denied Tatyana's 2017 motion to vacate the 2013 parenting plan under CR 60, (3) Tatyana's argument regarding her constitutional right to raise children is barred by RAP 2.5, (4) Tatyana's argument on federal immigration regulations is barred by res judicata, (5) Tatyana's argument that the trial court failed to consider financial circumstances is barred by res judicata, (6) the trial court did not err when it denied her 2018motion to enter findings on an issue then pending appeal, (7) although a retired trial court judge is authorized to sit as a judge pro tempore by statute, we have no authority to order him to come out of retirement to preside over a case. We deny both parties' requests for attorney fees. Accordingly, we affirm the decisions of the trial court.

FACTS

This appeal is the fourth to arise from the dispute between Tatyana and John Mason following their marital dissolution in 2008.² Our two prior opinions provide necessary factual background for this appeal. The procedure of the second appeal is a central issue in this case.

I. PROCEDURAL HISTORY

Tatyana and John married in 1999 and had two children. In re Marriage of Mason, No. 45835-7-II, slip op. at 2 (Wash. Ct. App. July 7, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2045835-7-II%20%20Unpublished%20Opinion.pdf (Mason I). Tatyana came to the United States on "fiancée visa" sponsored by John. In re Marriage of Mason, No. 49839-1-II, slip op. at 2 (Wash. Ct. App. July 31, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049839-1-II%20Unpublished%20Opinion.pdf, review denied, 192 Wn.2d 1024, (Mar. 6, 2019), cert. denied, 140 S. Ct. 296, 205 L. Ed. 2d 177 (Oct. 7, 2019) (Mason II). John filed for divorce in 2007. Tatyana filed a petition for a domestic violence protection order, and a superior courtcommissioner granted the petition. The trial court entered a dissolution decree and parenting plan in 2008.

In 2011 John filed a petition to modify the parenting plan alleging that Tatyana was abusing the children. John obtained an emergency order placing the children in his residential care. The trial court ordered Tatyana's visits be therapeutic in nature.

A. 2013 Trial

In 2013, the parties proceeded to trial on John's modification petition. The trial court, with Judge Anne Hirsch presiding, entered findings of abuse by Tatyana and found that Tatyana was uncooperative in disclosing her finances and that she never arranged for any therapeutic visits. The trial court also found that there were no concerns about future domestic violence from John. The trial court entered a modified parenting plan and Tatyana appealed, but she did not contest the trial court's imputation of income or imposition of child support payments. In July 2015, we affirmed the 2013 parenting plan, holding that the trial court did not abuse its discretion when it entered the 2013 parenting plan. Neither Tatyana nor John appealed.

In September 2015, Tatyana filed a "motion to dismiss" the 2013 child support order (but not the parenting plan). Supplemental Clerk's Papers (Suppl. CP) at 333-39. A superior court commissioner denied her motion that same month. Tatyana did not appeal or seek revision of this decision. In late September or early October 2015, Tatyana filed a "motion for revision" of the 2013 parenting plan, which a superior court commissioner denied on October 9, 2015. See CP (49839-1-II) at 25. That same day, Tatyana filed a "Motion/Declaration to Modify/Dismissal of Full Amount of Child Support." Suppl. CP at 349. A superior court commissioner amendedthe child support order and reduced Tatyana's support to the statutory minimum, but denied her motion to vacate the unpaid child support she had accrued. Neither party appealed this order.

B. 2016 Trial

In October 2015, Tatyana filed a petition to modify the parenting plan and a motion to vacate the full amount of the child support order. Mason II opinion summarizes the relevant facts.

The motion to vacate alleged various errors relating to the 2013 child support order. The motion also described Tatyana's precarious economic situation, including the allegation that she was unable to obtain employment because of her immigration status and unpaid child support. . . .

A superior court commissioner denied Tatyana's petition to modify the parenting plan and motion to vacate the child support order. Tatyana moved to revise the commissioner's order. . . .

. . . [T]he trial court stated that it would treat Tatyana's motion to vacate the 2013 child support order as a motion to vacate under CR 60(b). In a subsequent letter ruling, the court explained that because the parties had raised credibility issues, a trial was necessary to allow the parties to present testimony.

Mason II, slip op. at 4-5. Judge Christopher Wickham presided over the November 2016 trial.

At trial, Tatyana represented herself. She offered the testimony of Jay Gairson, an immigration attorney, as an expert witness. The trial court ruled that it would allow Gairson's testimony on immigration law to assist in understanding the issues and law in that area.

. . . .

The trial court entered an order granting the motion to vacate and provided written findings of fact and conclusions of law. . . .

. . . .

. . . [T]he court vacated the 2013 child support order as well as any remaining unpaid child support. The court stated that John could seek entry of anew child support order, and that the court would consider a request for expert fees at a later hearing.

The court subsequently entered an order in December 2016 vacating the amended child support order the commissioner entered on October 13, 2015, which the court inadvertently failed to include in its previous order.

. . . .

The trial court held a hearing on the issue of expert witness fees. Tatyana requested the costs of Gairson's expert testimony, which he calculated to be $12,800, as well as sanctions under CR 11. The trial court awarded Tatyana costs equal to two-thirds of Gairson's fee based on the parties' relative financial positions.

The trial court awarded to Tatyana the remaining one-third of Gairson's fee as CR 11 sanctions. . . .

. . . .

. . . However, the court did not enter any written findings regarding CR 11 and did not include the basis of its award in the CR 11 order.

Based on its rulings, the trial court entered an order awarding Tatyana $8,533 in costs . . . and $4,267 in sanctions under CR 11.

John appeal[ed] the trial court's order vacating the 2013 child support order and the order awarding expert fees and imposing CR 11 sanctions.

Mason II, slip op. at 5-7.

Although the record on appeal does not contain direct documentation, it is clear from both parties' filings that John filed a supersedeas bond with the trial court pending this appeal.³ John's appeal is Mason II, decided in 2018.

II. 2017 MOTIONS (NO. 50009-4-II)

A. Motion To Vacate Parenting Plan

In January 2017, the same day that John filed his appeal, Tatyana filed another CR 60 "Motion to Vacate 2013 and 2008 Parenting Plan" under CR 60(b)(1), (3), (4), and (11). In it, she restated her grievances that were decided in the 2013 and 2016 trials or that were credibility issues before the court in 2012. She made claims of misrepresentation against John and his trial counsel and stated that the children were in an abusive environment with him.

B. Motion To Release Supersedeas Bond Funds

Later in January 2017, Tatyana filed a motion for the trial court to release funds from the supersedeas bond John filed pending his appeal. Tatyana's motion was entitled "Declaration to Order Petitioner to pay $20,000 for Removal of Condition from My Green Card . . . $12,800 judgment Placed against Petitioner for ongoing abuse of CR ll(A) should NOT be hold [sic] or depend on the Petitioner's Appeal." Suppl. CP at 785. She went on to request that the trial court order John to "release [the money] from the...