In re Marriage of Diaz
| Decision Date | 01 November 2021 |
| Docket Number | 81784-1-I |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Marriage of IRLANDA RODRIGUEZ DIAZ, Respondent, and JOSE MARCELO TENESACA ARPI, Appellant. |
UNPUBLISHED OPINION
Tenesaca Arpi appeals from final orders entered in the dissolution of marriage after trial. He contends that to the extent the trial court's final orders were based on the mother's testimony and her allegations of domestic violence, they were not supported by substantial evidence. Tenesaca Arpi also contends that the residential schedule is not in the children's best interests and that the trial court erred in determining maintenance and child support. He contends that the parenting plan impermissibly allows the mother to obtain a modification without showing a substantial change in circumstances. Finally, he contends the trial court committed reversible evidentiary errors and was biased against him. We affirm.
Jose Tenesaca Arpi (the father) and Irlanda Rodriguez Diaz (the mother) married in 2007 and separated in September 2018. They have two children together, D.T. and E.T.
In January 2019, the mother petitioned for dissolution. She requested limitations on the father's time with D.T. and E.T. and alleged that the father "has a history of domestic violence." She indicated there was a pending domestic violence protection order (DVPO) proceeding involving the children.
The mother also requested maintenance. According to her later testimony, she was unable to work due to a disability, her income was $1, 120.00 per month consisting of disability benefits, and she had only a fifth-grade education. According to an administrative child support order entered in February 2019, the Social Security Administration had determined that the mother was completely disabled and unable to work.
A dissolution trial took place on March 11, 2020. The father was represented. The mother appeared pro se with the assistance of a translator. The father requested a 50-50 residential schedule. The father also asked the court to deny the mother's request for maintenance and to deviate downward on child support, indicating that he "now pays $400 per month for a child from outside of this marriage."
The mother requested that the father receive no residential time with D.T. and E.T. She testified that the father was "very violent and aggressive" and described an incident in March 2010 when the father sexually assaulted her. The mother also testified that "when [the father] couldn't control his temper, he would take his belt off and hit [E.T.] all over his body." The mother recalled that in October 2018, after the parties separated, the father "threatened me that if I continued with the process of the divorce, he would kill me." She testified that she lived with her sister and her sister's husband, paid them $800.00 in rent, and helped to pay for garbage and water utilities. When asked if she knew how much her sister and brother-in-law made, the mother responded no.
One of the mother's adult children, who lived with the parties for approximately 12 years, described the father as "toxic to my entire family." He testified that the father "could be very rude to [the mother] at times" and would yell at her and call her names. He also testified that he once witnessed the father "shove[ the mother] into the bathroom thinking that no one would see" and recalled that "it was definitely intentional to push her against the bathroom door." He testified that although the father never hit him, he thought the father "disciplined the entire family by hitting [E.T. and that] by hitting [E.T.] he was punishing us and intimidating us."
After trial, the court entered a dissolution decree, final parenting plan, final child support order, and findings and conclusions. It found the mother credible, adopted the mother's version of the facts regarding the father's abusive behavior, and found that the father "has a history of domestic violence." The trial court determined the children would reside with the mother the majority of the time, except that the children would spend every other weekend with the father, plus one week of uninterrupted time in the summer. The court ordered the father to complete a domestic violence evaluation and follow any recommendations it required. The court also ordered that the mother "may petition for modification of the parenting plan based upon the father's failure to comply" with the domestic violence evaluation and treatment requirements and that "[i]f the mother shows that the father has failed to comply, the mother need not show a substantial change in circumstances."
The court ordered the father to pay maintenance of $1, 500.00 per month through April 2022. It also ordered the father to make a monthly child support transfer payment to the mother of $858.34 through April 2022 and $1, 282.90 thereafter, based on the standard calculation. The court denied the father's request for a deviation downward, finding that "[t]he child for whom the father is paying child support is about to turn 18" and a deviation would undermine the mother's financial ability to care for the children.
The father moved for reconsideration, which the trial court denied. The father appeals.
The father challenges the trial court's parenting plan, child support order, and maintenance award.[1] A trial court's rulings concerning these matters are reviewed for abuse of discretion except to the extent they present issues of law, which we review de novo. In re Marriage of Buchanan, 150 Wn.App. 730, 735, 207 P.3d 478 (2009); In re Marriage of Lee, 176 Wn.App. 678, 684 310 P.3d 845 (2013). A trial court abuses its discretion when its decision is manifestly unreasonable, or its discretion is exercised on untenable grounds or for untenable reasons. In re Parentage of T.W.J., 193 Wn.App. 1, 6, 367 P.3d 607 (2016).
A trial court's unchallenged findings are verities on appeal, and challenged findings are binding if supported by substantial evidence. In re Estate of Langeland, 177 Wn.App. 315, 320, 312 P.3d 657 (2013). "'Substantial evidence' is evidence sufficient to persuade a fair-minded, rational person that the finding is true." Id.
The father first contends that the trial court's orders must be reversed because none are supported by substantial evidence. He asserts that the mother was barred from claiming domestic violence in the dissolution proceeding and that the mother was not credible. Accordingly, he contends, the trial court's orders must be reversed because they rely on the court's domestic violence findings and its belief in the mother's testimony.
The father contends that "[w]hen the mother voluntarily dismissed her DVPO [petition] with prejudice, she waived any right to ever litigate claims of violence that pre-dated [May 9, ]2019," the date of the dismissal order. (Some capitalization omitted.) The father relies on the doctrines of claim preclusion, issue preclusion, and judicial estoppel to support his contention.[2] He fails to establish that any of these doctrines apply.
Claim preclusion "prevent[s] a second assertion of the same claim or cause of action," and issue preclusion "bars relitigation of an issue in a subsequent proceeding involving the same parties." Ullery v. Fulleton, 162 Wn.App. 596, 602, 256 P.3d 406 (2011). A final judgment on the merits is a threshold requirement under both doctrines. Id. at 603, 610 n.4. But, here, it is undisputed that the dismissal of the mother's DVPO petition was based on the agreement of the parties. It was not a judgment on the merits. The father fails to establish that the threshold requirement of issue or claim preclusion is satisfied. And, he does not address the remaining elements of either doctrine.[3] His reliance on these doctrines is misplaced.
The father's reliance on judicial estoppel is equally misplaced. "Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position." Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn.App. 222, 224-25, 108 P.3d 147 (2005). Courts examine three factors to determine whether judicial estoppel applies: (1) whether a party asserts a position inconsistent with an earlier one, (2) whether acceptance of the position would create the perception that a party misled a court in either proceeding, and (3) whether the party asserting the inconsistent position would receive an unfair advantage or impose an unfair detriment. Arp v. Riley, 192 Wn.App. 85, 92, 366 P.3d 946 (2015).
The father contends the mother took inconsistent positions by voluntarily dismissing her DVPO petition but still asserting in the dissolution proceeding that the father committed domestic violence. But, we are not persuaded that voluntarily agreeing to dismiss a DVPO petition is, as the father suggests, equivalent to a representation that no domestic violence occurred. Consequently, we also are unpersuaded that the mother's dismissal of her DVPO petition was "clearly inconsistent" with her later assertions that domestic violence occurred. See Cunningham, 126 Wn.App. at 224-25. Additionally, the father fails to explain how the trial court was misled given that it was aware of and specifically inquired about, the circumstances surrounding the DVPO petition dismissal. Cf. Arp, 192 Wn.App. at 91 (). The father does not establish the trial court erred in considering the mother's assertions that the father committed domestic violence....
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