In The Matter Of The Parentage Of: J.T.G.-s.

• Decision Date: 29 July 2010
• Docket Number: No. 39223-2-II,39223-2-II
• Parties: In the Matter of the Parentage of: J.T.G.-S., A minor child.
• Court: Washington Court of Appeals

In the Matter of the Parentage of: J.T.G.-S., A minor child.

No. 39223-2-II

Court of Appeals of Washington

July 29, 2010

Van Deren, J. Lorrie K. sought a modification of the parenting plan for her child, JTGS. The trial court modified the parenting plan, gave Dane S., ¹ the father, primary residential custody and restricted Lorrie's visitation. Lorrie timely filed an appeal but voluntarily dismissed her appeal and then filed an unsuccessful motion to vacate the trial court's modification decree based on CR 60(b)(1) and CR 60(b)(11) before a different superior court judge.² She now appeals the denial of her motion to vacate, arguing that the trial court abused its discretion because the original trial court (1) forced her attorney to withdraw because it would only continue the trial if she agreed to a temporary transfer of residential custody of her child; (2) acted as an expert, in lieu of her excluded expert, when it reviewed a recorded interview of JTG-S by her expert; (3) was actually biased or had impermissible ex parte contacts with the judge's own son, an investigator who testified about charges of child molestation by Dane's roommate in an unrelated criminal case; and (4) did not order the guardian ad litem to (a) investigate Dane's roommate or new allegations Lorrie raised during the pendency of the case or (b) remain present during the trial in order to protect JTG-S's interests throughout the modification proceeding. She further argues that these various irregularities combined to work a manifest injustice. Because the bases of her motion to vacate were issues of legal error or abuse of discretion and did not amount to irregularities in the proceeding nor work a manifest injustice, we affirm the trial court's denial of the motion to vacate.

FACTS

During Lorrie's second marriage, she had a relationship with Dane and gave birth to JTGS in April 2003.³ Lorrie and Dane arranged Dane's visits with J.T. G.-S. informally until April 2005, when Dane sought a court-ordered parenting plan. After appointing a guardian ad litem, the trial court entered a temporary parenting plan in May 2005 for JTG-S. The plan designated Lorrie as the primary residential parent, split holidays evenly, and afforded Dane increasing amounts of time with JTG-S over two month increments. Dane and Lorrie had joint decision making authority for major decisions, leaving day-to-day decision making to the parent in charge of JTG-S on any given day. In December, the trial court entered a final parenting plan substantially similar to the temporary plan.⁴

In August 2007, Lorrie reported "some sexual allegations" to police and Child Protective Services (CPS) and she also alleged that Dane had "punched [JTG-S] in the head." B Report of Proceedings (RP) at 11, 10. In September, Lorrie petitioned for modification of the parenting plan, and the trial court preliminarily required Dane to have supervised visitation. Dane, in turn, alleged that Lorrie abused JTG-S and requested primary residential custody. CPS determined that Lorrie's allegations were "inconclusive." B RP at 34. The court appointed a new guardian ad litem in December to review these allegations and conduct interviews.

The situation improved, visitation went well, and Lorrie's third husband and his family provided a supportive environment. The guardian ad litem found the situation stable but recommended that Dane receive custody if Lorrie reported additional, unfounded allegations.⁵The guardian ad litem based his conclusion on what he believed to be Lorrie's emotional abuse of JTG-S through false allegations that created conflict with Dane and psychological damage for JTG-S.⁶ But in the summer of 2008, Lorrie made more allegations and the trial court reduced Dane's visitation to supervised visits for two hours twice a week.

The trial court set a hearing for trial review for September 15. On August 26, Lorrie's newly hired attorney entered a notice of appearance. At the hearing on September 15, Lorrie's attorney requested a continuance based on his recent entry into the case and due to surgery he had undergone in August.

Dane's attorney objected to a continuance and asked that Dane be designated as the primary residential parent during any continuance the trial court granted. Lorrie's attorney opposed the idea and suggested a 35-45 day continuance without changing the designation of the primary residence. Dane's attorney reinforced his position with a discussion of multiple reports from Lorrie to CPS, police investigation of Dane, and Lorrie's obstruction of Dane's visitation. Dane's attorney argued that Lorrie should have secured an attorney in the preceding year while her petition was pending. Lorrie's attorney countered that no additional allegations occurred after his involvement and he only needed to investigate the case further to narrow the issues for trial. The trial court commented that trial could begin three days later or Lorrie could receive a continuance if Dane received primary residential care with her having residential care Friday through Sunday and midweek on Wednesday. The trial court took a brief recess for Lorrie and her attorney to consult.

After the recess, Lorrie's attorney asked to withdraw, "I believe it's going to be my client's position that I be allowed to withdraw from the matter. She will be proceeding on her own on Thursday. She will be prepared to go to trial." A RP at 11. Dane's attorney asked that the trial court grant the continuance and transfer custody. Lorrie's attorney elaborated, "It's not a question of whether I'm going to stay on the case. I believe there's a communication problem that's developed with my client regarding strategy with this matter and our relationship hasdeteriorated so that I would not be able to effectively represent [her]." A RP at 11. Dane's attorney continued to request the continuance and transfer of custody. Lorrie's attorney responded, "A minute ago [Dane's Attorney asked] for the trial to start on Thursday. Your Honor, that's going to happen. It's my motion for the continuance. I'm withdrawing that motion." A RP at 12. Dane's attorney again emphasized that he would like to have the continuance and transfer of custody.

The court clarified, "What I had in mind was doing the transfer, primarily because of the allegations dealing with the obstruction of visitation.... That was all. I wasn't making a decision one way or the other on custody." A RP at 12. The trial court allowed Lorrie's attorney to withdraw if that was her wish.

In her subsequent motion to vacate, Lorrie explained her view of what transpired:

[Dane's attorney] agreed to a continuance but only if [Dane] got immediate temporary custody of [JTG-S]. [My attorney] and I conferred privately. [He] urged me to accept the continuance. I refused because I was afraid for my son. After our private conference, [my attorney] and I went back in front of [the trial court]. It is clear from the record that I had no argument or disagreement with [Dane's attorney] other than giving my son over to [Dane]. [The trial court] then allowed [my attorney] to withdraw if that was my wish. My wish was to protect my son from [Dane], not to be unrepresented. I am not an attorney and have no legal training. The Court, in essence, forced me to choose between giving my son over to [Dane] until the time of trial or represent myself. I did not know that [the trial court] could have compelled [my attorney] to continue representing me. Believing that [Dane] sexually and physically abused [JTG-S], I felt that I had no reasonable choice but to represent myself. I obviously felt the need for an attorney or I would not [have] retained [my attorney]. I had no desire to represent myself.

CP at 18 (citations omitted).

The trial proceeded with Lorrie acting pro se. At trial, the guardian ad litem testified based on his report before Lorrie made new allegations in May. He recommended that JTG-S'sprimary residence be with his father. Although the guardian ad litem had made his report on February 15, 2008, the trial court had not yet discharged him. The guardian ad litem felt that he had discharged his duty when he issued his report and remained involved only as an unpaid and "reluctant" participant. B RP at 27-28. He did not seriously review the allegations or create another report after Lorrie's new allegations surfaced in May. The trial judge asked the guardian ad litem whether additional investigation would be helpful in formulating his recommendation to the court, and he responded, "It seems those reports are available to the Court, that I wouldn't have to review them for the Court so I'd just... leave it up to the Court... as to whether or not you think I would be helpful." B RP at 66. The trial court chose to review the documents without additional review by the guardian ad litem.

Lorrie wanted Lawrence Daly⁷ to testify as an expert about his forensic interview of JTG-S. Lorrie also sought to introduce a digital video disc (DVD) of the forensic interview and a report about the interview with Daly's evaluation. Dane objected, claiming surprise because he did not receive proper notice of the witness or the related DVD evidence. The trial court explained the problem to Lorrie, "If you have information, you need to pass that information to the other side." C RP at 4. She emphasized the importance of Daly's testimony. The trial court verified that Dane would have an opportunity to review the DVD over the weekend. After reviewing the tape, Dane objected to Daly's testimony because Daly did not produce a written report, but Dane did note that Lorrie could argue for the trial court to view the tape and "draw aconclusion." D RP at 2.

The trial court explained to Lorrie, "Again, normally a professional puts together a report so people can review it, so that people can criticize it one way or another. You just don't come in and say this is his testimony, period. [Dane] has no chance to review that." D...