Katare v. Katare, No. 85591–9.

• Court: United States State Supreme Court of Washington
• Writing for the Court: J.M. JOHNSON
• Citation: 175 Wash.2d 23,283 P.3d 546
• Parties: In the Matter of the Marriage of Lynette KATARE, Respondent, v. Brajesh KATARE, Petitioner.
• Docket Number: No. 85591–9.
• Decision Date: 16 August 2012

175 Wash.2d 23
283 P.3d 546

In the Matter of the Marriage of Lynette KATARE, Respondent,
v.
Brajesh KATARE, Petitioner.

No. 85591–9.

Supreme Court of Washington,
En Banc.

Argued Nov. 15, 2011.
Decided Aug. 16, 2012.

[283 P.3d 548]

Gregory Mann Miller, James Elliot Lobsenz, Carney Badley Spellman PS, Seattle, WA, for Petitioner.

Gordon W. Wilcox, Gordon W. Wilcox, Inc., P.S., Catherine Wright Smith, Smith Goodfriend PS, Valerie A. Villacin, Smith Goodfriend PS, Seattle, WA, for Respondent.

Lorraine K. Bannai, Seattle University School of Law, Keith Andre Talbot, Patterson Buchanan Fobes Leitch & Kalzer, David A. Perez, Perkins Coie LLP, Seattle, WA, Huyen-lam Q. Nguyen–Bull, Redmond, WA, amicus counsel for Asian Bar Association, Fred T. Korematsu Center for Law, Vietnamese American Bar Association of Washington, and Pacific Northwest District of the Japanese American Citizens League.

Nancy Lynn Talner, Arnold Reagan Jin, Attorneys at Law, Seattle, WA, amicus counsel for American Civil Liberties Union.

J.M. JOHNSON, J.

[175 Wash.2d 28]¶ 1 This case concerns a marriage dissolution and foreign travel restrictions imposed as part of a parenting plan under RCW 26.09. 191(3). The restrictions were imposed by the trial court based on evidence that the father made threats to abscond with his children to India.¹ The father denies making such threats and claims the restrictions are not supported by the trial court's findings. He further argues the court committed prejudicial error by allowing improper expert testimony regarding “risk factors” for child

[283 P.3d 549]

abduction. The Court of Appeals affirmed the trial court's parenting plan and travel restrictions, concluding the admission of risk factor evidence was [175 Wash.2d 29]improper but not prejudicial. We affirm the Court of Appeals except for its conclusion that the trial court erred by admitting the expert testimony. We uphold the travel restrictions because the trial court's findings are supported by substantial evidence and admission of the expert testimony was not an abuse of discretion.

Facts

¶ 2 Petitioner Brajesh Katare was born and raised in India. In 1989, he moved to Florida where he met respondent Lynette. The two were married in November 1995. Brajesh and Lynette relocated to Washington State in 1999 when Brajesh was hired by Microsoft. While in Washington, Brajesh and Lynette had two children: A.K. (born May 27, 2000) and R.K. (born Sept. 20, 2001).

¶ 3 In May 2002, Brajesh was offered employment in India for two years. Lynette strongly objected to moving to India with the children, fearing isolation and deleterious effects on the children's health. Lynette claims Brajesh threatened to take the children to India without her, but Brajesh denies making such threats.

¶ 4 In July 2002, Brajesh traveled to India to make arrangements to move. While he was gone, Lynette filed for dissolution. Brajesh and Lynette eventually agreed to a temporary parenting plan allowing Brajesh biweekly supervised visits with the children. They also agreed to appoint Margo Waldroup, a parenting evaluator, to conduct an assessment and make a parenting plan recommendation to the court.

¶ 5 Waldroup recommended the children remain in Lynette's custody. She noted that two witnesses corroborated the allegation that Brajesh had threatened to take the children to India. However, Waldroup could not predict with certainty whether Brajesh would actually attempt to abduct the children. Waldroup recommended that Brajesh have three days of visitation with the children each month. [175 Wash.2d 30]She recommended supervised visitations until the children's passports were secured. She also suggested Brajesh's passport, as well as those belonging to the children, be placed on a watch list. Based on Waldroup's report, Brajesh moved to modify the temporary parenting plan to allow him unsupervised visitation. The court granted his motion subject to the requirement his attorney hold his passport during visitations.

Procedural History 1. Katare I

¶ 6 A five-day dissolution hearing was held in June 2003. Lynette asked the court to impose restrictions on Brajesh's visitation time. Lynette testified that Brajesh on multiple occasions threatened to take the children to India without her. Brajesh allegedly told her she would have no recourse if he took the children to India and she would not “stand a chance” in the Indian court system. Verbatim Report of Proceedings (VRP) (June 16, 2003) at 36. During discovery, Brajesh requested copies of the children's passports, Indian tourist visas, and immunization records, which Lynette claimed showed his intent to take the children to India. Lynette was especially concerned because India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), which provides for mandatory summary proceedings in cases of international child abduction. The treaty provides a remedy only if both countries are signatories. Therefore, it would be especially difficult for Lynette to get the children back to the United States if they were taken to India.

¶ 7 Waldroup testified that although Lynette's concerns were “justified” and “not out of proportion to the situation,” it was difficult to predict whether Brajesh would abduct the children. VRP (June 17, 2003) at 103. She testified that the court would have to decide whether the risk justified imposing restrictions.

[175 Wash.2d 31]¶ 8 Brajesh categorically denied making any threats. He represented he did not want to return to India and would never take the children away from their mother.

¶ 9 The trial court imposed restrictions in the parenting plan even though it found

[283 P.3d 550]

RCW 26.09.191(3) inapplicable.² In its oral decision, the court stated:

I gave a long and careful consideration to the issue of the risk of abduction and confess today being concerned about this. I'm not persuaded, based on all the evidence presented ... that Mr. Katare presents a serious threat of abducting the children. Nonetheless, if I'm wrong on this the consequences are incredibly serious and I'm mindful about that. I'm going to impose some restrictions in the parenting plan that will be designed to address this issue, and I hope that everything that has been brought to this Court, which I think indicates that there is not a serious risk of abduction turns out to be the truth.
VRP (July 7, 2003) at 10.

¶ 10 The court's parenting plan allowed Brajesh three days with the children each month. Brajesh was prohibited from taking the children out of the country until they turned 18. Brajesh was also denied access to the children's passports or birth certificates and was required to surrender his passport to a neutral party during visitation periods.

¶ 11 Brajesh filed a motion for reconsideration challenging the visitation restrictions and passport controls. The court denied his motion. Brajesh appealed. He argued the trial court erred when it imposed restrictions without expressly finding factors justifying the restrictions under RCW 26.09.191(3).

[175 Wash.2d 32]¶ 12 The Court of Appeals held restrictions entered in a parenting plan pursuant to RCW 26.09.191(3) must be supported by an express finding that the parent's conduct is adverse to the best interest of the child. In re Marriage of Katare, 125 Wash.App. 813, 826, 105 P.3d 44 (2004)( Katare I). While most of the restrictions imposed by the trial court were supported by the court's findings, the court's order stating that RCW 26.09.191(3) “ ‘does not apply’ ” created an ambiguity. Id. at 831, 105 P.3d 44 (quoting trial court clerk's papers at 615). For that reason, the Court of Appeals remanded to clarify the legal basis for the foreign travel restrictions. Id.

2. Katare II

¶ 13 On remand, the trial court amended the parenting plan to list factors justifying the restrictions under RCW 26.09.191(3)(g). The amended parenting plan provided:

“Based on the evidence, including the testimony of expert witnesses, the husband appears to present no serious threat of abducting the children. Nonetheless, under the circumstances of this case, given the ages of the children, the parties' backgrounds, ties to their families and communities, and history of parenting, and the fact that India is not a signator to the Hague Convention on International Child Abduction, the consequences of such an abduction are so irreversible as to warrant limitations on the husband's residential time with the children. The risk of abduction is a factor justifying limitations under RCW 26.09.191(3)(g).”

In re Marriage of Katare, noted at 140 Wash.App. 1041, 2007 WL 2823311, at *2–3 (Katare II) (“By basically restating its earlier findings as the justification for imposing limitations on Brajesh's residential time with the children under RCW 26.09.191(3)(g), the trial court does not resolve the ambiguity and does not expressly address whether the evidence supports the limitations under RCW 26.09.191(3).”).

¶ 14 The Court of Appeals found this recitation deficient as it still contained the phrase “ ‘the husband appears to [175 Wash.2d 33]present no serious threat of abducting the children.’ ” Id. at *3 (quoting parenting plan). The appellate court remanded a second time for clarification. Id.

3. Katare III

¶ 15 In January 2009, the trial court conducted a two-day hearing to address whether

[283 P.3d 551]

the evidence supported the foreign travel restrictions and passport controls. The court heard testimony from Brajesh and Lynette and considered a number of hostile e-mail exchanges between the two.

¶ 16 Lynette also identified an expert witness, Michael C. Berry, an attorney with 17 years of experience with child abduction cases, to testify regarding risk factors for child abduction and the consequences of abduction to India. Brajesh filed a motion in limine to exclude Berry's testimony. He argued Berry was not qualified as an expert and that risk factor evidence was...