Marriage of Allen, In re

• Decision Date: 19 March 1981
• Docket Number: No. 3467-III-4,3467-III-4
• Citation: 28 Wn.App. 637,626 P.2d 16
• Parties: In re the MARRIAGE OF Myrna Jean ALLEN, Respondent, and Joseph Lee Allen, Appellant.
• Court: Washington Court of Appeals

Page 637

28 Wn.App. 637

626 P.2d 16

In re the MARRIAGE OF Myrna Jean ALLEN, Respondent and Joseph Lee Allen, Appellant.

No. 3467-III-4.

Court of Appeals of Washington, Division 3, Panel Two.

March 19, 1981.

David A. Gittins, Clarkston, for appellant.

Jay R. Jones, Clarkston, for respondent.

MUNSON, Judge.

The trial court described this case as follows: "This has been a most novel case to hear; this case is unique in my experience ... It is an exceedingly difficult case to decide." The sole issue here concerns the custody of Joe Allen's son, Joshua. The son, born of a prior marriage, was 7 years old at the time of trial and has been deaf since birth. The court awarded custody to Myrna Jean (Jeannie) Allen, the stepmother. As will be noted, the case presents some unique procedural, as well as factual, facets. We affirm.

Unfortunately, when a family is emotionally torn asunder, often the courts remain as the only means of resolving the future relationships of the parties. Judges are sometimes asked to exercise Solomonic wisdom in these matters. Warnecke v. Warnecke, 28 Wash.2d 259, 182 P.2d 699 (1947); In re Marriage of Murray, 28 Wash.App. 187, 191, 622 P.2d 1288 (1981); Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152, cert. denied, 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227 (1966). ¹ We affirm, believing unique circumstances may warrant unique custody decrees. Snell v. Snell, 361 So.2d 936, 939 (La.App.1978).

Joe and Dana Allen married and during that marriage a child, Joshua Edward Allen, was born September 11, 1971. Upon divorce, custody of Joshua was placed with Dana. Joshua was profoundly deaf and as a result had not learned to speak. As can well be expected, both natural parents went through a period of emotional trauma, feelings of depression, guilt and almost accusatorial concern about each other's ancestry, but had reconciled themselves to Joshua's condition. Notwithstanding, Dana was unable to adjust to the situation. She placed Joshua with her mother in Coeur d'Alene, Idaho, and subsequently signed a custody modification transferring custody of Joshua to his father. Joe left Joshua with Dana's mother, who was instrumental in getting Joshua into a beginning deaf program. About this time, Joe had met Jeannie who had previously been married and had three children born in 1964, 1965 and 1967, respectively. Joe and Jeannie were married August 26, 1974, and during this marriage, Joe adopted Jeannie's three children. These children's natural father had not been involved in their rearing and was living on the east coast at the time.

For reasons not of record and irrelevant to this appeal, Joe and Jeannie realized their marriage was irretrievably broken. Joe moved out of the house and on April 10, 1978, Jeannie petitioned for dissolution of the marriage. In that petition, among other things, she asked to be awarded custody of all four of the children, including Joshua, whom she had never adopted. ² Initially, Joe may have intended to take Joshua with him, but was unable to find suitable housing. Hence, Joshua remained with Jeannie during the pendency of the action, including this appeal.

Prior to trial, Joe moved for summary judgment, testing Jeannie's standing and the court's jurisdiction to award her custody of Joshua. The motion was orally denied, but no order adopting that oral opinion was ever entered. The court had ordered an evaluation of both Joe and Jeannie's capacity as parents; the report found both suitable parents. After trial, the court made the usual decree of dissolution, distribution of the community assets, awarded Jeannie attorney's fees and, commenting upon the uniqueness of the case, awarded her the custody of all four children. The only issue in this appeal is the custody of Joshua.

What makes this case exceptional is not only the fact that Joshua is deaf, but the dedication and effort Jeannie put forth to obtain assistance for him during the marriage. The record reflects it is extremely important that deaf children receive early training, and learn sign language while they are young. Apparently the average person learns 90 percent of his basic language skills by the age of 6. For a deaf child to function normally in society, he must be given the opportunity to learn and work with language at an early age. Shortly after Joshua joined the home of Joe and Jeannie, she began to help him learn sign language. Joshua was only 3 years old at the time and his intellectual development was behind that of normal hearing children of a similar age. Jeannie worked hard to find special training for Joshua. Due to her efforts, special training was provided in the public school for Joshua, involving one-on-one tutoring by a person knowledgeable in sign language. Apparently at the time of trial it was the only such program known to exist in this state. Jeannie had taken special classes and had provided additional training and tutoring on her own. She had gone substantially in debt in order to pay for the special tools and training necessary to help Joshua learn. Her efforts have attracted the state-wide attention of those interested in programs for deaf children.

The results have been dramatic. At the time of trial, Joshua, who entered school mid-year, i. e., January rather than the previous September, was at a level of intellectual development equivalent to that of hearing children his age. Various witnesses indicated this was remarkable for a deaf child. The reason for this remarkable development was not only Joshua's native intelligence, but also his educational and home environment which was conducive to communication in sign language. Jeannie and her three children use sign language as fluently as ordinary speech. All have the habit of "signing" everything they say in Joshua's presence, so that he participates in the conversations. Joe, too, has some sign language capability, but it is described as minimal and not at the same level as Jeannie and the other children.

Perhaps the most fundamental difference between the parties lies in their basic personalities. Joe's attitude toward Joshua's future development is described as apathetic and fatalistic. This is not to say that Joe and his family are not concerned and interested in Joshua's development. They are. But Jeannie's actions on Joshua's behalf clearly suggest she believes Joshua has unlimited potential and that he can reach any goal, given proper help. Her dedication, devotion and determination to provide this held is almost overwhelmingly reflected in the record.

The trial court in awarding custody of Joshua to Jeannie based that decision "in part on a finding of unsuitability on the part of the father." The term unsuitability did not go to his character or to his general suitability as a parent, but was limited to this:

(T)hat I do feel that the petitioner, in her providing of the school situation ... and as a situation with the 3 older children with him, as a familiar relationship which they have, ... that that special consideration is a sufficient basis for my reaching the conclusion I have reached.

The court further provided liberal visitation rights to the father, with all the children, as well as visitation on the part of the natural mother of Joshua, Dana.

I. Court Jurisdiction and Standing of the Stepmother to Seek Custody

Joe first contends the court was without jurisdiction to determine custody of Joshua because Jeannie's petition for dissolution did not meet the requirements of RCW 26.09.180. ³ As a nonparent she had neither alleged that the child was "not in the physical custody of one of its parents" nor "that neither parent is a suitable custodian." This contention is correct as far as it goes. When the court heard the motion on summary judgment, which raised this very issue, the court denied the motion but never entered an order to that effect. Thus, that issue continued up to and through the trial. Felsman v. Kessler, 2 Wash.App. 493, 498, 468 P.2d 691 (1970). The trial court by its finding of unsuitability, inferentially deemed the pleadings amended by the proof pursuant to CR 15(b). The unsuitability of both parents, per RCW 26.09.180(1)(b), was before the court in argument and evidence; this had the effect of negating the jurisdictional issue.

More importantly, we hold that in a dissolution action the custody of all children is before the court. RCW 26.09.020 ⁴ sets forth the allegations necessary in a petition for dissolution. Among these is the requirement that "The names, ages, and addresses of any child dependent upon either or both spouses and whether the wife is pregnant;" (italics ours) be set forth in the petition. RCW 26.09.020(1)(d). RCW 26.09.050 requires that the court in entering its decree of dissolution "consider, approve, or make provision for child custody and visitation, the support of any child of the marriage entitled to support, ..." Thus, the legislature in amending the dissolution statute in 1973 provided the court with jurisdiction over all children "dependent upon either or both spouses ..." RCW 26.09.020(1)(d). This statute is notably different from, for example, the California Civil Code, § 4351 (1980), which provides in part:

(T)he superior court has jurisdiction to ... render such judgments and make such orders as are appropriate concerning ... the custody and support of minor children of the marriage, ..."

(Italics ours.) Perry v. Superior Court of Kern County, 108 Cal.App.3d 480, 166 Cal.Rptr. 583 (1980).

Thirdly, we find that RCW 26.090.180, which provides that a child custody proceeding may be commenced: "(a) By a parent: (i) By filing a petition for dissolution of marriage ..." is also applicable to cases involving stepparents where the stepparent can meet the requirement of standing in loco parentis in a matter of child custody. In re Hudson, 13 Wash.2d 673, 693-94, 126 P.2d 765 (1942). A person establishes a relationship in loco parentis when he proves...