Mason v. Mason, 51642-0-II

• Court: Court of Appeals of Washington
• Decision Date: 19 October 2021
• Docket Number: 51642-0-II
• Parties: TATYANA MASON, Appellant, v. JOHN MASON AND LAURIE ROBERTSON, Respondents.

TATYANA MASON, Appellant,
v.
JOHN MASON AND LAURIE ROBERTSON, Respondents.

No. 51642-0-II

Court of Appeals of Washington, Division 2

October 19, 2021

OPINION

CRUSER, J.

Tatyana Mason appeals from the trial court's orders dismissing personal injury claims she filed against her former husband, John Mason, and his attorney, Laurie Robertson, who represented John^[1] during the dissolution proceedings. She argues that the trial court erred in dismissing her abuse of process and intentional infliction of emotional distress claims because (1) the trial court failed to apply the proper standard of review under CR 12(b)(6), (2) she was denied a due process and statutory right when the trial courts in prior family law proceedings and in the instant case did not provide her with an interpreter, (3) the statute of limitations does not bar her claims, (4) neither res judicata nor collateral estoppel bar her claims, (5) the litigation privilege does not apply to bar her abuse of process claim against Robertson, (6) her abuse of process and intentional infliction of emotional distress claims should have survived

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both Robertson's and John's motions to dismiss, and (7) sanctions should not have been awarded to John and Robertson under CR 11 or RCW 4.84.185. Tatyana also (8) moved for sanctions on appeal, alleging that John's appellate counsel has a conflict of interest and that the statement of facts in his response brief is improperly argumentative.

In the published portion of this opinion, we hold that (1) the summary judgment standard of review applies because the trial court considered material beyond the pleadings; (2) the trial court abused its discretion when it failed to determine whether Tatyana required an interpreter in the instant case; (3) the statute of limitations does not bar Tatyana's claims; (4) the doctrines of res judicata and collateral estoppel do not bar Tatyana's claims; and (5) litigation privilege does not bar Tatyana's abuse of process claim against Robertson or her intentional infliction of emotional distress claims against John or Robertson. In the unpublished portion of this opinion, we hold that (6) the trial court erred in dismissing Tatyana's abuse of process and intentional infliction of emotional distress claims against John on summary judgment; (7) the trial court abused its discretion when it awarded sanctions pursuant to CR 11 to John and Robertson and pursuant to RCW 4.84.185 to Robertson; and we (8) deny Tatyana's motion for appellate sanctions.

Accordingly, we reverse the trial court's orders granting Robertson's and John's motions to dismiss, and we remand for further proceedings consistent with this opinion.

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FACTS

I. Marriage and Dissolution

Tatyana Mason came to the United States from the Ukraine under a fiancé visa sponsored by John Mason. The two married several months later, on August 19, 1999. While married, Tatyana and John had two children.

In 2007, a family law court entered a civil finding of domestic violence against John, and Tatyana obtained a domestic violence protection order. Soon after, John hired Laurie Robertson to represent him as his attorney, and he filed a petition for dissolution.

The decree of dissolution, final parenting plan, and child support order were entered in 2008. Initially, the parents shared equal residential time with their children. John was ordered to pay child support to Tatyana. In determining the support amounts, the trial court found that Tatyana was "voluntarily unemployed" and imputed income to her. Clerk's Papers (CP) at 565.

II. John's Petition for a Parenting Plan Modification

In 2011, John filed a petition to modify the parenting plan, alleging that Tatyana was physically and emotionally abusive towards their children. Child Protective Services investigated statements the children made regarding physical abuse and determined the allegations were "'founded.'" Id. at 603. John also obtained an emergency order granting him custody of the children while the modification was adjudicated. Tatyana's time with the children was diminished to supervised visitation.

The trial court appointed a guardian ad litem (GAL) to investigate the allegations. The GAL concluded that Tatyana engaged in actions that rose to the level of abuse and recommended that John remain the primary custodial parent while Tatyana maintained supervised visitation.

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After several continuances, the matter proceeded to trial, during which Tatyana was represented by counsel. In addition to testimony from the parents and the GAL, the trial court heard testimony from Sandra Hurd, the children's former therapist. During trial, Hurd and the GAL testified regarding disclosures of abuse the children made to them. The trial court found this testimony credible.

On November 25, 2013, the trial court ruled that due to a substantial change in circumstances, modification of the parenting plan was in the children's best interest. It entered a finding of abuse regarding Tatyana under RCW 26.09.191.

The trial court also found that despite the prior domestic abuse finding against John in 2007, there was "no evidence to support any additional finding of domestic violence," and John did not continue to pose a current concern regarding his ability to provide care for the children. CP at 603. The trial court further found that Tatyana did not exercise all of the visitation she had available with her children as allowed by various court orders while the modification litigation was ongoing. In calculating child support obligations in light of the modified parenting plan, the trial court concluded that Tatyana was voluntarily unemployed and imputed income to her. Tatyana was ordered to pay $412.04 in child support to John for both children.

In addition, the trial court entered an order restraining Tatyana from contacting John and her children. However, the trial court found that the children would benefit from a healthy relationship with their mother and provided for a reunification plan. Tatyana could work with the children's new counselor and a therapist to rebuild the relationship, with a court case coordinator monitoring the progress.

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III. Tatyana's 2015 Appeal

After the trial court denied Tatyana's motion for reconsideration, Tatyana appealed to this court. In re Marriage of Mason, No. 45835-7-II, slip op. at 1 (Wash.Ct.App. July 7, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2045835-7- II%20%20Unpublished%20Opinion.pdf. Tatyana argued that the trial court's findings were not supported by substantial evidence and that the trial court erred in denying her motion for reconsideration. Id. Tatyana did not appeal the trial court's imputation of income or its finding that she was voluntarily unemployed. We affirmed, holding that substantial evidence supported the trial court's findings of abuse and that the trial court did not abuse its discretion in denying her motion for reconsideration. Id. at 8. The mandate issued, terminating review of the case on August 7, 2015.

IV. Tatyana's Motion to Vacate the Child Support Order

Tatyana began the citizenship naturalization process on September 9, 2013 by submitting a form to the United States Citizenship and Immigration Services (USCIS), and she appeared for an interview on December 2, 2013. USCIS denied her application on May 5, 2014, because of the protection orders entered against her as well as the child support that she owed. During the interview, Tatyana explained that she did not apply for naturalization before the orders were entered because of the abusive and controlling behaviors she experienced while married to John, her difficulty understanding English, and the strain of the contentious divorce proceedings. USCIS explained that the circumstances she described were "difficult and not extenuating," and it informed Tatyana that to be eligible for naturalization, she had to demonstrate that the protection order was terminated and that she did not owe child support. CP at 774.

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Tatyana was a conditional permanent resident, meaning Tatyana and John were required to jointly petition to remove the conditions on her residency and appear for an interview within two years of the date Tatyana became a conditional permanent resident. However, the conditions were never removed, terminating Tatyana's conditional resident status. 8 U.S.C. § 1186a(c)(2). In addition, as a result of Tatyana's past due child support, the Division of Child Support was unable to release her passport to her until she paid the balance in full.

On September 1, 2015, Tatyana filed a motion pro se, requesting that the trial court dismiss the amount of child support owed. She asserted that in the 2013 child support order, the trial court incorrectly imputed income to her and that the resulting impact on her immigration status prevented her from finding employment. The trial court construed Tatyana's motion as a motion to vacate the 2013 child support order under CR 60. Tatyana argued that the trial court should vacate the child support order because in entering the 2013 order, the trial court was not aware that John filed an I-864 affidavit in 1999, promising the United States government that he would provide continual financial support to Tatyana.

In response, John denied that he ever completed or filed the I-864 affidavit, raising the issue of whether the form existed at all. John further denied that he would have been required to complete an I-864 affidavit as part of the fiancé visa application. The trial court held a three-day hearing on the narrow issue of the form's existence. Following the hearing, the trial court found that the form did exist and that it was filed shortly after the parties were married as a necessary part of the process to convert Tatyana's fiancé visa to a permanent residency. It concluded that the I-864 affidavit represented a continuing obligation that John...