McWain-Co v. Cox

• Decision Date: 15 January 1999
• Docket Number: 96-3-00500-7
• Court: Washington Court of Appeals
• Parties: <PartyHeader> IN RE THE MARRIAGE OF: HOLLY A. MCWAIN-CO, RESPONDENT, v. WILLIAM W. COX, APPELLANT. </PartyHeader>

[1]
[2]	IN RE THE MARRIAGE OF: HOLLY A. MCWAIN-COX, RESPONDENT,; v.; WILLIAM W. COX, APPELLANT.
[3]	No. 22184-5-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Cowlitz County Docket No: 96-3-00500-7 Judgement or order under review Date filed: 07/29/97 Judge signing: Hon. Stephen M. Warning
[6]	January 15, 1999
[7]	Judges: Authored by David H. Armstrong Concurring: J. Dean Morgan J. Robin Hunt
[8]	Counsel: Counsel for Appellant(s) John M. Clark Attorney At Law 1011 NW 58th St Vancouver, WA 98663-1181 Counsel for Respondent(s) Edward J. Putka Putka & Styve 208 Church Street P.o. Box 1098 Kelso, WA 98626
[9]	The opinion of the court was delivered by: Armstrong, J.
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	William Cox appeals a dissolution of marriage decree, contending the trial court erred in: (1) denying his request for a postponement of the trial; (2) imputing income to him for purposes of child support calculations; (3) failing to adopt and sign child support worksheets; (4) imposing restrictions on his relationship with his children; and (5) distributing the assets and liabilities to the parties. We affirm, but remand to the trial court for the limited purpose of conducting an evidentiary hearing regarding the existence of RCW 26.09.191 limiting factors (parenting plan restrictions).
[12]	FACTS
[13]	William and Holly were married on October 29, 1986. Two children were born to the parties: William (DOB 4/19/87) and Whitney (DOB 9/2/89). Before the marriage, William owned two parcels of improved property in Cowlitz County. One parcel was located on Ocean Beach Highway and the other, which served as the family home, was located on Larch Street. During the marriage, William owned and operated a used tire business and Holly worked as a manager at Fred Meyer Jewelers.
[14]	Holly petitioned for dissolution of marriage on August 20, 1996. William was ordered to appear and show cause why Holly's motion for temporary orders should not be granted. On August 30, William appeared pro se and asked for a continuance to hire a lawyer. The court ordered William to vacate the family home, entered mutual restraining orders, and continued the matter to September 6. Shortly after this hearing, Holly filed a supplemental declaration detailing threatening actions of William. On September 5, attorney C. Michael McLean appeared on behalf of William. The September 6 hearing was postponed to September 13 at the request of Holly's attorney. On September 13, the court heard the temporary visitation issue. On October 11, the court held additional hearings and entered a temporary order approving the temporary parenting plan, requiring William to pay child support, and requiring William to sign the 1993-95 income tax returns. The court also entered mutual restraining orders. On November 15, Holly requested an order requiring William to deliver their IRS tax refund check to counsel as trustee for the parties. The court entered an agreed order requiring that, upon receipt, the unsigned IRS check be held by counsel and not negotiated or disbursed without further order of the court.
[15]	William's counsel moved to withdraw on December 18. Counsel stated,"{d}espite continual contacts with Mr. Cox to bring in documentation and follow the orders of the Court, he chooses not to do so, making my representation an impossibility." Counsel assured the court that he had informed William his trial was set for January 21, 1997, and that his interrogatories had been due on December 13, 1996.
[16]	On January 3, 1997, the court granted McLean's motion to withdraw as counsel. The court also ordered William to provide completed interrogatory answers; the matter was set for review in one week. Subsequently, Holly filed two contempt motions for failure to pay child support as ordered and for failure to deliver the tax refund check.*fn1
[17]	On January 10, the court reviewed the issues of child support, the tax refund, and the interrogatory answers. At this hearing, William admitted he was not paying child support, but invoked the Fifth Amendment when questioned about the tax refund. William then asked for a continuance, which the court granted. But the court cautioned William that if he did not bring the tax refund and the completed interrogatory answers to court the following week, he would be held in contempt and could be sent to jail. The court ordered William to appear the following week with or without counsel.
[18]	On January 17, the court again reviewed the contempt issues. And William again invoked the Fifth Amendment, stating he would not speak until he could obtain counsel. The court found William in contempt and remanded him into custody until he produced $3,000 or the tax refund. At the request of Holly's attorney, a continuance was granted on the issue of the interrogatories.
[19]	On January 24, the court released William after admonishing him for his continued failure to comply with the court orders. William was warned that if he failed to complete the interrogatories and produce the tax refund, he would be found in contempt. The court set the matter for review on February 7 and set a new trial date for February 20.
[20]	William appeared in court on February 7. Because he refused to produce the tax refund or pay $3,000, William was again found in contempt. The court remanded William into custody. One week later, the court reviewed the contempt order, denied William's request for appointment of counsel, and remanded him back to custody.*fn2
[21]	On February 20, the trial date, William again stated he had not been able to secure counsel. Holly moved for and was granted an order of default due to William's failure to respond to the dissolution proceeding. The court then denied William's motion for a continuance, reasoning that he had been given sufficient time to obtain counsel. Holly called William as a witness, who refused to answer questions. The court heard testimony from Holly and received statements from Holly's counsel and William. The testimony, however, was neither reported nor recorded.
[22]	The court granted the decree of dissolution, designating Holly as the primary caregiver and custodial parent and adopting her proposed parenting plan. The court granted a continuing restraining order and found William's monthly income to be $2,500. However, the court reserved ruling on the issues of child support and property division.
[23]	On February 24, the court ruled on the division of property and child support. Through inadvertence or neglect, Holly's statement of family financial status was neither attached nor filed until February 24, four days after the dissolution hearing. However, the clerk's minutes state, "{Court} reiterated his notes from {Plaintiff's} trial aid{} on debt {and} property values assigned to ea{ch} party not disputed." Further, the original document contains what appears to be the handwritten notes of the Judge.
[24]	The final papers were not presented until March 20, when new counsel for William appeared. On this date, Holly filed the decree of dissolution and findings of fact and Conclusions of law.
[25]	ANALYSIS
[26]	A. Denial of Continuance
[27]	William asserts the trial court abused its discretion in denying his motion for a continuance, thus denying him any opportunity for meaningful participation in the proceedings. Holly contends that the trial court properly denied the motion, as William's need for a continuance was due to his own obstructionist behavior.
[28]	A motion for a continuance is addressed to the sound discretion of the court and will be set aside only if a manifest abuse is shown. MacKay v. MacKay, 55 Wn.2d 344, 348, 347 P.2d 1062 (1959). In Chamberlain v. Chamberlain, 44 Wn.2d 689, 270 P.2d 464, 68 A.L.R.2d 457 (1954), the court explained:
[29]	"The meaning of the term 'abuse of judicial

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