State v. Vinyard, 8503-1-III
| Decision Date | 29 March 1988 |
| Docket Number | No. 8503-1-III,8503-1-III |
| Citation | 751 P.2d 339,50 Wn.App. 888 |
| Parties | STATE of Washington, Respondent, v. Suzanne Westfall VINYARD, Appellant. |
| Court | Washington Court of Appeals |
Douglas Haynes, Thorner, Kennedy & Gano, Yakima, for appellant.
Gerald Matosich, Pros. Atty., Goldendale, for respondent.
Suzanne Westfall Vinyard entered a plea of guilty to custodial interference in the second degree. Pursuant to RCW 9.94A.140(1) and RCW 9A.40.080, she was ordered to pay $76,021.98 restitution to her former husband for expenses he incurred in locating and returning the child wrongfully abducted. She appeals. We reverse and remand.
In August 1984, Mrs. Vinyard unlawfully took her youngest child, Stephen, from Mr. Vinyard's custody. She fled and hid the child for approximately 15 months until discovered in Kerrville, Texas. A warrant was issued for her arrest after the abduction.
During the 15 months, Mr. Vinyard employed investigators, had photos and posters printed, contacted numerous agencies specializing in locating missing and parentally abducted children, and personally traveled around the country in an effort to locate his child, and to publicize both his child's abduction and the problem of parental abduction in general. He was advised by a deputy prosecutor and his own attorney to keep track of his expenses so that, when Stephen was located, a court could order Mrs. Vinyard to make restitution for his expenses.
Mrs. Vinyard and Stephen were located when the child's picture was recognized on a poster at a grocery store offering a $5,000 reward. Mr. Vinyard had paid $3,000 of the reward at the time of the restitution hearing.
After Stephen was returned, Mr. Vinyard began to compile documentation and a summary of his expenses. He asked the Davidson Agency, a nonprofit organization specializing in locating missing children, which had aided him in his search for the child, to send him a bill outlining its expenses. The bill totaled $41,500. Mr. Vinyard paid $5,000 of that amount.
After Stephen's return, Mr. Vinyard took him to a psychologist for therapy, and to a medical doctor for treatment of ear problems. Mr. Vinyard employed an attorney throughout this period. Hearings were held to limit Mrs. Vinyard's visitation. The psychologist was used in part to support Mr. Vinyard's efforts to limit visitation.
After Mrs. Vinyard pleaded guilty to custodial interference in the second degree, a restitution hearing was held. Only Mr. Vinyard testified. The State submitted one exhibit, a summary documentation of expenses prepared by Mr. Vinyard containing receipts and estimates. The trial court ruled the entire amount claimed, $76,021.98, was reasonable, and ordered Mrs. Vinyard to pay that amount. Included was:
There is no dispute the court had authority to order restitution. The issue is whether the trial court erred in ordering restitution of $76,021.98.
The appellate court may reverse an order of restitution only if the trial court abused its discretion, State v. Mark, 36 Wash.App. 428, 433, 675 P.2d 1250 (1984). In addition, restitution is authorized only by statute, and a trial court exceeds its statutory authority in ordering restitution where the loss suffered is not causally related to the offense committed by the defendant, or where the statutory provisions are not followed. Mark; at 436, 675 P.2d 1250; State v. Hartwell, 38 Wash.App. 135, 141, 684 P.2d 778 (1984).
Suzanne Vinyard was convicted under RCW 9A.40.070 of custodial interference in the second degree, making the provisions of RCW 9A.40.080(1) applicable:
Any reasonable expenses incurred in locating or returning a child or incompetent person shall be assessed against a defendant convicted under RCW 9A.40.060 or 9A.40.070.
In ordering restitution, the court also relied on the general restitution statute, RCW 9.94A.140. It provides in relevant part:
(1) ... Restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses ...
(2) Restitution may be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property....
* * *
(4) This section does not limit civil remedies or defenses available to the victim or defendant.
Thus, the court actually ordered restitution in two separate areas: (1) reasonable expenses incurred in locating or returning the child, and (2) easily ascertainable damages for injury, including the "actual expenses incurred for treatment ..."
Under RCW 9A.40.080 two requirements must be satisfied before a court may order a defendant convicted of custodial interference to reimburse the victim for certain expenses: (1) those expenses must be "reasonable"; and (2) they must be "incurred". RCW 9.94A.140 is broader and allows restitution to any person who sustains physical or financial injury to person or property as a result of the crime charged as long as the expense is "actually incurred". See RCW 9.94A.030(25); State v. Goodrich, 47 Wash.App. 114, 733 P.2d 1000 (1987); State v. Halsen, 50 Wash.App. 30, 746 P.2d 1235 (1987); State v. Forbes, 43 Wash.App. 793, 719 P.2d 941 (1986). In interpreting these statutes, we must attempt to ascertain and give effect to the intent and purpose of the Legislature, as expressed in the act. State v. Eilts, 94 Wash.2d 489, 493, 617 P.2d 993 (1980).
First, as to the $4,700 allowed for future estimated expenses, State v. Goodrich, supra, is dispositive. The court there held it was error for the trial court to award restitution for future medical expenses not yet incurred by the victim. To be "incurred", the victim must be obligated to pay the expense, i.e., become liable or subject to. Goodrich, 47 Wash.App. at 117, 733 P.2d 1000. There must be adequate proof that the victim is obligated to pay for medical services to be performed, and adequate proof of the amount of that obligation, before an award of restitution for future medical services is allowable. We are persuaded this reasoning should apply to other future expenses as well. Here, other than Mr. Vinyard's estimate of $2,000 for "continuing psychological therapy", $700 for "additional travel expenses", and $2,000 for "additional attorney expense", there was no proof of any obligation to pay future expenses. These expenses were not "incurred" at the time of the award...
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...was finitely addressed in Kaess, 748 P.2d 698. See also Holtzheimer v. State, 766 P.2d 1177 (Alaska App.1989) and State v. Vinyard, 50 Wash.App. 888, 751 P.2d 339 (1988), where the items were deleted which were not properly proved. See likewise People v. Cheatum, 148 A.D.2d 986, 539 N.Y.S.2......
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