Swaka v. Swaka

• Decision Date: 20 February 2014
• Docket Number: Nos. 42758–3–II, 43518–7–II.,s. 42758–3–II, 43518–7–II.
• Court: Washington Court of Appeals
• Parties: In the Matter of the MARRIAGE OF Alexandra SWAKA, Respondent, and James Swaka, Appellant.

179 Wash.App. 549

319 P.3d 69

In the Matter of the MARRIAGE OF Alexandra SWAKA, Respondent, and James Swaka, Appellant.

Nos. 42758–3–II, 43518–7–II.

Court of Appeals of Washington, Division 2.

Feb. 20, 2014.

Michael W. Louden, Wechsler Becker, LLP, Seattle, WA, for Appellant.

Laura Anne Carlsen, Jamie R. Walker, McKinley Irvin, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

MAXA, J.

¶ 1 James Swaka appeals the trial court's decision to allow Alexandra Swaka to testify via Skype ¹ from Spain at a relocation trial. We hold that the trial court did not abuse its discretion in allowing remote testimony under CR 43(a)(1) and therefore affirm on that issue. In the unpublished portion of this opinion, we address James Swaka's additional assignments of error and affirm on all issues except for the award of attorney fees relating to various pre-trial motions. We reverse and remand for further proceedings with regard to the attorney fee award.

FACTS

¶ 2 This appeal arises from ongoing litigation between former spouses James and Alexandra Swaka over Alexandra's ² move to Spain with the parties' two children. James and Alexandra married in 2002, the couple separated in November 2006, and Alexandra filed for dissolution in March 2007. James did not respond or appear, and in September Alexandra obtained a default dissolution order, child support order, and parenting plan. Alexandra was designated as the primary residential parent.

¶ 3 In August 2009, Alexandra moved to Spain with the children for a study abroad program. James did not object to the relocation at that time. In June 2010, while still in Spain, Alexandra and the children began living with Juan Gonzalez and his two children, who were the same ages as the Swaka children. Alexandra eventually decided to remain in Spain permanently. In April 2011, Alexandra moved for an order permitting her to permanently relocate to Spain and for an order waiving notice requirements for relocation. The trial court granted the motions.

¶ 4 In June 2011, James moved for reconsideration of the trial court's order waiving notice requirements and he objected to the relocation. The trial court allowed Alexandra's relocation to Spain pending trial and issued a temporary order stating that the children would remain with Alexandra and that the original 2007 parenting plan would remain in full force and effect.

¶ 5 The relocation trial took place in March 2012. Alexandra moved for an order permitting her to testify via Skype at trial. In support of her motion, Alexandra argued that it would be inconvenient and disruptive to their children if she had to travel to Washington to testify. She also argued that she was worried that her parents might try to have her detained in Washington “in order to get their hands on my kids.” Clerks Papers (CP) at 650–51. Alexandra's concerns were based on her parents' previous efforts to force her to return to the United States with the children, including threatening to have her arrested and attempting to have her deported from Spain. The trial court granted the motion over James's objection. James appeals this decision.

ANALYSIS

¶ 6 James argues that the trial court abused its discretion when it allowed Alexandra to testify via Skype under CR 43(a)(1).³ we disagree because alexandra showed good cauSE IN COMPELLING circumstances for testifying remotely.

A. Interpretation ofCR 43(a)(1)

¶ 7 CR 43(a)(1) provides:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

The second sentence of CR 43(a)(1) was added in 2010 and was modeled after an identical provision in Federal Rule of Civil Procedure (FRCP) 43(a). Washington State Register (WSR) 10–05–090 (2010).

¶ 8 The question here is whether the trial court properly found that there was “good cause in compelling circumstances” to allow Alexandra to testify via Skype. CR 43(a)(1). Because CR 43(a)(1) states that the trial court “may” permit remote contemporaneous testimony, the rule is by its plain terms discretionary and we review the trial court's ruling on the issue for abuse of discretion. See United States v. Kivanc, 714 F.3d 782, 791 (4th Cir.2013) (rulings regarding Use of remote testimony under FRCP 43(a) reviewed for abuse of discretion), cert. denied,––– U.S. ––––, 134 S.Ct. 302, 187 L.Ed.2d 154 (2013). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wash.2d 39, 46–47, 940 P.2d 1362 (1997).

¶ 9 No Washington court has interpreted the new language in CR 43(a)(1) allowing remote contemporaneous testimony. In Kinsman v. Englander, 140 Wash.App. 835, 843–44, 167 P.3d 622 (2007), we held that under the pre–2010 version of CR 43(a)(1) a trial court could not allow telephonic testimony without the consent of all parties. But Kinsman does not apply to the current version of the rule, which contemplates allowing remote testimony under certain circumstances.

¶ 10 The drafters of the 2010 amendment intended that Washington courts seek guidance from the 1996 Advisory Committee Note to FRCP 43 when interpreting this provision. WSR 10–05–090.

¶ 11 The federal advisory committee note provides in relevant part:

The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.

The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to. reschedule the trial, particularly if there is a risk that other—and perhaps more important—witnesses might not be available at a later time.

Other possible justifications for remote transmission must be approached cautiously.... An unforeseen need for the testimony of a remote witness that arises during trial ... may establish good cause and compelling circumstances. Justification is particularly likely if the need arises from the interjection of new issues during trial or from the unexpected inability to present testimony as planned from a different witness....

A party who could reasonably foresee the circumstances offered to justify transmissionof testimony will have special difficulty in showing good cause and the compelling nature of the circumstances....

Safeguards must be adopted that ensure accurate identification of the witness and that protect against influence by persons present with the witness. Accurate transmission likewise must be assured.

FRCP 43 advisory committee's note to 1996 amendments.

¶ 12 Where a state rule has the same language as a federal rule, we may look for guidance to courts applying the federal rule. Beal v. City of Seattle, 134 Wash.2d 769, 777, 954 P.2d 237 (1998). In fact, the drafters of the amendment to CR 43(a)(1) also intended that Washington courts seek guidance from federal court interpretations of FRCP 43(a). WSR 10–05–090.

¶ 13 Federal appellate courts reviewing trial courts' rulings under FRCP 43(a) allowing remote contemporaneous testimony have been reluctant to reverse such rulings. See, e.g., El–Hadad v. United Arab Emirates, 496 F.3d 658, 669 (D.C.Cir.2007) (trial court acted within its discretion when permitting plaintiff to testify via Internet video from Egypt when he had tried and failed to obtain visa to U.S.); Thornton v. Snyder, 428 F.3d 690, 698–99 (7th Cir.2005) (affirming trial court's decision to allow trial by video conference due to plaintiff's incarceration and high escape risk and need for 20 additional witnesses to travel from different parts of the state); Beltran–Tirado v. Immigration and Naturalization Serv., 213 F.3d 1179, 1186 (9th Cir.2000) (decision to allow witness who lived in Missouri to testify telephonically at hearing in San. Diego did not violate due process because remote testimony would have been admissible under FRCP 43(a)).

¶ 14 Federal appellate courts generally have affirmed trial court rulings refusing to allow remote testimony as well, deferring to the trial court's discretion. See, e.g., Kivanc, 714 F.3d at 791 (trial court did not abuse discretion in denying motion for two claimants in a forfeiture action to testify from Turkey after weighing conflicting testimony regarding one claimant's ability to travel and because second claimant's reason for testifying remotely was that he was simply “ ‘unwilling to come back’ ” to the U.S.); Air Turbine Tech., Inc. v. Atlas Copco AB, 410 F.3d 701, 714 (Fed.Cir.2005) (affirming trial court's denial of motion to use video conference testimony, noting that whether to allow video teleconference testimony was “a matter expressly reserved to the sound discretion of the trial court”).

B. Good Cause in Compelling Circumstances

¶ 15 Determining whether a party has shown “good cause in compelling circumstances” involves a fact-specific inquiry that rests in the sound discretion of the trial court. We hold that under the circumstances here, the trial court did not abuse its discretion in allowing Alexandra to testify remotely from Spain.

¶ 16 First, traveling from Spain to Washington would have been a hardship for Alexandra and the children. In her declaration in support of her motion to testify via Skype, Alexandra stated, “I reside in Spain, and would have to travel internationally to appear at court...