Wixom v. Wixom

• Decision Date: 12 August 2014
• Docket Number: No. 30851–1–III.,30851–1–III.
• Citation: 332 P.3d 1063
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Richard Todd WIXOM, Appellant, and Linda Buchholz WIXOM, Respondent.

332 P.3d 1063

In re the MARRIAGE OF Richard Todd WIXOM, Appellant, and Linda Buchholz WIXOM, Respondent.

No. 30851–1–III.

Court of Appeals of Washington, Division 3.

Aug. 12, 2014.

Robert E. Caruso, Attorney at Law, Spokane, WA, for Appellant.

Nichole Swennumson, Law Office of Paul B. Mack, Kenneth H. Kato, Attorney at Law, Spokane, WA, for Respondent.

FEARING, J.

¶ 1 As the noblest calling, the legal profession demands the highest ethical behavior of its members. A supreme commandment of attorney ethics is undivided loyalty to a client and the shunning of any self-interest that would conflict with the interests of the client. Because appellant's counsel violates this commandment, we take the unusual step of disqualifying him, on our own initiative, from representing appellant.

¶ 2 The trial court ruled that Richard (Rick) Wixom and Robert Caruso, his attorney, violated CR 11 and held them jointly liable for $55,000 in attorney fees and costs incurred by Wixom's former wife during a proceeding to modify residential placement of the couple's children. Both Wixom and Caruso appeal, challenging the sanctions and contesting the findings supporting the court's imposition of terms. Caruso further argues that, if this court upholds the sanctions, his client alone should bear the costs. Because this creates a conflict of interest, we disqualify Caruso from further representation of Rick Wixom in this appeal. We also impose limits upon Caruso representing himself.

FACTS

¶ 3 The important facts, upon which we disqualify attorney Robert Caruso, are brief. On appeal, Caruso forwards an argument beneficial to himself and harmful to his client, Rick Wixom. Nevertheless, we provide additional facts to show the background as to how Caruso arrived at forwarding this argument. In supplying this background, we do not seek to prejudge whether sanctions awarded by the trial court against Robert Caruso and Rick Wixom should be affirmed on appeal. Instead, we seek to show the basis upon which the trial court assessed sanctions against both Caruso and Wixom, thereby creating a conflict between attorney and client. Therefore, we will sometimes couch the facts in terms of the respective parties' testimony and findings of fact entered by the trial court.

¶ 4 Rick and Linda Wixom wed in 1991. The couple bore two sons, A.W., age 21; and J.W., age 14; and one daughter, T.W., age 19. Rick and Linda Wixom separated in August 2007.

¶ 5 Linda Wixom holds a graduate degree in pharmacology and is a Washington State licensed pharmacist. From April to September 2006, Linda diverted hydrocodone and alprazolam from her place of employment, a Rite Aid store in Spokane. She accomplished the diversion by forging the name of her physician brother to prescriptions for her husband, Rick Wixom, and by overfilling Rick's prescriptions for hydrocodone. Linda took some of the pills. In September 2006, Rite Aid fired Linda from her job for stealing prescription drugs. In April 2007, the State of Washington Department of Health Board of Pharmacy (Board of Pharmacy) brought disciplinary charges against Linda.

PROCEEDINGS

¶ 6 In September 2007, Rick Wixom petitioned for divorce from Linda. Shortly thereafter Linda voluntarily entered the Washington Recovery Assistance Program for Pharmacists as part of an agreement with the Board of Pharmacy. Linda Wixom agreed to probation for five years with the Board of Pharmacy, and the Board dismissed charges against her in January 2008. As part of probation, Linda underwent random urinalysis testing.

¶ 7 All three children resided with Linda Wixom through October 2008. The oldest child, A.W., then went to live with his father. In October 2008, Rick Wixom began to date Angel. We do not know Angel's last name before her marriage to Rick Wixom.

¶ 8 In January 2009, the federal government indicted Linda Wixom on three counts of obtaining controlled substances by fraud. In February 2009, she pled guilty and entered probation for five years. In September 2009, Linda withdrew her guilty plea, and the court accepted the withdrawal because she had not been advised that she could not work as a pharmacist with the conviction. In November 2009, the United States and Linda entered into a deferred prosecution agreement. Under the agreement, the government promised to dismiss charges against Linda, if she complied with 20 conditions during the next five years.

¶ 9 The trial court entered a decree of dissolution and parenting plan on March 3, 2009, at a time when each child was under the age of majority. Rick received residential placement of A.W., and Linda received placement of the other two children. During the time that he resided with his father, A.W. hated his mother Linda based upon his father's stories of the mother's stealing and taking drugs.

¶ 10 In October 2009, Rick Wixom married Angel.

¶ 11 A.W., and T.W.'s respective relationships with their father and his new wife Angel significantly deteriorated during 2010. The last time that T.W. and A.W saw their father was on December 24, 2010. A.W. moved to his mother's home after either his father evicted him, A.W. left in anger, or both. Rick Wixom claimed that A.W. refused to obey rules, took unlawful drugs, and threatened the safety of Rick's new wife.

¶ 12 Because of the change in A.W.'s residential location, Linda Wixom petitioned the court, on February 8, 2011, to modify the parenting plan. In addition to seeking recognition of A.W. residing with her, Linda, in her petition and in recognition of T.W.'s refusal to visit with her father, sought limitation of T.W.'s visits with Rick Wixom.

¶ 13 On March 23, 2011, Rick counter-petitioned for a modification of the parenting plan. Rick asked that the couple's youngest child, J.W., be placed in his home. Rick alleged that J.W. should be away from his two older siblings, because of their bad influence. Rick further alleged that Linda could not supervise T.W. and J.W. because of Linda's untreated mental illness and continuing abuse of drugs. He claimed that Linda engaged in ongoing criminal behavior.

¶ 14 On April 22, 2011, the trial court found adequate cause to proceed to a trial on Rick Wixom's petition for modification to gain custody of J.W. and Linda's petition to limit visitation between T.W. and Rick. The court appointed experienced guardian ad litem (GAL), Heather Lund, to address the parenting and home environment of both father and mother. By the time of the April 22 hearing, A.W. had reached the age of 18 and thus the court no longer held jurisdiction over the placement of A.W. Linda's petition for modification with regard to A.W. was rendered moot.

¶ 15 Through July 11, 2011, attorney Connie Shields represented Rick Wixom. On July 11, Robert Caruso substituted as counsel for Richard. The trial judge considered this change in attorneys to be significant.

¶ 16 A traumatic event occurred on the evening of July 29, 2011, at a time that the parties were to change care of J.W. Rick Wixom exercised visitation with J.W. from July 23 through July 29. Linda Wixom was to retrieve J.W. from Rick's home on Friday, July 29, at 5:00 p.m., but neither J.W. nor Rick was present when she arrived around 5:45 p.m. Linda's work ended at 5:00 p.m. and she warned Rick that she may be late to retrieve J.W. because of construction on Interstate 90. Rick blamed his failure to surrender J.W. to Linda that Friday evening on Linda's tardiness in retrieving J.W. and Linda's “controlling,” “manipulative,” and “deceitful” behavior. In response to an emergency motion by Linda to regain the presence of J.W., Rick averred that Linda was “impaired by the use of illegally obtained prescription narcotics,” such that “she abandons the children and is only concerned about herself and what is convenient to her and her life.” Clerk's Papers (CP) at 284. Angel Wixom declared that she “perceived” J.W. to “suffer from severe abandonment and guilt issues,” resulting from Linda's “lack of sensitivity and failure to live up to her commitments of time to receive (pick-up) J.W. on time.” CP at 304.

¶ 17 Guardian ad litem, Heather Lund, scheduled a home review of Linda's home for Saturday, July 30, but needed to reschedule because Linda did not gain care of J.W. on July 29. Lund received a phone message from attorney Robert Caruso, at 4:15 p.m., on July 29, stating that J.W. would not be at the home visit the following day. She did not hear the message until Monday, August 1.

¶ 18 The trial court held Rick Wixom in contempt for failing to return J.W. Rick then began to blame the court for embarrassing and humiliating him. The ruling and other rulings by the trial court led to a series of motions by Rick Wixom, including motions for reconsideration, a motion for declaratory judgment, and a motion for removal of a court commissioner from hearing further motions.

¶ 19 On September 8, 2011, guardian ad litem, Heather Lund, issued her report. The guardian expressed concern that disparagement of Linda Wixom by Rick and Angel Wixom posed serious damage to all children's psychological development. Angel and Rick Wixom called Linda a drug addict and “bitch” in the presence of T.W. CP at 1109. The guardian ad litem found that Angel and Rick Wixom routinely violated a court order directing that J.W. have telephone contact with his mother each evening while J.W. visited Richard.

¶ 20 In her report, Heather Lund recommended a modification of the parenting plan to limit T.W.'s contact with her father. According to Lund, Rick Wixom's conduct adversely affected T.W.'s best interests because of the absence of emotional ties between them. Lund further concluded that Linda Wixom should retain custody of J.W., but that visitation with Rick Wixom be extended while Rick was home, but curtailed if only Angel Wixom was at home.

¶ 21 After the filing of the guardian ad litem report, Rick Wixom's counsel, Robert Caraso, requested that Heather Lund conduct an investigation into...