CASERTA v. CASERTA, 27643-7-II (Wash.App. 12-28-2001)

ARMSTRONG, C.J.

Christopher Caserta challenges the parenting plan that the trial court devised for his son, Stephen, after dissolving his marriage to Lorie Caserta. He contends that Lorie should not be Stephen's primary residential parent. He argues that the trial court failed to provide a basis for the parties to prepare findings of fact and misjudged the credibility of several witnesses. He also argues that the trial court committed various errors of law in handling the case. He alleges that the trial court (1) used an impermissible "friendly parent" concept to determine the parenting plan provisions, (2) failed to consider all of the statutory factors for determining parenting plan provisions, (3) failed to consider Stephen's circumstances at the time trial, (4) erred by not limiting Lorie's time with Stephen, and (5) improperly attempted to retain jurisdiction over the case. We agree that the trial court erred in attempting to retain exclusive jurisdiction over the case, although it did not err in expressing a desire to oversee subsequent matters. Otherwise, we find no error and affirm.

Christopher and Lorie Caserta married in 1987, while they were both in Air Force schooling. After graduating, the Air Force stationed them in South Carolina. When their son, Stephen, was born in 1990, Lorie left the Air Force for a job that ensured she would be near him. Christopher was often away from home on military assignments.

By 1995, Christopher and Lorie's relationship had deteriorated significantly. Lorie moved to Florida for a job and took Stephen with her, while Christopher stayed in South Carolina. In 1997, the Air Force transferred Christopher to Tacoma, Washington. Lorie followed Christopher to Washington in 1999 so that they could attempt to reconcile. Christopher and Lorie each allege that the other committed acts of domestic violence in their marriage. In October 1999, they had a particularly violent confrontation. Each testified that the other threw wet clothes onto the floor. Lorie threw some knives, but she said she was not aiming at Christopher. She also kicked his shins until he bled. Christopher eventually fled and called the police. Lorie admitted the assault to police and said that at times she tended to be aggressive and violent toward her husband. The State charged Lorie with fourth degree assault, and she entered an Alford plea. After she was released from jail, Lorie moved to a women's shelter and filed to dissolve the marriage. By the time of the dissolution trial, Lorie had moved back to Florida. The trial court appointed Kelly LeBlanc as a parenting investigator. LeBlanc recommended "primary residential placement" with Lorie in Florida, "subject to liberal visitation privileges" for Christopher. LeBlanc referred the parties to a psychologist, Dr. Thomas Clifford, who evaluated the parties and testified at trial. He concurred with LeBlanc's recommendation. Stephen's counselor, Dr. Ellie Sternquist, testified that sending Stephen to Florida would make him feel angry, frightened, and helpless.

The trial court filed a written decision on June 12, 2001, stating that Stephen would live with Lorie during the school years and with Christopher during the summers. The court entered written findings of fact and conclusions of law on July 26, 2001, along with a decree and parenting plan. But none of these documents indicated the basis of the court's parenting plan decisions. The day after Christopher filed his notice of appeal, Lorie moved the trial court to enter supplemental findings of fact. On September 7, 2001, the trial court entered detailed findings of fact and conclusions of law. The trial court concluded that Lorie should be the primary parent because she was `the primary parent of the child for most of his life and continues to offer an environment which is beneficial to the health, physical, and emotional well-being of the child.' CP at 916. Christopher appealed and a commissioner of this court stayed the order transferring Stephen to Florida in August 2001.

Christopher argues that the trial court (1) failed to explain the factual basis of its decision, (2) misjudged the credibility of the witnesses, (3) entered findings of fact that lack support in the record, and (4) misapplied the law.

Christopher argues that the trial court had a duty to prepare written factual findings on its own or at least to state its findings orally so that the prevailing party could put them in writing. A trial court must enter findings of fact sufficient to show the basis for its conclusions. In re Marriage of Croley, 91 Wn.2d 288, 292, 588 P.2d 738 (1978) (citing CR 52(a)(2)(B)). Under RCW 4.44.070, the prevailing party ordinarily submits proposed findings of fact and conclusions of law to the judge for signature. See DGHI Enters. v. Pac. Cities, Inc., 137 Wn.2d 933, 945, 977 P.2d 1231 (1999). When the written findings are inadequate, we can consider the trial court's oral remarks for more information about the court's reasoning. In re LaBelle, 107 Wn.2d 196, 219, 728 P.2d 138 (1986). Here, the trial court did not give an oral explanation before entering its initial findings. And neither the court's written decision, the parenting plan, the decree, nor the court's initial findings of fact tell us which facts the court relied on in devising the parenting plan. But Christopher's argument is of no consequence now that the trial court has orally explained its reasoning and entered written findings explaining the reasons for its parenting plan decisions.

Christopher assigns error to most of the trial court's 50 supplemental findings of fact. Much of his argument relates to the trial court's assessment of witness credibility. He argues that the trial court based its findings on testimony that it should not have believed. When an appellant challenges the trial court's findings of fact, we determine whether substantial evidence supports each challenged finding. In re Marriage of Crosetto, 82 Wn. App. 545, 553, 918 P.2d 954 (1996). But we do not review a trial court's credibility determinations. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999). Rather, trial courts have broad discretion to weigh evidence and determine credibility because of their unique opportunity to observe the parties and their witnesses. In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982). Christopher argues that the trial court erred by rejecting his testimony regarding Lorie's domestic violence against him. He challenges the court's finding that his testimony was not credible because his "versions of [the] facts changed and grew as time went on." CP at 914. He also contends that the court relied on a psychologist's assessment of his credibility rather than its own. But Christopher points to nothing in the factual findings or the transcript that suggests that the trial court deferred to Dr. Clifford's assessment of Christopher's credibility. And there was evidence that Christopher's story changed. Dr. Clifford testified that Christopher mentioned the use of knives in a casual way, and Christopher did not tell him about most of Lorie's alleged acts of domestic violence. This evidence supports the trial court's decision to disbelieve Christopher's testimony about these incidents. Christopher also contends that the trial court relied on information outside the record to assess Dr. Sternquist's credibility. He argues that the court criticized Dr. Sternquist for testifying and considered her `unprofessional.' But Christopher fails to cite to the record in making this argument and fails to explain how the court relied on information outside the record. Moreover, we do not question a trial court's assessment of witness credibility. Christopher further argues that, after discovering that Lorie had lied, the trial court should not have believed any of her testimony without a reasonable basis to do so. Christopher cites no authority for this and we are aware of none. The trial court recognized that both Lorie and Christopher had problems with honesty, and it believed the portions of their testimony that the evidence supported. Christopher also argues that the trial court should not have relied on the parenting investigator's report. He faults the report for suggesting that he should have left the abusive relationship, arguing that this is one of the `classic myths of spousal abuse.' App. Br. at 60. And he argues that the trial court misjudged the credibility of various other witnesses, including his parents, a teacher, and a day care worker. Again, however, we defer to the trial court's judgment of witness credibility.

In addition to findings relating to witness credibility, Christopher argues that many of the trial court's other findings lack support in the record. His arguments generally relate to incidental and isolated events that occurred during the marriage, and we decline to address these arguments . . .

We do address his argument that the record lacks support for the trial court's findings about each parent's emotional capabilities because these relate to each parent's ability to care for Stephen under the parenting plan. Christopher argues that the record does not support the trial court's finding that Lorie "is able to form close, intimate and mutually supportive relationships." CP at 902. And he argues that nothing in the record supports the trial court's finding that he "is not capable of emotionally supporting Stephen[.]" CP at 916. But Dr. Clifford concluded that Christopher tends to avoid emotional challenges. He found that Christopher tries to "keep people at a distance" and has an "aversion to becoming engaged in emotionally charged situations." CP at 199, 207. On the other hand, while Dr. Clifford believed that Lorie has low self-esteem, he also concluded that she meets emotional challenges "head on" and "has been the immediately present parent for Stephen for all of his life[.]" CP at 207. And Dr. Clifford stated that Lorie "appears capable of . . . establishing close, intimate, and mutually supportive relationships with other people." CP at 203. The record supports the trial court's findings.

Generally, we review a trial court's parenting plan decision for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). A trial court abuses its discretion by making a decision that is unreasonable or lacks a tenable basis. Littlefield, 133 Wn.2d at 46-47. But we review a trial court's application of the law de novo. In re Marriage of Flynn, 94 Wn. App. 185, 192, 972 P.2d 500 (1999).

Christopher alleges that the trial court chose Lorie as Stephen's primary residential parent because she is the "friendly parent." Division One recently cautioned against considering whether a parent is "friendly" in devising the parenting plan. Lawrence v. Lawrence, 105 Wn. App. 683, 687-88, 20 P.3d 972 (2001). A friendly parent is one who is likely to foster the child's relationship with the other parent. Lawrence, 105 Wn. App. at 687. Some states have enacted statutes establishing a public policy that children should have frequent and continuing contact with both parents. See Lawrence, 105 Wn. App. at 687. But our legislature has rejected bills incorporating the friendly parent concept every year since 1982. Lawrence, 105 Wn. App. at 687. Instead, our state's policy is that "custody and visitation privileges are not to be used to penalize or reward parents for their conduct." Lawrence, 105 Wn. App. at 687-88 (quoting In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983)).

Christopher believes that the trial court used the friendly parent concept because the court, the parenting investigator, and a psychologist criticized him for being unfriendly toward Lorie. He points to the trial court's finding that he has shown inadequate respect for Lorie's role as Stephen's mother. He alleges that the trial court regarded Lorie's assaults against him as irrelevant. But the trial court's findings do not demonstrate that it adopted the parenting plan because Lorie is the "friendly parent." Rather, the court focused on the fact that Lorie had been Stephen's primary caregiver for most of his life. And the court found that Lorie would likely make better parenting decisions than Christopher. Based on Dr. Clifford's report, the court found that Christopher would "likely favor simple solutions even to complex problems." And the court believed that Christopher "may frequently overlook the subtle nuances of social and interpersonal situations, and arrive at decisions without giving them much thought[.]" CP at 900. We find no support for Christopher's argument that the trial court relied on the friendly parent concept in setting the parenting schedule.

Christopher argues that the trial court considered only Lorie's past role as Stephen's primary caregiver and failed to consider the other statutory factors in RCW 26.09.187(3)(a). The Parenting Act "does not create a presumption in favor of placement with the primary caregiver." In re Marriage of Kovacs, 121 Wn.2d 795, 800, 854 P.2d 629 (1993). But the first factor in the statute requires the court to consider "[t]he relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child[.]" RCW 26.09.187(3)(a)(i). The trial court's findings demonstrate that this factor weighed heavily in its analysis. But the statute provides that factor (i) always merits the greatest weight in the determination. RCW 26.09.187(3)(a). Further, the trial court's findings also relate to factor (iii), "[e]ach parent's past and potential for future performance of parenting functions," and factor (iv), "[t]he emotional needs and developmental level of the child." RCW 26.09.187(3)(iii), (iv). And, in any event, "[w]here . . . the record indicates substantial evidence was presented on the statutory factors thus making them available for consideration by the trial court and for review by an appellate court, specific findings are not required on each factor." Croley, 91 Wn.2d at 292.

Christopher maintains that the trial court erred by considering Stephen's environment in November 2000 rather than at the time of trial in May 2001. In devising a residential schedule that is in the child's best interests, the trial court must consider the circumstances of the parties as they exist at the time of trial. Littlefield, 133 Wn.2d at 56. In fact, a court should make all decisions on a child's residential schedule based on the present circumstances. See George v. Helliar, 62 Wn. App. 378, 384, 814 P.2d 238 (1991) (instructing the trial court to consider the child's present circumstances on remand because "the circumstances of the parties may have changed between the entry of the trial court's order and the issuance of this opinion"). Christopher points to the trial court's finding that if the trial had occurred in November 2000, as planned, Lorie "would have been viewed as being the main decision maker for Stephen[.]" CP at 898.

The trial court considered Stephen's circumstances in the past, but not without comparing them to his present circumstances. The court found that Lorie had `almost solely performed the parenting functions necessary for Stephen's care and growth' since his birth. CP at 898-99. Thus, the court concluded that, although Christopher and Stephen established a "father and son bond" by the time of trial, sustaining Stephen's bond with his mother was in his best interests. CP at 899. The court noted that even Christopher's father and sister said that whenever caring for Stephen became inconvenient, Christopher would cast the responsibility onto Lorie or someone else. Moreover, the court found that, in the relatively brief time that Christopher has been Stephen's primary caregiver, his decisions have demonstrated disregard for Stephen's emotional stability. For example, Christopher moved Stephen from the school and day care he had attended for a year to more convenient locations. And Stephen's academic performance worsened, despite his proven ability to excel in school. We reject Christopher's argument that the trial court failed to consider Stephen's situation at the time of trial in devising the parenting plan.

Christopher also argues that the trial court erred by declining to limit Lorie's time with Stephen under RCW 26.09.191(2)(b)(ii). He argues that limitations were needed because Lorie is dishonest and controlling and because she committed acts of domestic violence. While the statute does not require limitations because of a parent's bad character, it does require limitations on a parent's time with a child if the parent has committed acts of domestic violence. Under RCW 26.09.191(2)(b)(ii), the court must limit a parent's residential time with a child if the parent has a history of acts of domestic violence. But the court need not impose limitations if it finds (1) "that contact between the parent and the child will not cause physical, sexual, or emotional abuse or harm to the child and that the probability that the parent's . . . harmful or abusive conduct will recur is so remote that it would not be in the child's best interests to apply the limitations" or (2) "that the parent's conduct did not have an impact on the child." RCW 26.09.191(2)(n). Here, the trial court expressly found that limiting either parent's time with Stephen was not in his best interests because, with the marriage dissolved, harmful or abusive conduct by either parent was "not likely to occur." CP at 895. Christopher argues that "not likely to occur" is not the same as a remote probability. But he fails to explain the difference. He also argues that the court should have entered a finding on whether Lorie had ever abused Stephen, as Christopher testified she did. We find no error in the trial court's analysis of the limitations RCW 26.09.191 required.

Finally, Christopher challenges the trial court's attempt to retain jurisdiction over future proceedings in the case. The court stated that it would "take special jurisdiction over Stephen, and all reviews, including any challenge to the jurisdiction of this court[.]" CP at 593. The court was concerned that Lorie would "shop" for a more favorable court in Florida. RP at 39 (8/10/01).

A superior court judge does not have authority to retain jurisdiction over parties to the exclusion of other judges or courts. See State v. Caughlan, 40 Wn.2d 729, 732, 246 P.2d 485 (1952) (holding that a particular judge cannot retain jurisdiction over a case because a county's superior court judges each have identical authority). But, especially in family law cases, judges routinely retain responsibility for subsequent matters that arise between the parties. And this promotes judicial economy for the court and continuity for the parties. We conclude that, while a trial judge may not retain exclusive jurisdiction over parties, a court does not err by expressing a desire to maintain personal responsibility for subsequent matters.

Christopher and Lorie both request attorney fees on appeal under RCW 26.09.140. Where a court must consider financial resources in determining an award of attorney fees, each party must serve, at least ten days before oral argument, financial affidavits regarding need and ability to pay. RAP 18.1(c); In re Marriage of Coons, 53 Wn. App. 721, 722-23, 770 P.2d 653 (1989). Both parties filed the required affidavits. As the prevailing party on appeal, we award Lorie her reasonable attorney fees and costs in an amount to be determined by a commissioner of this court. RAP 18.1(f). Lorie also asks this court to order Christopher to pay sanctions for filing a frivolous appeal. An appeal is frivolous "if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal." Millers Cas. Ins. Co. of Tex. v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983) (quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980)). Chrisopher's appeal is not frivolous.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON, J. and HUNT, J., concur.