In Re The Parentage And Support Of: M.j.w. Johnathan L. Walker, App. v. Jennifer L. Johnson, Res. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parenting and No. 72310-3-1
Support of M.J.W.,
DIVISION ONE
A Minor Child.
JOHNATHAN L. WALKER, i
Appellant, UNPUBLISHED OPINION
ro
JENNIFER L JOHNSON,
Respondent. FILED: November 9, 2015
Schindler, J. — Johnathan L. Walker filed a petition to establish a parenting
plan. Following trial, the court scheduled a presentation hearing and ordered the
attorney for the mother Jennifer L. Johnson to "prepare the final orders and provide a
copy to" Walker. The record establishes Johnson did not provide Walker copies of the
orders before the presentation hearing. Walker appeals, arguing the court erred in
entering the final parenting plan and order of child support where he did not receive
copies of the proposed orders as required by the Civil Rules and the court's order. We
conclude Walker cannot show prejudice as to entry of the final parenting plan but the
record establishes prejudice as to entry of the order of child support. We affirm the final
parenting plan but reverse entry of the order of child support, and remand.
No. 72310-3-1/2
Johnathan Walker and Jennifer Johnson are the parents of M.J.W., born in 2000.
Walker and Johnson ended their relationship in 2002. On April 30, 2013, Walker filed a
petition to establish a parenting plan. On June 12, the court entered a temporary
parenting plan and appointed a guardian ad litem (GAL).
The GAL submitted a report before trial. The GAL recommended that M.J.W.
reside with the mother and that she have sole decision-making authority as to major
decisions. The GAL recommended M.J.W. should continue individual counseling and
Walker and M.J.W. should continue to engage in counseling together. The GAL
recommended that after both counselors agreed, Walker's residential time with M.J.W.
should begin with a three-hour dinner visit every other week, increase to include an
additional four hours every other weekend, and then increase to weekly dinner visits
with one weekend day every other weekend.
Trial began on May 5, 2014. The court heard testimony from Walker, his spouse,
Johnson, and the GAL.
On June 9, the court issued a three-page letter ruling addressing the parenting
plan. The letter ruling closely followed the GAL's recommendations. The letter ruling
states, in pertinent part:
I have reviewed my notes and the exhibits admitted at trial. Based
on the exhibits and the testimony of the witnesses presented, I am
persuaded as follows:
1) That [M.J.W.] should reside with the Respondent/Mother;
2) That it is not in the best interests of [M.J.W.] to have visitation
with the Petitioner/Father except through a phased plan similar
to that recommended by the Guardian Ad Litem;
3) That the prior sporadic parenting by Mr. Walker has not been
conducive to the emotional well being of [M.J.W.];
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4) That until bonds of trust can be established between [M.J.W.]
and Mr. Walker, attempts to introduce [M.J.W.] into Petitioner's
new family would be detrimental to [the child's] emotional and
psychological well being;
5) That therefore, I adopt the recommendations of the GAL,
modified as follows:
a) That residential time with the father is reserved for family
therapy;
b) That Mr. Walker and [M.J.W.] should recommence family
therapy with Jacqui Parkes;
c) That the number of family therapy sessions shall be as
recommended by Ms. Parkes;
d) That contact between Mr. Walker and [M.J.W.] shall be
addressed during therapy as recommended in
Paragraph 5 of the GAL Report;
e) That contact with [M.J.W.] shall be exclusively with Mr.
Walker and not other members of his family until
approved by [M.J.W.] in consultation with Mr. Walker
and Ms. Parkes;
f) That [M.J.W.] shall continue therapy with Jennifer Knight
until released by Ms. Knight;
g) That when both therapists agree or by further order of
the Court, that [M.J.W.] has established necessary
bonds of trust with Mr. Walker to be ready for residential
time, such time shall be phased;
h) Phase One shall be one dinner visit every other week for
3 hours to include only Mr. Walker and [M.J.W.];
i) Phase Two shall be 4 hours every other weekend in
addition to Phase One, to include only the father and
[M.J.W.] unless otherwise agreed in consultation with the
therapists;
j) That an additional phase shall be reserved pending an
evaluation of the progress of re-integration;
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k) That each phase shall be followed by the Petitioner on a
consistent basis;
I) That termination of therapy for whatever reason shall be
reported to the Court;
m) That Respondent shall have sole decision-making on
major decisions regarding education, non-emergency
medical decisions and religious upbringing;
n) That any decision concerning family therapy changes or
an increase in financial commitment by the Petitioner -
after notice to Mr. Walker - Mr. Walker may request
arbitration;
o) That Respondent shall keep the father informed of all
major developments in [M.J.W.j's education, health and
well-being.
The court scheduled a presentation hearing for June 20, 2014 at 10:00 a.m. and
directed Johnson's attorney to "prepare the final orders and provide a copy to the
Petitioner, Johnathan Walker prior to the presentation date."
The parties appeared at the presentation hearing on June 20. Johnson's
attorney presented "Findings of Fact and Conclusions of Law on Petition for Residential
Schedule/Parenting Plan or Child Support," a "Final Parenting Plan," an "Order of Child
Support" and "Washington State Child Support Schedule Worksheets," and a
"Judgment and Order Establishing Residential Schedule/Parenting Plan." Walker
appeared pro se. The record establishes Walker did not receive copies of the final
orders before the presentation hearing. Johnson's attorney told the court, "Mr. Walker's
here, and he's reviewing [the orders]. I don't know how far he's gotten." Walker signed
the final parenting plan and handed it to the court. The court asked Walker if he needed
No. 72310-3-1/5
additional time to review the other orders.
THE COURT: Mr. Walker, have you had an opportunity to take a
look at [the orders]?
MR. WALKER: Yes. So far, I've looked at four of them.
THE COURT: Yeah, do you need some additional time?
MR. WALKER: Yeah.
Following a short recess, the court asked Walker if he had additional questions.
Walker objected to the order of child support and worksheets.
Your Honor, you have to, first off, excuse me, because I obviously didn't
know about this, about the stuff being submitted.
I thought that the judgment would be for every - all the way, across
the board - for financial, and for the parenting plan.
I don't agree with the financial side of it, because what's been
drawn up, by the amounts that are in there -1 never made those amounts.
The monthly child support that's been put in there is even higher than
when I was still working, and the temporary order was put in place, and I
was paying child support through the State.
Then, there's the guardian ad litem; I never agreed to having a
guardian ad litem, for reasons of not being able to pay for it, in the
beginning. And I can't pay for it now.
And that's it.
The court added a provision to the order of child support permitting Walker to
"seek adjustment if he becomes employed and the income is less than imputed income
herein." The court also stated that it would not allocate any GAL fees to Walker
because "based on the testimony at trial, the money is not there to pay it." The court
entered the findings of fact and conclusions of law, the judgment and order establishing
the residential schedule and parenting plan, and the order of child support.
Walker argues the court erred in entering the final parenting plan and order of
child support because Johnson did not comply with the requirement to provide copies of
the orders before the presentation hearing.
No. 72310-3-1/6
The Civil Rules require that a party receive findings of fact and conclusions of law
as well as proposed orders before the court signs them. CR 52(c) states, in pertinent
part, "fTJhe court shall not sign findings of fact or conclusions of law until the defeated
party or parties have received 5 days' notice of the time and place of the submission,
and have been served with copies of the proposed findings and conclusions." CR
54(f)(2) states, in pertinent part, "No order or judgment shall be signed or entered until
opposing counsel have been given 5 days' notice of presentation and served with a
copy of the proposed order or judgment."
Johnson argues that because Walker did not object to the failure to comply with
the Civil Rules, he waived the right to argue that he did not receive notice of the
proposed orders. The record does not support Johnson's argument.
At the beginning of the presentation hearing, Walker told the court he did not
receive copies of the proposed orders, "Your Honor, you have to, first off, excuse me,
because I obviously didn't know about this, about the stuff being submitted." Although
Walker did not cite the Civil Rules, he preserved the issue for review. See Greenfield v.
W. Heritage Ins. Co.. 154 Wn. App. 795, 801, 226 P.3d 199 (2010) (failure to cite
specific RCW section did not preclude appellate review where party argued issue).
In the alternative, Johnson asserts Walker cannot show prejudice. Walker
asserts prejudice because he did not have time to object to the contents of the final
parenting plan or order of child support.
A violation of CR 52(c) or CR 54(f)(2) supports reversal on appeal if there was
prejudice to the appellant. Yakima County v. Evans, 135 Wn. App. 212, 222, 143 P.3d
891 (2006) (citing Seidlerv. Hansen, 14 Wn. App. 915, 919-20, 547 P.2d 917 (1976));
No. 72310-3-1/7
Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110(1986). The purpose of the rules is
to afford a party an opportunity to evaluate and object to the contents of proposed
orders. See 224 Westlake, LLC v. Engstrom Props.. LLC, 169 Wn. App. 700, 728, 281
P.3d 693 (2012); Tacoma Recycling, Inc. v. Capitol Material Handling Co., 34 Wn. App.
392, 396, 661 P.2d 609 (1983) ("[Appellant] is entitled to 5 days' notice of presentation
of any proposed findings and conclusions in order to evaluate them and prepare all
relevant arguments against their adoption."); 4 Karl B. Tegland, Washington Practice:
Rules Practice CR 54, at 318 (6th ed. 2013) (The purpose of the rule is to give a party
the opportunity to object to the form or content of the judgment before it is entered.).
Walker cannot show prejudice as to entry of the final parenting plan. The
material provisions of the final parenting plan reflected not only the recommendations of
the GAL submitted before trial but also the court's June 9 letter ruling.1 The "Residential
Schedule" section of the final parenting plan states, in pertinent part:
3.2 School Schedule
Upon enrollment in school, the child shall reside with the mother.
Residential time with the father should be reserved for family
therapy.
Through therapy, contact between the child and the father should
be addressed pending scheduled residential time, such as the
father's attendance at school and sporting events, email,
telephone/texting, etc.
Once both therapists (Jennifer Knight and Jacqui Parkes) agree, or
by further order of the Court, that [M.J.W.] has established
necessary bonds of trust with the father to be ready for residential
time, such time shall be phased:
Phase I. One dinner visit every other week, for 3 hours to include
only the father and [M.J.W.];
The record also shows Walker reviewed and signed the final parenting plan without objection.
No. 72310-3-1/8
Phase II. 4 hours every other weekend in addition to Phase One,
to include only the father and [M.J.W.] unless otherwise agreed in
consultation with the therapists;
Additional phases of visitation shall be reserved pending an
evaluation of the progress of re-integration. Each phase of
visitation shall be followed by the father on a consistent basis. The
termination of therapy for whatever reason shall be reported to the
Court.
However, we conclude the record shows prejudice as to entry of the order of
child support. The court's letter ruling does not mention child support. The order of
child support and the worksheets contain a number of significant provisions. For
example, the order of child support imputed income to Walker of $3,448 "because he is
voluntarily underemployed." The order of child support states Walker owes a significant
amount of back child support and requires Walker to pay 78 percent of the following
expenses:
1. Agreed-upon extracurricular activities of the children, including but
not limited to horseback riding, soccer and dance lessons.
Extracurricular activity fees shall include travel/lodging, gas, airfare,
uniforms, pictures, shoes, and other fees;
2. Camps, clubs, activities, day care, educational expenses, tuition,
school costs, [associated student body] fees, senior pictures, prom,
homecoming, long distance expenses, any extracurricular or sports
activities, orthodontia expenses;
3. Any one-time expense that is outside the normal basic food and
shelter expense for the children.
Despite the recess to allow Walker to review the child support order and
worksheets and the court's consideration of Walker's objection to one aspect of the
order, the record shows Walker did not have adequate time to evaluate the order of
child support and raise additional objections.
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No. 72310-3-1/9
We affirm entry of the final parenting plan but reverse entry of the order of child
support, and remand.2
VcAwCL
WE CONCUR:
^
2We deny Johnson's request for attorney fees and costs under RAP 18.1 and 18.9.
9