Teresa Brescia Werner, V. Joseph Christian Werner ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
No. 82369-8-I
TERESA BRESCIA WERNER,
AKA TERESA BRESCIA, DIVISION ONE
Respondent, UNPUBLISHED OPINION
v.
JOSEPH CHRISTIAN WERNER SR.,
Appellant.
MANN, C.J. — Joseph Werner appeals a Whatcom County Superior Court order
denying revision of a commissioner’s order that registered out-of-state court orders
concerning child protection and custody. Because events that occurred after Werner
filed his notice of appeal render his appeal moot, we dismiss the appeal.
FACTS
A Whatcom County Superior Court dissolved the marriage of Joseph Werner and
Teresa Brescia in 2010. The court ordered that the parties’ two children would live
primarily with the father. The following year, after the father relocated with the children
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to Virginia, the same court entered a parenting plan that provided for the mother to have
residential time with the children periodically on weekends and for extended periods
during school breaks.
In 2020, the Commonwealth of Virginia initiated dependency proceedings
involving the children, removed them from the father’s custody, and temporarily placed
them in the care of a relative in Virginia. In July 2020, a juvenile and domestic relations
district court in Virginia entered orders as to each of the children. The court found that
the children had been abused and neglected by the father due to his chronic alcoholism
and that residing with the mother in Washington was in the children’s best interest. The
court transferred custody of the children to the mother, and in a protection order, limited
the father’s contact with the children to electronic visitation to be supervised by the
mother. Several months later, the mother filed a motion in Whatcom County Superior
Court to register the Virginia court orders. By this time, the father had relocated to
Washington.
The father appealed the Virginia court orders. He also opposed registration of
the Virginia orders in Washington. He argued that the Virginia court lacked jurisdiction
to enter the orders under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), ch. 26.27 RCW, because a Washington court made the initial determination
of custody and had not subsequently declined jurisdiction. See In re Parentage of Ruff,
168 Wn. App. 109, 114, 275 P.3d 1175 (2012) (The UCCJEA “aims to prevent
conflicting [child] custody orders by determining when a state can modify a custody
order entered in another state.”).
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After a hearing, a superior court commissioner confirmed registration of the
Virginia court orders, concluding that the father did not establish a defense to
registration under RCW 26.27.441(4) (individual contesting registration of out-of-state
orders must establish 1) lack of jurisdiction, 2) the custody determination sought to be
registered has been modified or vacated, or 3) lack of required notice prior to entry of
the out-of-state order). The commissioner also awarded attorney fees of $2,272.50 to
the mother.
The father filed a motion to revise the commissioner’s decision. See RCW
2.24.050 (superior court commissioner decisions are subject to revision by a superior
court judge). The superior court held a hearing on the motion and entered an order
adopting the commissioner’s order, denied the motion to revise, and awarded $843.75
in attorney fees to the mother. 1 The father appealed.
After the father filed his notice of appeal in this case, in April 2021, a Virginia
circuit court concluded on appeal that the parties’ children do not reside in Virginia and
had not resided there for more than six months. As a result, that court determined that
it lacked jurisdiction over the parties identified in the dependencies because “[t]he
children and both parents are residents of Washington State, and a Court of competent
jurisdiction in Washington State has entered orders relating to the custody and/or
visitation of the children subsequent to the entry of the Virginia Beach [juvenile and
domestic relations court] order.” In a separate, subsequent “final order,” the same court
dismissed the dependencies filed by the State.
1The court later awarded fees to the father of $300, effectively reducing the mother’s second fee
award to $543.75.
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Three months later, in July 2021, the Whatcom County Superior Court issued
several orders in the Washington family law case (Whatcom County Superior Court
Cause No. 09-3-00055-7). Specifically, the court entered a temporary restraining order
as to each child, prohibiting the father from “disturb[ing] the peace” of each child and
from being within 500 feet of the children’s home or school. The court also entered an
order finding, upon the parties’ stipulation, adequate cause to modify the parenting plan.
Finally, the court entered a temporary parenting plan. Consistent with the Virginia
court’s prior orders, the plan provides for the children to reside with the mother—and
based on a finding of neglect as to the father—provides for electronic visitation with the
father, and requires him to undergo an evaluation and treatment for alcohol and
substance abuse.
ANALYSIS
The father claims the court erred in denying revision because the Virginia court
lacked UCCJEA jurisdiction and its orders could not be registered and enforced in
Washington. But even assuming the father met his burden to establish a defense to
registration of the orders under RCW 26.27.441(4)(a), it is clear from the record that the
Virginia dependency proceedings are now dismissed and the associated underlying
court orders are no longer in effect. The father is not aggrieved at this point by the
registration in Washington of the Virginia court orders.
Perhaps more importantly, the father fails to recognize that the Whatcom County
Superior Court has subsequently entered its own orders pertaining to the custody and
protection of the children. Therefore, the Washington court is now enforcing its own
orders in this matter, not the previously registered Virginia court orders. In these
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circumstances, reversal of the order on revision would provide no effective relief to the
father. See Blackmon v. Blackmon, 155 Wn. App. 715, 71920, 230 P.3d 233 (2010) (“A
case is moot if a court can no longer provide effective relief.”). This case is moot.
We will sometimes review the legal merits of a moot case based on substantial
public interests. See Blackmon, 155 Wn. App. at 720 (review of expired protection
order warranted because whether parties to a domestic violence protection order have a
constitutional right to a jury trial was of substantial public interest). No broader public
interests are implicated here and the father does not argue otherwise.
Both parties request fees on appeal. The father cites no legal basis for his
request and, as a general matter, pro se litigants are not entitled to attorney fees for
their work representing themselves. See Mitchell v. Wash. State Dep’t of Corrections,
164 Wn. App. 597, 608, 277 P.3d 670 (2011). The mother requests attorney fees on
appeal under RCW 26.09.140. “RCW 26.09.140 authorizes an award of [attorney] fees
after consideration of one party’s need and the other party’s ability to pay.” Burrill v.
Burrill, 113 Wn. App. 863, 874, 56 P.3d 993 (2002). The mother relies on outdated
financial documents in the record and neither party submitted a current financial
declaration in connection with the appeal. We deny both parties’ requests.
We dismiss the appeal as moot.
WE CONCUR:
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