Anne Kari Brewitt v. Islam Gamal El Din Michael Abdel Ghani

,
'FILED
COURT OF APPEALS DIV I
STATE OF VIASI-111IGT0}-1
7011 JUL 31 AM 1 30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ANEE KARI BREWITT, ) No. 76279-6-1
)
Respondent, )
)
V. )
)
ISLAM GAMAL EL DIN )
MICHAEL ABDEL GHANI, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: July 31, 2017
)
VERELLEN, C.J. —When Anne Brewitt and Islam Gamal El Din Michael Abdel
Ghani dissolved their marriage, they expressly agreed that if Ghani violated any of the
contact restraints in the decree or final parenting plan, Brewitt would be entitled to
enforce the decree by means of a permanent protection order for herself and the
parties' child. After Ghani violated the contact restrictions, Brewitt enforced the decree
under chapter 26.09 RCW and obtained a permanent protection order for herself and
the child. Ghani appeals, arguing the trial court abused its discretion in including the
child in the permanent protection order against him. We disagree and affirm.
FACTS
In June 2013, Anne Brewitt, an American citizen, and Islam Gamal El Din
Michael Abdel Ghani, an Egyptian citizen, married in Egypt. Their son was born in
Egypt in April 2014.
No. 76279-6-1-2
Brewitt's 24-page declaration submitted to the trial court stated the following
facts. Ghani subjected Brewitt to frequent physical, verbal, and emotional abuse. He
would control what she could wear and the temperature of their apartment, and
sometimes confined her and their son to their apartment for 15 hours alone, not allowing
Brewitt to even open the balcony. Ghani would yell at Brewitt and hit her in the
presence of their child. In one incident, Ghani returned home from work in a rage and
slapped Brewitt in the face while she sat on the couch with the child. Brewitt attempted
to protect the child by shielding him with her body, but Ghani hit both of them. In his
declaration, Ghani disputed Brewitt's descriptions of their relationship and his alleged
domestic abuse, but he did admit to having slapped her face at least once.
In September 2014, Ghani became enraged after he broke into Brewitt's cell
phone and found a picture she had sent to her mother and girlfriend when she was
pregnant. The picture showed Brewitt fully dressed but not wearing a veil. Ghani told
Brewitt she had three days to leave Egypt without their son and took the child's
passport. Brewitt sought assistance from the United States embassy in Cairo. Based
on her sworn statement, the United States issued an emergency passport for the child
based on the threats to Brewitt's life. The embassy kept Brewitt and the child in a safe
place and helped them leave Egypt for the United States on September 15, 2014. They
moved to Seattle in October 2014.
Shortly after arriving in Seattle, Brewitt filed for dissolution and a domestic
violence protection order in King County Superior Court. The trial court issued a
temporary domestic violence protection order for Brewitt and the child and awarded
Brewitt temporary custody of the child.
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No. 76279-6-1-3
In November 2014, Ghani obtained counsel to appear on his behalf. In January
2015, after two months of negotiations, Ghani agreed for his counsel to accept service
of the dissolution pleadings on his behalf and consented to personal jurisdiction in King
County. On February 10, 2015, Ghani filed a response to Brewitt's dissolution petition.
Brewitt learned for the first time by way of Ghani's response that he had unilaterally
obtained a divorce in Egypt on January 17, 2015. Brewitt received no notice of the
Egyptian divorce proceedings, nor was she given any opportunity to participate. Ghani
subsequently filed an appeal in Egypt, again with no notice to Brewitt, seeking to
terminate Brewitt's custody rights on the grounds that she was an apostate.
Ghani filed a CR 12(b)(1) motion to dismiss the child custody action in King
County for lack of subject matter jurisdiction. The trial court rejected Ghani's theory that
the Egyptian court made a valid custody decision. The court also found that Ghani had
"committed frequent and repeated acts of serious domestic violence against [Brewitt],"
and that Washington had exclusive continuing subject matter jurisdiction over their son.1
On September 1, 2015, a court-appointed parenting evaluator issued a parenting
plan evaluation which included recommendations that the parties' son reside with
Brewitt, that Brewitt have sole decision-making authority for the child's education,
religious upbringing, and nonemergency health care, and that restrictions be placed on
Ghani's contact with the child based on a history of acts of domestic violence.
On November 24, 2015, the parties and their attorneys attended a mediation
where they agreed to final orders in their dissolution action. Specifically, the parties
Clerk's Papers(CP) at 318, 323-24.
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No. 76279-6-1-4
agreed to maintain all the existing restraints against Ghani from the temporary
restraining order, but those restraints were moved into the decree of dissolution. The
parties also agreed that if Ghani violated any of the restraints set forth in the decree,
Brewitt had the right to a permanent domestic violence protection order, "which shall
include at minimum the provisions set forth in this paragraph 3.15."2 Paragraph 3.15 of
the decree included provisions expressly prohibiting Ghani from contacting Brewitt or
their child, "except as set forth in the final parenting plan."3 The parties' final parenting
plan incorporated the parenting evaluator's findings that there was a basis for
restrictions and limitations on Ghani's residential time under RCW 26.09.191 based on
a history of domestic violence.
Under the final parenting plan, Ghani was permitted to have Skype visitation with
his son once a week for 15 minutes. The plan specifically states that Brewitt and Ghani
may have contact during the Skype visitation "only to the extent necessary to initiate
and facilitate the Skype visitation. If either party needs to reschedule the Skype
visitation, the parties may email or use Viber to communicate with each other for this
limited purpose only." The plan also specifically states,"The respondent shall be
prohibited from discussing the mother or her personal life or any legal matters with the
child. If the father violates these provisions or becomes emotional during the call, the
mother may terminate the Skype call."5 At paragraph 3.10 of the parenting plan, the
2 CP at 33.
3 CP at 32-33.
4 CP at 7.
5 CP at 7.
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No. 76279-6-1-5
parties agreed that the "father's visitation is contingent upon his compliance with the
restrictions set forth in this plan."6
After entry of the final orders on December 4, 2015, Ghani almost immediately
began violating the contact restraints in the decree of dissolution and parenting plan.
Ghani repeatedly contacted Brewitt outside the scope of what was permissible,
including inquiries about her personal life, the men she was dating, and the religious
upbringing of their son. Ghani also made contact with Brewitt through third parties. He
sent Brewitt voice messages "almost every day," and pressured her to play the
messages for their son.' Ghani also frequently sent Brewitt text messages that were
threatening, accusatory, and contained religious overtones.
Despite Ghani's violations of the contact restraints in the dissolution decree,
Brewitt did not immediately seek enforcement of the decree. She hoped to handle the
situation without involving the court. But Ghani's behavior did not stop, and his
violations of the contact restraints escalated. On September 20, 2016, Brewitt filed a
motion to enforce the decree of dissolution in which she requested that the court enter
the permanent protection order that the parties contemplated in the event that Ghani
failed to abide by the terms of the child custody agreements.
On November 19, 2016, a family court commissioner expressly found that Ghani
had violated "the no contact provisions in the Decree and the contact allowed under the
parenting plan," and that the parties had agreed that both Brewitt and the child would be
6 CP at 9.
7 CP at 74.
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No. 76279-6-1-6
entitled to a permanent protection order.8 However, the commissioner determined that
the case In re Marriage of Barone8 "overrule[d] the parties' agreement" and therefore,
"the child shall not be included in the protection order."1°
Brewitt sought revision of the commissioner's order. On December 16, 2016, a
superior court judge granted Brewitt's motion and entered a permanent protection order
for both Brewitt and her son. The judge "agree[d] with the Commissioner's findings that
the father violated the contact provisions in the decr'ee.and final parenting plan," but
found that "the Commissioner's findings that the father's violations should not result in a
permanent protection order that includes the child and mother" were "contradicted by
the plain language of both the final parenting plan and decree of dissolution entered in
this matter."11 The court further found:
The decree of dissolution specifically states that if the father violates the
no-contact provisions, then the mother has, as a matter of right, to obtain
a permanent domestic violence protection order 'which shall include at
minimum the provisions set forth in this paragraph 3.15.' The no-contact
provisions of Paragraph 3.15 specifically cover both the mother and the
minor child, not just the mother, and include a prohibition against the
father from having any contact with the minor child. In addition, the
parties' final parenting plan clearly states that the father's ongoing contact
and visitation with the child is contingent upon his compliance with the
restrictions set forth in the plan. The commissioner's decision to enter a
protection order that excludes the minor child is a clear violation of the
parties' decree.(121
8 CP at 131-32.
9 100 Wn. App. 241, 996 P.2d 654 (2000).
10 CP at 132.
11 CP at 199-200.
12 CP at 200.
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No. 76279-6-1-7
The judge also found that the holding from Barone did not apply to the present
facts because the parenting plan was not being modified with the entry of a protection
order specifically contemplated by the parties. The judge explained that Brewitt's right
to obtain a protection order was "agreed to at the time the parenting plan and decree
were entered into,"13 and that enforcement of the parties' agreement and entering a
permanent protection order that included Brewitt and the minor child did "not result in a
'de facto modification' of the final parenting plan."14
Ghani appeals.
ANALYSIS
Ghani argues the trial court misread the parties' child custody agreements by
including the parties' son in the permanent protection order. We disagree.
"A trial court's disposition of a case involving rights of custody and visitation will
not be disturbed on appeal unless the court manifestly abused its discretion."15
Evidentiary decisions and decisions to grant or deny a protection order are also
reviewed for abuse of discretion.16 An abuse of discretion "occurs when a decision is
manifestly unreasonable or based on untenable grounds or untenable reasons."17
We review the effect of a dissolution as a question of law." When the parties
incorporate an agreement into a dissolution decree, we must ascertain the parties'
13 Report of Proceedings(RP)(Dec. 16, 2016) at 20; CP at 200.
14 CP at 200.
15 Matter of Marriage of Cabalquinto, 100 Wn.2d 325, 327, 669 P.2d 886 (1983).
16 Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50(2002).
17 Katare v. Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012).
18 In re Marriage of Gimlett, 95 Wn.2d 699, 705,629 P.2d 450(1981).
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No. 76279-6-1-8
intent at the time of the agreement.19 "If the language of the decree is unambiguous,
there is no room for interpretation."20
The general rules of construction that apply to contracts and other writings also
apply to decrees.21 "We read a decree in its entirety and construe it as a whole to give
effect to every word and part, if possible."22
Here, the parties expressly incorporated the parties' final parenting plan into the
dissolution decree: "The parties shall comply with the Parenting Plan signed by the
court on this date .. . . The Parenting Plan signed by the court is approved and
incorporated as part of this decree."23 The decree expressly states, "The parties agree
that if the father/respondent violates any terms of this order, the mother shall [have]the
right to obtain a permanent domestic violence protection order against the father, which
shall include at minimum the provisions set forth in this paragraph 3.15."24 The
provisions of paragraph 3.15 in the decree expressly include both Brewitt and the child:
Respondent is [r]estrained from causing physical harm... and
• from molesting, harassing, threatening, or stalking the petitioner or the
minor child.
Respondent is restrained from harassing, following, . . . and using
telephonic ... or other electronic means to monitor ... communication of
petitioner or the minor child.
19 In re Marriage of Smith, 158 Wn. App. 248, 255, 241 P.3d 449(2010).
20 Id. at 256.
21 Id.
22 Id.
23 CP at 32(emphasis added).
24 CP at 33(emphasis added).
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No. 76279-6-1-9
Respondent is restrained from coming near and from having any
contact whatsoever... with petitioner and the minor!], except as set forth
in the final parenting plan entered under this cause number.
Respondent is excluded from petitioner's residence, workplace,
school; the day care or school of the minor child. ...
Respondent is prohibited from knowingly coming within, or
knowingly remaining within 500 feet(distance) of: petitioner's residence,
workplace, school; the day care or school of the minor child.[251
In addition, the agreed final parenting plan expressly states,"The father's visitation is
contingent upon his compliance with the restrictions set forth in this plan."26
Contrary to Ghani's argument, the trial court did not misread the parties' child
custody agreements by including the parties' son in the protection order. When read
together, the terms of the decree and final parenting plan unambiguously provide for a
permanent protection order for the mother and the child if Ghani violated the contact
restraints set forth in the orders. Here, both the commissioner and the superior court
expressly found that Ghani violated the contact restraints in the decree and parenting
plan. Ghani does not assign error to those findings, so they are verities on appea1.27
Ghani argues that under chapter 26.50 RCW,the trial court was restricted to a
one-year protection order for the parties' child. Because the order was squarely
implemented under chapter 26.09 RCW rather than chapter 26.50 RCW, Ghani's
argument fails.
25 CP at 32-33(emphasis added).
26 CP at 9(emphasis added).
27 In re Marriage of Petrie, 105 Wn. App. 268, 275, 19 P.3d 443(2001).
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No. 76279-6-1-10
While a protection order issued under RCW 26.50.060 restraining a parent from
contacting his child is restricted to "a fixed period not to exceed one year," "[t]his
limitation is not applicable to orders for protection issued under chapter 26.09, 26.10, or
26.26 RCW."28 Here, Brewitt did not petition for a protection order under chapter 26.50
RCW. Rather, she filed a motion to enforce the terms of the parties' dissolution decree,
under which Ghani expressly agreed that Brewitt and the child would be entitled to a
permanent protection order if he violated the terms of the parties' child custody orders.29
The revised protection order expressly recognizes: "[T]he parties agreed in the Decree
of Dissolution ... that the Petitioner has the right to obtain this Order for Protection if
Respondent violated the terms of the Decree. This Order is thus an enforcement of the
Decree of Dissolution, not a new/separate action."3° Consistent with the agreement of
the parties, the court was not limited to a one-year protection order for the child.31
Relying on In re Marriage of Stewart,32 Ghani argues that the trial court erred "in
permanently suspending the residential provisions of the parties' [f]inal [p]arenting [p]lan
28 Rcyv 26.50.060(2)(emphasis added).
29 S CP at 34("Motion to Enforce Decree of Dissolution and for Order of
Protection"). RCW 26.09.050(1) expressly authorizes the court to make a "provision for
the issuance. . . of the restraint provisions of a domestic violence protection order" in
entering a decree of dissolution.
39 CP at 203(emphasis added).
31 See generally Muma v. Muma, 115 Wn. App. 1, 7, 60 P.3d 592(2002)(Fifty-
year no-contact order not "invalid" merely because it purports to extend beyond the one-
year period allowable under former RCW 26.50.060 (2000)); City of Seattle v. May, 151
Wn. App. 694,695, 213 P.3d 945(2009)(permanent protection order was not invalid
when it did not contain language showing a specific finding made by the issuing court
satisfying the statutory requirement under former RCW 26.50.060 that for orders
exceeding one year the court must affirmatively find that the respondent is "likely to
resume acts of domestic violence" against his former spouse and child).
32 133 Wn. App. 545, 137 P.3d 25(2006).
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No. 76279-6-1-11
by enforcing a [domestic violence protection order] that terminates contact between the
father and minor child."33 In Stewart, the mother obtained a one-year protection order
under chapter 26.50 RCW that served to temporarily suspend the father's contact with
the children while she sought modification of their existing parenting plan.34 The father
appealed, arguing that "the protection order amounted to an improper modification of
the residential provisions of the parenting plan."35 This court disagreed and upheld the
one-year protection order, holding that a "temporary suspension pending further
proceedings is not a de facto modification" of a parenting plan.36
Ghani's reliance on Stewart is misplaced. In Stewart, the mother was required to
file a petition for a protection order under chapter 26.50 RCW and a separate petition for
modification of the parties' existing parenting plan because the plan in that case did not
contemplate or include the contingencies present here—specifically, that the father's
visitation with the child depended on his compliance with the terms of the plan. Unlike
the mother in Stewart, Brewitt was not required to file a separate modification petition
because no changes to the terms of the parties' parenting plan were being sought.
Rather, Brewitt sought to enforce the agreed upon terms in the parties' dissolution
decree under chapter 26.09 RCW. Similarly, here, the entry of the permanent
protection order did not "suspend" Ghani's visitation under the parties' parenting plan
given that Ghani did not have any rights to visitation with the child once the court made
33 Appellant's Br. at 18.
34 Stewart, 133 Wn. App. at 549.
35 Id. at 554.
36 Id.
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No. 76279-6-1-12
undisputed findings that he violated the terms of the plan.
Finally, Ghani argues that in terminating the residential provisions of the parties'
Parenting plan, the trial court acted against the child's best interest. His argument fails.
In fashioning a parenting plan, the trial court exercises discretion and considers the
factors of RCW 26.09.187(3)(a) to determine the residential arrangements that best
serve the interests of the child. RCW 26.09.187(3)(a)(ii) expressly states that "the court
shall consider" the "agreements of the parties, provided they were entered into
knowingly and voluntarily." Here, Ghani, while represented by counsel, expressly
agreed to the provision that if he violated the contact restraints in the decree and
parenting plan, he would forfeit his visitation with the child.
RCW 26.09.191 expressly provides that a "parent's residential time with the child
shall be limited" if it is found that the parent engaged in "a history of acts of domestic
violence as defined in RCW 26.50.010(1)."37 These limitations must be tailored based
on the individual circumstances and could range from limits such as supervised
visitation or reduced parenting time, "all the way to suspended parenting time."38
Furthermore, if a "parent's involvement or conduct may have an adverse effect on the
child's best interests," "the court may preclude or limit any provisions of the parenting
plan."39
Here, the parenting evaluator's report, which was incorporated by reference into
the parties' final parenting plan, notes that Ghani has a history of being "unable to focus
37 RCW26.09.191(2)(a),(b)(emphasis added).
39 20 SCOTT J. HORENSTEIN, WASHINGTON PRACTICE: FAMILY AND COMMUNITY
PROPERTY LAW §33:23, at 326(2d ed. 2015).
RCW 26.09.191(3)(g).
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No. 76279-6-1-13
solely on developing a relationship with the child without questioning the mother or
commenting about her appearance and attire," and that this is "[o]f great concern."40
Based on this behavior and Ghani's acts of domestic violence, the parenting evaluator
recommended the entry of a continuing restraining order to protect Brewitt and the child
from Ghani's abuse and harassment. In granting Brewitt's request for enforcement of
the dissolution decree and a permanent protection order, the superior court specifically
found that the very behavior described by the parenting evaluator was ongoing.41 Ghani
does not assign error to the trial court's findings, so they are verities on appea1.42
We conclude the court acted in the child's best interest by enforcing the terms of
the parties' agreed child custody orders. In essence, Ghani asks this court to believe
his version of events over Brewitt's. But the evaluation of witness credibility is the
province of the fact finder and is not reviewable by this court.43 And the extent to which
Ghani believes Brewitt manipulated the situation also involves a credibility determination
not reviewable by this court." He contends that Brewitt also violated the contact
restraints in the parties' child custody agreements but, unlike Ghani, Brewitt was not
subject to the restraints.
40 CP at 374.
41RP (Dec. 16, 2016) at 19 ("I read and reviewed all the messages that were
submitted as part of this package, and it's clear that Mr. Abdel Ghani has repeatedly
engaged in violations of the restrictions that were contained in the parenting plan and in
the decree. He keeps trying to draw the mother into conversation to try and talk to her
about her feelings, about her appearance, about what she is doing, and none of that is,
of course, allowed.").
42 Petrie, 105 Wn. App. at 275.
43 See State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014).
44 Id.13
No. 76279-6-1-14
Brewitt requests an award of attorney fees under RAP 18.9 for a frivolous appeal.
An appeal is frivolous where it presents no debatable issues or legitimate arguments for
,an extension of law.45 While Ghani presents several issues on appeal that are not
supported by the facts or the law, he also presented some debatable issues.
Accordingly, we conclude Brewitt is not entitled to attorney fees and costs on appea1.46
Affirmed.
WE CONCUR:
eo-7( T
45 Harrington v. Pailthorp, 67 Wn. App. 901, 913, 841 P.2d 1258 (1992).
46 We also decline to award Ghani attorney fees and costs on appeal.
14