Edward Cale v. Kristina Kelly

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KRISTINA KELLY (f/k/a Cale), )
No. 79542-2-I
Respondent,
) DIVISION ONE
v. )
EDWARD EVELLE CALE IV, ) UNPUBLISHED OPINION
Appellant. ) FILED: February 3, 2020
__________________________________________________________________________________)
SMITH, J. — Edward Cale IV appeals the superior court’s final parenting plan,
child support order, and domestic violence protection order entered after his former
wife, Kristina Kelly, moved to modify an earlier child support order and parenting plan.
CaIe asserts that the trial court made a number of errors in connection with entering
these orders. However, the errors that Cale alleges are reviewed for abuse of
discretion, and Cale did not provide an adequate record for this court to determine
whether the trial court abused its discretion. Therefore, we affirm.
FACTS1
Cale and Kelly were married for seven years, during which time they had three
children. Following their divorce, on August 22, 2016, the court entered an agreed final
parenting plan and a final child support order. The original orders are not part of the
Cale designated only two items from the superior court record: (1) his proposed
1
child support schedule worksheets and (2) the notice of appeal. Attached to the latter
are copies of a child support order, a parenting plan, and an “Exhibit A, Court’s
Addendum Findings” (Addendum Findings) in which the court made findings related to
parenting and child support. The limited facts in this section are based on the
Addendum Findings. Cale disputes many of these facts.
No. 79542-2-1/2
record on appeal. But according to the Addendum Findings, the 2016 parenting plan
prohibited Cale from contacting Kelly and provided that Kelly could seek a domestic
violence protection order (DVPO) if Cale violated that prohibition. In 2017, the court
entered a 10-year DVPO on behalf of Kelly, but the record does not contain the DVPO
or the petition seeking the DVPO.
On November 2, 2017, Kelly moved to modify the parenting plan “based partly on
allegations that [Cale] had coerced the parties’ 4 year old daughter to make false
allegations that sexual abuse was occurring at day care.” In February 2018, the court
entered a temporary parenting plan, which suspended Cale’s time with the children, and
required Cale to undergo a psychiatric evaluation and a chemical dependency
evaluation.
On May 25, 2018, the court found adequate cause to modify the child support
order. Cale had been unemployed for a number of years while he pursued his master’s
degree from Liberty University. In his financial declaration, CaIe claimed he had $0 in
income and $4,980 in total expenses. CaIe alleged that USPS wrongfully terminated
him. He requested the “State minimum of Child support be calculated for [him] at $50
per child per month” because he “qualif[ies] as below 125% of the Federal Poverty
Level Guidelines.”
According to the Addendum Findings, Cale testified that his parents were
supporting him, and there was no evidence that Cale was looking for a job. The court
found that Cale was “voluntarily unemployed based on his testimony, and the court
[was] required by law to impute his income.” On this basis, the court ordered back
support from February 21, 2014, through December 28, 2018, in the amount of
2
No. 79542-2-1/3
$12,837.53.
The court also found that Cale had abused or threatened to physically abuse a
child and that he had a history of domestic violence as defined in RCW 26.50.010(1).
The court further found that Cale had “a long-term emotional or physical problem,” he
had “a long-term problem with drugs, alcohol, or other substances,” and he “uses
conflict in a way that endangers or damages the psychological development of” the
children. Thus, the court suspended Cale’s contact with the children until he completed
a psychiatric evaluation, chemical dependency evaluation, DV program, and positive
discipline parenting program. The court designated Kelly the custodian of the children,
and Cale was not given any residential time.
Cale appeals.
ANALYSIS
Cale asserts that the court erred in entering certain findings and conclusions in
connection with the protection order, parenting plan, and child support order.
Specifically, he contends that the superior court erred by (1) imposing back child
support, (2) finding that Cale had committed domestic violence against his three
children and Kelly, (3) granting a protection order on behalf of Kelly, (4) granting Kelly
sole custody, and (5) requiring Cale to undergo counseling, drug evaluation, and
parenting classes.
Each of these asserted errors are errors that we review for abuse of discretion.
In re Marriage of Freeman, 169 Wash. 2d 664, 671, 239 P.3d 557 (2010) (reviewing a
protection order); In re Marriage of Curran, 26 Wash. App. 108, 110, 611 P.2d 1350(1980) (reviewing a child support order); In re Marriage of Christel, 101 Wash. App. 13,
3
No. 79542-2-1/4
20-21, 1 P.3d 600 (2000) (reviewing a parenting plan). To show that the trial court
abused its discretion, Cale must provide a clear showing of “‘discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.”
Freeman, 169 Wn.2d at 671 (quoting State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26,
482 P.2d 775 (1971)). As further discussed below, the record here is inadequate for
Cale to demonstrate that the trial court abused its discretion.
Specifically, with regard to the protection order, Cale argues that Kelly did not
provide evidence of domestic violence and that he did not commit domestic violence
against his children. Second, Cale contends that Kelly “admitted in court. . . that she
‘[has] not ever been in danger or believed [her]self to be in danger by Edward Cale.”
Finally, Cale contends that he was the victim of domestic violence. But Cale did not
provide a report of proceedings. Therefore, we cannot determine whether the trial
court’s determinations were improper, whether Kelly in fact testified as Cale alleges, or
whether Cale presented evidence of his own victimization at trial. And so, Cale’s
challenges to the protection order fail.
Turning next to the child support order, Cale contends that the court erred when
it ordered Cale to pay back child support. Specifically, Cale argues that the court
should not have exceeded the statutory minimum child support obligation of $50 per
month per child and erred when it did not account for his basic needs in calculating his
support obligation. The court found that Cale was voluntarily unemployed and that it
was required by law to impute income to him.
Cale attaches to his reply brief three e-mails wherein it appears he is seeking a
job. However, two of these e-mails were sent over a year after the court issued its
4
No. 79542-2-1/5
decision, there is no evidence that the trial court considered the third e-mail, and we
may not consider any of them. .~ RAP 10.3(a)(8) (“An appendix [to the brief] may not
include materials not contained in the record on review without permission from the
appellate court.”). Furthermore, Cale cites only his financial declaration in support of his
contention that his income is—and has been for the last five years—below 125 percent
of the federal poverty level.2 He does not provide us with financial documentation and
appears not to have provided it to the trial court. Thus, Cale has failed to show that the
trial court abused its discretion in its calculation of back child support.
Finally, with regard to the parenting plan, Cale contends that the trial court erred
by (1) designating Kelly the custodian, (2) suspending Cale’s residential time, and
(3) requiring Cale to attend counseling and complete drug and psychiatric evaluations.
But as discussed, the court found that Cale had an emotional or physical problem, a
problem with alcohol or other substances, and issues with his use of conflict. And Cale
is “obligated to demonstrate why specific findings of the trial court are not supported by
the evidence and to cite to the record in support of that argument.” In re Estate of
Palmer, 145 Wash. App. 249, 265, 187 P.3d 758 (2008) (emphasis added). Cale did not
do so. Because Cale did not point to specific findings or explain why specific findings of
the court were not supported by the record, we cannot reach the merits of this issue.
In short, though Cale may have sufficiently described his assignments of error, we
cannot review a trial court’s decision without a complete record. See Structurals Nw.,
Ltd. v. Fifth & Park Place, Inc., 33 Wash. App. 710, 716-17, 658 P.2d 679 (1983)
2 On January 17, 2020, Cale provided two paystubs from November 2019
through January 2020. Because they were not before the trial court, we may not
consider them.
5
No. 79542-2-1/6
(discussing the requirement that the appellant provide the record necessary to
determine whether the finding which they challenge is supported by the evidence). And
while we appreciate that the Rules of Appellate Procedure can be challenging for self-
represented appellants like Cale, the law does not distinguish between self-represented
appellants and those represented by counsel. In re Marriage of Olson, 69 Wash. App.
621, 626, 850 P.2d 527 (1993).
We affirm.
WE CONCUR:
_ 4