Cornell v. Codekas

10 Wn.App.2d 1033

CAMERON CORNELL, Respondent, v. MICHAEL C. CODEKAS, Appellant.

No. 51305-6-II

Court of Appeals of Washington, Division 2

October 1, 2019

UNPUBLISHED OPINION

CRUSER, J.

Michael Codekas appeals the trial court's final order and findings on Cameron Cornell's petition to modify a parenting plan and order of child support. He argues that the trial court violated his due process rights, the appearance of fairness doctrine, and the CJC Canon 2.9(C) by improperly considering a deposition transcript that was not admitted into evidence. Codekas argues that without the trial court's reliance on the deposition transcript, its findings of fact, specifically the trial court's domestic violence finding, are not supported by substantial evidence.

Codekas also challenges the trial court's order of child support arguing that the trial court abused its discretion by imputing his income without finding that he was voluntarily underemployed and by deducting retirement contributions from Cornell's income. Codekas also argues that the trial court improperly awarded fees to Cornell under RCW 26.09.260(13). He asks us to vacate the trial court's final orders and remand for a new trial in front of a different judge. We affirm the trial court's orders, but remand to the trial court to strike three findings of fact and limited portions of other findings of fact that are not supported by substantial evidence on the record, but have no prejudicial effect on the outcome of the proceedings. We also remand to the trial court to strike Cornell's retirement contribution deduction from her income calculation and recalculate Cornell's income and Codekas's child support obligation. We remand to the same judge, as Codekas has not shown that the trial court violated the appearance of fairness doctrine or CJC Canon 2.9(C).

FACTS

I. Background

Codekas and Cornell began a relationship in 2006 and had one child together, C.C., ^[1] born in 2009. Codekas and Cornell separated when C.C. was two years old. In March 2014, the trial court entered a parenting plan, residential schedule and child support order. The parenting plan gave each parent 50/50 residential time and provided for joint decision making. At that time, Codekas lived with his mother, Shirley Low. Cornell agreed to the parenting plan because she was confident Low's household had the support to ensure Codekas would be "a good dad." Ex. 19 at 84-85.

In August 2015, Codekas and Cornell disagreed on whether C.C should attend kindergarten at a public or private school. Both parents unilaterally enrolled C.C. in their preferred schools. In November 2015, Codekas accused Cornell's significant other, S.C., ^[2] of molesting C.C. Codekas alleged that C.C. had disclosed the abuse to Low. At Codekas's direction, Low called the police to report the alleged abuse.

Codekas refused to return C.C. to Cornell. The next day, Cornell filed a petition to modify their parenting plan and child support order. Cornell's petition cites to Codekas's unilateral enrollment of C.C. in his preferred kindergarten and his refusal to return C.C. to Cornell during her agreed time with C.C. as the substantial change in circumstances to justify a modification of their parenting plan.

Child Protective Services (CPS) and the Tacoma Police Department investigated the allegation. C.C. did not disclose the abuse to either agency. Child Protective Services (CPS) determined the molestation allegation was unfounded on December 7, 2015. Codekas filed a complaint against the CPS investigator who interviewed C.C. alleging that the investigator was biased. On December 14, 2015, the Tacoma Police Department determined the molestation allegation was unfounded. The Tacoma Police Department also determined that Codekas's allegation against the CPS investigator was also unfounded.

Codekas hired his own forensic psychologist to interview C.C. During the interview, C.C. purportedly disclosed the abuse that he had described to Low. Following the interview, Codekas filed a petition for a sexual assault protection order against S.C.

On December 18, 2015, Codekas asked Low to help him serve S.C. with the petition and order for protection. Codekas and Low, in separate vehicles, began following S.C.'s vehicle. S.C. was driving his vehicle and Cornell was a passenger. A car chase ensued. Codekas made multiple attempts to drive S.C.'s vehicle over a curb and off the road. Eventually, Low maneuvered her vehicle in front of S.C.'s vehicle and stopped abruptly, causing a collision. Low exited her vehicle and served S.C. with the petition and order for protection. Codekas and Low were arrested at the scene of the collision. Codekas was charged with one count of harassment – threaten malicious acts, one count of reckless endangerment/DV, and one count of reckless endangerment. Low was charged with four counts of reckless endangerment/DV.

After the car altercation, Cornell filed a restraining order and domestic violence protection order against Codekas. In February 2016, Codekas proposed to drop his sexual assault protection order against S.C. if Cornell agreed to drop her domestic violence protection order against him. Cornell agreed, and both petitions were dismissed.

In July 2016, Codekas filed a cross petition for modification of the parenting plan, requesting full custody of C.C. In his declaration in support of his cross petition, Codekas referred to the sexual assault allegation against S.C. He claimed Cornell "vehemently stated [C.C.]'s disclosure was untrue, " yet she admitted that C.C. does not lie. Clerk's Papers (CP) at 570. Codekas also accused Cornell of not investigating C.C.'s allegations of abuse, but instead Cornell sought only to gain full custody of C.C.

The trial court appointed a guardian ad litem (GAL) on behalf of C.C. The GAL issued a report that discussed Codekas's allegations of sexual abuse against S.C. The GAL reported that she had "serious concerns" about how Codekas and Low handled the sexual assault allegation. The GAL found that S.C. "has nothing in his background that is concerning" and that "[C.C.] appears to have a very warm nurturing relationship with [S.C.]." CP at 33. The GAL testified at trial, and her report was admitted into evidence.

II. Incidents of Domestic Violence

Cornell disclosed that Codekas committed several acts of domestic violence against Cornell throughout their relationship. In 2009, when Cornell was eight months pregnant with C.C., Codekas locked Cornell out of their shared apartment. Cornell contacted their landlord to open the apartment. Codekas contacted the police to report the landlord when he attempted to let her back into their apartment. Codekas denied any recollection of this event at trial.

In 2010, Codekas was arrested for simple assault (DV) after a confrontation with Cornell. Codekas took Cornell's belongings and pushed Cornell to the ground multiple times. Cornell sustained injuries to her wrist and hand. Although the charges were dropped, the incident report was admitted into evidence without objection.

Cornell testified to the 2010 incident at her discovery deposition. At her deposition, Cornell stated,

[Cornell]: He was trying to slam the door, and he slammed the door on my fingers, and pushed me back on the ground. There was [sic] multiple pushes. He was swearing at me, and calling me a psycho bitch, and expletives, and telling me that, you know, he was going to take [C.C.] away from me.

Ex. 19 at 83. Codekas requested the publication of Cornell's deposition transcript, but the deposition was not admitted into evidence.

Cornell also testified to a 2012 incident at her deposition. She stated that she was aware of Codekas's sister calling the police in 2012 because his sister "was concerned about how [Codekas] was disciplining [C.C.]." Ex 19 at 119. At trial, Codekas stated that he did not remember this incident.

In November 2015, following Codekas's accusation that S.C. had sexually abused C.C., a Tacoma Police detective interviewed Cornell. During the interview, Cornell disclosed past domestic violence incidences between herself and Codekas, including when Codekas locked Cornell out of their shared apartment, when Cornell was arrested for pushing Cornell, and when Codekas "'cracked [Cornell's] head' against the glass door in her apartment." CP at 359-60; Ex. 3 at 10. The police report was admitted into evidence without objection.

The trial court ordered the court-appointed GAL to investigate and address any domestic violence by Cornell and Codekas. Her report discusses incidents of Codekas's domestic violence against Cornell, including Codekas's 2010 arrest for simple assault (DV). The GAL report was admitted into evidence without objection.

Additionally, Wendy Hutchins-Cook, a court-appointed psychologist, performed a parenting evaluation. Her report documents interviews with Codekas and Cornell. Hutchins-Cook includes multiple different allegations of Codekas's past abuse against Cornell, including Cornell's statements that Codekas sexually, physically, and emotionally abused Cornell during their relationship. Hutchins-Cook's report quotes Cornell as stating, "'[Codekas] would get emotionally abusive. . . . He was physically abusive, pushing me down once. He forced sex on me when I didn't want it.'" Ex. 3 at 9. Hutchins-Cook's report quotes Codekas as stating, "'This was shortly after I supposedly raped [Cornell], beat [Cornell], and smashed [Cornell's] head.'" Ex. 2 at 3. Hutchins-Cook's report was admitted into evidence without objection.

III. Trial Proceedings

The case proceeded to trial in October 2017. The day of trial Codekas dropped his modification petition. Codekas testified that he "changed [his] request" and no longer sought full custody....