DeVogel v. Padilla

509 P.3d 832

In the Matter of the Marriage of Nicolaas Cornelius DEVOGEL, Respondent,

v.Heidi Ann PADILLA, Appellant.

No. 82091-5-I (consolidated with No. 82267-5-I)

Court of Appeals of Washington, Division 1.

FILED May 16, 2022

John Christopher Matson, Law Office of John C. Matson, 13110 Ne 177th Pl #416, Woodinville, WA, 98072, for Appellant.

Christy Kay LaGrandeur, Buckingham, LaGrandeur & Williams, P.S., 321 Burnett Ave S Ste. 200, Renton, WA, 98057-2569, Valerie A. Villacin, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave N, Seattle, WA, 98109-3007, for Respondent.

PUBLISHED OPINION

Smith, A.C.J.

¶ 1 After ending their marriage in 2017, Nicolaas DeVogel and Heidi Padilla each asked the court to modify their parenting plan in 2019. The court entered a new parenting plan placing the parties’ children with DeVogel, entered a new child support order, and ruled on motions for correction of a clerical mistake and for contempt of court. Padilla appeals the court's handling of RCW 26.09.191 restrictions in the final parenting plan, certain aspects of the child support orders, the court's denial of her motions for contempt against DeVogel, the court's amendment of the modified parenting plan, the court's retention of jurisdiction, and the court's exclusion of certain testimony at trial as hearsay. We conclude that the court erred by ordering Padilla to pay a portion of a bill that was DeVogel's sole responsibility. Because the court complied with RCW 26.09.191 and did not otherwise err, we affirm in part and remand only to correct Padilla's payment obligation.

FACTS

¶ 2 Padilla and DeVogel were married in July 2005. They had two children, N.D. and A.D. DeVogel also eventually adopted Padilla's older son, Brandon. The parties separated in 2014, and in 2017, the court entered a dissolution order and a parenting plan with respect to N.D. and A.D. The court found that DeVogel had a history of domestic violence (DV) based on physical violence toward Brandon and that Padilla had other parental problems including withholding the children and abusive use of conflict. The court gave Padilla sole decision-making power for educational and health care issues and placed the children with her for a majority of the residential time. The parenting plan required DeVogel to complete DV treatment and the "DV Dads" program before his residential time increased to overnights every Wednesday and every other weekend.

¶ 3 The entry of the parenting plan was followed by many contentious communications between the parties; failed exchanges of the children; motions for contempt; and referrals to the Department of Children, Youth and Families (DCYF) for allegations of abuse and neglect against DeVogel ranging from exposure to pornography, physical violence, and medical neglect. In January 2019, Padilla and DeVogel each petitioned to amend the parenting plan. Padilla asked for DeVogel's visits to transition to supervised, and DeVogel asked for majority residential time. In March, the court entered a temporary parenting plan giving DeVogel a majority of residential time with the children and sole decision-making authority regarding school, health care, and child care.

¶ 4 A guardian ad litem (GAL) was appointed and issued an extensive report. She reported that while DeVogel had "engaged in a long-term pattern of domestic violence" toward Padilla and their children, Padilla had "engaged the children in the parents’ conflict, [had] intentionally interfered with the children's time and relationship with [DeVogel], and [had] coached the children as to language to describe [DeVogel] and the conclusions they should draw about him, without seeming to recognize the detrimental impact these behaviors had on the children." She found that DeVogel had "made more progress in addressing his deficiencies than" Padilla and that while residing with DeVogel "the children seem happy, are cared for, and express affection and positive feelings for him. Once back with their mother, they return to the narrative of his being an abusive, unsafe person."

¶ 5 In July 2020, the parties proceeded to trial, at which the GAL, the parents, family members, the coordinator of special education services in the children's school district, and the children's reunification therapist all testified. The court entered a final parenting plan placing the children with DeVogel the majority of the time and giving him sole decision-making authority. In unchallenged findings, the court noted that before switching residences, N.D. had been "demonstrating incredibly concerning behavior," including refusing to go to school, acting aggressively, starting fires, and running away. But since moving to DeVogel's house, N.D. had been "attending school as required" and "the concerning behavior he manifested in the past has decreased if not almost entirely disappeared." The court noted that it found the GAL's testimony to be "extremely insightful and credible."

¶ 6 The court also entered a child support order finding that Padilla, who worked as a substitute teacher, was voluntarily underemployed, imputing income to her at her current rate of pay, and directing Padilla to pay DeVogel $5,522 in past due child support.

¶ 7 Since trial, the court has denied an emergency temporary custody order based on Padilla's evidently unsupported belief that A.D. was being sexually abused because she had blisters on her genitals and motions for contempt from both parents. The court also granted DeVogel's motion to correct clerical mistakes in the parenting plan.

¶ 8 Padilla appeals.

ANALYSIS

RCW 26.09.191 Restrictions for Domestic Violence

¶ 9 Padilla first contends that the court erred by awarding sole decision-making and majority residential time to DeVogel despite his history of DV because it did not enter findings that DeVogel would not cause harm to the children and that the probability the harmful conduct would recur was remote. We conclude that the court did not err.

¶ 10 We review a trial court's parenting plan for abuse of discretion. Katare v. Katare, 175 Wash.2d 23, 35, 283 P.3d 546 (2012). "An abuse of discretion occurs when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons." Id. In modifying a parenting plan, "a court abuses its discretion if it fails to follow the statutory procedures." In re Marriage of Watson, 132 Wash. App. 222, 230, 130 P.3d 915 (2006). "We consider statutory construction as a question of law requiring de novo review." Id.

¶ 11 First, the court did not err by giving DeVogel sole decision-making authority. RCW 26.09.191(1) provides that "[t]he permanent parenting plan shall not require mutual decision-making ... if it is found that a parent has ... a history of acts of domestic violence." Padilla contends that this section should be construed as forbidding the court from giving the parent with a history of domestic violence any decision-making authority, but by its plain language it only prohibits "mutual decision-making." RCW 26.09.191(1). "We cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language." State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003). The plan gave DeVogel sole decision-making authority and did not order mutual decision-making. Therefore, the court's parenting plan did not violate this section.

¶ 12 Second, the court did not err by placing the children with DeVogel for the majority of the time. If a parent has a history of domestic violence, the "parent's residential time with the child shall be limited" and these limitations "shall be reasonably calculated to protect the child" and the other parent from abuse or harm. RCW 26.09.191(2)(a), (2)(m)(i). "The limitations the court may impose include, but are not limited to: Supervised contact between the child and the parent or completion of relevant counseling or treatment." RCW 26.09.191(2)(m)(i). The court can only choose to not impose limitations based on a history of DV under RCW 26.09.191(2) if it "expressly finds ... that contact between the parent and the child will not cause ... harm to the child and that the probability that the parent's ... harmful or abusive conduct will recur is so remote that it would not be in the child's best interests to apply the limitations," or that the parent's conduct did not impact the child.

RCW 26.09.191(2)(n).

¶ 13 Here, the parties’ original parenting plan placed a limitation on DeVogel's time with his children because of his DV history, requiring DeVogel to complete DV treatment and the DV Dads program before DeVogel could get more residential time with the children. Completion of treatment is a limitation specifically contemplated by RCW 26.09.191(2)(m)(i). As noted in the GAL report, DeVogel did indeed complete both of these programs, "with the treatment provider believing he had internalized the information and seeing him as a positive group member." At the time the court entered the amended parenting plan, it found that there had been no instances of domestic violence since the parties separated. We conclude that the court was not required to impose new limitations on DeVogel when the court knew that he had completed the limitations described in the original parenting plan and there were no new domestic violence concerns.¹

¶ 14 Padilla disagrees, contending that the court's finding that DeVogel had not perpetrated domestic violence since the parties’ separation is not supported by substantial evidence because DeVogel had participated in the Family Assessment Response (FAR) program since then. Padilla contends that "[a] family may only end up in FAR if there are credible allegations of child abuse or neglect" but her citations do not support this conclusion. RCW 26.44.020(13) merely provides that FAR is "a way of responding to certain reports of child abuse or neglect made under this chapter using a differential response approach to child protective services."...