Hardin v. Lofgren

In the Matter of the Marriage of: TODD HARDIN, Respondent, v. KAREN LOFGREN, Appellant.

No. 48987-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

April 17, 2018

UNPUBLISHED OPINION

BJORGEN, J. — Karen Lofgren appeals the superior court's entry of a modified parenting plan. She argues that: (1) substantial evidence does not support the superior court's finding under former RCW 26.09.191(3) (2012)¹ regarding the impairment of emotional ties, (2) the superior court erred by determining that the case involved a modification of a parenting plan, placing the burden of proof on her, and limiting the scope of proceedings, (3) the superior court erred by denying Lofgren the presumption that contact between her and her children is in the children's best interest, (4) the superior court erred by improperly applying the statutory factors under RCW 26.09.187 during the modification hearing, (5) the superior court erred by denying her a continuance, (6) the superior court erred by appointing guardian ad litem (GAL) FrancesKevetter in this case, (7) the superior court impermissibly delegated its authority to modify the parenting plan to Todd Hardin, (8) the superior court erred by imposing attorney fees, costs, and GAL costs on her, (9) we should not award fees and costs on appeal, and (10) the superior court erred by not entering express findings pursuant to former RCW 26.09.191(2)(m)(i).

We hold that the superior court improperly awarded attorney fees, costs, and GAL costs to Hardin and that Hardin is not entitled to attorney fees and costs on appeal. We disagree, however, with Lofgren's remaining challenges, and affirm the superior court's entry of the modified parenting plan.

FACTS

A. Dissolution and Criminal Conviction

Lofgren and Hardin married in 2002. In 2010 Lofgren filed for divorce, but had the petition dismissed after she and Hardin reconciled. In June 2011 Hardin filed for divorce. On August 26, the superior court appointed Frances Kevetter as GAL for Lofgren and Hardin's children, L.H. and R.H. On January 26, 2012, Lofgren filed a motion to discharge GAL Kevetter, based upon alleged religious bias and for failing to interview witnesses suggested by Lofgren. On February 3, the superior court denied Lofgren's motion to discharge GAL Kevetter. Lofgren never appealed or sought discretionary review of this ruling.

On February 23, Lofgren was arrested for attempting to hire someone to kill Hardin. The facts leading up to Lofgren's arrest and subsequent guilty plea to second degree solicitation of murder are contained in our unpublished opinion, State v. Lofgren, No. 44528-0, slip op. at 182 Wn. App. 1057 (2014) (unpublished). As a condition of Lofgren's sentence, the superior court entered two no-contact orders permanently prohibiting contact between Lofgren and her children.

B. 2013 Parenting Plan

On April 24, 2013, the superior court entered an agreed final parenting plan in the dissolution proceeding between Lofgren and Hardin.² The plan stated,

This parenting plan is the final parenting plan signed by the court pursuant to a decree of dissolution, legal separation, or declaration concerning validity signed by the court on this date or dated [April 24, 2013].

Clerk's Papers (CP) at 1. Lofgren did not appeal the agreed 2013 parenting plan. The final parenting plan contained the following:

II. Basis for Restrictions

Under certain circumstances, as outlined below, the court may limit or prohibit a parent's contact with the children and the right to make decisions for the children.

2.1 Parental Conduct (RCW 26.09.191(1),(2))

[Lofgren]'s residential time with the children shall be limited or restrained completely, and mutual decision-making and designation of a dispute resolution process other than court action shall not be required, because this parent has engaged in the conduct which follows:

A history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

2.2 Other Factors (RCW 26.09.191(3))

[Lofgren]'s involvement or conduct may have an adverse effect on the children's best interests because of the existence of the factor[] which follow[s]:

The abusive use of conflict by the parent which creates the danger of serious damage to the children's psychological development.

III. Residential Schedule

The residential schedule must set forth where the children shall reside each day of the year, including provisions for holidays, birthdays of family members, vacations,and other special occasions, and what contact the children shall have with each parent.

. . . .

3.10 Restrictions

[Lofgren]'s residential time with the children shall be limited because there are limiting factors in paragraphs 2.1 and 2.2. The following restrictions shall apply when the children spend(s) time with this parent.

See paragraph 3.13 below.

. . . .

3.13 Other

1. [Lofgren] was convicted of solicitation to commit murder of [Hardin], second degree, on January 25, 2013, under Pierce County cause no. 12-1-00662-0, was sentenced to 165 months in prison, and was ordered to have no contact with [Hardin] and [L.H. and R.H.]. A copy of the Judgment and Sentence and the No Contact Orders regarding the children are attached hereto.

2. ONLY the provisions regarding [Lofgren]'s contact with the children may be reviewed if the provisions of the no contact orders regarding the children entered under cause no. 12-1-00662-0 on 1/25/2013 are terminated.

CP at 1-4.

On August 12, 2014, we issued our unpublished opinion in Lofgren, slip op. at 182 Wn. App. 1057 (2014). We vacated Lofgren's lifetime no-contact orders prohibiting contact between her and her children, reasoning that the record did not demonstrate that the scope and duration of the orders were reasonably necessary to protect the children or Hardin. Lofgren, slip op. at *4-5. We further explained that "[t]he matter and manner of contact between the children and Lofgren is best resolved by the family court in the dissolution proceeding." Lofgren, slip op. at *5. We also commented, "Moreover, our opinion does not preclude a court from issuing a no-contactorder grounded on other statutory bases." Lofgren, slip op. at *5 n.1. Our opinion did not analyze the 2013 parenting plan.

C. Motion to Modify 2013 Parenting Plan

On December 15, 2014, Lofgren filed a motion for a minor modification to the 2013 parenting plan. On January 15, 2015, a superior court commissioner issued an order finding that adequate cause for a modification to the 2013 parenting plan had been shown. On January 23, Hardin filed a motion to revise the January 15 order on adequate cause and to strike the entire order. The superior court determined that Lofgren had shown adequate cause to support a minor modification, but only regarding appropriate contact between Lofgren and her children. Over Lofgren's objection, the superior court reappointed GAL Kevetter for L.H. and R.H., reasoning:

I think Ms. Kevetter should be reappointed in this case. It doesn't make any sense to have someone else go through this tortured history in both the family law proceeding and the criminal proceeding just to get up to speed as to what occurred. Ms. Kevetter is aware of what the allegations were. She's aware of the kids' emotional condition at the time of the arrest. She can certainly make use of her knowledge and sort of playing out how she wants to go forward with discussing the matter with the children, if even that's appropriate. That may not even be appropriate. It may be appropriate to talk to counselors and other professionals only and not subject the kids to further discussion. But I think that she would be in the best position to at least frame that investigation.

Verbatim Report of Proceedings (VRP) (Feb. 6, 2015) at 15.

On February 6, the superior court filed an order denying Hardin's motion to strike the order on adequate cause, specifying:

[1] The court finds there is adequate cause ONLY for a minor modification for the sole purpose of determining what, if any, contact there should be between mother and children. All other provisions of the Parenting Plan entered April 24, 2013 shall remain in full force and effect.

. . . .

[2] [Lofgren] shall have the burden of proof as to whether contact is in the children's best interests. Further that [GAL] Franc[e]s Kevetter shall be re-appointed. Ms. Kevetter has familiarity with both the file and the children.

. . . .

[3] The court finds that there may be a grave risk of psychological harm to children from Ms. Lofgren.

. . . .

[4] That GAL Kevetter shall determine first whether it's in the children's best interest for [Kevetter] to have any contact with them to discuss this matter prior to the GAL having contact with children. Further that the GAL shall contact the children's teachers and any other professionals or counselors with whom the children have consulted from mother's arrest.

. . . .

[5] GAL shall investigate and report as to what contact, if any, shall occur between [Lofgren and her children], in light of the findings in 2.1 and 2.2. [of the April 24, 2013 parenting plan] and the GAL's investigation.

[6] Ordered that [Lofgren] shall pay 100% of the GAL's initial retainer. Said funds shall be paid to the Clerk of Pierce County Superior Court.

CP at 89-91.

On February 16, Lofgren filed a motion for reconsideration of this order. On March 17, the superior court denied Lofgren's motion for reconsideration. On April 16, Lofgren filed a notice of discretionary review to our court, seeking review of the superior court's February 6 order. On August 21, a commissioner of this court issued a ruling denying Lofgren's motion for discretionary review.

On October 30, GAL Kevetter submitted her first report, recommending that she interview L.H. and R.H. as part of her investigation. On December 4, GAL Kevetter submitted her second report, which included summaries of interviews with L.H. and R.H, her observations of L.H. and R.H., and...