Our Supreme Court recently held that, in a dissolution proceeding, a trial court had broad discretion to assess the value of a
couples’ stock options and to assess attorney’s fees.

In Farmer v. Farmer, Washington Supreme Court # 83960-3, the parties agreed to split the husband’s stock options 50 / 50.  However, despite that agreement, the Husband exercised all the options and sold all the stock.  When the wife found out about it, she asked the court to set aside the divorce decree and award her damages.

The issue was how to measure damages.  The mother argued that, per the agreement, she should have been able to exercise the stock options whenever she wanted.  Her accountant calculated that the value of the stock had increased, on average, twenty percent per year.  He then calculated the value of each stock option, based on the annual increase, the day before it was to expire.  He then estimated federal income tax and medicare tax and deducted those amounts.

The Husband argued that the calculation was inappropriate and unreasonable, but did not come up with an alternative method for evaluating the stock options.  The trial court noted that the Husband lied to both the Wife and the court regarding the status of the stock options, adopted the Wife’s valuation methodology, and awarded her attorney’s fees and costs.

Both the Court of Appeals and the Supreme Court affirmed.


A new case from Division III held recently that DSHS was required to provide bonding and attachment services to a  mother before her parental rights could be terminated.  The case also held that DSHS must prove that the mother was currently unfit, not that she had been unfit in the past.

The mother in In Re the Termination of SJ, No. 26179-4-III, had a history of drug use and provided an unsanitary home for her child, SJ.  When SJ was two, DSHS removed him from the mother’s care and placed him in foster care.

Per the dependency statute, before terminating parental rights, the court must make the following findings:

1.  The child has been found dependent;

2.  The court has entered a dispositional order;

3.  The child has been removed from the custody of the parent for at least six months;

4.  DSHS has offered the parent all necessary services, reasonably available, capable of correcting the parental deficiencies
within the foreseeable future;

5. There is little likelihood that conditions will be remedied so that the child can be returned to the parent in the future; and

6.  The continuation off the parent / child relationship clearly diminishes the child’s prospects for early integration
into a stable and permanent home.

The appellate court found that DSHS failed to prove factor number four.  While DSHS did provide the necessary services, it did so sequentially, rather than concurrently.  For example, once the mother “graduated” from her drug/alcohol treatment, she was then offered services designed to address her mental health issues, including her bi-polar disorder.

The court held that all such services should have been offered concurrently, rather than sequentially, citing a 2005 amendment to the dependency statute and reasoning that the delay in providing services may have been a factor in disrupting the once-solid bond
between mother and child.

The court also found that DSHS must prove the mother currently unfit.  An inference of current unfitness, based on past unfitness was not sufficient.

Our State Court of Appeals, Division III, held recently that a party to a dissolution of marriage cannot stay the  dissolution by filing for bankruptcy. The dissolution may proceed, but property distribution must await resolution of the bankruptcy petition.

The federal bankruptcy code provides for an automatic stay in any proceeding against a bankruptcy debtor, subject to certain exceptions. One of those exceptions is dissolution of marriage. Pursuant to that exception, the trial court bifurcated the dissolution proceeding. Property issues were reserved pending resolution of the bankruptcy. All other issues were addressed and the court granted the divorce.

The Court of Appeals affirmed.

Our State Court of Appeals, Division I, recently held that foster parents may also be de facto parents. In Re the Interest of: AFJ, docket # 63919-6. The ruling is a positive development for a very small category of adults who seek custody or a residential schedule for child, but are not the child’s biological or adoptive parent and do not fit under the non-parental custody act.

Our Supreme Court established the de facto parent category in the landmark case called In Re: Parentage of L.L.BL.L.B. was a custody dispute between two women who had lived together in a stable marital-like relationship and jointly decided to conceive a child via artificial insemination. Upon the break-up of the relationship, the woman who carried the child – the biological mother – sought to prevent the other woman from seeing the child.

The L.L.B. court held that the non-biological mother had parental rights to the child based on the following five-prong test: 1) the natural or legal parent consented to and fostered the parent-like relationship; 2) the petitioner and the child lived together in the same household; 3) the petitioner assumed obligations of parenthood without expectation of financial compensation; 4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature; and 5) the petitioner has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.

The primary issue in AFJ was prong number 3. The non-biological mother had cared for the child virtually his entire life – three and a half years – and had accepted foster-care payments for eight of those months. The biological mother argued that the non-biological mother flunked prong three because of these foster payments. She buttressed this argument by reference to public policy and case law regarding foster parents.

The foster parent stem is designed to provide dependent children with a temporary residence while their parents get their life in order or someone else steps into their shoes. Foster parents are generally precluded from becoming the child’s parents. However, this new case provides a limited exception. The foster parent may become the child’s legal parent if she or he is also the child’s de facto parent.

See Law Offices of O. Yale Lewis III at http://yalelewislaw.com for more information.

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The Court of Appeals, Division II, recently held that the provisions of a written agreement that usurp a trial court’s statutory duty to review modifications to a parenting plan are invalid. Marriage of Coy, 39690-4-II. The court further rejected the practice of one parent acting as an arbitrator for parenting plan disputes.

Mark and Kristine Coy entered a permanent parenting plan for their two-year-old daughter, in 2002. In 2008, mediation resulted in a handwritten CR 2A to increase residential time for Mr. Coy. The CR 2A provided that, if Mr. Coy complied with a set of added requirements, he would receive additional residential time. The parties assigned Ms. Coy complete discretionary authority to determine whether Mr. Coy complied with the requirements.

After several months, Ms. Coy felt that Mr. Coy had failed to meet these requirements. Mr. Coy sought review in binding arbitration. The arbitrator agreed with Ms. Coy and entered findings of fact and conclusions of law. Mr. Coy moved for de novo review of the arbitrator’s orders in the trial court. The trial court denied the motion, in part because the parties had used “binding arbitration of their own volition.”

At the appeals level, Mr. Coy argued that under statutory provisions and case law, he had the right to a new review by a trial court of any result of a parenting plan dispute resolution process. Ms. Coy asserted that a trial court should only review the arbitrator’s findings and conclusions for whether she had abused her discretion in denying Mr. Coy additional time.

The court did not rule directly on either issue. Instead, it invalidated the CR2A, holding that parties cannot stipulate to a process that eliminates the trial court’s considerations of parenting plan modifications under the best interests of the child standard.

The statute that governs modification of parenting plans, RCW 26.09.260, requires that a trial court consider and make any modifications to a parenting plan based on what is in the best interests of the child. The Court of Appeals held that trial courts cannot delegate this authority for parenting plan modifications, and that any agreement, no matter how minor, “requires an independent inquiry by the trial court.”

Division III of the Washington State Court of Appeals recently ruled in Scheib v. Crosby that granting protection orders under the Domestic Violence Protection Act (DVPA) are “special proceedings” that do not require the court to apply the civil rules for superior court.

Kourtney Scheib and Christopher Crosby began a relationship in 2009 that resulted in a pregnancy. Ms. Scheib had been residing with Mr. Crosby and his parents when she decided to move in with her own parents instead. When Ms. Scheib was at the bus station, Mr. Crosby repeatedly attempted to talk with her and “trailed after her,” which Ms. Scheib saw as “stalking” and felt frightened.

District court granted a temporary domestic violence protection order against Mr. Crosby, and issued a notice of proceeding. It then granted Mr. Crosby’s request to move the case to superior court.

At superior court, Mr. Crosby requested a continuance to depose Ms. Scheib. The court found that no right existed to depose a witness in a domestic violence protection order proceeding, reasoning that it was not a civil lawsuit where the civil court rules would apply. The court then granted a permanent protection order.

Mr. Crosby appealed, claiming that hearings under the DVPA were not special proceedings and so the superior court should have allowed him to depose Ms. Scheib under civil court rules. The Division III court looked to the statute, chapter 26.5 RCW, to determine what procedural rules applied, and determined that protection orders under DVPA are special proceedings not governed by civil court rules, such as the right to depose.

There is no definition in the court rules that define a special proceeding, so the court looked to case law for guidance. It found that where the legislature enacted a law that created a new proceeding or completely changed the remedy for a situation normally allowed by a civil action, it was a special proceeding.

The court concluded that protection orders under the DVPA are special proceedings, and that while a trial court may allow discovery as it would under civil court rules, such as depositions, it is under the discretion of the trial court. Therefore, the appellate court did not find that the trial court abused its discretion in not allowing Mr. Crosby to depose Ms. Scheib.