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Archive for the ‘Divorce’ Category

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.

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The Washington State Court of Appeals, Division II, held recently that a CR2A agreement was binding on both parties, when, at different times, each party had moved to enforce it.

Court Rule 2A (“CR2A”) provides that the court will not enforce an agreement between the parties unless it is made in open court on the record, or unless it is in writing and signed by the attorneys.  CR2A agreements are commonly used to memorialize agreements made during mediation or other Alternative Dispute Resolution.

The case, Marriage of Teresa Grimsley-LaVergne and Mark A. LaVergne, No. 37731-4-II arose from a drawn-out dissolution process that began in 2001 and ended in 2009.  During that process, in 2004, the parties engaged in an eleven-hour marathon mediation with a professional mediator.  Pursuant to that mediation, the parties signed a CR2A agreement.    

In this case, the CR2A agreement was hard to read.  It was scribbled and interlineated.  Sections were scratched out and then sometimes reinserted.  Nonetheless, it was signed and it contained language indicating that the parties agreed to it and thought it was fair and equitable.

The night after the mediation, the parties had sex and conceived twins.  For the next three years, they lived together and appeared to have reconciled.  Nonetheless, the parties also executed at least some of the provisions of the CR2A agreement and, at different times, attempted to enforce it.

In 2009, the Husband attempted to set aside the CR2A agreement because, he claimed, the parties had reconciled.  The trial court, after a two-day trial, denied the motion.  The Husband appealed.  The Court of Appeals affirmed the trial court, holding that, by moving to enforce the CR2A agreement, the parties had waived their right to appeal its enforceability.

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In a Dependency Action, Parental Unfitness May Not Be Implied When Findings Are Contradictory

Our state Supreme Court recently held that an appellate court may not infer a finding of parental unfitness from the trial court record unless the facts and circumstances clearly demonstrate that the finding was actually made, but not explicitly written.

In Re the Welfare of: A.B., Cause No. 89759-1, a father sought to preserve his parental rights whereas DSHS sought to terminate them.

The Supreme court based its decision on the dependency statute, RCW 13.34 et. seq.  The statute sets up a two-phase process for terminating parental rights and then placing the dependent child with a caregiver.

In the first phase, termination of parental rights, the court must find that each of the following six statutory factors have been met, by clear, cogent, and convincing evidence:

a)   the child has been found to be dependent;

b)  the court has entered a dispositional order regarding the child’s temporary placement;

c)  the child has been removed from his/her parent’s home for at least six months;

d)  the state has offered services to the child;

e)  there is little likelihood that the conditions will be remedied so that the child may be returned in the future

f)   the continuation of the parent/child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home;

In addition, per case law interpreting the Constitution, the court must find that the parent is unfit at the time of trial to be a parent.

        In the second phase of the statutory scheme, the court must determine, by a preponderance of the evidence, what placement is in the child’s best interest.

        Here, the trial court made the necessary boilerplate findings based on the language from phase I, but never made an explicit finding of parental unfitness.  In addition, it made contradictory, non-boilerplate findings seeming to indicate that the father was not unfit.

        The Supreme Court held that not finding of unfitness could be implied, given the contradictory findings, and ordered the child placed with the father.

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