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The Washington State Court of Appeals, Div. III, Robinson v. Robinson, no. 27143-9, held recently that a party who is not living in Washington at the time it files a petition for dissolution, and does not have an immediate intent to live in Washington, cannot get divorced in Washington because the court lacks subject matter jurisdiction.

Subject matter jurisdiction refers to the court’s authority to hear a particular case. To have subject matter jurisdiction, the petitioner in a case must be domiciled in Washington. To be domiciled in Washington, the petitioner must 1) actually live in the state, and 2) intend to make their residence their home.

Here, the parties, Douglas and Juraluck Robinson  married in 1998 in Everett, Washington and lived here until 2004, when they sold their house, moved to Connecticut, purchased a home, and enrolled their son in school. The following January, Mr. Robinson filed for divorce in Lincoln Country, listing an address in Everett, WA, and listing his wife’s address in CT on the petition. He then obtained a default divorce.

Ms. Robinson filed for divorce in CT in June 2005, and testified that she was unaware of the proceedings in Washington, claiming that her signature had been forged. In July, Mr. Robinson filed a motion to dismiss in CT based on the decree in WA. In November, Ms. Robinson returned to Washington, and filed a motion to vacate the decree as well as a motion to change venue.

In response to Ms. Robinson’s motions, Mr. Robinson filed a declaration that stated: “I do not feel that the venue should be changed…as neither one of us were a resident of Washington state at the time the petition was filed,” and “[a]t no time during the proceedings were we residents of Washington State.” In her declaration, Ms. Robinson also stated that, “we were living in Connecticut…[but] it [has] always been my intention to return to Washington”.

The trial court considered the issue of subject matter jurisdiction, and found that Ms. Robinson had “failed to show sufficient proof that jurisdiction was improper.” On appeal, the court stated that it was Ms. Robinson’s burden to show that the family had changed residence to Connecticut, and that through the facts and testimony it was clear that both Mr. and Ms. Robinson had changed their residence to Connecticut and had not reestablished it in Washington.

The most important aspect of this holding is the distinction between a present and future intent to domicile in Washington in order to establish subject matter jurisdiction. The court found that even though Ms. Robinson was present in Washington during the time of the initial proceedings, and that she did intend to reside in Washington again sometime in the future, her intent was not a present intent. Therefore, neither she nor Mr. Robinson was a resident of Washington at any time during the dissolution proceedings, and thus the court lacked subject matter jurisdiction.

A new case from Division I, Dependency of D.F.-M, Cause No. 63624-3-I, held that the Interstate Compact on the Placement of Children (“ICPC”) does not apply to a child’s placement with his/her parent.

The Compact establishes the legal framework for placing children from one state in a new home in a different state.  Per the terms of the compact, one state may request another state to accept placement of, or supervise, one of its dependent children.

The sending state must remain financially liable for the child.  The receiving state must certify that the proposed placement is not contrary to the interests of the child.

In this case, the State of Washington, Department of Social & Health Services, DSHS, took the child from the mother and placed him in temporary foster care.  It then filed a dependency petition in juvenile court.  The father, who lives in Oklahoma, responded to the petition and sought custody of the child.

DSHS then requested, per the procedure established by the ICPC, that Oklahoma accept the child for placement with the father.  Oklahoma then did a home study on the father.  The home study found fault with the father.  Oklahoma then refused to accept the child, based on the parenting deficits documented in the home study.

The father then addressed the deficits.  For example, he bought a car seat and took a parenting class.  However, Oklahoma still refused to accept the child.  The juvenile court eventually placed the child in Oklahoma with the father over the objections of Oklahoma and the child’s mother.

The mother appealed, arguing that, under the ICPC, a sending state could not place a child in a receiving state without the receiving state’s permission.  The father asserted that the ICPC did not apply.

The court of appeals affirmed, holding that the ICPC only applied to cases where the child was to be placed in foster care or some arrangement other than placement with a parent.

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.

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.

The Division II court of appeals held recently that someone accused of domestic violence in a domestic violence protection order proceeding does not have a right to a trial by jury.

In 2008, the wife/mother, Tiffany Blackmon, filed a petition for a domestic violence protection order on her behalf and on behalf of her seven-year-old son against her estranged husband, Brian Blackmon.

The trial court issued a temporary order of protection and set a date for the return hearing.  The parties then continued the date of the return hearing a number of times and Mr. Blackmon filed a jury demand.

The trial court denied Mr. Blackmon’s jury demand.  The appellate court affirmed.  To reach its holding, the court first established that the right to trial by jury enshrined in the state Constitution was limited to those causes of action for which a jury was available when the Constitution was adopted in 1889.

At that time, a jury was available to hear a cause of action sounding in law, but not in equity.  The distinction between law and equity focuses on the relief sought.  Injunctive relief is equitable.  An injunction is a court order prohibiting a party from engaging in a particular behavior.  Most other kinds of relief sound in law.

The court of appeals then reasoned that a domestic violence protection order – which prohibits a party from having contact with the other party – is injunctive in nature and therefore sounds in equity, and therefore the prohibited party does not have a right to a trial by jury.

A recent termination of parental rights case affirmed the trial court’s conclusion that the mother’s progress towards correcting her parental deficiencies was too little, too late.

In Welfare of A.G., L.S. cause # 27659-7-III consolidated with cause # 27660-1-III, the trial court concluded that “there is little likelihood that conditions will be remedied so that A.G. or L.S. could be returned to their mother in the near future.”
Termination of parental rights is a two-step process. First, the state must show that it has established the six statutory requirements by clear, cogent, and convincing evidence. Second, once those factors have been established, the state must show by a preponderance of the evidence that termination of parental rights is in the best interest of the child.

The six statutory factors are:

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. remedial services have been offered and/or provided;

5. there is little likelihood that the conditions will be remedied in the near future; and

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

The factors at issue in this case were numbers five and six. The court explained that “near future” depends on the age and circumstances of the child, but that a parent’s inability to correct their deficiencies within one year creates a rebuttable presumption that the conditions will not be remedied.
The appellate court held that the trial court’s factual findings supported its conclusion that the state had established elements five and six.

Our State Supreme Court recently held that the de facto parentage relationship does not apply to stepparent/stepchild relationships. Parentage of M.F., Cause # 81043-5 (Wash. Sup. Crt. April 1, 2010).

Our state courts recognized the de facto parent concept in November, 2005, to fill in a gap in the statutory scheme governing child custody. That gap concerned parents who had a child born from artificial insemination and then got into a custody dispute over the child.

The Parenting Act applies to custody disputes between parents. The definition of parent includes a woman who is artificially inseminated and gives birth to the child. However, it does not include the woman’s partner who intended to raise the child with the mother and created a parent-like bond with the child.
Likewise, the Non-Parental Custody Act applies to custody disputes between a parent and a non-parent. It also does not include the spouse of a woman who gave birth via artificial insemination where the mother and spouse intended to raise the child together as a family.
To fill in this gap between the statutes, the court, in Parentage of L.B.155 Wn.2d 679, 122 P. 3d 161 (2005), established the test for determining de facto parentage:

1. the natural/legal parent consented to and fostered the parent-like relationship;

2. the de facto parent lived with the child in the same household;

3. the de facto parent assumed the obligations of parenthood without expectations of financial gain;

4. the de facto parent and child have a bonded, dependent relationship, parental in nature; and

5. the de facto parent has committed to a permanent, unequivocal and responsible role in the parent’s life.

Here, the court held that the de facto parent test does not apply to step-parents because they are not the constitutional equivalent of parents. Rather, they are a third-party and therefore the non-parental (“Third-Party”) custody act applies.