IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN RE PARENTAGE AND SUPPORT No. 70921-6-
OF:
L.L.
Minor child. p"t <~
ro
KYLA ESTES, in;
DIVISION ONE
Appellant,
CO
v.
UNPUBLISHED OPINION
JONATHAN LaVOI,
FILED: September 22. 2014
Respondent.
Spearman, C.J. — Kyla Estes appeals orders providing for the custody and
support of her child, L.L. Because Estes fails to demonstrate that the trial court erred,
we affirm.
FACTS
Kyla Estes and Jonathan LaVoi are the parents of L.L., born August 28, 2012.
The parents' brief romantic relationship had ended by the time L.L. was born, and their
parenting relationship has been fraught with conflict. After L.L's birth, LaVoi regularly
requested visitation with the child. On the occasions that Estes agreed, she would
either arrive late, cut the visit short, or cancel the visit altogether. More often than not,
however, Estes refused to allow LaVoi to visit.
No. 70921-6-1/2
Estes filed a petition for a residential schedule and a parenting plan, and the trial
court entered a temporary order designating Estes as the primary residential parent of
L.L. and giving LaVoi visitation twice a week. Estes frequently violated this order by
failing to bring L.L. to scheduled visits.
On the few occasions that LaVoi was able to see L.L., Estes interfered with their
relationship by making frequent allegations of abuse or neglect to third parties. For
example, Estes told a hospital social worker that LaVoi used drugs while L.L. was in his
care. Child Protective Services investigated Estes's claim and determined it to be
unfounded. Estes also told L.L.'s pediatrician that L.L. had suffered injuries during a visit
with LaVoi. The pediatrician did not observe any of the injuries alleged by Estes. Estes
repeatedly contacted the Kitsap County Sheriff's Department to demand they perform
welfare checks on L.L. while he was with LaVoi. Officers observed the child and saw no
cause for concern.
Estes and her family also engaged in extensive hostile behavior towards LaVoi,
his attorneys, the guardian ad litem (GAL) and several visitation supervisors. When L.L.
was approximately one month old, Estes and her mother showed up unannounced at
LaVoi's home at approximately 6:00 a.m. With L.L. in her arms, Estes spent more than
ten minutes ringing LaVoi's doorbell, pounding on the door and yelling. Estes screamed
obscenities about LaVoi's new girlfriend and told LaVoi he would never see L.L. again.
Estes's mother also participated in the yelling. Estes contacted law enforcement at
least eight times to claim that LaVoi or his friends had abused or harassed her. She and
her parents filed multiple bar grievances against both LaVoi's attorney and the GAL and
No. 70921-6-1/3
sought an internal affairs investigation against an officer who performed a welfare check
on L.L.
On May 8, 2013, the trial court ordered Estes to participate in a psychological
evaluation with a psychologist approved by the GAL. Estes failed to undergo the
evaluation.
On September 26, 2013, the trial court ordered that LaVoi be the primary
residential parent of L.L. The trial court ordered Estes to bring L.L. to the courthouse by
4:00 p.m. that day. The order informed Estes that if she did not comply, the trial court
would issue a bench warrant for her arrest and a writ of habeas corpus to recover the
child. The trial court also entered a temporary restraining order restricting Estes from
having any contact with LaVoi or L.L. except for supervised visitation. Estes failed to
produce L.L. as ordered. The trial court issued a writ of habeas corpus and the King
County Sheriff's Office spent seven days attempting to locate L.L. Estes's parents
finally produced L.L. after a detective notified them that Estes would face criminal
charges. Estes later admitted that she hid at her parents' house with L.L. during that
time.
Trial began on October 21, 2013. LaVoi was represented by counsel and Estes,
who had previously discharged her attorney, appeared pro se. Following three days of
testimony, the trial court entered findings of fact and conclusions of law, a parenting
plan and an order of child support. The trial court ordered that LaVoi remain L.L.'s
primary residential parent. The trial court found that Estes's contact with L.L. should be
restricted to a total of eight hours of supervised visitation a week because Estes
No. 70921-6-1/4
engaged in abusive use of conflict during the duration of L.L.'s life and had withheld
access to L.L. from LaVoi for a protracted period of time without good cause. CP 1183.
The trial court ordered Estes to pay LaVoi $10,000 in attorney fees due to her
"intransigence and filing of frivolous motions." Clerk's Papers (CP) at 1181. The trial
court also ordered Estes to pay LaVoi $296.23 per month in child support. In doing so,
the trial court found Estes to be voluntarily unemployed and imputed her income at
$1,345.00 per month based on her work history.
Proceeding pro se, Estes appeals the September 27, 2013 order designating
LaVoi as the primary residential parent and the November 4, 2013 findings of fact and
conclusions of law, parenting plan and order of child support.
DECISION
In determining a parenting plan, the trial court exercises broad discretion.
In re Marriage of Kovacs. 121 Wn.2d 795, 801, 854 P.2d 629 (1993). Atrial
court's decision regarding custody or visitation will not be overturned absent
abuse of that discretion. In re Marriage of Rich. 80 Wn. App. 252, 258, 907 P.2d
1234 (1996). A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds. In re Marriage of Littlefield, 133
Wn.2d 39, 46-7, 940 P.2d 1362 (1997). We review the trial court's findings of fact
to determine whether substantial evidence supports the findings. Sunnvside
Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002). We
do not review the trial court's credibility determinations, nor do we weigh
conflicting evidence. Rich. 80 Wn. App. at 259.
No. 70921-6-1/5
1. September 26. 2013 Temporary Order
Estes claims that the trial court erred in designating LaVoi as the primary
residential parent of the child and restricting her contact. She argues that she did
not receive sufficient notice because she believed the hearing scheduled for that
day was only a pretrial hearing and not one at which her status as primary
residential parent would be determined. Because any temporary parenting plans
entered pretrial are terminated by the final parenting plan, Estes's challenge to the
September 26, 2013 order is moot. See RCW 26.09.060(10)(c).
2. November 4. 2013 Final Orders
Estes claims that the trial court erred in determining a residential schedule
without considering the required statutory factors in RCW 26.09.187(3)(a).1 But it
is clear from the court's lengthy and detailed findings of fact that the court did
1 RCW 26.09.187(3)(a) requires the trial court to consider the following factors
when determining residential provisions:
(i) The relative strength, nature, and stability of the child's
relationship with each parent;
(ii) The agreements of the parties, provided they were entered into
knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of
parenting functions ... including whether a parent has taken greater
responsibility for performing parenting functions relating to the daily needs
of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant
adults, as well as the child's involvement with his or her physical
surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is
sufficiently mature to express reasoned and independent preferences as to
his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make
accommodations consistent with those schedules.
No. 70921-6-1/6
consider the required factors in determining that LaVoi should be L.L.'s primary
residential parent:
a. Jonathan LaVoi has a strong relationship with [L.L.]. Although Kyla
Estes' failure to allow regular and consistent contact between
Jonathan LaVoi and the child may have delayed their ability to have
such a relationship, significant testimony established that Jonathan
LaVoi and child have a strong, stable, bonded relationship at this
time.
b. Ms. Estes has a loving relationship with her son; however she has
no acknowledgment that her actions potentially have had a
detrimental impact on her child.
c. The parties do not have any agreements regarding parenting of the
child.
d. Jonathan LaVoi is capable of and has demonstrated his ability to
perform the parenting functions.
e. Kyla Estes has demonstrated an inability to perform certain key
parenting functions, such as assisting the child to develop and
maintain appropriate interpersonal relationships, and exercising
appropriate judgment regarding the child's welfare. The court does
not find that she would physically harm her child but rather that she
fails to recognize that her actions have potentially harmed her child
emotionally.
f. The emotional needs and development level of the child requires
that the child be placed in the primary care of Jonathan LaVoi, who
has demonstrated that he is capable of providing a loving and
stable environment for the child.
g. The emotional needs and developmental level of the child requires
that Kyla Estes engage in the court ordered psychological
evaluation. Lisa Barton, the guardian ad litem, recommended the
psychological evaluation because without it, the court would be
unable to determine whether Kyla Estes has mental health issues
and whether she would continue to create conflict.
No. 70921-6-1/7
h. The emotional needs and developmental level of the child requires
that Kyla Estes have supervised visitation pending the
psychological evaluation and the successful completion of its
recommendations to ensure that Kyla Estes does not continue to
interfere with the child's emotional needs, such as a regular and
consistent relationship with Jonathan LaVoi, and the absence of
conflict.
i. Jonathan LaVoi has surrounded himself with a suitable, stable and
appropriate support system of friends and family with whom the
child is developing positive relationships.
j. The court is concerned about the child's relationship with the
maternal grandparents and uncle based on their individual behavior
and their assistance of Kyla Estes's willful and blatant violation of
court orders, as well as their participation, engagement and
initiation of hostile behavior and conflict.
k. Jonathan LaVoi has demonstrated a desire and ability to have a
positive, consistent, stable relationship with the child. The court
finds credible Jonathan LaVoi's testimony that he wants the child to
have a relationship with the mother. The court finds credible
Jonathan LaVoi's testimony that he will not interfere with or violate
court orders regarding Kyla Estes' visitation with the child.
Jonathan LaVoi has not engaged in any behavior throughout the
litigation which indicates otherwise.
I. The court finds that Kyla Estes has demonstrated no desire or
ability to ensure that Jonathan LaVoi and child have a consistent,
positive, stable relationship.
1) Kyla Estes has engaged in the abusive use of conflict.
2) Kyla Estes has violated multiple court orders, including
multiple missed visits and a blatant violation of the court's
September 26, 2013 transference of custody order for
seven days.
3) The court does not find Kyla Estes' testimony that she
will not violate future orders credible.
m. The only evidence the court has regarding either party's
employment is Jonathan LaVoi's testimony about his employment.
Jonathan LaVoi has a full time job, but has flexible hours regarding
when he goes into work and leaves work each day.
n. Kyla Estes testified that she has a business license and a job that
allows her to be at home with the child during the day, however,
she provided no evidence or testimony as to what her job is, how
No. 70921-6-1/8
much it pays, and whether it is sufficient to support the child
financially. The court finds that based on Kyla Estes' claims of
"poverty," she is voluntarily unemployed.
CP at 1169-70. Estes does not challenge any of the findings of fact and we
therefore treat them as verities on appeal. See In re Marriage of Brewer, 137
Wn.2d 756, 766, 976 P.2d 102 (1999).
Estes claims that the trial court erred in restricting her contact with L.L.
based on her abusive use of conflict and withholding of L.L. from LaVoi. She
argues that the trial court was instead obligated to restrict LaVoi's contact with
L.L. because LaVoi engaged in acts of domestic violence against her. A trial court
may limit a parent's residential time with a child ifthe parent engages in the
"abusive use of conflict by the parent which creates the danger of serious damage
to the child's psychological development" or "has withheld from the other parent
access to the child for a protracted period without good cause." RCW
26.09.191 (3)(e)(f). A trial court must limit a parent's residential time with a child if
the parent has a history of acts of domestic violence. RCW 26.09.191 (2)(iii).
Again, the trial court made thorough and comprehensive findings regarding
Estes's abusive use of conflict, based on Estes's frequent violation of court orders
regarding visitation, false allegations of abuse and neglect, and harassment of
LaVoi, his friends, his attorneys and the GAL. The trial court also found that Estes
had allowed L.L. to witness her behavior and that it had a detrimental effect on his
well-being. Again, Estes does not challenge these findings and we treat them as
verities. The trial court also found that Estes's claims of domestic violence were
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No. 70921-6-1/9
not credible. The unchallenged findings support the trial court's limitation of
Estes's contact with L.L.
Estes argues that the trial court erred in limiting her visitation with L.L. to
eight hours per week. The basis for Estes's claim appears to be that, following
the entry of the trial court's order, she has had unspecified difficulties scheduling
visits with LaVoi and the court-appointed visitation supervisor. This does not
establish that the trial court abused its discretion.
Estes argues that the trial court erred in allowing LaVoi to take L.L. on an
out-of-state vacation without notifying her in advance as required by the parenting
plan. Because the vacation is alleged to have taken place after the trial, this claim
concerns matters outside the record. We consider only evidence that was before
the trial court at the time a decision was made. See RAP 9.1; 9.11. While we
recognize that Estes has filed her briefs pro se, pro se litigants are held to the
same standards as attorneys and must comply with all procedural rules on
appeal. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
Estes contends the trial court erred in finding that she refused to undergo
the court-ordered psychological evaluation. She claims that she has had multiple
psychological evaluations and provided documentation to the trial court. Estes
does not cite to the trial court record but instead urges this court to consider two
documents she has attached to her brief. Because it is clear from the dates that
these documents were created after the trial, they were not part of the trial court
record and we will not consider them.
No. 70921-6-1/10
Estes argues the trial court erred in failing to require LaVoi to establish
paternity. But the trial court found that LaVoi and Estes both signed an
acknowledgment of paternity alleging that LaVoi was the father of L.L. Estes does
not challenge this finding. An acknowledgement of paternity "is equivalent to an
adjudication of parentage of a child and confers upon the acknowledged father all
the rights and duties of a parent." RCW 26.26.320(1).
Estes claims that the trial court erred in permitting LaVoi to question her
regarding bar grievances she had filed against his attorneys. She contends the
trial court should have sustained her objection to the question as irrelevant. But
Estes's actions were relevant to whether she had engaged in abusive use of
conflict. Estes also claims the trial court erred in permitting LaVoi to "berate and
victimize" her during closing argument. Br. of App. at 11. Because this was a
bench trial, we presume that the trial court based its decision solely on admissible
evidence. Crosetto v. Crosetto. 65 Wn.2d 366, 368, 397 P.2d 418 (1964).
Estes challenges the trial court's award of attorney fees to LaVoi, arguing
that the trial court did not adequately consider her ability to pay. We review a trial
court's decision on attorney fees for abuse of discretion. In re Marriage of Burke.
96 Wn. App. 474, 476, 980 P.2d 265 (1999). Here, the trial court awarded LaVoi
$10,000 in attorney fees due to Estes's intransigence and filing of frivolous
motions. The trial court made detailed findings in support of its award:
The court finds that a judgment should be entered against Kyla Estes
in favor of Jonathan LaVoi in the amount of $10,000.00 for attorney
fees. The court finds that Kyla Estes' intransigence and filing of
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No. 70921-6-1/11
frivolous motions has unreasonably and unnecessarily increased
Jonathan LaVoi's attorney fees. The court finds it is reasonable for
Kyla Estes to be responsible for a portion of Jonathan LaVoi's legal
fees.
1. As of October 14, 2013, Jonathan LaVoi had incurred
$57,246.66 in attorney fees. It is reasonable to find that those
fees increased during the week of October 14, 2013 for trial
preparation, and during the week of October 21, 2013, during
the trial.
2. Due to Kyla Estes's intransigence and blatant violation of court
orders, Jonathan LaVoi had to file two motions for contempt.
Both motions for contempt were granted. Both orders of
contempt were upheld on revision.
3. Kyla Estes filed at least two frivolous motions - her motion to
vacate pursuant to CR 60 and her motion to remove the
guardian ad litem. Both motions were denied. As a result of
her frivolous motions, Kyla Estes was found to have violated
CR 11. The denial of her motions was upheld on revision.
4. Kyla Estes also sought a trial de novo and refused to agree to
dismiss it, even after being notified by two judicial officers that
it was inappropriate. As a result, Jonathan LaVoi incurred
attorney fees in moving to have the trial de novo dismissed.
5. Jonathan LaVoi incurred substantial attorney fees between
September 26, 2013, when the court granted him temporary
custody, and October 3, 2013, when Kyla Estes returned the
child. As a result of Kyla Estes' custodial interference, two
additional hearings had to be held. Had Kyla Estes returned
the child on the 26th of September, these two hearings would
have been unnecessary.
6. Jonathan LaVoi has been awarded $3,000.00 in attorney fees
and a $200 civil penalty in the orders for contempt. He was
awarded $1,500.00 in attorney fees on the court's motion in
finding that Kyla Estes had violated CR 11. He was awarded
$500.00 in the court's order dismissing Kyla Estes' request for
a trial de novo. Kyla Estes has not paid on any of the
judgments. The award of fees Jonathan LaVoi has already
received does not compensate him for the fees he has
incurred as a result of Kyla Estes' frivolous motions and
intransigence.
7. The court finds that the additional award of $10,000.00 in
attorney fees to Jonathan LaVoi is reasonable.
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No. 70921-6-1/12
CP at 1181-82. Estes does not challenge these findings. Furthermore, if a trial
court awards fees on the basis of intransigence, the financial ability of the party to
pay the fees is not relevant. In re Marriage of Mattson, 95 Wn. App. 592, 604, 976
P.2d 157(1999).
Estes also contends the trial court erred in ordering her to pay child
support, claiming she does not have the financial resources to do so. We review
a child support order for abuse of discretion. In re Marriage of Bell. 101 Wn. App.
366, 371-72, 4 P.3d 849 (2000). "This court will not substitute its own judgment
for that of the trial court where the record shows that the trial court considered all
relevant factors and the award is not unreasonable under the circumstances." [n
re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002). A court will
impute income to a parent for purposes of child support when the parent is
voluntarily unemployed or underemployed. RCW 26.19.071(6). "The court shall
determine whether the parent is voluntarily underemployed or voluntarily
unemployed based upon that parent's work history, education, health, and age, or
any other relevant factors." RCW 26.19.071(6).
The trial court found that Estes had "failed to find meaningful and gainful
employment in order to support herself and the child" and that she had not
complied with a previous order to search for at least ten jobs a week. The trial
court found that there was "no evidence that she has actively sought reasonable
employment, or that she is employed." CP at1180. The trial court found that
Estes was voluntarily unemployed. Though Estes challenges this finding, Estes
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No. 70921-6-1/13
does not identify any evidence in the record from which the trial court could have
found otherwise. And though Estes claims that the trial court refused to consider
financial documentation that she provided, she provides no citation to the record
in support of this claim. Estes fails to demonstrate any abuse of discretion in the
child support order.
Finally, Estes claims the trial court should not have required her to pay the
cost of visit supervision, citing her inability to pay. But Estes does not challenge
the trial court's finding that supervision was warranted. Moreover, the trial court's
finding that Estes was refusing to look for employment was supported by the
evidence. As a result, Estes does not demonstrate that the trial court abused its
discretion in obligating her to pay the cost of visit supervision.
We affirm all of the challenged orders.
-?Af\t^<^ C-U.
WE CONCUR:
1 M ^ rT
13