Andrea J. Clare v. Kevin P. Clare

FILED
DECEMBER 28, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

ANDREA J. CLARE, )
) No. 36814-9-III
Respondent, ) (Consolidated with
) No. 36911-1-III)
v. )
)
KEVIN P. CLARE, ) UNPUBLISHED OPINION
)
Appellant. )

STAAB, J. — After a protracted dissolution proceeding and trial, both parties

appeal the trial court’s final orders. Kevin Clare argues that the trial court went too far in

finding statutory limiting factors that supported a restriction on his residential time and

decision-making. He also challenges the stalking no-contact order issued at trial. Andrea

Clare argues that the trial court did not go far enough, claiming that the court failed to

make findings of domestic violence even though the evidence supported this finding.

Both parties submitted briefing that was deficient in several respects.

We deny the appeal and cross-appeal and affirm the trial court’s decisions. We

begin our analysis in light of the oft-cited standard of reviewing family law decisions

under an abuse of discretion lens:

We once again repeat the rule that trial court decisions in a
dissolution action will seldom be changed upon appeal. Such decisions are
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

difficult at best. Appellate courts should not encourage appeals by
tinkering with them. The emotional and financial interests affected by such
decisions are best served by finality. The spouse who challenges such
decisions bears the heavy burden of showing a manifest abuse of discretion
on the part of the trial court.

In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985) (citing In re

Marriage of Kozen, 103 Wn.2d 470, 478, 693 P.2d 97 (1985).

BACKGROUND

A. THE MARRIAGE

The following facts are drawn primarily from testimony at trial and the trial

court’s findings of fact.

Andrea Clare and Kevin Clare married on June 25, 2005. Approximately two

years later, Ms. Clare disclosed to Mr. Clare that she had another relationship shortly

before the wedding. This created trust issues in the marriage. After that conversation,

Mr. Clare insisted that Ms. Clare let him know if she was going out with anyone other

than a client or partner.

Thereafter, the couple had three children together, ages 9, 8, and 5, at the time of

trial. Mr. Clare acted as the primary stay-at-home parent. Ms. Clare ran the family

finances. Ms. Clare is an attorney, and Mr. Clare is a crop-dusting pilot. For the most

part, the marriage was unremarkable save an incident in 2013 when Mr. Clare pushed

Ms. Clare in a parking lot. Ms. Clare testified that Mr. Clare never physically hit her.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

In the spring of 2015, Mr. Clare suspected Ms. Clare of having an affair and began

monitoring her location with a cell phone application (app). In May 2015, he drove to

Ms. Clare’s office and showed her the app, indicating that he could see where she was

located. In August 2015, Ms. Clare traveled to her grandmother’s home. Convinced she

was with someone else, Mr. Clare demanded that Ms. Clare put her grandmother on the

phone in the middle of the night to confirm Ms. Clare was with her grandmother. When

she returned from this trip, Mr. Clare went through her travel garments, looking for

evidence of an affair.

In December 2015, Mr. Clare looked through Ms. Clare’s phone without her

permission and forwarded several of her work e-mails to his own account.

The parties separated on February 6, 2016, and Ms. Clare moved into her own

apartment. Initially, the children spent equal time with each parent. Ms. Clare changed

phone providers to prevent Mr. Clare from tracking her location. In April 2016, she was

showing Mr. Clare child support worksheets on her phone. When she became distracted,

Mr. Clare looked through her phone and read text messages confirming that Ms. Clare

was having a relationship with her law partner, George Telquist. Mr. Clare said he was

so angry he could “Pop George” and “Pop You.” Clerk’s Papers (CP) at 2468.

After this, Mr. Clare continued to monitor Ms. Clare’s activities through mutual

friends and acquaintances. At the advice of his attorney, Mr. Clare began keeping a

journal of incidents that he thought would be relevant to the dissolution.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

B. THE LITIGATION

Ms. Clare filed for divorce in Franklin County Superior Court on August 11, 2016.

While Ms. Clare sought a relatively equal residential schedule, Mr. Clare argued that he

had been the primary parent during the marriage and insisted on being named the primary

residential parent. Mr. Clare moved for the appointment of a guardian ad litem (GAL) to

investigate the children’s best interest. Ms. Clare objected, arguing there was no need for

a GAL since there were no limiting factors.

In July 2018, the GAL submitted a 178-page report. The GAL noted that Ms.

Clare was no longer seeking joint custody but instead was seeking primary custody

because Mr. Clare would not work with her on co-parenting. The GAL attached a copy

of Mr. Clare’s journal as an exhibit to her report. In her report, the GAL recommended

against designating Mr. Clare as the primary parent:

Given Mr. Clare’s past and current behaviors it is more likely than not that
primary placement of the children would result in them being denied the
benefit of their mother’s input into their lives. This would be to the actual
detriment of the children. Therefore, this GAL doesn’t believe this option
to be in the best interest of the children.

CP at 979. The GAL noted that Mr. Clare’s journal exposed the extent of his

questioning, which she believed was emotionally abusive to the children. She provided

several examples of improper questioning. The GAL also pointed out that Mr. Clare has

a history of refusing to allow Ms. Clare to participate in decisions for the children and

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

overriding her decisions. “When she would try to make choices for the children, he

would find passive[-]aggressive ways to punish her.” CP at 982.

Ultimately, the GAL recommended a joint residential schedule so long as Mr.

Clare would “submit to a forensic psychological evaluation for the purpose of

determining if his behaviors are the result of a mental illness that may be rectified by

treatment.” CP at 993, 1001. The GAL recommended that sole decision-making

authority be granted to Ms. Clare to alleviate parental alienation and chaos concerns.

Shortly after this report was submitted, the court moved the trial date from July 31

to October and authorized depositions of the parties and the GAL. On August 2, Mr.

Clare had his deposition taken. On August 14, the GAL filed an amendment to her July

23 report. She indicated that in light of Mr. Clare’s deposition testimony and the new

trial date, she was no longer recommending shared custody.

At trial, the GAL explained why she changed her recommendation. She testified

that shortly before she filed her July report, she spoke with Mr. Clare about her upcoming

report. Mr. Clare was apologetic, upset, and crying during this call because the GAL

would be recommending shared residential time. At his deposition a few weeks later, the

GAL observed that Mr. Clare was not contrite or concerned. Instead, he was smug,

arrogant, and unapologetic for his actions. During the deposition, not only did Mr. Clare

admit to checking on Ms. Clare’s location, having her put her grandmother on the phone,

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

and checking her travel garments for evidence of an affair, but he did not see anything

wrong with these actions.

As the litigation continued, each parties’ respective positions on custody changed.

As the trial court found:

[Ms. Clare] began to perceive that the [Mr. Clare’s] aggressiveness in
litigation and his insistent behavior in dealing with the children and in other
issues following separation mirrored the controlling behavior that
characterized their relationship during the marriage, as described in the
Findings. Her position at trial was that she should have primary custody
and sole decision-making because of his ongoing abusive behavior
characterized by stalking and coercive control.

CP at 2439.

On the other hand, Mr. Clare continued to maintain his position that he should be

named primary custodial parent up until shortly before trial. The court found that

“[f]aced with the possibility that his insistence on primary custody perhaps might not put

him in the best light, at trial he requested that the parties have equal residential time.” CP

at 2439. Mr. Clare also suggested that decision-making authority be split among the

parents based on subject matter.

C. STALKING NO-CONTACT PETITION

In her petition for dissolution, Ms. Clare asked for a protection order. In August

2016, she filed a request for an ex parte restraining order. In March 2018, Ms. Clare and

her law firm filed a federal complaint against Mr. Clare, alleging that he had been

accessing Ms. Clare’s work e-mails and calendar through an iPad she had previously used

6
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

during the marriage, and that such actions violated the Electronic Communications

Privacy Act of 1986, 18 U.S.C. §§ 2510-2523. In June, Ms. Clare filed a petition for an

anti-harassment or stalking no-contact order based on the same allegations. The trial

court issued a temporary anti-harassment order under RCW 10.14.080.

D. THE TRIAL

Because of conflicts and recusals, Judge John Lohrmann from Walla Walla

presided over all preliminary matters and the trial. The trial began in January 2019, and

lasted 11 days. Parenting matters took up 8 of the 11 days. At the beginning of trial, the

parties stipulated to the admission of the GAL’s reports. Along with the GAL, both

parties called numerous witnesses and experts. Ms. Clare called Charles Deery,1 and Mr.

Clare called Dr. Kenneth Cole, Ph.D., and Dr. Marnee Milner, Ph.D.

At the conclusion of the evidence, the court issued a significant letter opinion. In

addition, the court combed through the proposed findings of each party and modified or

deleted them according to the court’s determinations. The court acknowledged the

evidence presented on domestic violence and intimate partner violence. And yet it

recognized “a dearth of testimony regarding more recent or recurring acts of physical

violence on the part of [Mr. Clare].” CP at 2440.

1
Mr. Deery’s name is also spelled “Derry” throughout the record. On the witness
stand, he testified that the correct spelling is “Deery.” Report of Proceedings (January 4,
2019) at 103.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

The court also acknowledged the testimony and reports submitted by numerous

witnesses:

Adding to the mix is the fact that neither of the psychologists who
examined [Mr. Clare] found any diagnosable psychological condition,
though both acknowledged that a domestic violence perpetrator does not
necessarily present with any diagnosable medical or psychological
condition. Instead, such person may still have behavioral traits which may
be characteristic of an abuser. The Court finds that [Mr. Clare] does so
exhibit traits of coercive and controlling behavior to such an extent that it is
abusive. [Mr. Clare] is indeed guilty of abusive conduct toward [Ms.
Clare] both during their marriage and afterwards. The rules of conduct that
he imposed following her disclosure of her affair prior to their marriage, his
need to know always where she was and what she was doing, his use of the
“Find my iPhone” app, his unreasonable examination of her panties for
evidence of an extramarital affair, his unauthorized reading of her text
messages and/or [e-mails], his questioning of the children and third parties
regarding her activities and whereabouts—all these mitigate toward a
finding of coercive control which in turn could be defined as stalking under
RCW 26.50.010(3)(c) and RCW 9A.46.110.

CP at 2441.

Despite its opinion that Mr. Clare’s actions could be defined as stalking, the court

did not find domestic violence, nor did it find emotional abuse, as recommended by the

GAL. Instead, the court concluded that the abusive behavior should be considered in

determining the residential schedule under RCW 26.09.187(3). The court analyzed each

factor in the statute and applied the facts as found following the trial. Generally

speaking, the court found six of the seven statutory factors to weigh equally in each

parent’s favor. As to the first, or “(i)” factor, the court found that Mr. Clare’s abusive

behavior put the children’s relationship with their mother at risk. Based on this finding,

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

the court rejected joint custody and designated Ms. Clare as the primary parent with sole

decision-making authority. CP at 2444. While not finding domestic violence, the court

directed Mr. Clare to complete a DV MRT2 educational program and a parenting class.

Upon completion of these programs, Mr. Clare’s residential time and decision-making

authority could be increased.

Based on the same findings, the court entered a stalking no-contact order.

Mr. Clare appealed the trial court’s parenting plan and stalking no-contact order,

and Ms. Clare cross-appealed the court’s failure to find statutory limitations and denial of

her request for attorney fees.

ANALYSIS

A. MOTIONS TO STRIKE

After Mr. Clare filed his last appellate brief, Ms. Clare filed a motion to strike

several portions of his briefs, alleging that Mr. Clare’s briefs misrepresented facts, failed

to properly assign error, improperly included issues for the first time in reply and

mischaracterized Ms. Clare’s federal claims. Under RAP 10.3(a)(5), each factual

allegation within a brief must include a reference to the record. In this case, the briefs of

both parties make numerous factual allegations without citations to the record.

Under RAP 10.3(a)(4), the appellant’s brief must contain “a separate concise

statement of each error a party contends was made by the trial court, together with the

2
Domestic violence Moral Reconation Therapy.
9
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

issues pertaining to the assignments of error.” The court conducted an exhaustive review

of the record for this case. To the extent that a parties’ briefs do not conform to these

rules, we are able to discern the noncompliance and have declined to consider the

allegations or issues. See Sherry v. Financial Indem. Co., 160 Wn.2d 611, 160 P.3d 31

(2007) (court declined to consider facts recited in the briefs that were not supported by

the record); Rutter v. Rutter, 59 Wn.2d 781, 370 P.2d 862 (1962) (court will not consider

appellant’s contention where his argument is not supported by assignment of error).

[A] motion to strike is typically not necessary to point out evidence and
issues a litigant believes this court should not consider. No one at the Court
of Appeals goes through the record or the briefs with a stamp or scissors to
prevent the judges who are hearing the case from seeing material deemed
irrelevant or prejudicial. So long as there is an opportunity (as there was
here) to include argument in the party’s brief, the brief is the appropriate
vehicle for pointing out allegedly extraneous materials—not a separate
motion to strike.

Engstrom v. Goodman, 166 Wn. App. 905, 909 n.2, 271 P.3d 959 (2012).

For these reasons, we deny the motions to strike.3

B. SUMMARY OF THE ISSUES

In the final parenting plan, the superior court designated Ms. Clare as the primary

residential parent. In addition, the court found limiting factors as set forth in RCW

3
One of Ms. Clare’s motions to strike includes a claim that Mr. Clare’s reply brief
violated RAP 10.3(c) by including a statement of the case. At the same time, Ms. Clare
filed her own reply brief containing a statement of the case. We do not consider new
factual allegations raised for the first time in a reply brief. Cowiche Canyon Conserv. v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

26.09.191. Based on these findings, the court concluded that joint decision-making is not

in the children’s best interest and allocated sole decision-making authority to Ms. Clare

regarding the children’s education, health care, and religious upbringing. CP at 2444.

The court also ordered Mr. Clare to participate in treatment before his residential time

would be increased to a normal schedule. CP at 2492. Post-treatment, Mr. Clare’s

residential schedule with the children during school is every other weekend, alternating

Wednesdays and an alternating holiday schedule. During the summer, the children spend

two weeks with each parent on an alternating schedule. Finally, the court ordered a

stalking no-contact order.

Although Mr. Clare assigns error to numerous findings, he makes three principled

arguments on appeal. First, he raises several evidentiary issues. Next, he challenges the

trial court’s imposition of limitations in the parenting plan and contends that the court

abused its discretion by setting a final residential schedule with less than equal time.

Finally, Mr. Clare challenges the imposition of a stalking no-contact order.

We reject Mr. Clare’s appeal for several reasons. First, many of the evidentiary

challenges he identifies are waived because they are being raised for the first time on

appeal. RAP 2.5(a). Second, as an appellate court, we do not reweigh the evidence or

determine credibility. To the extent that evidence was disputed, the trial judge is best

positioned to weigh evidence and credibility in family law matters. Chatwood v.

Chatwood, 44 Wn.2d 233, 266 P.2d 782 (1954). We do not review the trial court’s

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

credibility determinations or weigh conflicting evidence “‘even though we may disagree

with the trial court in either regard.’” In re Marriage of Black, 188 Wn.2d 114, 127, 392

P.3d 1041 (2017) (quoting In re Welfare of Sego, 82 Wn.2d 736, 740, 513 P.2d 831

(1973)).

Third, Mr. Clare fails to relate his issues on appeal to his assignments of error. In

his brief, he specifically assigns error to 17 findings of fact. Throughout his briefing, he

seems to challenge several other findings. Under RAP 10.3(a)(4), an appellate brief shall

contain “[a] separate concise statement of each error a party contends was made by the

trial court, together with the issues pertaining to the assignments of error.” Mr. Clare’s

brief does not correlate his assignments of error with the issues presented. To the extent

that his assignments of error are not included in the issues he presents, we find they are

waived.

Fourth, one of Mr. Clare’s issues on appeal is now moot. The trial court imposed

two limitations under RCW 26.09.191. First, it granted Ms. Clare sole decision-making

authority. Second, it limited Mr. Clare’s residential schedule until he completed a DV

MRT class. Mr. Clare acknowledged he had completed this treatment at oral argument,

and his residential schedule has reverted to a standard schedule.

Fifth, the trial court’s findings, used to support the remaining limitation on

decision-making authority, the residential schedule, and the no-contact order, are

supported by substantial evidence.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

On cross-appeal, Ms. Clare argues that by finding stalking sufficient to support a

civil stalking order, the court found domestic violence and was required to impose

additional domestic violence limitations under RCW 26.09.191(1)(c). Ms. Clare’s

argument fails to recognize the difference between criminal stalking under RCW

9A.46.110 and civil stalking under RCW 7.92.020. Contrary to her assertion, the record

shows the trial court imposed a civil stalking order. It did not impose a criminal stalking

order upon which domestic violence RCW 26.09.191(1)(c) restrictions could be based.

She also challenges the trial court’s failure to award her attorney fees. We find her

arguments unpersuasive and reject her cross-appeal.

The residential schedule was properly based on factors set forth in RCW

26.09.187 and was not an abuse of discretion.

Both parties appeal the trial court’s findings and conclusions pertaining to

stalking. Following trial, the court found that Mr. Clare’s actions were abusive and

“could” be defined as stalking, but specifically declined to find domestic violence or

intimate partner violence. Nevertheless, the trial court ordered a stalking no-contact

order, which included a finding of stalking under RCW 7.92.020. On appeal, Mr. Clare

argues that the court’s findings are not supported by substantial evidence and the findings

do not support the no-contact order.

We affirm the trial court’s parenting plan and stalking no-contact order. The

evidence was sufficient to support the no-contact order.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

We turn first to the evidentiary challenges raised by Mr. Clare.

C. GAL REPORT

Admissibility

Mr. Clare’s first evidentiary challenge is to the GAL report and testimony. On

appeal, he contends that the GAL was biased, and her recommendations and conclusions

were based on inadmissible expert opinion and child hearsay. To the extent that Mr.

Clare alleges that the GAL report or testimony was inadmissible as evidence, we decline

to consider this argument because it was not raised below. An appellate court may refuse

to review any claim of error that was not raised in the trial court. RAP 2.5(a); ER 103(a).

“The purpose underlying issue preservation rules is to encourage the efficient use of

judicial resources by ensuring that the trial court has the opportunity to correct any errors,

thereby avoiding unnecessary appeals.” State v. Hamilton, 179 Wn. App. 870, 878, 320

P.3d 142 (2014).

In this case, the GAL report was admitted at trial without objection and by

agreement. Attached to the GAL report were reports from several experts that the GAL

considered and incorporated. These included Ms. Clare’s experts, Dr. Mindy Mechanic,

and Mr. Deery. While Mr. Clare’s trial brief reminded the court of the GAL’s obligation,

he did not raise any specific admissibility objections to the GAL or her report. The trial

court did not make any rulings regarding the admissibility of anything contained within

the GAL report, particularly child hearsay or the attached reports of Dr. Mechanic, Dr.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

Cole, Dan Morgan, and Mr. Deery. At no time during the entire trial testimony were

there any objections to child hearsay. Dr. Mechanic and Mr. Morgan did not testify at

trial, so no objections or rulings occurred in connection to those opinions. Therefore, Mr.

Clare failed to preserve the child hearsay issue or any admissibility challenges to “expert”

reports attached to the GAL report.

Bias

Mr. Clare also contends that the GAL was biased in her investigation and

conclusions. In support, he points to the witnesses she interviewed or did not interview

and the basis for her opinions. Citing In re Marriage of Bobbitt, 135 Wn. App. 8, 24-25,

144 P.3d 306 (2006), he contends that she failed to maintain objectivity, fairness, and

independence in violation of GALR 2(b). In Bobbitt, the trial court denied a motion to

remove the GAL for violating the GAL Rules. While finding that the GAL violated the

rules, the court found that the trial court did not abuse its discretion by retaining the GAL.

Id. at 28.

In this case, Mr. Clare alleges that the GAL also violated the GAL rules.

However, he did not file a motion to remove the GAL. As the court in Bobbitt noted, a

motion to remove a GAL is reviewed for abuse of discretion. Id. at 23. In this case, the

trial court was never asked to exercise discretion on this point. Any remaining concerns

about the GAL’s bias go toward credibility, not the admissibility of her testimony. State

v. Post, 59 Wn. App. 389, 407, 797 P.2d 1160 (1990). Credibility determinations are

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

solely for the trier of fact and are not reviewable on appeal. Morse v. Antonellis, 149

Wn.2d 572, 574, 70 P.3d 125 (2003).

D. EXPERT TESTIMONY

Mr. Clare also challenges the trial court’s admission, use, and reliance on the

expert testimony of Mr. Deery and Dr. Mechanic.

The GAL report incorporated the reports of several experts hired by both parties,

including Ms. Clare’s experts, Dr. Mechanic and Mr. Deery. Mr. Deery testified at trial,

Dr. Mechanic did not. In his trial brief, Mr. Clare objected to the admissibility of

opinions by Dr. Mechanic and Mr. Deery because their opinions did not meet

professional or evidentiary standards for admissibility.

At trial, the GAL testified that these reports did not change her recommendation

other than to suggest Mr. Clare’s psychological evaluation should include an evaluation

for intimate partner violence. Indeed, the GAL even cautioned: “I mean Chuck Derry

from the other side of the country saying, ‘I believe Kevin Clare chooses to do this,’

without ever seeing him, it doesn’t ring true to me.” Report of Proceedings (RP)

(January 3, 2019) at 12. When Mr. Deery took the stand to testify, Mr. Clare’s attorney

renewed his objection on the grounds that Mr. Deery was not qualified as an expert

witness because he had no formal education on domestic violence.

A trial court’s decision to qualify a witness as an expert is reviewed for abuse of

discretion. In re Marriage of Katare, 175 Wn.2d 23, 38, 283 P.3d 546 (2012). We will

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

not disturb a trial court’s exercise of discretion to qualify a witness as an expert except in

cases of obvious abuse. Id. Under ER 702, an expert witness may provide opinion

testimony when scientific, technical, or specialized knowledge will assist the trier of fact.

A witness may qualify as an expert from “knowledge, skill, experience, training, or

education.” ER 702.

Mr. Deery’s curriculum vitae indicated no collegiate diploma of any kind but did

include over ten years of experience providing treatment to individuals convicted of

domestic violence and providing training on the cycle of domestic violence to criminal

justice entities and testimony as an expert in Minnesota on criminal matters. The trial

court qualified Mr. Deery as an expert on domestic violence while expressing some

reservations about the basis for his opinions. Given Mr. Deery’s experience working

with persons convicted of domestic violence, the trial court did not abuse its discretion in

qualifying him as an expert witness.

Mr. Clare primarily asserts that the trial court erred by relying on Dr. Mechanic’s

report and Mr. Deery’s opinion to support the trial court’s findings. Mr. Deery testified

that based on his review of the court file and a few conversations with Ms. Clare, he

believed that Mr. Clare had “intimate partner abuse issues.” RP (January 4, 2019) at 155.

Dr. Mechanic’s report, attached as an exhibit to the GAL report, also included opinions

about the controlling nature of Mr. Clare’s behavior toward Ms. Clare. CP 1357-58. Mr.

Clare argues that the trial court’s admission, use, and reliance on these reports and

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

Deery’s testimony was error under ER 702 and 703 because neither expert ever met or

evaluated Mr. Clare.

Under ER 703, an expert testifying at trial can rely on information already in the

record. On appeal, Mr. Clare argues that the opinions of Mr. Deery and Dr. Mechanic

violated the American Psychological Association’s Guidelines for Forensic Psychology

because they evaluated Mr. Clare without ever meeting with him. Mr. Clare cites no

authority to support his position that compliance with these guidelines is a prerequisite to

the admissibility of an expert’s opinion under ER 703.

If anything, compliance with these forensic guidelines goes toward weight and

credibility of an expert’s opinion, not admissibility. As an appellate court, we do not

reweigh evidence. Harrison Mem’l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d

1221 (2002). If Mr. Deery’s opinion was not credible because he failed to interview Mr.

Clare or because he violated forensic guidelines, then these deficiencies are fair game for

cross-examination. Indeed, in this case, Mr. Clare’s attorneys were able to cross-examine

Mr. Deery on his qualifications and bias. Notably, despite Mr. Deery’s testimony to the

contrary, the trial court did not find that Mr. Clare was a batterer or that his actions

constituted intimate partner violence.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

E. FINDINGS OF FACT & STATUTORY LIMITATIONS

Mr. Clare assigns error to approximately 34 findings of fact.4 Instead of focusing

on whether each of the challenged findings is supported by substantial evidence, we start

with the ultimate objective of his many challenges: whether the trial court’s finding of

coercive control and abusive behavior, used to support the parenting plan and the stalking

no-contact order, are supported by the evidence. In the same context, we consider Ms.

Clare’s challenge to the trial court’s findings: the trial court erred by failing to impose

mandatory limitations under RCW 26.09.191(1)(c) when it found stalking sufficient to

support a no-contact order.

We review the record in a light most favorable to the prevailing party to determine

if “substantial evidence supports the trial court’s findings of fact and, if so, whether the

findings support the conclusions of law.” Perry v. Costco Wholesale Inc., 123 Wn. App.

783, 792, 98 P.3d 1264 (2004) (citing City of Tacoma v. State, 117 Wn.2d 348, 361, 816

P.2d 7 (1991). We do not review the credibility of the witnesses. State v. Bencivenga,

137 Wn.2d 703, 709, 974 P.2d 832 (1999). “The trial court’s findings of fact are treated

as verities on appeal, so long as they are supported by substantial evidence.” In re

Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014) (citing Katare, 175

4
He specifically assigns error to 17 findings at the beginning of his brief, and we
counted another 17 challenges within his brief.

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No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

Wn.2d at 35). Substantial evidence is evidence that is sufficient to persuade a fair-

minded person of the truth of the matter asserted. Id.

Mandatory Limiting factors

We start first with mandatory limitations. While generally, a trial court should

strive to craft a residential schedule for children that encourages their relationship with

their parents, limitations on parenting functions are required or allowed when certain

factors are found. Under RCW 26.09.191(1), (2), a court “shall” set restrictions on a

parent’s schedule or authority if it finds serious abuse, neglect, or a history of domestic

violence as defined by RCW 26.50.010(3). Under RCW 26.50.010(3), domestic violence

includes “stalking as defined in RCW 9A.46.110.”

In its memorandum decision, the court found “that [Mr. Clare] does so exhibit

traits of coercive and controlling behavior to such an extent that it is abusive.” CP at

2441. The court then listed several specific instances of behavior and found that these

behaviors “mitigate toward a finding of coercive control which in turn could be defined

as stalking under RCW 26.50.010(3)(c) and RCW 9A.46.110.” CP at 2441 (emphasis

added). Nevertheless, in its memorandum decision, the court expressly declined to find

intimate partner violence or domestic violence. Indeed, the court specifically found that

these factors did not exist. (Language to this effect in the proposed parenting plan was

crossed out and initialed by the judge.) Instead, the court considered the controlling

behavior along with the statutory factors and imposed discretionary limitations and the

20
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

final residential schedule. The court also entered a stalking no-contact order under RCW

7.92.100 that included a finding of stalking.

Ms. Clare contends that by entering a stalking no-contact order, the court

necessarily found stalking. Since stalking is included within the definition of domestic

violence under RCW 9A.46.110, she argues that the court was required to impose

mandatory restrictions under RCW 26.09.191(1)(c).5 Ms. Clare’s argument fails to

acknowledge the order that was entered. Ms. Clare’s petition, and the subsequent order,

were requested and entered under the civil stalking statute, chapter 7.92 RCW. The

definition of civil stalking under RCW 7.92.020(3)(a) is broader than the definition of

stalking under RCW 9A.46.110.

Under RCW 26.09.191(1)(c), a parenting plan shall not require joint decision

making if there is a history of domestic violence as defined in RCW 26.50.010(3), which

in turn defines stalking under the criminal statute, RCW 9A.46.110. The stalking no-

contact order was issued under RCW 7.92.100. The definition of stalking for purposes of

a stalking no-contact order includes the criminal definition under RCW 9A.46.110, but

5
In her brief, Ms. Clare misrepresents to this court that she filed two petitions for
domestic violence no-contact orders. See Br. of Resp’t at 20, 40. She does not cite the
record in support of this factual assertion. See RAP 10.3(a)(5). Her claim is inaccurate.
In her petition for dissolution, she asked for a protection order. In August 2016, she filed
a request for an ex parte restraining order. She also filed a petition for anti-harassment
and/or a stalking no-contact order. There is a significant difference between a domestic
violence no-contact order under chapter 26.50 RCW and a stalking no-contact order
under RCW 7.92.030.

21
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

also includes additional conduct that would not qualify as criminal stalking. See RCW

7.91.020(4)(c). Thus, a trial court’s finding that stalking occurred sufficient to support a

stalking no-contact order under RCW 7.92.020 does not necessarily equate to criminal

stalking under RCW 9A.46.110, which is necessary to support mandatory conditions

under RCW 26.09.191(1)(c).

Ms. Clare’s briefing does not provide any analysis of chapter 7.92 RCW, or the

differences in definitions. She also fails to articulate any prejudice from the trial court’s

decision. Ms. Clare argues that the limitation under RCW 26.09.191(1)(c) is mandatory.

Assuming the trial court had made findings of stalking under the criminal statute, the

limitation under this section would prevent the trial court from requiring mutual decision-

making. But the trial court already designated Ms. Clare as having sole decision-making

authority under the discretionary section of this statute.

To the extent that Ms. Clare is arguing that the trial court was required to find

domestic violence in light of the evidence, she fails to cite any authority to support this

position. RAP 10.3. As we mentioned above, the trial court’s determination of the

weight and credibility assigned to evidence is a decision that will not be disturbed on

appeal. Chatwood, 44 Wn.2d at 240.

Discretionary Limitations

Even when mandatory restrictions are not required, a court has the discretion to

impose restrictions when “[a] parent’s involvement or conduct may have an adverse

22
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

effect on the child’s best interests,” and certain statutory factors are found. RCW

26.09.191(3). The restrictions that a court may impose under this subsection are different

than the provisions required in every parenting plan under RCW 26.09.187. Chandola,

180 Wn.2d at 644. While the terms of a residential schedule established under RCW

26.09.187 may have the practical effect of substantially restricting a parent’s contact with

his child, limitations on a parent’s geographical location, travel, or conduct are only

authorized by RCW 26.09.191. Id.

In this case, the court found the existence of two factors that supported

discretionary limitations. Based on these factors, the court exercised discretion to place

restrictions on Mr. Clare’s decision-making authority and required Mr. Clare to complete

treatment before his residential time would revert to a regular schedule. Mr. Clare

acknowledged at oral argument that he had completed the treatment ordered by the court.

Since the limitations placed on his residential time under RCW 26.09.191(3) are no

longer in effect, the issues on this limitation are now moot. Orwick v. City of Seattle, 103

Wn.2d 249, 253, 692 P.2d 793 (1984). Consequently, we focus our attention on the

remaining limitation that restricts Mr. Clare’s decision-making authority.

The provisions of a parenting plan must include an allocation of decision-making

authority. RCW 26.09.184(5). The allocation must be done in a way that minimizes the

child’s exposure to harmful parental conflict. RCW 26.09.184(1)(e). Under RCW

26.09.187(2)(b), the court shall order sole decision-making authority if one parent is

23
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

opposed to mutual decision-making and the opposition is reasonably based on factors set

forth in subsection (c), including the existence of a limiting factor under RCW 26.09.191.

The trial court allocated sole decision-making authority to Ms. Clare after finding

that she was opposed to mutual decision-making and that limiting factors were present.

Specifically, “Kevin Clare has a long-term emotional or physical problem that gets in the

way of his/her ability to parent. Mr. Clare has exhibited concerning behaviors including

but not limited to: 1) controlling behaviors (both mother and children); 2) abusive use of

conflict; 3) [crossed out]; 4) excessive questioning of the children regarding the mother’s

home.” CP at 2492.

In its memorandum decision, the court found that Mr. Clare does “exhibit traits of

coercive and controlling behavior to such an extent that it is abusive.” CP at 2441. The

behaviors supporting this finding included Mr. Clare’s rules of conduct imposed on Ms.

Clare, his need to know her location, the use of a mobile phone application to track her

location, an examination of her panties for evidence of an affair, reading her text

messages and e-mails without permission, and questioning the children regarding Ms.

Clare’s activities. Similar to RCW 26.09.191(3)(e), the court also found that “Kevin

Clare uses conflict in a way that endangers or damages the psychological development of

a child listed [above].” CP at 2492.

Mr. Clare assigns error to numerous findings of fact used to support the court’s

ultimate finding that Mr. Clare’s behavior was abusive and amounted to coercive control.

24
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

The trial court’s finding that Mr. Clare exhibited coercive and controlling behavior is

supported by substantial evidence. The record is replete with unchallenged findings that

Mr. Clare monitored Ms. Clare’s location and behavior. He tracked her location through

cell phones and third parties. He accessed text messages and e-mails on her phone

without her authorization. He gleaned information from the children about her activities

and social circle. He admits that he is hypercritical of Ms. Clare’s parenting. These

unchallenged findings are sufficient to support the trial court’s ultimate finding that Mr.

Clare exhibited abusive and controlling behavior. In turn, the findings support the

discretionary limitations under RCW 26.09.191(3) and the designation of Ms. Clare as

the sole decision-maker.

To the extent that Mr. Clare challenges the trial court’s findings, we note that his

challenges go toward credibility and not sufficiency. For instance, Mr. Clare challenges

the trial court’s finding that his questioning was excessive. While acknowledging that the

GAL testified to this fact, Mr. Clare discounts her credibility and points to contrary

evidence by other witnesses. In essence, Mr. Clare asks us to reweigh the evidence by

evaluating whether one witness was better qualified or more credible. This is not the test

for determining if sufficient evidence supports the findings. The weight and credibility of

evidence is a question for the trial court. Black, 188 Wn.2d at 127. Our role is to

determine if there is substantial evidence that supports the trial court’s finding. Here, the

GAL’s opinion provides substantial evidence to support the trial court’s finding.

25
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

Mr. Clare also challenges the trial court’s finding that he engaged in stalking

behavior. He argues that since Ms. Clare went through most of the two-year dissolution

proceedings without a no-contact order, she was not actually frightened by Mr. Clare, and

if she was, her fear was unreasonable. Ms. Clare testified that she was fearful of Mr.

Clare. The trial court’s finding to this effect is supported by substantial evidence. Mr.

Clare’s challenge to this finding goes to credibility, not sufficiency.

F. STALKING NO-CONTACT ORDER

These same findings were used by the court to support a stalking no-contact order.

Mr. Clare assigns error to the trial court’s stalking no-contact order. A trial court’s

decision to grant or deny a stalking protection order is reviewed for abuse of discretion.

See In re Marriage of Freeman, 169 Wn.2d 664, 670-71, 239 P.3d 557 (2010).

As noted above, the stalking no-contact order was issued under RCW 7.92.100.

The definition of stalking, for purposes of this statute, includes the criminal definition of

stalking under RCW 9A.46.110, and also includes “Any course of conduct involving

repeated or continuing contacts, attempts to contact, monitoring, tracking, keeping under

observation, or following of another” that “[w]ould cause a reasonable person to feel

intimidated, frightened, or threatened and that actually causes such a feeling,” without

lawful purpose, when the “stalker knows or reasonably should know” that the actions

threaten, frightens or intimidates Ms. Clare, even if the stalker did not intend such

26
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

feelings. RCW 7.92.020(4)(c). The evidence presented in this case, along with the trial

court’s findings, supports a stalking no-contact order under this statute.

G. ABUSE OF DISCRETION

Mr. Clare challenges the final residential schedule imposed by the trial court as an

abuse of discretion. A trial court’s parenting plan is reviewed for an abuse of discretion,

which “occurs when a decision is manifestly unreasonable or based on untenable grounds

or untenable reasons.” Katare, 175 Wn.2d at 35 (citing In re Marriage of Littlefield, 133

Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). A trial court tasked with devising a parenting

plan is guided by the best interests of the children. RCW 26.09.002. In addition, the

court must consider which parent performs parenting functions, RCW 26.09.184, and

apply specific statutory criteria set forth in RCW 26.09.187. Finally, the court must

consider whether any limitations shall or may apply under RCW 26.09.191.

In evaluating a residential schedule, a court “shall make residential provisions for

each child which encourage each parent to maintain a loving, stable, and nurturing

relationship with the child, consistent with the child’s developmental level and the

family’s social and economic circumstances.” RCW 26.09.187. A court shall consider

seven factors when establishing a permanent parenting plan, with the first being the most

important:

(i) The relative strength, nature, and stability of the child's relationship
with each parent;

27
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

(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 as defined in RCW 26.09.004(3), 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.

RCW 26.09.187(3)(a).

Under this criteria, equal residential time is allowed but is not required. Instead, a

court can consider equal residential time when the limitations of RCW 26.09.191 are not

dispositive, and such a provision is in the best interest of the child. RCW 26.09.187(3)(b).

In this case, the trial court went through each statutory factor and found them to be

relatively equal as applied to both parents, except for the first factor. While the court

found that the children had strong bonds with each parent, it noted that “[Mr. Clare’s]

past desire to monitor and follow the conduct and activities of [Ms. Clare] and to enlist

the children in this process is abusive and puts at risk the children’s good relationship

with [their] mother.” CP at 2442. This finding was supported by substantial evidence.

Mr. Clare contends that there was no evidence that any of his questioning resulted

in emotional abuse of the children. Preliminarily, we note that at trial, the court did not

28
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

find that Mr. Clare’s questioning constituted “emotional abuse.” While the GAL testified

that Mr. Clare’s questioning constituted emotional abuse, the trial court did not adopt this

testimony. Nevertheless, the court did find her opinion to be persuasive. At trial, the

GAL testified that “Kevin excessively questions his children with regards to [Ms.

Clare’s] parenting, what they do during [Ms. Clare’s] time, who they spend time with.

The questioning is of such that undermines mother and could have an impact on the

children emotionally as to bonding and trusting each parent equally.” CP at 2477.

In other words, the court found that the excessive questioning was a concerning

behavior that had a negative impact on the children’s relationship with their parents. This

testimony supports the trial court’s finding that the questioning was impacting the

children’s relationship with their parents. Mr. Clare’s challenge to this testimony is

based on his premise that the GAL was not credible, an issue we do not address on

appeal.

Mr. Clare argues that the court’s finding was used to impose limitations on his

residential schedule. His argument assumes that absent this finding, he is entitled to equal

residential time with the children. The statutory authority he cites does not support this

conclusion. In other words, if we were to strike this finding, the existing residential

schedule would still be reasonable and within the court’s discretion under RCW 26.09.187.

The parenting plan provides Mr. Clare with alternating weekends and holidays and rotating

29
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

two-week periods in the summer. Even without any limitations, this is a reasonable

residential schedule and is not an abuse of discretion.

H. ATTORNEY FEES

In her cross-appeal, Ms. Clare challenges the trial court’s order denying her

request for attorney fees based on Mr. Clare’s intransigence. Attorney fees are generally

not awarded in a civil action unless “‘authorized by statute, by agreement of the parties,

or upon a recognized equitable ground.’” Woodcraft Const., Inc. v. Hamilton, 56 Wn.

App. 885, 887, 786 P.2d 307 (1990) (quoting Clark v. Horse Racing Comm’n., 106

Wn.2d 84, 92, 720 P.2d 831 (1986). A trial court may consider whether additional legal

fees were caused by one party’s intransigence and award attorney fees on that basis. Eide

v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969). A party’s “intransigence” is an

equitable as opposed to a statutory basis for awarding attorney fees. In re Marriage of

Greenlee, 65 Wn. App. 703, 708-09, 829 P.2d 1120 (1992) (fees ordered where party

violated court order). “When intransigence is established, the financial resources of the

spouse seeking the award are irrelevant.” In re Marriage of Morrow, 53 Wn. App. 579,

590, 770 P.2d 197 (1989). Intransigence includes foot-dragging and obstruction, filing

repeated unnecessary motions, or making the trial unduly difficult and costly by one’s

own actions. Greenlee, 65 Wn. App. at 708. A court may award attorney fees when one

parent’s intransigence causes the other parent to incur additional legal services, regardless

30
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

of financial abilities. In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929

(1997).

Here, the trial court found “both parties have engaged in the conduct during

litigation that can be described as intransigence.” CP at 2451. The court then listed

several specific instances, including offsetting discovery violations and inconsistent

positions taken by each party throughout the litigation. Specifically, the court noted that

Ms. Clare had no concern about Mr. Clare’s alcohol or marijuana use before the

dissolution and assisted him in obtaining his pilot’s license. However, during litigation,

she disclosed her concern to the GAL, who then contacted the FAA. This disclosure

resulted in collateral litigation. “Regardless of what was right or wrong about the

reporting or obligation to report, [Ms. Clare] acted during litigation in a way that was

inconsistent with her prior position and which may yet jeopardize [Mr. Clare’s]

employment.” CP at 2451. When Mr. Clare’s attorney contacted the GAL and requested

that she cease her investigation with the FAA, Ms. Clare’s attorney instructed the GAL to

continue her investigation. Based on its finding that each side was intransigent, the court

declined to award attorney fees.

31
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

The evidence supported the trial court’s findings. The evidence includes the GAL

report, the GAL’s testimony and Mr. Clare’s testimony.

For the first time on appeal, Ms. Clare contends her disclosures are protected

under the First Amendment and anti-SLAPP6 statute. Not only are these arguments

waived, but they miss the point. The trial court found her intransigent in part for taking

an inconsistent position that increased the costs of litigation, along with allegations of

discovery violations that Ms. Clare does not address in her briefing. This decision is

entirely within the trial court’s discretion.

Both parties seek attorney fees on appeal, but neither party devotes a section of

their initial brief to RAP 18.1, so their request is denied. See In re Wash. Builders Ben.

Trust, 173 Wn. App. 34, 293 P.3d 1206 (2013) (The rule governing requests for appellate

attorney fees requires more than a bald request for attorney fees on appeal.).

“[A]rgument and citation to authority are required under the rule to advise this court of

the appropriate grounds for an award of attorney fees and costs.” Id. at 87 (citing Austin

v. U.S. Bank of Wash., 73 Wn. App. 293, 313, 869 P.2d 404 (1994).

6
Strategic lawsuits against public participation. RCW 4.24.510.

32
No. 36814-9-III (Consol. with No. 36911-1-III)
In re Marriage of Clare

CONCLUSION

In the end, we find that the trial judge carefully considered the evidence and issues

presented and was well within the discretion afforded to him when making his difficult

decisions in this case.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________
Staab, J.

WE CONCUR:

_________________________________
Lawrence-Berrey, J.

_________________________________
Siddoway, A.C.J.

33