In Re The Marriage Of: Irlanda Diaz-rodriguez, V. Jose Marcelo Tenesaca

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Marriage of
                                                   No. 81784-1-I
 IRLANDA RODRIGUEZ DIAZ,
                                                   DIVISION ONE
                      Respondent,
                                                   UNPUBLISHED OPINION
               and

 JOSE MARCELO TENESACA ARPI,

                      Appellant.


       APPELWICK, J. — Tenesaca Arpi appeals from final orders entered in the

dissolution of marriage after trial. He contends that to the extent the trial court’s

final orders were based on the mother’s testimony and her allegations of domestic

violence, they were not supported by substantial evidence. Tenesaca Arpi also

contends that the residential schedule is not in the children’s best interests and

that the trial court erred in determining maintenance and child support.         He

contends that the parenting plan impermissibly allows the mother to obtain a

modification without showing a substantial change in circumstances. Finally, he

contends the trial court committed reversible evidentiary errors and was biased

against him. We affirm.
No. 81784-1-I/2


                                      FACTS

       Jose Tenesaca Arpi (the father) and Irlanda Rodriguez Diaz (the mother)

married in 2007 and separated in September 2018. They have two children

together, D.T. and E.T.

       In January 2019, the mother petitioned for dissolution. She requested

limitations on the father’s time with D.T. and E.T. and alleged that the father “has

a history of domestic violence.” She indicated there was a pending domestic

violence protection order (DVPO) proceeding involving the children.

       The mother also requested maintenance. According to her later testimony,

she was unable to work due to a disability, her income was $1,120.00 per month

consisting of disability benefits, and she had only a fifth-grade education.

According to an administrative child support order entered in February 2019, the

Social Security Administration had determined that the mother was completely

disabled and unable to work.

       A dissolution trial took place on March 11, 2020.          The father was

represented. The mother appeared pro se with the assistance of a translator. The

father requested a 50-50 residential schedule. The father also asked the court to

deny the mother’s request for maintenance and to deviate downward on child

support, indicating that he “now pays $400 per month for a child from outside of

this marriage.”

       The mother requested that the father receive no residential time with D.T.

and E.T. She testified that the father was “very violent and aggressive” and

described an incident in March 2010 when the father sexually assaulted her. The


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mother also testified that “when [the father] couldn’t control his temper, he would

take his belt off and hit [E.T.] all over his body.” The mother recalled that in October

2018, after the parties separated, the father “threatened me that if I continued with

the process of the divorce, he would kill me.” She testified that she lived with her

sister and her sister’s husband, paid them $800.00 in rent, and helped to pay for

garbage and water utilities. When asked if she knew how much her sister and

brother-in-law made, the mother responded no.

       One of the mother’s adult children, who lived with the parties for

approximately 12 years, described the father as “toxic to my entire family.” He

testified that the father “could be very rude to [the mother] at times” and would yell

at her and call her names. He also testified that he once witnessed the father

“shove[ the mother] into the bathroom thinking that no one would see” and recalled

that “it was definitely intentional to push her against the bathroom door.” He

testified that although the father never hit him, he thought the father “disciplined

the entire family by hitting [E.T. and that] by hitting [E.T.] he was punishing us and

intimidating us.”

       After trial, the court entered a dissolution decree, final parenting plan, final

child support order, and findings and conclusions. It found the mother credible,

adopted the mother’s version of the facts regarding the father’s abusive behavior,

and found that the father “has a history of domestic violence.” The trial court

determined the children would reside with the mother the majority of the time,

except that the children would spend every other weekend with the father, plus

one week of uninterrupted time in the summer. The court ordered the father to


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complete a domestic violence evaluation and follow any recommendations it

required. The court also ordered that the mother “may petition for modification of

the parenting plan based upon the father’s failure to comply” with the domestic

violence evaluation and treatment requirements, and that “[i]f the mother shows

that the father has failed to comply, the mother need not show a substantial change

in circumstances.”

       The court ordered the father to pay maintenance of $1,500.00 per month

through April 2022. It also ordered the father to make a monthly child support

transfer payment to the mother of $858.34 through April 2022 and $1,282.90

thereafter, based on the standard calculation.         The court denied the father’s

request for a deviation downward, finding that “[t]he child for whom the father is

paying child support is about to turn 18” and a deviation would undermine the

mother’s financial ability to care for the children.

       The father moved for reconsideration, which the trial court denied. The

father appeals.

                                    DISCUSSION

       The father challenges the trial court’s parenting plan, child support order,

and maintenance award.1 A trial court’s rulings concerning these matters are

       1  Although the father was represented below, he maintains his appeal pro
se. Pro se litigants are held to the same standards as attorneys and must comply
with all procedural rules on appeal. See In re Marriage of Olson, 69 Wn. App. 621,
626, 850 P.2d 527 (1993). These rules require the appellant to provide “argument
in support of the issues presented for review.” RAP 10.3(a)(6). We address the
father’s assignments of error only to the extent they are supported by argument
and not inadequately briefed to warrant consideration. See Norcon Builders, LLC
v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (“We will
not consider an inadequately briefed argument.”).


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reviewed for abuse of discretion except to the extent they present issues of law,

which we review de novo. In re Marriage of Buchanan, 150 Wn. App. 730, 735,

207 P.3d 478 (2009); In re Marriage of Lee, 176 Wn. App. 678, 684, 310 P.3d 845

(2013).      A trial court abuses its discretion when its decision is manifestly

unreasonable, or its discretion is exercised on untenable grounds or for untenable

reasons. In re Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d 607 (2016).

       A trial court’s unchallenged findings are verities on appeal, and challenged

findings are binding if supported by substantial evidence.          In re Estate of

Langeland, 177 Wn. App. 315, 320, 312 P.3d 657 (2013). “‘Substantial evidence’

is evidence sufficient to persuade a fair-minded, rational person that the finding is

true.” Id.

   I. Substantial Evidence

       The father first contends that the trial court’s orders must be reversed

because none are supported by substantial evidence. He asserts that the mother

was barred from claiming domestic violence in the dissolution proceeding and that

the mother was not credible. Accordingly, he contends, the trial court’s orders

must be reversed because they rely on the court’s domestic violence findings and

its belief in the mother’s testimony.

       A. Domestic Violence Claims

       The father contends that “[w]hen the mother voluntarily dismissed her

DVPO [petition] with prejudice, she waived any right to ever litigate claims of

violence that pre-dated [May 9, ]2019,” the date of the dismissal order. (Some

capitalization omitted.) The father relies on the doctrines of claim preclusion, issue


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preclusion, and judicial estoppel to support his contention.2 He fails to establish

that any of these doctrines apply.

       Claim preclusion “prevent[s] a second assertion of the same claim or cause

of action,” and issue preclusion “bars relitigation of an issue in a subsequent

proceeding involving the same parties.” Ullery v. Fulleton, 162 Wn. App. 596, 602,

256 P.3d 406 (2011). A final judgment on the merits is a threshold requirement

under both doctrines. Id. at 603, 610 n.4. But, here, it is undisputed that the

dismissal of the mother’s DVPO petition was based on the agreement of the

parties. It was not a judgment on the merits. The father fails to establish that the

threshold requirement of issue or claim preclusion is satisfied. And, he does not

address the remaining elements of either doctrine.3         His reliance on these

doctrines is misplaced.

       The father’s reliance on judicial estoppel is equally misplaced. “Judicial

estoppel is an equitable doctrine that precludes a party from gaining an advantage

       2  The father raised these legal theories for the first time in his motion for
reconsideration. The mother does not contend that we should decline to reach
their merits for that reason.
        3 See Hassan v. GCA Prod. Servs., Inc., 17 Wn. App. 2d 625, 634, 487 P.3d

203 (2021) (“[T]he ‘party seeking to apply [claim preclusion] must establish four
elements as between a prior action and a subsequent challenged action:
concurrence of identity . . . (1) of subject-matter; (2) of cause of action; (3) of
persons and parties; and (4) in the quality of the persons for or against whom the
claim is made.’” (first alteration added) (internal quotation marks omitted) (quoting
Weaver v. City of Everett, 194 Wn.2d 464, 480, 450 P.3d 177 (2019))); Dotson v.
Pierce County, 13 Wn. App. 2d 455, 466-67, 464 P.3d 563 (“Issue preclusion
applies if (1) the issue decided in the earlier proceeding was identical to the issue
in the later proceeding, (2) the earlier proceeding ended in a judgment on the
merits, (3) the party against whom issue preclusion is asserted was a party to, or
in privity with a party to, the earlier proceeding, and (4) the application of issue
preclusion does not cause an injustice to the party against whom it is applied.”),
review denied, 196 Wn.2d 1018, 474 P.2d 1050 (2020).


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No. 81784-1-I/7


by asserting one position in a court proceeding and later seeking an advantage by

taking a clearly inconsistent position.” Cunningham v. Reliable Concrete Pumping,

Inc., 126 Wn. App. 222, 224-25, 108 P.3d 147 (2005). Courts examine three

factors to determine whether judicial estoppel applies: (1) whether a party asserts

a position inconsistent with an earlier one, (2) whether acceptance of the position

would create the perception that a party misled a court in either proceeding, and

(3) whether the party asserting the inconsistent position would receive an unfair

advantage or impose an unfair detriment. Arp v. Riley, 192 Wn. App. 85, 92, 366

P.3d 946 (2015).

       The father contends the mother took inconsistent positions by voluntarily

dismissing her DVPO petition but still asserting in the dissolution proceeding that

the father committed domestic violence. But, we are not persuaded that voluntarily

agreeing to dismiss a DVPO petition is, as the father suggests, equivalent to a

representation that no domestic violence occurred. Consequently, we also are

unpersuaded that the mother’s dismissal of her DVPO petition was “clearly

inconsistent” with her later assertions that domestic violence occurred.           See

Cunningham, 126 Wn. App. at 224-25. Additionally, the father fails to explain how

the trial court was misled given that it was aware of, and specifically inquired about,

the circumstances surrounding the DVPO petition dismissal. Cf. Arp, 192 Wn.

App. at 91 (judicial estoppel “is intended to protect the integrity of the courts but is

not designed to protect litigants”). The father does not establish the trial court erred

in considering the mother’s assertions that the father committed domestic violence.




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No. 81784-1-I/8


       B. The Mother’s Credibility

       The father next contends that the trial court erred in finding the mother

credible. This contention fails for two reasons. First, it is well established that this

court does not review credibility determinations. See In re Marriage of Burrill, 113

Wn. App. 863, 868, 56 P.3d 993 (2002) (“[C]redibility determinations are left to the

trier of fact and are not subject to review.”). Second, the father’s contention relies

on his assertion that we reject above, that the mother’s dismissal of her DVPO

petition is irreconcilable with her later claim that domestic violence occurred.

       C. Conclusion

       The father argues that substantial evidence does not support the trial court’s

dissolution orders. But, his argument relies on his assertions that the mother was

barred from claiming domestic violence and the trial court erred by finding the

mother credible. Because these assertions fail, so too does the father’s substantial

evidence challenge.

   II. Financial Orders

       The father contends that the child support and maintenance orders must be

reversed because (1) the court erred in increasing child support beginning May

2022, (2) the mother did not disclose the income of the other adults in her

household, and (3) the father’s income has decreased.

       A. Child Support Increase

       The trial court found that the father earned a gross monthly wage of

$6,025.00 and that the mother receives social security disability benefits in the

gross monthly amount of $1,120.00. The trial court used these figures to calculate


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No. 81784-1-I/9


child support based on the standard calculation, finding further that the mother was

unable to work due to a disability, the father had a stable job, and there was no

evidence the father’s income would decrease in the foreseeable future.4

       In applying the standard calculation, the trial court took into account that it

had ordered the father to pay maintenance of $1,500.00 per month through April

2022. Specifically, the court included the $1,500.00 monthly maintenance as

income to the mother, and a deduction from income for the father, through April

2022 but not thereafter. This resulted in a decrease in the mother’s monthly net

income and an increase to the father’s beginning May 2022. Consequently, it also

changed each party’s proportional share of income beginning in May 2022,

resulting in the father’s child support transfer payment increasing from $858.34 per

month to $1,282.90 as of May 2022. The father contends that “[n]othing in the law

allows” such an increase.

       The father is incorrect. “Contemporaneously ordered maintenance must be

considered when determining income and net income for purposes of the child

support schedule.” In re Marriage of Condie, 15 Wn. App. 2d 449, 456, 475 P.3d

993 (2020); see also RCW 26.19.071(3)(q), 5(f) (providing that, in determining

income, maintenance received shall be included and maintenance paid shall be

deducted). Accordingly, we discern no abuse of discretion in the trial court’s taking

its maintenance order into account by ordering child support to increase as a

consequence of the father’s maintenance obligation ending.                 Cf. RCW

       4 To the extent the father asserts that substantial evidence does not support
the findings described in this section, he is incorrect. Substantial evidence in the
record supports these findings.


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No. 81784-1-I/10


26.09.100(2) (authorizing trial court to require automatic modifications of child

support based on the child support schedule).

       B. Household Income

       The father contends that because the mother did not disclose the income

of the other adults with whom she lived, the trial court’s maintenance and child

support orders must be vacated.

       As the mother points out with regard to child support, “[o]nly the income of

the parents of the children whose support is at issue shall be calculated for

purposes of calculating the basic support obligation.” RCW 26.19.071(1). And, to

the extent the father contends the trial court was required to deviate downward

based on additional income in the mother’s household, his contention is

unpersuasive: RCW 26.19.075(1)(a)(ii) provides that “[i]ncome of . . . other adults

in the household is not, by itself, a sufficient reason for deviation.” The father does

not meet his burden to show that the trial court abused its discretion in calculating

child support without including any income of other adults in the mother’s

household. See In re Marriage of Bowen, 168 Wn. App. 581, 586, 279 P.3d 885

(2012) (“[T]he spouse who challenges [a trial court’s decisions in a dissolution

action] bears the heavy burden of showing a manifest abuse of discretion.”).

       The father also fails to satisfy his burden to establish an abuse of discretion

with regard to the trial court’s maintenance award. “An award of maintenance is

‘a flexible tool by which the parties’ standard of living may be equalized for an

appropriate period of time.’” In re Marriage of Anthony, 9 Wn. App. 2d 555, 564,

446 P.3d 635 (2019) (quoting In re Marriage of Washburn, 101 Wn.2d 168, 179,


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677 P.2d 152 (1984)). “‘The only limitation on amount and duration of maintenance

under RCW 26.09.090 is that, in light of the relevant factors, the award must be

just.’” Id. (quoting In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394

(1990)).    “While the trial court must consider the factors listed in RCW

26.09.090(1), it is not required to make specific factual findings on all of the

factors.” Id. “Ultimately, the court’s main concern must be the parties’ economic

situations postdissolution.” Id.

       Here, the record reflects the trial court considered the relevant factors,

including the relative financial resources of the parties, finding that the father earns

significantly more than the mother. Furthermore, whatever the mother’s sister and

brother-in-law earn, the father points to no evidence that any such earnings are an

available financial resource to the mother. Indeed, the mother testified to the

contrary, stating, “I just live there with my children and pay rent.” And, while the

father claimed for the first time on reconsideration that the mother “lives with her

own current boyfriend who I believe makes $100,000+ per year,” he points to no

evidence to support that belief. The father fails to establish an abuse of discretion.

       C. Decrease in Father’s Income

       The father next contends that the trial court erred in declining to revisit its

financial orders based on an asserted decrease in his income beginning in March

2020 due to the COVID-19 (coronavirus disease 2019) pandemic.

       The father first claimed an income decrease in his motion for

reconsideration.     “Motions for reconsideration are addressed to the sound

discretion of the trial court and a reviewing court will not reverse a trial court’s ruling


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absent a showing of manifest abuse of discretion.” Wilcox v. Lexington Eye Inst.,

130 Wn. App. 234, 241, 122 P.3d 729 (2005).

       As the mother points out, although the father challenges the trial court’s

reconsideration decision, he does not address CR 59, governing motions for

reconsideration. Consequently, he also does not explain why reconsideration was

appropriate under that rule, much less why the trial court’s denial of

reconsideration constituted an abuse of discretion. The trial court did not abuse

its discretion by denying the father’s motion for reconsideration.

   III. Children’s Best Interests

       The father contends that “[t]he parenting plan must be reversed with a new

trial to revisit an inquiry into the children’s best interests.”

       The father first asserts that “[s]ince the mother is not permitted to spend a

great deal of her testimony on claims of [the] father[’s domestic violence] and

abuse, there was little to no evidence left before the court” to limit the father’s

residential time. This assertion fails because, as discussed, the trial court properly

considered the mother’s testimony regarding the father’s abuse.

       The father next asserts that the trial court should have imposed RCW

26.09.191 restrictions on the mother because of her “flip flopping change of mind”

and abusive use of conflict.        But, the father did not argue below that .191

restrictions were warranted.       Furthermore, his contention that restrictions are

warranted is based on challenges to the mother’s credibility that we have already




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rejected and on evidence that was not presented to the trial court.5 The trial court

did not err by not imposing .191 restrictions on the mother. See RAP 2.5(a)

(appellate court may refuse to review issues raised for the first time on appeal);

State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995) (appellate court

will not consider matters outside the record).

       Finally, the father asserts that in setting the residential schedule, the trial

court improperly relied on a presumption in favor of the mother as the primary

caregiver. But, although the trial court found that the children resided a majority of

the time with the mother under the temporary parenting plan, the record reflects

no presumption on this basis by the trial court. Rather, the record is clear that the

limitations on the father’s residential time were based on the father’s history of

domestic violence—not on the application of any presumption.             The father’s

assertion fails.

   IV. Parenting Plan Modification Provision

       The father challenges the parenting plan’s provision that the mother “may

petition for modification . . . based upon the father’s failure to comply” with ordered

domestic violence evaluation and treatment. That provision also states, “If the

mother shows that the father has failed to comply, the mother need not show a

substantial change in circumstances.” The father contends that this language

impermissibly allows the mother to obtain a full hearing on modification without




       5 The father claims that after trial, the mother falsely reported to police that
the father had molested the children.


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No. 81784-1-I/14


demonstrating adequate cause and to “have the P[arenting] P[lan] modified without

the need to show a substantial change in circumstances.”

       “To satisfy the adequate cause burden for a major modification under RCW

26.09.260(1), the parent [seeking modification] must make a threshold showing

that, since the entry of the original plan, ‘a substantial change has occurred in the

circumstances of the child or the nonmoving party and that the modification is in

the best interest of the child and is necessary to serve the best interests of the

child.’” In re Marriage of Snider, 6 Wn. App. 2d 310, 320, 430 P.3d 726 (2018)

(emphasis added) (quoting RCW 26.09.260(1)). The trial court’s order addresses

only the first part of the adequate cause inquiry. It does not, as the father avers,

allow the mother to bypass adequate cause and proceed to a full modification

hearing based solely on the father’s failure to comply with domestic violence

evaluation and treatment requirements.

       It is clear from the context that the father’s compliance with domestic

violence evaluation and treatment was a condition of the parenting plan.

Specifically, the trial court found the mother credible and adopted her testimony as

to the father’s abuse. Yet, the trial court did not deny the father residential time as

the mother requested. Instead, it granted the father time on alternating weekends

based on his anticipated participation in domestic violence evaluation and

treatment. The trial court’s order does not allow the mother to proceed to a full

hearing, or obtain a modification, without showing a substantial change in

circumstances. Instead, it states the trial court’s intention that the father’s failure

to comply with a condition of the parenting plan should be regarded by a later court


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considering a modification petition as being a substantial change in circumstances.

While the father is correct that modifications are governed by statute, the statute

does not prohibit the trial court from expressing its intentions in this manner under

facts such as these. The father does not establish that the trial court erred in this

regard.

   V. Evidentiary Errors

       The father contends the trial court erred by testifying in violation of ER 602,6

ER 605,7 and ER 702.8 He contends further that the trial court erred by allowing

the mother to testify as to hearsay and matters outside of her personal knowledge

and qualifications in violation of ER 602, ER 702, and ER 802.9

       But, although the father claims “[t]he judge testified that the mother could

not work,” he provides no citation to the record to support that claim, and our review

of the record reveals no such testimony by the trial court. See RAP 10.3(a)(6)

(requiring argument section of brief to include references to relevant parts of the

record). And, the father did not object to any of the other evidentiary errors he now

claims on appeal. See ER 103(a)(1) (“Error may not be predicated upon a ruling

which admits . . . evidence unless a substantial right of the party is affected,

       6   ER 602 provides that “[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.”
        7 ER 605 provides that “[t]he judge presiding at the trial may not testify in

that trial as a witness.”
        8 ER 702 provides, “If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.”
        9 ER 802 provides that hearsay is generally not admissible.




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and . . . a timely objection or motion to strike is made.”).10 For the foregoing

reasons, we decline to review the father’s claims of evidentiary error.

   VI. Judicial Bias

       The father contends that reversal is required because “[t]he judge’s rulings

and actions on their face, alone, show egregious bias.”

       The father is correct that the appearance of fairness doctrine and principles

of due process require judicial officers to “be free of any taint of bias.” City of Lake

Forest Park v. Shoreline Hearings Bd., 76 Wn. App. 212, 217, 884 P.2d 614 (1994).

But, as the father also acknowledges, “[e]vidence of a judge’s actual or potential

bias is required” to establish a violation. In re Marriage of Meredith, 148 Wn. App.

887, 903, 201 P.3d 1056 (2009).

       Here, the father does not point to any evidence of the trial judge’s actual or

potential bias. Instead, he contends the trial judge’s rulings in favor of the mother

demonstrate the judge’s bias. The judge’s unfavorable rulings are insufficient,

without more, to warrant reversal. See In re Pers. Restraint of Davis, 152 Wn.2d

647, 692, 101 P.3d 1 (2004) (“Judicial rulings alone almost never constitute a valid

showing of bias.”). Therefore, we reject the father’s claim of judicial bias.

   VII. Fees on Appeal

       The mother requests fees on appeal under RCW 26.09.140, which

authorizes an appellate court to award fees after “examin[ing] the arguable merit

of the issues on appeal and the financial resources of the respective parties.” In


       10A party need not object to preserve error predicated on a judge’s
improperly testifying. ER 605.


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re Marriage of Booth, 114 Wn.2d 772, 779-80, 791 P.2d 519 (1990). Under RAP

18.1(c), “[i]n any action where applicable law mandates consideration of the

financial resources of one or more parties regarding an award of attorney fees and

expenses, each party must serve . . . and file a financial affidavit no later than 10

days prior to the date the case is set for . . . consideration on the merits.” Because

the mother did not timely file a financial affidavit as required by this rule, we deny

her request for fees on appeal.

       We affirm.




WE CONCUR:




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