*- ^ i t u u v.- c_ i— ; , ;

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

Inthe Matter ofthe Marriage of: HEIDI RENEEGOUDE, Respondent,

v. MICHAEL ZANEGOUDE, Appellant. 

### Spearman, C.J. — Michael Goude (Michael)1 appeals the trial court's 

### findings of fact and conclusions oflaw regarding the conduct of hisformerwife, Heidi Goude ("Heidi"). He argues that the trial court erred infailing tofind that Heidi had "a history ofacts ofdomestic violence" or had committed other acts that would require restricting her residential time and decision-making ability under RCW 26.09.191. Michael also appeals the trial court's valuation of his business. Because substantial evidence supports the trial court's decision, we affirm. FACTS 

### Michael and Heidi Goude married on May 15, 1999. The parties have 

### three children: daughter K.G., sons M.G. and Q.G. The parties separated on No. 71240-3-1

DIVISION ONE

UNPUBLISHED OPINION FILED: December 22, 2014

1Because theparties share the same lastname, werefer tothem by theirfirst namesfor clarity. We intend no disrespect.No. 71240-3-1/2 

### June 15, 2012. InAugust 2012 the court commissionerentered temporary orders in which the children resided a majority ofthe time with Michael. Following a trial, the court entered final orders on November 26, 2013, in which the children resided a majority ofthe time with Heidi. During their marriage, the parties had a number of disputes that escalated 

### into physical altercations.2 InAugust 1999 Heidipetitioned for a domestic violence protection order (DVPO) against Michael, and upon being served, Michael petitioned for a similar order against Heidi. The court granted both petitions and entered temporary protection orders infavor ofboth parties. Heidi 

### subsequently learned she was pregnant and the couple decided to try to work 

### things out. They appeared together and asked the judge to dismiss both protection orders. Thejudge denied the requests and issued final protection orders that remained in effect until August 16, 2000. 

### In May 2000 Michael was working at Heidi's parent's club when he got into a physical fightwith Heidi's brother. Heidi got involved and hit her brotherwith a chair. Michael was charged with assault inthe fourth degree and Heidiwas 

### charged with domestic violenceassault in the fourth degree. They each pled guilty in exchange for a deferred sentence; the charges were later dismissed. On July 28, 2000, the parties had an argument during which Heidi broke at least one dish and Michael called 911. Heidi was arrested and charged with

2We discuss onlythe incidents that Michael refers to in his briefas supporting his proposed finding of a history ofacts ofdomestic violence.No. 71240-3-1/3 domestic violence malicious mischiefin the third degree and violation of a protection order. According to the police report, both parties violated protection orders. The record shows that Heidi pled guilty in exchange for a deferred sentence and the charges were later dismissed. Another incident occurred inAugust 2009, when the family attended a 

### festival together. The couple's daughter K.G., who was nine years old at the time, started acting out. Heidi grabbed K.G. by the arm and pulled her by the hair toward the campsite. 

### In 2011, during an altercation between the parties, Michael claimed that after he went into the bathroom and locked the door, Heidi kicked in the door. 

### On June 14, 2012, Heidi took the children to Moses Lake and filed for 

### dissolution in Grant County Superior Court. OnJune 27, 2012, Michael moved 

### for a change of venue to King County SuperiorCourt. The court granted the motion and ordered thatthe children be returned to King County on June 29, 

### 2012. Temporary orders were entered onAugust 2, 2012, implementing a 50/50 residential schedule ifHeidi moved back to King County. Soon thereafter, Heidi returned to KingCounty withthe children. 

### Throughout2012and 2013, numerous motions werefiled andmultiple 

### hearings were held regarding theparenting plan. Following thetrial which began onAugust 19, 2013, thetrial courtordered that thechildren reside amajority of the timewith Heidi and granted her soledecision-making authority. Thetrial court found that Michael had a history ofacts of domestic violence but did not imposeNo. 71240-3-1/4 restrictions on his residential time under the exception in RCW26.09.191(2)(n). Michael does not appeal this finding but appeals the trial court's failure to find that Heidi also had a history of acts ofdomestic violence under RCW 26.09.191 and to restrict her residential time and decision-making authority accordingly. Michael also appeals the trial court's valuation of his drum-making business and 

### its subsequent distribution of marital property.3 DISCUSSION History ofActs of Domestic Violence RCW 26.09.191 requires the trial court to restrict a parent's residential time with a child ifthe courtfinds thatthe parent has engaged in "a history ofacts ofdomestic violence." RCW 26.09.191 (2)(a)(iii). "Domestic violence" under 

### chapter 26.50 RCWmeans "Physical harm, bodilyinjury, assault, or the infliction offear of imminent physical harm, bodily injury or assault, between family or household members; " RCW 26.50.010(1 )(a). "Family or household 

### members" means spouses, domestic partners, former spouses, former domestic partners, . . ." RCW 26.50.010(2). While RCW 26.09.191 does not define "a history of acts ofdomestic 

### violence," the phrase excludes "isolated, de minimus incidents which could 

### technically be defined as domestic violence." In re Marriage ofC.M.C.. 87 Wn.

3 Michael also moved to strike Heidi's Appendices C. E. F. G. and H because they had not been properly made part of the record on appeal. Michael's own Appendices A and B were also not made part of the record. We therefore decline to consider both parties' Appendices because they were submitted in violation of RAP 10.3(a)(8).No. 71240-3-1/5 App. 84, 88, 940 P.2d 669 (1997). Mere accusations, without proof, are not sufficient to invoke the restrictions under RCW 26.09.191. Caven v. Caven, 136 Wn.2d 800, 810, 966 P.2d 1247 (1998). Here, the trial court found that: Although both parties engaged in violence over the course of the marriage, the father has engaged in a history of acts of domestic violence as defined by the state statute, RCW 26.50.010(1). Clerk's Papers (CP) at 1174. The mother has engaged in inappropriate social behaviors, including verbally lashing out at the father and his extended family in front of the children. Her behavior is not domestic violence. It is behavior in need of regulation, which should be accomplished through the therapy required herein. CP at 1175. There are no parenting deficiencies on the mother's part, provided that she deals with the issues of her emotional regulation. CP at 1177. Michael claims that the trial court erred when it failed to find that Heidi 

### engaged inacts ofdomestic violence as defined in RCW 26.50.010. He cites in particular the five incidents discussed above: (1) The August 1999 domestic violence protection order that was entered against Heidi (DVPO); 

### (2) The May 2000 brewery fight where both he and Heidi fought with Heidi's brother (brewery incident); (3) The July 2000 argument where Heidi broke a dish (dish incident); 

### (4) The 2009 incident where Heidi pulled her daughter's hair (hair-pulling incident); (5) The 2011 argument where Heidi kicked inthe bathroom door (bathroom door incident).No. 71240-3-1/6 

### He further argues that had the trial court properly found these incidents to be acts ofdomestic violence, then itnecessarily would have found that Heidi also engaged in a history ofsuch acts under RCW 26.09.191. He challenges the trial court's legal conclusion and findings of fact, claiming that they are not supported by the evidence in the record. When the trial court has weighed the evidence, we review the trial court's challenged findings offact for substantial evidence. In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 (2007) review denied, 176Wn.2d 1012, 297 P.3d 706 (2013). Substantial evidence is a sufficient quantity of evidence to persuade a fair-minded, rational person that the finding is true. Id. When substantial evidence supports the findings of fact, we determine whetherthe findings offact support the trial court's conclusions of law. jd. We review conclusions of law de novo. In re Marriage of Herridge, 169 Wn. App. 290, 297, 

### 279 P.3d 956 (2012). In this case, the trial court concluded that Heidi's conduct did not constitute a history ofdomestic violence. Thus, the question presented is whetherthis conclusion is supported by the trial court's findings and whether they, in turn, are supported by substantial evidence. 

### We disagree with Michael's premise that had the trial court determined thatthe five incidents complained ofconstituted domestic violence, itnecessarily would have found a history ofacts ofdomestic violence. The term "history ofacts ofdomestic violence" was intended to exclude isolated, de minimis incidents 

### which could technically be defined as domestic violence. Inre C.M.C., 87 Wn.No. 71240-3-1/7 App. at 88. Here, there were five identified incidents scattered over a period of 

### fourteen years, none of which appearto have resulted in any significant physical 

### injury. Itwould have been well withinthe trial court's discretion to determine these incidents to be isolated and/or de minimis. Furthermore, the record reveals substantial evidence supporting the trial 

### court's conclusion that, intheirtotality, Heidi's acts did not rise to the level of a 

### history ofacts ofdomestic violence. Michael is correct that the DVPO entered against Heidi in 1999 is ajudicial finding that an act ofdomestic violence was committed. In addition, the brewery incident in May2000 technically fell within the definition ofdomestic violence because the altercation involved Heidi's 

### brother and the use of a chair, from which itmay be inferred that the assault 

### caused some bodily injury. Butsignificantly, because the incident was unrelated to the relationship between Heidi and Michael, it is at best unclear whether it reflected a history ofacts ofdomestic violence as to them. As to the dish and bathroom door incidents, regardless ofthe domestic 

### violence designation attached to the charges thatresulted from these events, the 

### partiesdisputed the facts in theirtestimony beforethetrial court. Regarding the dish incident, Heidi testified that the parties were arguing whileshe was doing 

### dishes and one of them slippedfrom her hand, while Michael testified that she threw multiple dishes on the ground and jumped on them. Regarding the bathroom door incident, Michael testified he was in the bathroom when Heidi kicked the door and that he feared for his physical safety. While Heidi admitted toNo. 71240-3-1/8 kicking the door, she did not testify that Michael was inthe bathroom at the time. We defer to the fact finder on witness credibility and the persuasiveness ofthe evidence. In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011). Thus, itwas within the trial court's discretion to determine whether Heidi's acts in these instances caused physical harm, bodily injury, assault, or the reasonable fear ofsuch and thereby met the statutory definition ofdomestic violence. While the trial court did not make specific findings about these particular incidents, it is evident that the trial court considered Heidi the more credible of the two. Itrejected Michael's assertions that Heidi was the aggressor inthese confrontations and that Heidi had placed him infear of injury or had caused him 

### injury. Instead it found that Michael "was the aggressor inthe incidents of violence," that "[h]e injured her," and that "[h]ecaused herto be fearful." CP at 1174. The court further found Michael's testimony regarding his marijuana business and his financial dealings incredible and accepted Heidi's testimony on these subjects. Michael also offered as evidence ofdomestic violence the incident at the 

### festival inAugust 2009, in which itwas alleged that Heidigrabbed K.G. by the 

### arm and pulled her hair. In its oral ruling, the trial court found that "Ms. Goude did, in fact pull [her daughter] by the hair one night in the campsite." Verbatim Report ofProceedings (VRP) (9/12/13) at 1760. Although the record does not show that the incident resulted in physical harm, bodilyinjury, or infliction offear 

### of imminent physical harm, it could technically be considered an "assault" andNo. 71240-3-1/9 thus fall within the definition of "domestic violence" under RCW 26.50.010(1). But the trial court evaluated the incident within the context of Heidi's conduct as a whole, and found that while itwas one of many examples of "inappropriate social behavior by Ms. Goude," none of itwas "assaultive." VRP (9/12/13) at 1762. We conclude that substantial evidence supports the trial court's finding 

### that Heidi's "behavior is not domestic violence." CP at 1175.4 The finding does not properly include the DVPO incident because the order constituted a judicial 

### finding ofdomestic violence as to Heidi. Butthe trial court's finding regarding the remaining four incidents cited by Michael is well supported bythe evidence. 

### Furthermore, a single incident ofdomestic violence, occurring well over a decade 

### before trial, is ample supportfor the trial court's conclusion that, as to Heidi, there

was no history ofacts ofdomestic violence. 

### We further note that over the eight-day trial, the court heard from both 

### parties at length and from multiple witnesses, including domestic violence 

### experts. The allegations of domestic violence werefully aired on both sides. The trial court found that Heidi's behavior was not domestic violence, but rather was 

### rooted in response toMichael's physical violence towards her and "a pattern of emotional abuse and ... tactics of power and control over [her]. This included

4Michael also argues that thetrial court should havefound a history of acts ofdomestic violence because Heidi failed to submit evidence that she would not re-engage in abusive acts or domestic violence, or that the children would not be further harmed by ... such conduct under RCW 26.09.191 (2)(n). BriefofAppellant at 28-29. This isincorrect. In order for the statutory 

### exception in RCW 26.09.191(2)(n) toapply, thetrial courtwould have had tofind aninitial history ofacts of domestic violence. The trial court did notfind such history and Heidi would therefore not be required to submitevidence thatharmful or abusive conductwould notrecur.No. 71240-3-1/10 

### keeping her from accessing money and finances, asking her parents to keep money from her, and threats to take the children." CP at 1174. Whether a history ofacts ofdomestic violence has been proven is not merely a matter ofchecking the boxes against RCW 26.50.010, but instead requires consideration ofthe totality ofthe circumstances ofthe affected relationships. The trial court did that inthis case. Although the trial court's findings were not setforth with great particularity, our review ofthe record discloses that the conclusion that Heidi did not engage in a history ofacts ofdomestic violence is supported by the court's 

### findings which are, in turn, supported bysubstantial evidence.5 Physical Abuse of a Child 

### RCW 26.09.191 (2)(a)(ii) requires the limitation of a parent's residential 

### time if it is found that a parent has engaged in ... physical, ... abuse of a child.'" Michael alleges that the trial court should have found that Heidiengaged in 

### "'physical... abuse of a child" because, in his words, "thetrial courtexpressly found that [Heidi] pulled the oldest child's hairand lifted her off the ground." Br. of Appellant at 27-28. Michael misstates the trialcourt's actual finding, which was 

### only that Heidi "pull[ed] her [daughter] by the hair." VRP (9/12/13) at 1761. The trial court also found that her behavior was "'not such that [the court]

5Michael also contends that the trial court made a "superfluous finding" that he was "'the aggressor,'" which he does not dispute. BriefofAppellant at 20. He argues that the trial court incorrectly used thatdetermination to preclude a finding that Heidi had a history of acts of domestic violence. This argument is withoutmerit. The findings of fact only refer to Michael as the aggressorin reference to hishistory ofdomestic violence andin assessing hiscredibility. Thetrial courtdid not, as Michael suggests, rely on itsfinding that he was the "aggressor to ipso facto conclude that Heidi did not have a history ofdomestic violence.

10No. 71240-3-1/11 categorize[s] itas domestic violence that would be limited - or required that there be limitations placed upon her in her parenting.'" VRP (9/12/13) at 1763. The record does not show that the single incident rose to the level of "physical... 

### abuse of a child."6 RCW 26.09.191 (2)(a)(ii). Residential Placement and Parental Decision-Making Because we affirm the trial court's finding that Heidi neither engaged in a history of acts ofdomestic violence nor committed physical abuse of a child, we also affirm its decisions regarding the residential schedule and parental decision making. A trial court has broad discretion when crafting a parenting plan, and we review its decision for an abuse ofdiscretion. Caven, 136 Wn.2d at 806. A trial court abuses its discretion when its decision is manifestly unreasonable or made



### on untenable grounds or for untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). 

### Ifa parent has engaged in "physical, sexual, or a pattern ofemotional 

### abuse of a child," or "a history ofacts ofdomestic violence as defined in RCW 26.09.191 (b)(c)," the court is required to limitthat parent's residential time with the child, unless an exception applies, and cannot require mutual decision 

### making. RCW 26.09.191 (2)(a). A trial court may not impose these limitations or 

### restrictions in a parenting plan in the absence ofexpress findings under RCW 26.09.191. In re Marriage of Katare, 125 Wn. App. 813, 826, 105 P.3d 44 (2004).

6Because the trial court did notfind that Heidi had a history of acts of domestic violence or committed abuse of a child, there is no need to address Michael's argument thatthe trial court erred by entering a parenting plan that did not impose mandatory restrictions on Heidi.

11No. 71240-3-1/12 

### Without making the requisite findings ofdomestic violence or physical abuse, the trial court could not restrict Heidi's time or decision-making ability. The trial court

was prohibited from ordering mutual decision-making under RCW 26.09.191(1) because itfound that Michael had engaged in a history of acts ofdomestic violence. We find no error in the trial court's decisions regarding residential placement and parental decision-making.
Valuation of Business A court has broad discretion when valuing property in a dissolution action and its valuation willnot be reversed on appeal absent a manifest abuse of discretion. In re Marriage of Gillespie, 89 Wn. App. 390, 403, 948 P.2d 1338 (1997). This court leaves valuation "to the sound discretion ofthe trial court, after 

### hearing any additional evidence thatthe trial court may deem relevant and material to the valuation ofthe [property], and after both parties have had the 

### opportunity to reflect upon and argue all the relevant factors." In re Marriage of Harrington, 85 Wn. App. 613, 630, 935 P.2d 1357 (1997). Michael contends that trial court erred in assigning an enterprise value of 

### $25,000 to his drum-making business. He argues thatthe business's onlyvalue is the $2,000-$2,500 that he claimed he had in inventory, and the additional 

### assigned value came from the trial court's assessmentof"intangible goodwill." Briefof Appellant at 36-37. According to him,the trial court erred in adding this amount to the value ofthe business without engaging inthe accepted valuation methods for intangible goodwill.

12No. 71240-3-1/13 The value ofprofessional goodwill is a question of fact, and "[o]ne or more ofthe accepted methods ofvaluation must be employed," to estimate its value. In

re Marriage of Hall, 103 Wn.2d 236, 243, 692 P.2d 175 (1984). A trial court must "state on the record which factors and method were used in reaching its finding." Id. at 247. Here, however, the trial court made no finding of goodwill in Michael's drum business and estimated its value based solely on the limited evidence presented. Heidi submitted an estimate of$25,000 for the business's value. See Exhibit 256. She testified that Exhibit 256 was a "fair market value ofthe community property that they had." VRP (8/29/13) at 1630. Considering the 

### assets intotality, the trial court found that Michael had received about $35,000 worth and Heidi had received about $7500 worth. The record contains some additional evidence ofthe business's value, but Michael's own testimony 

### suggested a value well over his estimate of $2,000 to $2,500. Hetestified that he would sell each of his drums for "a hundred dollars to $800." VRP (8/21/13) at 656. At the time oftrial he estimated that he had "around 20 to 25 drums 

### currentlyin [his] inventory." ]o\at 656-57. He also testified that on "a good month," he could have as much as $7-$10,000 in sales ofdrums. Id at 659. The trial courtfound that Michael "[didjn't have all of his records because 

### rats ate them. He ha[d] tax returns, but the tax returns are onlybased on what he tells the IRS. Andfrankly, because so much of his business is done incash, 

### there is inability - or lack ofability for the IRS reallyto confirm that." VRP

13No. 71240-3-1/14 (9/12/13) at 1780. The trial court determined that "[t]othe extent there are questions

... the inferences need to be made against Mr. Goude because ofthe lack ofrecords." \_± at 1781. 

### Michael cannot dispute Heidi's valuation on appeal when he failed to 

### provide any evidence of the business's value,7aside from his estimate of inventory, which he later contradicted. The trial court did not include any goodwill in its valuation and therefore did not need to setforth any factors or method used 

### to value goodwill. Based on the evidence presented, the trial court acted within its discretion when itassigned a value of$25,000 to Michael's drum-making
business. Attorneys' Fees 

### Both parties askforfees underRAP 18.1(a) and RCW 26.09.140. Under these statutes, we may award legal fees to a partyin a marital dissolution 

### proceeding after"considering thefinancial resources ofboth parties." RCW 26.09.140. An appellatecourt has discretion to order a partyto pay the cost of 

### maintaining theappeal, attorneys' fees, andstatutory costs.]d Thecourtwill consider the arguablemerit ofthe issues on appeal and thefinancial resources 

### oftherespective parties. Johnson v. Johnson, 107Wn. App. 500, 504, 27P.3d

7Thetrial court admittedMichael's "attempt at a profit/loss statement" for2012, but itwas 

### notpartofthe record submitted on appeal. VRP (8/26/13) at 1118. Michael also submitted alist ofassets andliabilities, but again, this listwasnotmadepartoftherecord onappeal. Hetestified that Heidi took about half the value of the total value of personal property that they had. Michael also submitted a few invoicesfrom January and February 2012, with the revenues and expenses, but they were not part of the record on appeal.

14No. 71240-3-1/15 

### 654 (2001). Exercising our discretion, we decline to award fees to either party on appeal. Affirmed.

WE CONCUR: 

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