IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Marriage of

THERESA IBRAHIM GOHAR,

Appellant,

and

SAMIR GOHAR,

Respondent.

Nos. 69920-2-1

70420-6-1

UNPUBLISHED OPINIONS

FILED: December 8, 2014

Schindler, J. — Theresa Gohar, acting pro se, appeals the "Amended Decree of

Dissolution," "Final Parenting Plan," "Final Order of Child Support," and the "Findings of

Fact and Conclusions of Law." In the separate linked appeal, Theresa challenges the

order of contempt for violating the parenting plan.1 Because Theresa fails to establish

any legal error or abuse of discretion, we affirm.

DISSOLUTION ACTION

In 1999, Samir and Theresa Gohar were married in Massachusetts. Before the

marriage, Samir lived in Massachusetts and owned a restaurant and duplex with his

We use the parties' first names for purposes of clarity and mean no disrespect by doing so.
Nos. 69920-2-1 and 70420-6-1/2

brother. Theresa lived in Washington with her parents and worked at a fast food

restaurant. After they married, Theresa and Samir lived in Massachusetts. In 2001,

Theresa and Samir had a daughter, C.G., and in 2005, a son, M.G.

After the birth of C.G., Theresa sought mental health treatment. Theresa took an

antidepressant medication for approximately two years. During this two-year period,

Samir described Theresa as having one bad day for every ten good days. Theresa

stopped taking the medication. Theresa said the medication did not help her, and she

could effectively manage her depression and anxiety by getting out of the house and

engaging in activities. According to Samir, after Theresa stopped taking the medication,

she had mostly bad days. Samir described her behavior as erratic and said that

Theresa often slept until the afternoon.

In 2007, Samir and Theresa moved to the Seattle area to be near Theresa's

family. Samir sold the interest in his restaurant business and the duplex to his brother

for $285,500.

In 2008, Samir purchased the family home in Lynnwood for $400,000. Samir

used $80,000 of proceeds from the sale of his Massachusetts property for the down

payment and took out a mortgage in his name only for the balance. That same year,

Samir purchased a restaurant in Marysville, Washington. Samir used $200,000 from

the proceeds of the sale of his Massachusetts property for the down payment and

secured a loan for the balance of the $1,015,000 purchase price for the business and

the real property. The restaurant and real property is in Samir's name only. Samir

managed the restaurant alone. Theresa never worked in the restaurant and, for the

most part, did not work outside the home during the marriage.

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Nos. 69920-2-1 and 70420-6-1/3

In September 2011, Samir moved out of the family home. In February 2012,

Samir filed a petition for legal separation. The court later granted Samir's motion to

convert his legal separation petition to a petition for dissolution of the marriage. Samir

initially proposed that the children reside with Theresa the majority of the time. The

court entered a temporary order requiring Samir to pay $6,000 per month for

maintenance and child support.

After the separation, the children missed a significant amount of school. Samir

became concerned about Theresa's mental health, the children's well-being, and

Theresa's attempts to sabotage his relationship with the children. Samir requested

designation as the primary residential parent until Theresa engaged in mental health

treatment.

In July 2012, the trial court appointed guardian ad litem (GAL) Martha

Wakenshaw to act in the children's best interests and make recommendations as to the

parenting plan. While Theresa was "largely non-cooperative," the GAL was eventually

able to interview both parents, 11-year-old C.G., and 6-year-old M.G.

Samir raised concerns with the GAL about Theresa's mental health, the

children's school attendance, and their emotional health and physical safety ifTheresa

insisted on refusing treatment. Samir admitted he developed a gambling addiction in

2011. Samir also said he was attending Gamblers' Anonymous and was being treated

for depression.

Theresa told the GAL she wanted "nothing more" than for Samir to "return to the

home as her husband and father to the children." Theresa did not allege that Samir was

abusive to her or the children, but she felt that Samir neglected the children's feelings.
Nos. 69920-2-1 and 70420-6-1/4

Theresa admitted that she let the children stay home from school when they had a

runny nose or stomachache. Theresa would not sign a release to obtain school records

or allowthe GAL to speak to her treatment providers. Instead, Theresa provided the

GAL with a declaration from a therapist who confirmed that Theresa had been

diagnosed with depression, anxiety, and obsessive-compulsive disorder but stated there

was no evidence to support a diagnosis of paranoia or delusions. The therapist said

that although some of Theresa's concerns went beyond the normal level, they were

grounded in rational concerns.

GAL Report

The GAL prepared a report in October 2012. The GAL reported that Theresa

was "extremely suspicious, guarded, and depressed." The GAL stated that during the

home visit, Theresa had almost no interaction with the children, and Theresa and her

mother openly discussed the court case in front ofthe children. The GAL described

C.G. as "articulate, anxious, and depressed." C.G. told the GAL that her mother tells

her "everything" about court so as not to leave her in the dark, and lets her read the

documents. C.G. said she was "mad at dad" after reading court documents containing

Samir's allegations aboutTheresa's mental health issues. The GAL described M.G. as

obese and having a "sadness and despondency" about him.

M.G. reported that his mother gets frustrated about "court stuff' and that his mom's

judge was "really mean."

Neither child reported abuse by either parent, and C.G. affirmatively denied it.

C.G. told the GAL that Samir was the person who helped her with schoolwork, and M.G.
Nos. 69920-2-1 and 70420-6-1/5

said he liked it at Samir's house best. The GAL concluded the children were the victims

of abusive use of conflict by the mother.

Clearly, both [C.G.] and [M.G.] are the victims of an extreme abusive use of

conflict on the part of the mother. Both children have stated that she has talked

to them about the court case and it was a strong theme in both of their

interviews, especially [C.G.j's interview.

Both children present as confused, depressed, and anxious and could both

benefit from intensive, individual psychotherapy.

It is unconscionable that the mother has permitted her eleven-year-old daughter

to read the court documents and pleadings. The daughter has become so fearful

that she was worried that the GAL might take her away from her parents and put

her in foster care.

The GAL recommended that the court designate Samir as the primary residential

parent, the children stay with Theresa every other weekend and one weekday every

week, and Theresa be prohibited from sharing court information with the children. The

GAL recommended supervised visitation with the children if Theresa continued to

engage in abusive use of conflict. The GAL also recommended that each parent obtain

a psychological assessment and individual counselling for the children.

Samir obtained a psychological assessment. The evaluator concluded that

Samir was being appropriately treated for his mild depression and his previous

gambling addiction, and expressed no concerns about his parenting. The same

evaluator contacted Theresa to arrange an evaluation but she did respond.

After the GAL filed her report, Theresa filed a motion to remove the GAL. On

October 23, a court commissioner struck Theresa's motion because she had not served

the GAL.
Nos. 69920-2-1 and 70420-6-1/6

Protection Order

On October 24, Theresa went to C.G.'s middle school and told the school

counsellor that the previous night, C.G. had disclosed that Samir touched her sexually.

Child Protective Services (CPS) and the police initiated an investigation. Theresa filed

a petition for a protection order. The court entered a temporary protection order.

On October 26, Theresa took C.G. to the emergency room because of a sore

throat but did not mention the sexual abuse allegation. On October 29, Theresa took

C.G. to the doctor for a previously scheduled appointment and asked the doctor to

examine C.G. for possible injuries stemming from abuse.

On October 30, a commissioner held a hearing on the protection order. Samir,

Theresa, and the GAL appeared at the hearing. Theresa told the commissioner that

C.G. said, "My dad touch [sic] me down there." Theresa said she was also concerned

because some weeks earlier, there was blood on C.G.'s underwear. Theresa admitted

she did not immediately take C.G. to the doctor or inform the GAL following the

disclosure.

Upon learning that C.G. was in the courthouse, the commissioner asked the GAL

to privately interviewthe child and report back. The GAL told the commissioner itwas a

stressful interview for C.G. and described "chaos and interference" by Theresa and her

family members. Atfirst, Theresa's mother refused to leave the interview room. After

she was forced to do so, Theresa and her family members hovered outside the glass

window of the interview room, stating loudly that the GAL was a "liar."

C.G. told the GAL that her mother had told her about the GAL's report and that

as a result, she might live with her father. C.G. said that while sh^and her mother were

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Nos. 69920-2-1 and 70420-6-1/7

discussing menstruation, her mother asked if her father had ever touched her. C.G.

said yes. C.G. said her father touched her twice between the legs, over her clothing, for

no more than three seconds. The GAL questioned the validity of the reported abuse

because the allegation was vague, contained inconsistencies about timing, and arose

from Theresa's suggestive questioning. Noting the lack of evidence about what C.G.

reported to others, the suspicious circumstances of the allegations, and the fact that the

allegations themselves lacked credibility, the commissioner determined the allegation of

sex abuse was not supported by a preponderance of the evidence. The commissioner

dismissed the petition to issue a protection order without prejudice to refiling if"more

clear-cut information were to arise."

Dissolution Trial

The two-day dissolution trial took place in early November. The court considered

the testimony of Theresa, Samir, the GAL, and brieftestimony ofTheresa's brother-inlaw.

Theresa's position at trial was that the children should reside with her and have

no visitation or contact with Samir because of the alleged sexual abuse. Theresa

testified about C.G.'s disclosure. Theresa also claimed Samir was emotionally abusive

to her and to C.G., and for the first time, she mentioned incidents of physical abuse.

Theresa disputed many facts in the GAL's report. For instance, Theresa denied

discussing the pending dissolution with the children. But Theresa admitted that on

occasion, she asked C.G. the meaning of a word that she did not understand in court

documents. Theresa also claimed that M.G. had been sexually assaulted when he was

three or four. But Theresa admitted that M.G. merely answered yes to a leading

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Nos. 69920-2-1 and 70420-6-1/8

question about abuse and she never took the child to the doctor or otherwise reported

the incident.

In addition to the information and recommendations in the report, the GAL

testified about the recent sexual abuse allegations and recommended that visitation with

the children be supervised until Theresa obtained a psychological evaluation.

The court found Theresa "not credible." The court found that Theresa's

testimony was deceptive because she often indicated that she was confused and could

not remember details to evade questions. The court found that Theresa is "in need of

psychological services," and that she "attempted to falsely accuse the father of sexual

abuse" in order to discredit the GAL and her recommendations. The court found the

GAL was credible and concluded both children were victims of extreme abusive use of

conflict by the mother.

The court entered a parenting plan designating Samir as the primary residential

parent and imposed limitations on Theresa's contact with the children under RCW

26.09.191 (3)(a) ("A parent's neglect or substantial nonperformance of parenting

functions;); (3)(b) ("A long-term emotional or physical impairment, which interferes with

the performance of parenting functions as defined in RCW 26.09.004); and (3)(e) ("The

abusive use of conflict by the parent, which creates the danger of serious damage to the

children's psychological development."). The court ordered visitation with Theresa to be

supervised by a designee selected by Samir. The court ordered Theresa to obtain a

psychological evaluation within 30 days. The November 30 order provides that upon

completion of the evaluation, Theresa may file a motion for unsupervised visitation. The

court also ordered that both children should be enrolled in therapy.

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Nos. 69920-2-1 and 70420-6-1/9

With respect to the division of assets, the court determined that although Samir

contributed separate funds toward the purchase of the family home, it was a community

asset. The court ruled the restaurant was a separate asset and awarded it to Samir.

The court noted that the debt associated with the business outweighed its value,

Theresa had not participated in running the restaurant, and the testimony indicated she

was unwilling to assume any debt associated with the business. The court awarded the

family home to Samir and awarded the parties' three retirement accounts to Theresa.

According to the court's calculation, the value of community assets awarded to Samir

was $109,900 and the value of community assets awarded to Theresa was $102,500.

The court ordered Samir to pay monthly maintenance to Theresa for two and a half

years ($2,500 for six months; $2,000 for six months; $1,500 for six months; $1,000 for

six months; and $500 for six months).

In calculating child support, the court found that Samir's monthly gross income

was $10,430 and Theresa's income was $2,350. After subtracting deductions, the

combined monthly net income was $8,711 and the proportionalshare of the combined

income for Samir and Theresa was 75.3 percent and 24.7 percent. The court calculated

Theresa's proportional share of the basic support obligation and health care expenses

for both children as $546 per month, but deviated downward to $300 per month

because "[t]he mother is not employed at this time and will be living primarily offthe

maintenance obligation so as to maximize her ability to create a new household."

On February 7, 2013, Theresa filed a notice of appeal challenging entry of the

amended decree of dissolution, final parenting plan, order of child support, and findings

of fact and conclusions of law.
Nos. 69920-2-1 and 70420-6-1/10

CONTEMPT ACTION

Samir paid $2,500 toward a psychological evaluation for Theresa, but Theresa

did not obtain an evaluation within 30 days as ordered. Theresa did not meet with the

psychologist until February 2013. Theresa also did not request visitation with the

children until December 2012, over two months after the court entered its order. Samir

suggested using three people who offered to supervise for free. Theresa's attorney

responded that she preferred to use a professional supervisor. However, Theresa did

not follow up to arrange visitation.

In February 2013, Samir learned from the children that Theresa met each of

them at the school bus stop. M.G. said his mother told him she was "fighting" for him.

Samir's attorney contacted Theresa's attorney about the contact and warned that Samir

would be forced to file a motion for contempt ifTheresa continued to violate the

parenting plan. Theresa's attorney responded that Theresa said the problem was that

"Samir isn't allowing her to see the children—at all," and requested that Samir provide

suggested namesfor supervised visitation. Samir's attorney pointed outthat Samir had

already provided names for supervised visitation and that Theresa rejected the

suggested supervisors and decided to hire a professional. Samir later offered to pay for

the first supervised visit and split the cost thereafter. Theresa refused the offer.

Theresa took the position that she was not required to pay for the costs ofsupervision.

Samir learned that on March 18 and 19, Theresa contacted the children again at

the bus stop. M.G. said his mother told him she had just received the psychological

evaluation report, she was not "not sick anymore," and she would be able to see him

again in about two weeks. Samir said C.G. came home "angry with him" because her

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Nos. 69920-2-1 and 70420-6-1/11

mother told her the same thing and C.G. demanded to know "the details" about what

was happening in court.

Samir filed a motion to show cause why Theresa should not be held in contempt

for violating the parenting plan. A court commissioner entered a show cause order

that required Theresa to appear in court on April 10. Theresa's attorney accepted

service of the contempt motion in exchange for an agreement to continue the hearing

until April 25.

Theresa appeared at the contempt hearing on April 25 without an attorney. The

court commissioner continued the hearing, in part so Theresa could obtain a courtappointed attorney. The order continuing the hearing directs Theresa to appear at the

Office of Public Defense. At Theresa's request, the court revised the order, finding that

Theresa was "adamant" that she did not want an attorney and had waived her right to

counsel.

Theresa represented herself at the hearing on the contempt motion. Theresa

argued that the motion should be dismissed because she was not personally served.

Theresa denied visiting her children at the bus stop and pointed to lack of "physical

proof." Theresa admitted she had not had any visits with the children as contemplated

by the parenting plan but argued it was because Samir and his attorney "refuse to let

me see my children."

The commissioner held Theresa in contempt, finding that she was properly

served with the contempt motion, violated the parenting plan by having unauthorized

contact with the children on more than one occasion, and unreasonably rejected

arrangements for supervised visitation. The commissioner also found that Theresa's

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Nos. 69920-2-1 and 70420-6-1/12

noncompliance with the parenting plan was in bad faith. The order allows Theresa to

purge the contempt by remaining at least 100 yards away from the children's bus stops,

home, and schools. The order requires supervised visitation with a professional

supervisor at Theresa's expense. The commissioner awarded $1,500 in attorney fees to

Samir. A superior court judge denied Theresa's motion for revision. Theresa filed a

notice of appeal challenging the contempt order and order denying revision.2

Parenting Plan

Theresa primarily challenges the trial court's decision designating Samir as the

primary residential parent and the imposition of supervised visitation.

We review a trial court's parenting plan for abuse of discretion. In re Marriage of

Katare, 175 Wn.2d 23. 35. 283 P.3d 546 (2012). cert, denied, 133 S. Ct. 889 (2013). A

trial court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons. Katare, 175 Wn.2d at 35. We defer to the

trial court because of its unique opportunity to observe the parties, determine their

credibility, and sort out conflicting evidence. In re Marriage of Woffinden, 33 Wn. App.

326, 330, 654 P.2d 1219 (1982). Because of the trial court's unique opportunity to

observe the parties, the appellate court should be extremely reluctant to disturb

decisions with regard to child placement decisions. In re Parentage of Schroeder, 106

Wn. App. 343, 349, 22 P.3d 1280 (2001).

2 In June 2013, Theresa filed another noticeof appeal challenging the October 30, 2012

dismissal of her petition for a protection order to prohibitcontact between Samir and C.G. See

No. 70594-6-I. A commissioner of this court dismissed the appeal as untimely. Because we previously

denied Theresa's motion to modify the commissioner's ruling dismissing review, her arguments related to

the protection order are not properly before us.

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Nos. 69920-2-1 and 70420-6-1/13

The best interests of the child is the standard "by which the court determines and

allocates the parties' parental responsibilities." RCW 26.09.002; Schroeder, 106 Wn.

App. at 349. In establishing a residential schedule for children in a parenting plan, RCW

26.09.187(3) identifies the following factors a trial court must consider:

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

with each parent;

(ii) The agreements of the parties, provided they were entered into

knowingly and voluntarily;

(iii) Each parent's past and potential forfuture performance of parenting

functions . . . , including whether a parent has taken greater responsibility for

performing parenting functions relating to the daily needs of the child;

(iv) The emotional needs and developmental level of the child;

(v) The child's relationship with siblings and with other significant adults,

as well as the child's involvement with his or her physical surroundings, school,

or other significant activities;

(vi) The wishes ofthe parents and the wishes of a child who issufficiently

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.

Theresa's arguments do not reference any ofthe relevant statutory factors. And

contrary to Theresa's apparent belief, there is no presumption in favor ofthe historic

primary caregiver. In re Marriage of Kovacs, 121 Wn.2d 795, 800, 854 P.2d 629 (1993).

Rather, the statute requires the court to consider both past and potential future

performance of parenting functions.

While restrictions in a parenting plan are mandatory under some circumstances,

the court imposed supervised visitation in this case under RCW 26.09.191 (3)(g), a

discretionary provision that permits a trial court to limit the terms ofa parenting plan.

Katare, 175Wn.2d at 36. This discretionary authority is conditioned on the existence of

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Nos. 69920-2-1 and 70420-6-1/14

specific factors or conduct that the court expressly finds adverse to the best interests of

the child. Katare, 175 Wn.2d at 36.

Theresa contends that the trial court (1) ignored evidence of sexual abuse,

(2) made its decision without allowing appropriate state agencies to investigate the

abuse allegations, (3) failed to consider Theresa's historic role as the day-to-day

caretaker, (4) ignored the fact that Samir abandoned the family, (5) gave undue weight

to the opinions and recommendations of the GAL, and (6) disregarded evidence that the

children were performing well in school when she was the primary caretaker. Theresa's

arguments rely entirely upon her subjective interpretation of the conflicting evidence and

reflect a fundamental misunderstanding of the role of the appellate court.

An appellate court may not substitute its evaluation of the evidence for that made

by the trier of fact. Goodman v. Boeing Co., 75 Wn. App. 60, 82-83, 877 P.2d 703

(1994), affd, 127Wn.2d401.899P.2d 1265(1995). If they are supported by

substantial evidence, we accept the court's factual findings. In re Marriage of Thomas.

63 Wn. App. 658, 660, 821 P.2d 1227 (1991). Evidence is substantial when there is a

sufficientquantum of evidence "to persuade a fair-minded person of the truth of the

declared premise." In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993

(2002). So long as a finding is supported by substantial evidence, it does not matter

that other evidence may contradict the finding. Burrill, 113 Wn. App. at 868. This court

does not review the trial court's determinations as to the credibility and persuasiveness

of the evidence. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).

The record shows that the trial court considered and weighed the evidence in

accordance with the factors under RCW 26.09.187(3)(a) and made specific findings of

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Nos. 69920-2-1 and 70420-6-1/15

the presence of factors under RCW 26.09.191 (3)(a) (substantial nonperformance of

parenting functions), (3)(b) (emotional or physical impairment), and (3)(e) (abusive use

of conflict) that adversely affected the best interests of C.G. and M.G. The imposition of

restrictions is supported by substantial evidence. The evidence showed that Theresa

continually involved the children in the legal proceedings, attempted to alienate them

from Samir, and made unsubstantiated abuse allegations. There was evidence that the

children were adversely affected by Theresa's conduct and were anxious, stressed,

fearful, and depressed. Evidence supports the court's findings that Theresa suffered

from mental health issues that interfered with her parenting. Specifically, since the

parties separated, the mother was sleeping much of the time, allowing the children to

miss school, keeping the children up at night, and isolating them. Theresa's insistence

upon unsubstantiated sexual abuse allegations with regard to both children also

supports the court's finding of mental health impairment that interfered with parenting.

The evidence supports the court's decision to limit Theresa's residential time under

RCW 26.09.191(3) and order supervised visitation until she completed an evaluation

and followed treatment recommendations.

Although Theresa obviously disagrees with the court's decision, the court did not

abuse its discretion, and substantial evidence supports the provisions of the parenting

plan.

In addition to her argument that the GAL was not credible or persuasive, Theresa

also contends the court should not have considered the GAL's report because it was not

filed 60 days before trial as required by RCW 26.12.175(1 )(b). But nothing in the record

suggests that she was prejudiced by the delay. The GAL testified at trial and the report

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Nos. 69920-2-1 and 70420-6-1/16

was admitted as evidence without objection. We do not consider arguments raised for

the first time on appeal. RAP 2.5(a); Lunsford v. Saberhagen Holdings, Inc., 139 Wn.

App. 334, 338, 160 P.3d 1089 (2007).

The record indicates that the court and the parties had access to the report

before itwas filed on the first day of trial. Although Theresa sought to have the GAL

removed from the case, the basis for her request was her claim that the GAL reported

false facts and she disagreed with the GAL's recommendations. The court concluded

that Theresa's motion to remove the GAL was not properly before the court because

she failed to serve the GAL, a fact she does not dispute. Theresa also twice moved to

continue the trial but did not mention needing more time to respond to the GAL's report.

The court did not err in considering the GAL's report.

Division of Property

Theresa challenges the court's division of property. Theresa claims the court

awarded all of the parties' community property to Samir, followed all of Samir's requests

with respect to property, and denied all of her requests. Theresa argues the court

awarded all the primary assets to Samir including the restaurant, the marital home, and

the children's college fund.

The trial court's objective when dividing property is to divide and distribute the

parties' property in a manner that is "just and equitable." RCW 26.09.080. The statute

requires the trial court to consider

all relevant factors including, but not limited to:

(1) The nature and extent of the community property;

(2) The nature and extent of the separate property;

(3) The duration of the marriage; and

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Nos. 69920-2-1 and 70420-6-1/17

(4) The economic circumstances of each spouse ... at the time the

division of the property is to become effective ....

RCW 26.09.080. A just and equitable distribution does not mean that the court must

make an equal distribution. In re Marriage of DewBerrv, 115 Wn. App. 351, 366, 62

P.3d 525 (2003).

We review the division of property for abuse of discretion. In re Marriage of

Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). The trial court has "broad

discretion," which will be reversed only ifexercised on untenable grounds or for

untenable reasons. In re Marriage of Rockwell, 141 Wn. App. 235, 242-43, 170 P.3d

572 (2007). "The trial court is in the best position to assess the assets and liabilities of

the parties . . ." and to determine what constitutes an equitable outcome. In re Marriage

of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).

Theresa disregards some critical facts. In arguing that the court awarded all the

property to Samir, Theresa fails to acknowledge that the court awarded all ofthe

retirement savings to her. The value ofthe retirement accounts was $87,000 and is

nearly equal to the equity in the parties' home of$92,000. The difference in value in the

property awarded to Samir and the property awarded to Theresa was approximately

$7,000. And as the court pointed out, despite the slight discrepancy in favor of Samir,

the distribution was equitable in light ofthe prior distribution of $15,000 in community

assets to Theresa for legal expenses and Samir's payment of $6,000 per month in

temporary maintenance and child supportduring the pendency ofthe proceedings.

While the court's division of property does not include Samir's restaurant nor

account for the stream of income it provides, there is no dispute that Samir used

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Nos. 69920-2-1 and 70420-6-1/18

separate property to purchase the business and the evidence showed that the debts

associated with the restaurant outweighed its value. The court found that the net value

of the restaurant was negative $21,000. Theresa's claim that the court awarded

property of over $1 million in assets to Samir is apparently based on the purchase price

of the restaurant, $1,015,000, without adjustment for the substantial mortgage debt and

the current value of the real property.

Theresa also contends that the court erred in relying on valuations of property

prepared by Samir or his nonprofessional acquaintances. But the record shows there

were two expert valuations of the restaurant, and the trial court used the valuation figure

assigned by Theresa's expert. And while the court did assign value to the parties' home

based on a market analysis submitted by Samir and prepared by a real estate broker,

Theresa fails to explain why the broker was unqualified to render an opinion about the

likely sales price of the home. There was no other evidence of the current value ofthe

home before the court. The trial court did not abuse its discretion by assigning values to

property within the scope of the evidence. See In re Marriage of Soriano, 31 Wn. App.

432, 435, 643 P.2d 450 (1982).

Further, it is not true, as Theresa suggests, that the trial court adopted all of

Samir's requests for distribution of property. The court rejected Samir's request that the

award reflect his contribution of separate funds toward the purchase of the family home.

And contrary to Samir's request, the court awarded the two retirement accounts in

Samir's name to Theresa.

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Child Support and Maintenance

Theresa argues the trial court did not award sufficient maintenance to allow her

maintain the lifestyle she had before the dissolution. Theresa also contends that for

purposes of determining maintenance and child support, the court erred in calculating

Samir's income by not using the income figure listed on the 2011 tax return. Theresa

also asserts the court erroneously imputed an "amplified" income to her and appears to

argue that the court erred in ordering her to pay child support because by doing so, the

court effectively reduced her maintenance.

The purpose of spousal maintenance is to help support a spouse until he or she

is able to become self-supporting. In re Marriage of Irwin, 64 Wn. App. 38, 55, 822 P.2d

797 (1992); In re Marriage of Luckev, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).

Under RCW 26.09.090(1), the trial court may award maintenance to either spouse in an

amount and for a duration deemed just, considering six nonexclusive factors: (1) the

respective financial resources and ability to independently meet needs; (2) the length of

the marriage; (3) the time necessary for the spouse receiving maintenance to acquire

employment-related education ortraining; (4) the standard ofliving established during

the marriage; (5) the age, health, and financial obligations ofthe spouse receiving

maintenance; and (6) the ability ofthe spouse paying maintenance to support himself or

herself as well as the spouse receiving maintenance. We review a spousal

maintenance award for abuse of discretion. In re Marriage of Washburn, 101 Wn.2d

168, 179, 677P.2d 152(1984).

The court's calculation of Samir's income is supported by the testimony and

evidence at trial, including documentation of the business revenue and expenses.

19
Nos. 69920-2-1 and 70420-6-1/20

Although Theresa claims the court should have calculated the monthly income based on

the annual income figure listed on the 2011 joint tax return, the evidence shows this

figure includes sizable gambling winnings that were later treated as a deduction and

also includes money transferred by the business to Samir to pay the mortgage on the

real property where the restaurant is located. The record supports the income figures

used by the court for both parties, and the court did not abuse its discretion in

determining the amount of maintenance.

With respect to child support, parents have a legal obligation to support their

children. RCW 26.19.001; Childers v. Childers, 89 Wn.2d 592, 599, 575 P.2d 201

(1978). The child support obligation "should be equitably apportioned between the

parents." RCW 26.19.001.

While, in appropriate circumstances, a trial court may grant a deviation from the

standard child support calculation under RCW 26.19.075, a deviation is an "exception to

the rule and should be used onlywhen it would be inequitable to do otherwise." In re

Marriage of Oakes, 71 Wn. App. 646, 652 n.4, 861 P.2d 1065 (1993). A decision

regarding a deviation is within a trial court's sound discretion and "will seldom" be

disturbed on appeal. In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519

(1990). Here, the trial court exercised its discretion to deviate downward, recognizing

that maintenance was Theresa's sole source of income. However, the court was not

required to deviate, much less required to deviate to a zero transfer payment.

Continuance of the Trial

Theresa contends that the court abused its discretion in denying her two motions

to continue the trial. According to Theresa, the court's denial was based on the

20
Nos. 69920-2-1 and 70420-6-1/21

erroneous belief that the GAL report had been filed on time. But Theresa's motions did

not mention the timing of the GAL report, and again, Theresa fails to explain how she

was prejudiced by the delay in filing the report. The court did not abuse its discretion in

determining that it was not in the children's best interests to delay the trial. See Lewis v.

Bell, 45 Wn. App. 192, 196, 724 P.2d 425 (1986) (this court will not disturb a decision

denying a continuance absent manifest abuse of discretion).

Motion for a New Trial

After the trial, Theresa hired another attorney, the fifth attorney to represent her

in these proceedings, and filed a CR 59 motion for a new trial or reconsideration. The

court granted the motion in part, agreeing that maintenance should be subject to

modification, but otherwise denied the motion. On appeal, Theresa reiterates the same

arguments she raised below. But as the trial court ruled, Theresa's claim of

"irregularity" based on her trial counsel's representation is unavailing. CR 59(a)(1);

Nicholson v. Rushen, 767 F.2d 1426 (9th Cir.1985) (plaintiff in a civil case generally has

no right to effective assistance of counsel). In any event, we disagree that her

attorney's performance deprived the trial court of sufficient information to render a

decision. Both parties presented evidence and effectively utilized cross-examination.

The court acted well within its discretion in denying Theresa's motion. See Sommer v.

Dep't of Soc. & Health Servs., 104 Wn. App. 160, 170-71, 15 P.3d 664 (2001)

(appellate court reviews denial of CR 59 motion for abuse of discretion).

We affirm the Amended Decree of Dissolution, Final Parenting Plan, Findings of

Fact and Conclusions of Law, and Order of Child Support.

21
Nos. 69920-2-1 and 70420-6-1/22

Contempt Order

In her linked appeal, No. 70420-6-1, Theresa claims the court erred in holding her

in contempt based on "false claims" and the evidence does not support the trial court's

findings that she had unsupervised contactwith her children and unreasonably refused

to engage in visitation with them. Theresa also challenges the award of attorney fees to

Samir.

In the context of compliance with a parenting plan, contempt is governed by

RCW 26.09.160. Under RCW 26.09.160(2)(b), a court "shallfind" a party in contempt if,

after a hearing, the court enters a written finding "that the parent, in bad faith, has not

complied with the order establishing residential provisions for the child . . .." In re

Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995).

We review a trial court's decision in a contempt proceeding for abuse of

discretion. James. 79 Wn. App. at 440. Acourt's decision is manifestly unreasonable if

it is outside the range of acceptable choices given the facts and the applicable legal

standard and it is based on untenable grounds if the factual findings are unsupported by

the record. In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

When, as here, an appeal is taken from an order denying revision of a court

commissioner's decision, we review the superior court's decision, not the

commissioner's. In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010).

Samir submitted a declaration in support of the motion for contempt. In it, Samir

states that in February 2013 and several weeks laterin March 2013, both children

reported that their mother contacted them at the busstop and talked tothem about the

court case. While Theresa denied the contact at the contempt hearing, the court was

22
Nos. 69920-2-1 and 70420-6-1/23

not required to believe her in light of the conflicting evidence and her attorney's implicit

acknowledgement that she had visited the children but had a legitimate reason to do so.

Theresa also claims the court ignored evidence of her good faith efforts to exercise

supervised visitation and evidence that Samirrejected all her attempts to arrange visits

with them. But to the contrary, the evidence shows that Samir and his attorney made

significant efforts to facilitate Theresa's supervised visitation in accordance with the

parenting plan. Theresa, on the other hand, rejected the visitation supervisors Samir

suggested, objected to proposed locations, refused Samir's offer to share the cost of a

professional supervisor, and even rejected his offer to paythe full costfor the initial

supervised visit.

Theresa provides no authority that supports her argument that Samirwas

required to personally serve herwith the motion for contempt even though the attorney

representing her accepted service. It appears thatTheresa was unhappy when she

learned that her attorney accepted service ofthe motion in exchange for a continuance

ofthe contempt hearing. However, she does not dispute the fact that the attorney was

representing herin this matter or argue thatthe scope of the representation did not

include the authority to accept service.

Theresa argues that the amount awarded to Samirfor attorney fees was

unreasonable because Samir was ordered to pay attorney fees of only $1,000 in a

previous finding of contempt prior to the dissolution. RCW 26.09.160 (2)(b)(ii) provides

that upon finding a parent in contempt, the court "shall" order that parent to pay "all

court costs and reasonable attorneyfees" incurred as a result ofthe noncompliance to

the moving party. No evidence shows that the two different findings ofcontempt

23
Nos. 69920-2-1 and 70420-6-1/24

resulted in the same amount of fees and costs, nor is there any evidence to support her

claim of bias. The superior court did not abuse its discretion in denying Theresa's

motion to revise the commissioner's order of contempt and award of attorney fees.

In sum, we affirm the amended decree of dissolution, final parenting plan,

findings of fact and conclusions of law, and child support order. We also affirm the

order of contempt and the award attorney fees to Samir under RCW26.09.160 in the

linked appeal. Subject to compliance with RAP 18.1, we grant Samir's request for

attorney fees on appeal under RCW 26.09.160 and RCW 7.21.030, See In re Marriage

of Rideout, 150 Wn.2d 337, 359, 77 P.3d 1174 (2003) ("[A] party is entitled to an award

of attorney fees on appeal to the extentthe fees relate to the issue of contempt.").

WE CONCUR:

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