IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of BALBIRPAL GREWAL, Respondent, and HARJINDER GREWAL, 

### Appellant. NO. 68668-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 29, 2013 -O rv> O 

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### Lau, J. —The invited errordoctrine precludes a partywhomaterially contributes 

### to anerrorfrom raising theerroronappeal. In this appeal, HarjinderGrewal contends thetrial court abused itsdiscretion in denying genetic testing of hischild anddismissing 

### his petitionto disestablish paternity becausethechild wasnotactively represented by a guardian adlitem (GAL) as required by statute. Because Harjindermaterially contributed to this alleged error by repeatedlyrefusing tocomplywith a court order 

### requiring himtopaytheGAL'sfees, heinvitedtheerrorand cannotraise iton appeal. BecauseHarjinder's remaining challengetoorders denying his pretrial motionsfor genetic testing lackmerit, we affirm. FACTS 

### Harjinderand Balbirpal Grewal married inApril 2000 and had threechildren 

## during theirmarriage; H.G., N.G., and K.G. On March 11, 2011, Balbirpalfiled apetition68668-2-1/2
for dissolution. Five months later, Harjinderfiled a petition to disestablish his parentage
as to H.G. and a motion for genetic testing. On November 17, 2011, a court commissioner held a hearing on the motion for genetic testing. Harjindertold the commissioner "the children are mine, and she's telling everyone inthe community the children are not mine and that's why Iwanted to prove it." Motion Hearing at 6. The commissionerdenied the motion, ordered the appointment of a GAL to represent H.G., and ordered Harjinderto paythe GAL's fees and the cost ofany genetic testing she recommended. The commissionerfound the motion was brought inbad faith and awarded Balbirpal $2,000 inattorneyfees. On November 20, 2011, Harjinderfiled a second motion for genetic testing. In denying the motion, the commissioner stated: [l]t's exactly the same motion that Iruled on the lasttime. And inthat previous motion, the father asked for genetic testing, and Iappointed the guardian ad litem at the father's expense, and we come here several months later now asking for the same relief, but the father has not complied with my previous order. He is simply asking for the same reliefagain.

.... You're wasting time. You're wasting yourwife's money. You've already been found to have abused the process by Commissioner Ponomarchuk. It's clearthat you're abusing the process now and intentionally costing yourwife attorneys' fees. I'm imposing terms against you infavor ofyourwife
.... and you are not allowed to bring this motion again until you fully comply with my order. Motion Hearing (Dec. 29, 2011) at 6-7 (emphasis added). In March 2012, the parties proceeded to trial on the petitions for dissolution and to disestablish parentage. Although Harjinder had still not complied with the court's orderto pay the GAL's fees, he requested genetic testing for all three children. In 

### unchallenged findings of fact and conclusions of law, the courtdetermined that genetic

-2-68668-2-1/3 testing for N.G. and K.G. was time barred under RCW 26.26.530. The court then considered the genetic testing factors setforth in RCW 26.26.535 and concluded that 

### testing for H.G. should be denied. The court's findings state inpertinent part: The father alleged in his petition thatthe mother had stated he was not the father. He did not question her about this at trial. There was no witness produced regarding such a conversation and he did not even testifyto this at trial himself. Father made an allegation that somehow this was stated within the community. Again, motherwas not asked this question, father did not so testify and no other witness so testified. The court cannot find any facts were offered regarding
. . . father's possible nonpaternity. The Courtconsiders the number ofmotions, the timing ofthe allegations, [and] the last minute raising ofthe paternity.
. . . The courtfinds that the reguestfor genetic testing was a litigation tactic not made in good faith. The Court also considers that the father chose not to use the services ofthe court appointed guardian ad litem despite the fact that he had $60,000 which he had taken from a line of credit. Based upon all ofthat evidence the court finds by clear and convincing evidence that the father is estopped from denying parentage and it would be inequitable to disprove the parent/child relationship, and therefore the motion for genetic testing is denied.
. (Emphasis added.) The courtthen dismissed Harjinder's petition to disestablish parentage. He appeals. DECISION 

### Harjinder contends the court commissioners and the trial courtviolated H.G.'s rights to due process and a GAL under RCW 26.26.535 when they denied genetic testing in the absence of any active representation of H.G. by a GAL. He argues that these errors fatally undermine the trial court's decisions regarding parentage and child support. Balbirpal responds that Harjinder lacks standing to assert H.G.'s statutory and constitutional rights, that any errorwas invited by Harjinder, and that any errorwas harmless. We conclude the commissioners did not err indenying Harjinder's pretrial

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motions without prejudice and any error by the trial court in its denial ofgenetic testing

was invited and harmless. UnderWashington's uniform parentage act, a presumption ofpaternity arises when a child is born during marriage. RCW 26.26.116(1)(a). This presumption may be disproved only by admissible results ofgenetic testing. RCW 26.26.600(1). When, as inthis case, a presumed father moves for genetic testing, the court must appoint a GAL for the child. RCW 26.25.535(3). In ruling on the motion, the court must exercise its 

### discretion in lightof therequirements ofRCW26.26.535.1 In re Parentage ofK.R.P.,



### 1RCW26.26.535 provides in pertinentpart: "(1) In a proceeding to adjudicate parentage under circumstances described in RCW 26.26.530 or in RCW 26.26.540, a court may deny a motion seeking an orderfor genetic testing ofthe mother or father, the child, and the presumed or acknowledged father ifthe court determines that: "(a)(i) The conduct ofthe mother orfather orthe presumed or acknowledged parent estops that party from denying parentage; and "(ii) Itwould be inequitable to disprove the parent-child relationship between the child and the presumed or acknowledged parent.... "(2) Indetermining whetherto deny a motion to seek an orderfor genetic testing under subsection (1)(a) ofthis section, the court shall consider the best interest ofthe child, including the following factors: "(a) The length oftime between the proceeding to adjudicate parentage and the time thatthe presumed or acknowledged parent was placed on notice that he or she might not be the genetic parent; "(b) The length oftime during which the presumed or acknowledged parent has assumed the role of parent ofthe child; "(c) The facts surrounding the presumed or acknowledged parent's discovery of his or her possible nonparentage; "(d) The nature ofthe relationship between the child and the presumed or acknowledged parent; "(e) The age ofthe child; 

### "(f) The harm that may resultto the child ifparentage is successfully disproved; "(g)The nature ofthe relationship between the child and any alleged parent; "(h)The extentto which the passage of time reduces the chances ofestablishing the parentage ofanother person and a child support obligation in favor ofthe child; and
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### 160 Wn. App. 215, 227, 247 P.3d 491 (2011)("whethergenetic testing is permitted in a
case involving a presumed father is subjectto the court's exercise ofdiscretion, as guided by the statutory factors setforth in RCW 26.26.535(2)."). We review the court's decision for abuse ofdiscretion. 

### Here, Harjinder's pretrial motions forgenetic testing were essentially denied without prejudice to renew them once he paid the GAL's fees. These rulings were consistent with H.G.'s right to a GAL under RCW 26.26.535(3). The commissioners did
not abuse their discretion. Harjinder's final requestfor genetic testing violated the pretrial orderbarring further requests for testing until he paid the GAL's fees. After noting that the absence of a GAL was due to Harjinder's noncompliance with that order, the trial court applied the statutory factors in RCW 26.26.535 and denied genetic testing. Harjinder contends the court violated H.G.'s statutory and constitutional rights to be actively represented by a GAL. He concedes he failed to pay the GAL's fees and acknowledges that the rights allegedly violated are H.G.'s. He contends, however, that he has standing to assert violations ofthose rights on appeal because of his status as a presumptive father. But

"(i)Otherfactors that may affectthe equities arising from the disruption ofthe parent-child relationship between the child and the presumed or acknowledged parent or the chance ofother harm to the child. "(3) In a proceeding involving the application ofthis section, a minor or incapacitated child must be represented by a guardian ad litem. "(4) A denial of a motion seeking an orderfor genetic testing under subsection (1)(a) ofthis section must be based on clear and convincing evidence. "(5) Ifthe court denies a motion seeking an orderfor genetic testing under subsection (1)(a) ofthis section, itshall issue an order adjudicating the presumed or 

### acknowledged parentto be the parent ofthe child."
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even assuming Harjinder has such standing, he is barred from raising the alleged errors by the doctrine of invited error and RAP 2.5(a). The invited error doctrine prevents the injustice of a party benefiting from an error that he caused or should have prevented. State v. Recuenco, 154 Wn.2d 156, 163, 110 P.3d 188 (2005). rev'd on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L Ed. 2d 466 (2006); State v. Erickson. 146 Wn. App. 200, 189 P.3d 245 (2008). Indetermining whetherthe doctrine bars review, courts consider whetherthe party asserting error affirmatively assented to it, materially contributed to it,
or benefited from it. State v. Momah. 167 Wn.2d 140, 154, 217 P.3d 321, 328 (2009); State v. Barnett, 104 Wn. App. 191, 200, 16 P.3d 74 (2001) (potential errorwaived ifthe party asserting such error materially contributed thereto); In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) ("This court willdeem an errorwaived ifthe party asserting such error materially contributed thereto."). Inthis case, itcannot be disputed that Harjindercould have prevented the error and materially contributed to it by failing to pay the GAL's fees and requesting genetic testing inviolation ofan order 

### requiring payment ofthe fees before anyfurther requests. He is therefore barred from raising the erroreither on his own or H.G.'s behalf. 

### Citing Inre Support ofC.L.F.. 298 Wis. 2d 333, 344, 727 N.W.2d 334 (2007), Harjinder argues thatthe invited errordoctrine should not be applied because doing so would unfairlypenalize H.G. for Harjinder's conduct. C.L.F. is distinguishable. Inthat case, the GALwithdrew shortly before the court adjudicated a dispute as to which 

### parentwould have primary placement ofthe child during the school year. Although the parties agreed to proceed without the GALand thus invited the error, the appellate court

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declined to apply the invited error doctrine. Noting that the doctrine "is a rule of judicial administration [that] we may, inourdiscretion, decide to disregard," the court concluded that invoking the doctrine would deprive the child and the court ofthe benefit ofthe GAL's input. C.L.F., 298 Wis. 2d at 344. We perceive several significantdifferences between C.L.F. and this case. First, the parties in C.L.F. had nothing to do with the GAL's withdrawal and their decision to proceed without a GAL was based on the imminence ofthe school year and the need to promptly settle their dispute. Neither party acted in bad faith. By contrast, Harjinder repeatedly refused to pay for the GAL despite his undisputed ability to do so, and the commissioners and trial court all found that his motions were brought in bad faith. Harjinder's final motion for genetic testing violated the requirement in an earlier orderthat he pay the GAL's fees before renewing his motion for testing. Second, while there was a bona fide dispute before the court in C.L.F. that plainly called for input from an advocate for the child, that is not the case here. As noted above, the court's unchallenged findings state that there was no evidence at trial undermining Harjinder's presumptive father status. Finally, application ofthe statutory factors overwhelmingly demonstrated that 

### genetic testing was not in H.G.'s best interest. Inthese circumstances, the invitederror doctrine is appropriately invoked. Harjinder also fails to demonstrate a basis for raising violations ofH.G.'s rights for the first time on appeal. Harjinder did not argue below that proceeding without a GAL would violate H.G.'s statutory and constitutional rights. Inorderto raise that issue 

### forthe first time in this court, Harjinder must demonstrate thatthe issue is one of

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manifest constitutional error. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). The alleged violation of H.G.'s statutory rights is not constitutional error and therefore cannot be raised for the first time on appeal. In re Marriage of Akon. 160 Wn. App. 48, 60, 248 P.3d 94 (2011). While the alleged violation ofH.G.'s due process rights is error ofconstitutional magnitude, nothing inthe record supports a conclusion that the error is manifest—i.e., that ithad practical and identifiable consequences inthe trial. State v. O'Hara, 167Wn.2d 91, 99, 217 P.3d 756 (2009). The court found that there was no evidence whatsoever undermining Harjinder's presumptive father status, and the statutoryfactors strongly favored denying genetic testing. The error is therefore not manifest. Cf In re Dependency of O.J., 88 Wn. App. 690, 696, 947 P.2d 252 (1997) (no reversible errorwhere extensive testimony during termination hearing from teachers, therapists, relatives, and caseworkers was so 

### strong that a GAL would have reached the same conclusion as the trial court). Balbirpal requests attorney fees on appeal, arguing that the appeal is frivolous, 

### that Harjinder has been intransigent, and thatfees arejustified under RCW 26.09.140 (authorizing fees based on need and ability to pay). We agree that the appeal is frivolous and award Balbirpal fees on appeal, subjectto her compliance with RAP 18.1.
Affirmed.

WE CONCUR:

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