FILED

COURT OF APPIALS

2013 JUL (,6 : 45

IN THE COURT OF APPEALS OF THE STATE OF W.

DIVISION II

In the Matter ofthe Marriage of:

SCOTT E. CRUMP,

Appellant,

and

MARIA R. CRUMP,

BY

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UNPUBLISHED OPINION

SHING

21M

WoRSWICK, C.J. — Scott Crump appeals a parenting plan accompanying an order

dissolving his marriage to Maria Crump.' Scott argues that the trial court erred by (1) imposing

mandatory parenting plan restrictions on him, (2) failing to impose mandatory parenting plan

restrictions on Maria, and (3) determining it would not be healthy for Scott to raise their child.

We reverse in part and remand because the trial court erroneously imposed mandatory parenting

plan restrictions on Scott, but otherwise we affirm.

FACTS

Scott and Maria married in 2004. When they divorced in 2011, Scott and Maria had a 6-

year -old son, RC.

During the marriage, Scott tracked Maria's activities and attempted to exert control so

that she did not have an independent life outside his presence. Almost every weekday, Scott

Because Scott Crump and Maria Crump share the same last name, we refer to them by their

first names for clarity. We intend no disrespect.
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went to Maria's workplace to take her to lunch so that he could know how she spent her free

time away from him. Scott also obsessively called Maria'sworkplace. Four months into her

job, Maria's employer banned Scott from the premises.

Maria had an anger management problem and at times acted with physical aggression

toward Scott. In one incident, Maria engaged in "a display ofrage" because Scott refused to

give her RC's passport; she then grabbed Scott's shirt and used a meat tenderizer to destroy a

camera. Clerk's Papers (CP) at 54.

After this incident, Scott obtained a temporary domestic violence protection order against

Maria. Scott also petitioned for dissolution.

During a four -day bench trial, Scott testified that Maria committed various acts that he

characterized as domestic violence. Maria denied committing these acts, except that she

admitted to grabbing Scott'sshirt and destroying the camera with a meat tenderizer.

In its written ruling, the trial court found that Scott "displays characteristics of a

perpetrator who is in need of domestic violence treatment." CP at 54. On the basis ofthat

finding, the trial court ruled that RCW 26. 191(09. 2) required Scott'sresidential time with

2

The order was based on a finding of probable cause to believe that Maria had been "charged

with, arrested for, or convicted of a domestic violence offense." Ex. 6; see RCW 10. 040(99. 3).

2
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RC to be restricted. The trial court also ordered Scott to complete a domestic violence and

anger management program and determined that it would not be healthy for Scott to raise RC.

The trial court ruled that Maria's "violent actions were not acts of domestic violence that

involved coercion and control but were [instead] unreasonable acts of anger." CP at 5.6 -57.

Accordingly, the parenting plan required Maria to participate in counseling and complete an

anger management treatment program, but the parenting plan did not impose mandatory

restrictions on Maria or limit her residential time with RC.

The parenting plan ordered RC to reside with Maria for the majority of time during the

school year and with Scott for the majority ofthe time during breaks from school. Scott appeals.

ANALYSIS

Scott claims the trial court erred by (1) imposing mandatory parenting plan restrictions on

Scott, (2) failing to impose mandatory parenting plan restrictions on Maria, and (3) determining

that it would not be healthy for Scott to raise RC. We agree with Scott'sfirst claim but disagree

with the others.

3

The trial court'sconclusion of law 6 refers to "RCW 26. 190(09. 1)." CP at 57. This reference

appears to be a typographical error.

4 It is not clear to us precisely how the parenting plan restricts Scott'sresidential time with RC.

The section on restrictions states in its entirety:

Scott]'s residential time with [ RC] shall be limited because [ mandatory

restrictions are warranted]. The following - restrictions shall apply when [RC]

spend(s) time with this parent:

Scott] must continue active participation in a domestic violence /anger

management program until successful completion.

Maria] shall continue in counseling as well as anger management treatment and

do both until successful completion.

CP at 61 -62.

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A trial court has broad discretion when crafting a parenting plan, and we review its

decision for an abuse of discretion. In re Marriage ofCaven, 136 Wn.2d 800, 806, 966 P.2d

1247 (1998). 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). This standard is also violated when a trial court bases its decision on

an erroneous view of the law. Mayer, 156 Wn.2d at 684.

When the trial court has weighed the evidence, we review the trial court'. s challenged

findings of fact for substantial evidence. In re Marriage ofRockwell, 141 Wn. App. 235, 242,

170 P.3d 572 (2007). Substantial evidence is a sufficient quantity of evidence to persuade a fair -

minded, rational person that the finding is true. Rockwell, 141 Wn. App. at 242. We defer to the

fact finder on witness credibility and the persuasiveness of the evidence. In re Marriage of

Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011). Unchallenged findings of fact are verities on

appeal. Akon, 160 Wn. App. at 57.

When substantial evidence supports the findings of fact, we then determine whether the

findings of fact support the trial court's conclusions of law. Rockwell, 141 Wn: App. at 242. We

review conclusions of law de novo. In re Marriage ofHerridge, 169 Wn. App. 290, 297, 279

P.3d 956 (2012).

A. Mandatory Restrictions on Scott

Scott first claims that the trial court erred as a matter of law by imposing mandatory

parenting plan restrictions on Scott. We agree.

5

Citing Caven, 136 Wn.2d at 806, Scott argues that the interpretation of RCW 26. 19109.and

RCW 26. 01050.is a question of law reviewed de novo. But Scott has not challenged the trial

court'sinterpretation of those statutes.

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RCW 26. 19109.lists several circumstances under which the trial court must impose

mandatory parenting plan restrictions. RCW 26. 191( a)(09. 2)( iii requires a trial court to limit a

parent'sresidential time if it finds, inter alia, that the parent has "a history of acts of domestic

violence as defined in RCW 26. 010(50. 1)." RCW 26. 010(50. 1)' defines domestic violence as the

following conduct committed against a family or household member: (a) a physical assault, (b) a

sexual assault, or (c) stalking as defined in RCW 9A. 110. 46

Here, the trial court imposed a mandatory restriction on Scott'sresidential time but failed

to find that Scott had a history of acts of domestic violence. Instead, the trial .court based the

mandatory restriction on its finding that Scott "displays characteristics of a domestic violence

perpetrator." CP at 57. Although that finding may imply that Scott is at risk of committing acts

of domestic violence in the future, that finding does not support a conclusion that Scott has a

history of domestic violence.

Arguing to the contrary, Maria contends that the record contains substantial evidence to

support a finding that Scott has a history of domestic violence. But the trial court made no such

finding. This court'sreview is limited to determining whether substantial evidence supports the

trial court'sfindings of fact and, if so, whether those findings support the trial court'slegal

conclusions. Rockwell, 141 Wn. App. at 242. Therefore Maria'scontention fails.

B. Mandatory Restrictions on Maria

Next, Scott claims that the trial court erred by failing to impose mandatory parenting plan

restrictions on Maria. Scott challenges both (1) the trial court'slegal conclusion that Maria did

not have a history of acts of domestic violence, given the trial court'sfindings of fact, and (2) the

trial court'sfactual findings, given the evidence in the record. We find no error.
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1. Supportfor Conclusions ofLaw

Scott contends that the trial court'sfindings of fact established, as a matter of law, that

Maria had a history of acts of domestic violence as defined in RCW 26. 010(50. 1). We disagree.

RCW 26. 010(50. 1) defines domestic violence to include "[p]hysical harm, bodily injury,

assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between

family or household members." RCW 26. 010( a). 50. 1)(Here, the trial court found:

10. [Maria] was physically aggressive toward [Scott] and engaged in incidents of

unruly behavior and threw objects when she became angry with [Scott], actually

breaking property.

11. At the time of separation in 2009, [Maria] engaged in acts of uncontrolled

anger and a display of rage that resulted in a domestic violence protection order

being issued.

CP at 54.

Together, these findings establish that Maria committed a single act of domestic violence.

Specifically, finding of fact 11 establishes that Maria assaulted Scott at the time of their

separation in 2009, when Maria admittedly grabbed Scott'sshirt. In contrast, finding,offact 10

does not mention any other act involving physical harm, bodily injury, assault, or the infliction of

imminent physical harm, bodily injury, or assault. Therefore finding of fact 10 does not establish

that Maria committed an act of domestic violence as defined in RCW 26. 010(50. 1).

Arguing to the contrary, Scott asserts that Maria'sconduct—physical aggression, unruly

behavior, throwing objects, and breaking property —could "support a conclusion that [Scott] was

placed in reasonable fear of imminent physical harm." Br. of Appellant at 26. But the trial court

did not make a finding that Scott had a reasonable fear of imminent physical harm. We presume

from the absence of such a finding that Scott failed to carry his burden of proof on this issue.

on
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Smith v. King, 106 Wn.2d 443, 451, 722 P.2d 796 (1986). Accordingly, the trial court'sfindings

do not establish that Maria committed additional acts of domestic violence as defined in RCW

26. 010(50. 1).

Standing alone, Maria's act of grabbing Scott's shirt does not amount to "a history ofacts

of domestic violence." RCW 26. 191( a)(09. 2)( iii ( emphasis added); see In re Marriage of

C.., M87 Wn. App. 84, 88, 940 P.2d 669 (1997) (examining legislative history and stating that

the term `history of domestic violence' was intended to exclude `isolated, de minimus incidents

which could technically be defined as domestic violence "'). Therefore, on the facts found by the

trial court, RCW 26. 191(09. 2) does not require the imposition of mandatory parenting plan

restrictions against Maria. Scott's argument fails.

2. Findings ofFact

In the alternative, Scott argues that insufficient evidence supports the trial court's

findings of fact because the trial court failed to find facts showing that Maria has a history of

domestic violence. Scott appears to be arguing that insufficient evidence supports the findings of

fact as a whole because the trial court did not make the finding he promoted. This argument

lacks merit.

We do not retry the facts on appeal, weigh conflicting evidence, or judge the credibility

of witnesses. In re Marriage ofRich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996); In re

6

Scott further argues that, in declining to rule that Maria had a history of acts of domestic

violence, the trial court drew an untenable distinction between "unreasonable acts of anger" and

acts of domestic violence that involved coercion and control." CP at 56 -57. Because we review

the trial court's conclusions of law de novo and are not bound by the trial court'sreasoning, we

do not address this argument. See Texaco Ref. & Mktg., Inc. v. Dep'tofRevenue, 131 Wn. App.

385, 400, 127 P.3d 771 (2006).

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Marriage ofThomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991). Instead, we accept the trial

court'sfactual findings when substantial evidence supports them. Thomas, 63 Wn. App. at 660.

Citing his own testimony, Scott asserts that "[t]he trial evidence regarding Maria's

conduct established a history of acts of domestic violence." Br. of Appellant at 27 -28. But, with

the exception of grabbing Scott's shirt and destroying the camera, Maria denied committing the

acts that Scott alleged. Maria'stestimony is substantial evidence that the events Scott described

did not occur.

Substantial evidence supports each ofthe trial .court'sfindings of fact. The trial court had

the discretion to disbelieve Scott and was under no obligation to find that Maria had a history of

domestic violence. Therefore, Scott's argument fails.

C. Whether Living with Scott Would Be Healthyfor RC

Scott next argues that the trial court erred when it determined that living with Scott would

be unhealthy for RC, for two reasons: (1) the trial court failed to make a factual finding that it is

unhealthy for a child to be raised by a domestic violence perpetrator and (2) substantial evidence

in this record would not support such a factual finding. We disagree:

In conclusion of law 7, the trial court determined:

Because [Scott] displays characteristics of a domestic violence perpetrator, [RC]

should live primarily with [Maria]. It would not be healthy for [RC] to be raised

by his dad because of the domestic violence traits [Scott] demonstrated with

respect to [Maria] during the parties' relationship.

7 Because Maria did not have a history of acts of domestic violence, we do not address Scott's

argument that the trial court erred by entering a parenting plan that did not impose mandatory

restrictions on Maria.
No. 42996 -9 -II

CP at 57. Scott does not challenge the trial court'sfinding that he displays the characteristics of

a domestic violence perpetrator, and thus it is a verity on appeal. Akon, 160 Wn. App. at 57.

First, Scott argues that the trial court failed to make a factual finding that it is unhealthy

for a child to be raised by a domestic violence perpetrator. We disagree; conclusion of law 7

contains a factual finding that it would not be healthy for RC to live with Scott because Scott

displays characteristics of a domestic violence perpetrator. Regardless ofwhether the trial court

has labeled a statement as. a finding offact or conclusion of law, we review the statement for

what it is. See Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). Accordingly, the

trial court made a factual finding that it is unhealthy for a child to be raised by a domestic

violence perpetrator.

Second, the factual finding is not erroneous. This court reviews a challenged factual

finding for substantial evidence. Rockwell, 141 Wn. App. at 242. Substantial evidence clearly

supports the factual finding embedded in conclusion of law 7. The trial court's unchallenged

finding that Scott displays characteristics of a domestic violence perpetrator is, by itself,

sufficient to persuade a fair - minded, rational person that itwould be unhealthy for Scott to raise -

RC. Rockwell, 141 Wn. App. at 242. Scott's argument fails.

D. Consideration ofRCW 26 09. 3) 187(Factors on Remand

Scott further claims that, because mandatory parenting plan restrictions on Scott were

unwarranted, this case must be remanded for the trial court to reweigh the factors listed in RCW

26. 187( a). 09. 3)(We agree.

RCW 26. 187( a) 09. 3(lists seven factors for the court to consider in crafting a parenting

plan, provided that "the limitations of RCW 26. 19109.are not dispositive of the child's

0
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residential schedule." 

8

On remand the trial court should consider the factors in light ofthis

court'sruling on RCW 26. 191. 09

ATTORNEY FEES

Maria requests attorney fees on appeal under Fed. R. Civ. P. 11 and RCW 26. 140. 09We

deny her request.

A party may recover attorney fees or costs on appeal if applicable law authorizes the

award. RAP 18. a). 1(But the Federal Rules of Civil Procedure are not applicable law in this

court. FED. R. Civ. P. 1; RAP 1.a). 1(

Under RCW 26. 140, 09.we may award attorney fees to the prevailing party in an appeal

from a dissolution order, upon a showing of financial need and the other party's ability to pay.

In re Marriage ofHoseth, 115 Wn. App. 563, 575, 63 P.3d 164 (2003). When a showing of

financial need is required, it must be made in an affidavit filed no later than 10 days before this

a

The RCW 26. 187( a) 09. 3(factors are:

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 for future performance of parenting

functions as defined in RCW 26. 004(09. 3), including whether a parent has taken

greater responsibility for performing parenting functions relating to the daily

needs ofthe child;

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

v) The child'srelationship with siblings and with other significant adults,

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

or other significant activities;

vi) The wishes of the parents and the wishes of a child who is sufficiently

mature to express reasoned and independent preferences as to his or her

residential schedule; and

vii) Each parent's employment schedule ....

Factor (i) shall be given the greatest weight.

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court is scheduled to consider the appeal. RAP 18. c). 1(Because Maria failed to file an affidavit

of need, she is not entitled to fees under RCW 26. 140. 09

We affirm in part, but we reverse the imposition of mandatory parenting plan restrictions

on Scott. We remand for the trial court to reconsider the parenting plan in light of our decision

and the factors listed in RCW 26. 187(09. 3).

A majority ofthe panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

c,

f Worswick, ClJ

We concur: 

McCarthy, J.T.P

11