Attorney at Law
Anderson, Fields, Dermody & McIlwain
Appeals
This blog provides explanations of things anyone who wants to appeal or defend against an appeal should know in any marital dissolution or parenting dispute. It is the result of over forty years of professional experience pursuing and defending against appeals in those kinds of cases. Appeal means filing a case in the State Court of Appeals or State Supreme Court.Temporary Orders Cannot Be Appealed
There is no right to appeal any temporary order. Review of temporary orders decided by Court Commissioners can only be by a motion for revision to be heard by a superior court judge, and only if the motion is filed and served within 10 days of the entry of the Commissioner's order. A judge's order on a motion for revision of a temporary order cannot be appealed. Appeals to the state Court of Appeals must be filed and served on the other party within thirty days of either the date of entry of the superior court judge's final orders, findings of fact and conclusions of law, or the date an order on a motion for reconsideration of any aspect of the judge's final orders, whichever date is later. Any appeal filed later than that thirty day window will not be heard.Why Appeals Are Difficult To Win
Appeals are decided by a panel of three judges. Appeals are difficult to win because of what they do not involve. The Court of Appeals will not review credibility disputes. This is a great source of frustration for a lot of people. The panel might will not review whether the trial judge got it wrong when it believed the other party or witness or found that the appealing party was a liar. Deciding who was lying and who was telling the truth is known as a "credibility determination". Courts of appeals do not make credibility determinations. Credibility determinations are not legal errors. They are NOT appealable. A lot of lawyers who handle an occasional appeal, do not know this. So a lot of people pay lawyers to raise these issues, only to find they are beating their heads against a wall. The Court of Appeals will not hear new testimony from witnesses. It will not accept new evidence unless something happens after the appeal began that will affect an issue being raised on the appeal. The Court of appeals will not reverse a trial judge's decision based upon the fact that if they were the trial judge they would have ruled differently. They do not look at all the evidence and say to themselves, if I were the trial judge I would have ruled differently. This is known as "substituting its judgment for that of the trial court". Courts of Appeal do not do that either. The appealing party has to prove to the satisfaction of at least two of those three judges that the trial judge made a legal error. Legal error means that the trial judge did not consider what the state legislature in its statutes requires judges to consider. The statutes give trial judges a lot of discretion when deciding how to characterize, value and divide property and apportion debt or determine what is in the best interests of children. But it also lists numerous factors that judges are required to consider in exercising that discretion. Consideration of those factors are known as "conclusions of law". If the court of appeals can be persuaded that the trial judge failed to consider any of those required factors, its conclusions of law are not sufficient and an appeal might succeed. The trial court's conclusions of law must be supported by certain findings of fact. Any finding of fact not challenged on appeal is accepted as the truth. Any finding supported by evidence, also stands, even if there is contrary evidence. But a finding that is not supported by any evidence, is legally insufficient. Any finding that does not support any of the conclusions of law is also legally insufficient. Any evidence that supports a finding of fact that was inadmissible, under certain rules of evidence, but was not objected to at trial cannot be raised on appeal. But if there was an objection at trial and the court of appeals rules that it was not admissible, that is also legal error. Finally, legal error might mean that the trial judge required or prohibited something that is contrary to what the federal or state Constitutions allow.Why Appeals Are Very Expensive
The party who appeals must pay for the superior court clerk to copy all trial exhibits that were admitted. That party must also direct the clerk, on a form called "designation of clerk's papers" to copy any other pleadings such as trial briefs, temporary orders, pretrial motion materials, pleadings pertaining to any post-trial motions for reconsideration, the findings of fact and conclusions of law, and all final orders. To be sent over to the court of appeals. The clerk of the court of appeals then assigns numbers to every page of those pleadings. Those numbers are known as clerk's papers numbers. The party who appeals must also pay a court reporter to transcribe everything that occurred at trial, all argument, all testimony, and any oral decision that the trial judge might have rendered. Depending upon how many days of trial the trial transcript might run from several hundred to several thousand pages. A three or four day trial could cost $5,000 or more to transcribe. Once all that is completed, the party appealing must file a brief. The brief usually isn't so brief. It can run 50 pages depending upon the number of errors of the trial judge that it must identify. To file a brief of more than 50 pages special permission must be obtained from the court of appeals. The brief must identify all legal errors, a summary of the main facts, and a section that argues the facts and the law (statutes; cases; constitutional provisions if constitutional arguments are involved) and the facts. The facts are limited to the evidence that was submitted. Every reference to a "fact" must also contain a reference to the page of a pleading, the pages of the trial transcript, the trial exhibit that contains the particular fact. If one of the errors is an argument that a ruling on whether particular testimony, or a trial exhibit should have been admitted, or should have not been admitted or allowed, the page of the trial transcript that corroborates that the objection was made at trial must be referenced. All page references are by clerk's paper number. To know what errors to raise in the brief, especially if any findings of fact are challenged for no evidence to support them, your lawyer must read all of that information. Every bit of it, and more than once to fully understand what was submitted as evidence, to index what issue is covered where, etc. Your lawyer must then cite the provisions of the statutes and if case law, the language and analysis of case law to justify any errors alleged in the brief. Once an initial draft of the brief is completed, it must be carefully read and revised, to achieve page limits, perhaps reorganize even the order of the errors, by the strongest and weakest. Effective brief writing is to the point, well organized and easy to understand, even the most complex of issues. Then, once the court sets up a hearing for oral argument, the brief must be reread, and the pages and pages of evidence. Since the time for argument is limited to 10 minutes a side, each side must think through what issues will be addressed in oral argument, and what questions any one of the panel of judges might raise and how to answer those questions. Thus, it is an extremely time consuming process which means it is extremely expensive. Usually more expensive for the party appealing than the party defending the trial judge's decisions. This is because the appealing party files two briefs. The opening brief, and then the time to read the other party's brief that can be up to 50 pages, check to see if its representations of the evidence are supported in the record, and the time to develop a brief not to exceed 25 pages that replies to the other party's brief. The party defending the trial court's decision on gets to file one brief.When to Expect a Final Decision
Appeals can take as long as two years before the Court of Appeals issues its ruling. So if it is necessary to obtain a ruling within a few months, going through the expense, even of a valid appeal may not be worth it. If the party appealing can demonstrate obvious error, or probable error that will affect the status quo, a motion for discretionary review can be filed from the beginning. If the motion is granted, time deadlines for briefing and eventually oral argument will be accelerated. If the motion is denied the motion will be treated as a notice of appeal in the normal course.Written by H. Michael Finesilver (f/k/a Fields)
Attorney at Law
Anderson, Fields, Dermody & McIlwain
]]>What do you need to show in order to change a parenting plan?
RCW 26.09.260 is Washington's statutory guide to modifying parenting plans or custody decrees. The statute does not encourage modification of parenting plans. Under the statute, a major hurdle to overcome is a showing of "substantial change in circumstances." The existing parenting plan stays in place unless one can demonstrate a substantial change based on facts that have arisen since the time of the prior decree, final parenting plan or custody order. These facts must be new events - a new set of circumstances - so as to justify the modification.
In very limited situations, however, you do not need to show a substantial change in circumstances. Specifically, if the parties agree to the changes to the parenting plan, or if a child has been integrated into the home of a noncustodial parent (in contradiction to the parenting plan), then a party can modify a parenting plan without having to jump over that initial hurdle. In addition, if the child's current living situation is so harmful (that it would be better to change it), or if a parent has been held in contempt of a parenting plan/custody order (2 times in the last 3 years), or if a parent has been convicted of custodial interference - no showing of a substantial change in circumstances is needed.
What kind of changes are to be made to the plan?
If a major modification of the plan is being sought, the court looks at the changed circumstances of the either the child or the parent who is not seeking to modify the parenting plan. This makes it more difficult to justify significant changes to a parenting plan. A change in custodial parent would be considered a major modification.
If a minor modification or adjustment to the residential time is sought, then the court will look at the circumstances of either the child, or the mother or father, and whether it has changed substantially since the entry of the last. The court can make a minor adjustment of the parenting plan based upon a change in the residence of a parent (whom the child spends less time with), or upon an involuntary change in a parent's work schedule (which makes it very difficult to follow the existing parenting plan).
This may sound a less scrutinizing, but in a minor modification, the court can only adjust the residential schedule in the plan by no more than 24 full days. If a court provides for an adjustment that is more than 24 full days, the change in residential schedule cannot exceed 90 overnights per year - and this is only if a parent (whom the child spends less than a majority of residential time) does not have "reasonable time" with the child under the existing residential arrangement, and the increased overnights are in the best interest of the child.
What else must be considered?
As with all matters involving the development of a parenting plan, the best interest of the child must be considered. RCW 26.09.002, RCW 26.09.187. The modification must be shown as necessary to serve that interest. RCW 26.09.260(1).
How does a commissioner or judge hear a modification action?
The court must first signal that a modification action can proceed to trial. A commissioner must find that there is "adequate cause" to modify. This happens at a preliminary, adequate cause hearing. At that hearing, the court considers whether the facts supporting the substantial change in circumstances were not anticipated at the time the final orders were entered. The facts must not be mere allegations. If adequate cause is shown, then the matter can proceed to trial and before a judge. Before the trial, the party seeking a modification can ask that a court adopt a temporary parenting plan.
Authored by Catherine G. Victorino, Attorney at Law
]]>What can be done if maintenance is not paid? Maintenance, like child support, is an obligation imposed by court order. As with any order that is intentionally ignored, or any obligation/debt that isn't paid -- there are things you can do.
File a Motion for an Order on Contempt. When an obligor spouse fails to follow a support order requiring the payment of maintenance, the other spouse may enforce that order in a contempt hearing. This is a very powerful mechanism to force an obligor spouse to comply. It must be shown that the obligor spouse disobeyed the order of support, or is "in contempt" of the order. If found in contempt, the court may require the obligor spouse to pay current and back support owed, enter a judgement for any unpaid amounts, and require the obligor spouse to pay the other spouse's attorney fees and costs in bringing the action. A court may also order the jail time. See, RCW 7.21.030.
State Enforcement Services. The Department of Child Support (DCS) provides collection and enforcement services for child support and maintenance obligations. See, WAC 388-14A-1030. DCS may enforce a maintenance obligation, and collect on back-due payments, as long as DCS is also providing collection services on a current child support order at the same time. The order regarding maintenance must require that the payments be made to the Washington State Support Registry.
Liens, Garnishment and Other Remedies. A myriad of remedies (in common law, by statute and by equity) can be used to enforce a maintenance order. You may need the help of a collections attorney to pursue these remedies. Procedures must be strictly followed. Typical remedies sought include liens and the garnishment of earnings to pay maintenance owed. When a judgment in the amount of back-due maintenance is entered against the obligor spouse, a lien may be created to secure that amount. The lien must cite specific property upon which to attach. A judgment for unpaid maintenance should be entered before earnings may be garnished, as well.
Insure the Maintenance Obligation. Maintenance may be secured by a life insurance policy on the life of the obligor spouse. This is particularly appropriate if the premature death of the obligor spouse would leave the other spouse and their children in dire financial straits, or because a substantial back-due amount may likely be left behind. An obligor spouse may be required to obtain a new policy, or maintain an existing one on his/her own life. Typically, the other spouse would be named as beneficiary.
Consult with our experienced attorneys to find out how to enforce your order for spousal maintenance.
Authored by Catherine G. Victorino
]]>Maintenance is awarded without regard to fault or marital misconduct of a spouse. A spouse's obligation to pay maintenance ends at the death or remarriage of the spouse receiving maintenance. Its duration and amount is based upon fairness and equity factors. The courts disfavor a permanent award of maintenance
Maintenance is not an entitlement; it is in the discretion of the court to award it or not. The court considers what is fair and just when deciding to award spousal maintenance and it looks to the statute, RCW 26.09.090, for guidance. The court must examine the circumstances of the spouse seeking maintenance and basically ask "is there need? Is the spouse dependent?"
Specifically, under the statute, asks:
1. What are the financial resources of the party seeking maintenance and the ability to meet their needs?
2. What kind of time is needed to acquire training and education to enable the spouse to find work?
3. How old is the spouse? Is he/she young and beginning a career? A family? Or Close to retirement or to drawing social security?
4. What is the spouse's physical and emotional condition?
5. What are their financial obligations?
The court looks at the payer's circumstances and asks can he/she pay? How will the spouse meet his/her financial obligations while meeting those of the spouse seeking maintenance?
Furthermore, under RCW 26.09.090, the court also considers the length of the marriage, and the standard of living of the parties established during the marriage.
At minimum, maintenance payments would meet the financial gap between the income (if he/she has any) of the spouse seeking maintenance, and the spouse's monthly household, medical and personal expenses. Maintenance maintains the lifestyle of the family as much as possible, particularly when the parties first begin to live apart and separately.
Maintenance, however, is also a flexible tool. It is used not simply to meet the bare, minimum expenses of a requesting spouse. It may also be utilized to equalize the parties' standard of living, allocate or divide property, help a spouse get an education, or compensate a spouse for waste of community assets.
Consult with our experienced attorney to determine whether, in what amount and for how long, maintenance should be paid. The answers to these questions depend upon your unique facts and circumstances.
Authored by Catherine G. Victorino
]]>In 2014, the divorce rate was 3.6 for every 1,000 residents in Washington, according to the Centers for Disease Control and Prevention. After making the difficult decision to split, many people obtain legal counsel to assist them. The legal representatives whom they choose may affect the outcomes of their cases, and thus, their futures. Therefore, those who are getting divorced should consider several factors when making their choice to make sure they hire the lawyer best suited for their families and needs.
The costs
When it comes to the expense of legal representation, there is no set or standard fee schedule. Consequently, the costs may vary greatly from one divorce lawyer to another. It is common for people's funds to be tied up in their dissolution proceedings or settlement negotiations, which may affect their budgets. Thus, it is important for people to ask about the fees when getting referrals and researching potential attorneys.
Credentials and qualifications
Just as they would if they were hiring someone to work for them in a professional setting, people should look into the qualifications of the divorce lawyers they are considering. This includes checking their education information, certifications, areas of focus or specialty, and professional affiliations. Certain credentials or experience may set one lawyer apart from the others as a better fit.
For example, custody is a significantly contested issue in a couple's divorce. The divorcing spouses may seek legal representatives who primarily handle child custody matters over ones who focus on domestic violence or hidden assets.
Comfort level
The issues people must delve into when getting divorced are often of a highly personal nature. Since alternative dispute resolution is mandatory for contested divorces, except under certain circumstances, people may have to openly discuss sensitive issues. Therefore, it is essential that their personalities mesh with their legal representatives.
Those who are divorcing may consider interviewing potential attorneys before making their selection. During such consultations, people may ask questions about their own situations, as well as the lawyers' backgrounds and styles. Additionally, they may watch how the attorneys interact with others, including their staff. This may help people determine whether they feel comfortable with the lawyers who they hire to represent them.
Looking to the future
Making the decision to split may be difficult enough for married couples in Washington and elsewhere. It may be even more challenging, however, to navigate the legal process and agree on terms with their partners after their relationships have broken down. As such, it may benefit those who are getting divorced to work with an attorney. A lawyer may look out for their interests and negotiate on their behalf, which may help alleviate some of their stresses.
]]>When getting divorced, it is not uncommon for Washington spouses to feel a strong emotional tug to keep their marital homes. This may be especially the case for parents who want to maintain some consistency for their children. If this is something desired, however, people should still evaluate their options from a financial perspective in order to avoid being tied to their former spouses through a mortgage.
Homes and mortgages are separate things
When choosing to keep a home, couples may make an agreement for one person to stay in the home and the other one to leave. Part of this agreement may include that the person who will live in the home will be financially responsible for paying the mortgage. This may seem all well and good but if a mortgage remains in both spouses' names, this agreement may not hold a lot of water.
Time explains that even when a quitclaim deed is used to transfer home ownership to one person, a joint mortgage is still a joint debt. That means if the person who stays in the home fails to make mortgage payments, the other person may be held responsible for the payments. In addition, the other spouse's credit could be negatively impacted by the failure to stay on top of mortgage payments by their former spouse.
A home sale is often the cleanest option
Bankrate suggests that one of the biggest reasons so many couples sell their family homes when they get divorced may well be the ability this provides them to avoid being financially connected to an ex once a divorce agreement is signed. In addition to the financial break, selling a house may also give people a cleaner emotional start.
Refinancing or obtaining a new home loan
For spouses who are really adamant about not leaving their homes but who do not want to keep an existing joint mortgage, they may investigate refinancing to obtain a new home loan in their name alone. This will require that they have sufficient income that can qualify them for a solo loan which may be tricky knowing that they will likely have a reduced income after their divorce.
Getting help from an attorney
Washington residents should talk to an attorney to fully understand the financial implications of handling their homes and other assets during a divorce. Every decision in a divorce may have unforeseen consequences and getting the input of a professional may give people the insight into these in order to avoid unwanted outcomes.
]]>Credit Card Insider observes that divorce is sometimes messy not just because of the emotional aspect but because of the fact that a divorce has the potential to "wreak havoc on both parties' finances." Nevertheless, "divvying up the financial liabilities" of an ending marriage is part and parcel of the property division process. Debt division can be as contentious-if not more so-than a division of a Washington couple's community property assets. This should not be surprising since divorcing couples ready for a fresh start are not especially eager to shoulder any more of the marital debt than they need to.
One type of debt that couples sometimes fight over during the course of a divorce is credit card debt. According to Nerdwallet.com, credit card debt is the third largest source of household indebtedness trailing only mortgage debt and student loan debt. The average U.S. household credit card debt stands at $15,480. NPR reports that more than one-third of those with credit card debt have been reported to collection agencies due to defaulting on their payment schedules.
In Washington State, all liabilities, just like assets, must be divided when dissolving a marriage. If the parties cannot agree between themselves about how to divide the marital debts, a court will make the decision for them. As with assets, liabilities will be divided by the courts in a manner that is just and equitable under the circumstances. As illustrated by a 2014 Washington appellate court case, a spouse's mismanagement of credit card debt during the marriage could lead a court to allocate a higher debt load to that spouse upon a divorce.
The Awwad case
In In re Marriage of Awwad, a wife had-with her husband's permission-charged $15,000 on the couple's joint credit card in 2010 for a ring. The ring was a gift for the wife's mother in honor of her 50th wedding anniversary. By late 2012, the husband had paid $10,568.24 on the credit card debt leaving $9,573.19 still owing. According to the trial court, the husband had made the decision to pay off the debt in small monthly installments even though he had the financial means to simply pay the debt in full. As a result of the small monthly payments, $5,000 of the credit card debt was now unnecessary accrued interest. The trial court concluded that the husband should, under the circumstances, be responsible for the remaining credit card debt incurred from the purchase of the ring.
On appeal, the Court of Appeals of Washington observed that a husband and wife owe each other the duty not to waste and mismanage co-owned assets. Upon a divorce, said the court, conduct which has squandered marital assets can be taken into account in allocating assets and liabilities. If wasteful conduct occurs, a higher debt load can be allocated to the "wasteful marital partner." Finding that the husband had negatively impacted the household finances by unnecessarily incurring $5,000 in interest charges, the appellate court concluded that it was fair that the husband be allocated the remaining credit card debt attributable to the ring purchase.
Seeking advice
The division of property and debt upon divorce is often complicated. If you are contemplating a divorce, you should contact a Washington state attorney experienced in family law matters as soon as possible. The attorney can provide you with the clear legal guidance you need in order to make informed decisions about how to strategically approach the divorce.
Keywords: credit card debt, property division, divorce
]]>Going through a divorce can be an overwhelming and complicated process. According to the Washington State Department of Health, there were 24,847 divorces or annulments in the state year 2014. In many of those cases, parents had to break the news of the end of the marriage to their children.
Having that conversation can be difficult, but parents can help children cope with the news by following a few key tips. Here are five factors to take into consideration when talking to children about the end of a marriage:
1. Take it seriously.
According to Psychology Today, a study indicates that children will hang onto the memory of hearing the news of the end of the marriage for a significant period of time. It can remain fresh, and the child can even recall the pain associated with the news. Therefore, it is imperative that parents carefully consider how and where they will have the conversation.
2. Discuss it as a family.
Experts recommend talking to children as a family unit with both parents present if it is possible and safe to do so. This enables children to see their parents together and can reinforce the idea that even though the family dynamic may be changing, the parents' commitment to the children remains strong.
3. Be open but selective.
It is probable that a child will have questions regarding how the divorce came to be. Parents are encouraged to remain open with children, answering questions honestly. However, divulging too much information can be harmful, especially if it involves one party's unfaithfulness. Therefore, parents should keep answers simple. Dismissing a child's questions could lead to further feelings of insecurity and uncertainty.
4. Keep a short time table.
Long divorces can take a toll on everyone involved, especially children. A child may feel uprooted if his or her routine and living circumstances have changed temporarily due to a battle over child custody. It is ideal to tell children about the split and ensure that the divorce proceedings move quickly from there.
5. Do not use children as confidants.
Parents who have older children may feel inclined to discuss details of the divorce. However, this can appear as though one parent is trying to pit a child against the other parent, placing further stress on the child. Parents should refrain from talking poorly about the other with the children and instead focus on ensuring the kids are coping well with the divorce.
If a parent feels that a child may not be adjusting well, he or she can turn to a family doctor or therapist for help. A child who is acting out at school, has a sudden personality change or appears withdrawn may be crying for help. People who have concerns about this issue should consult with a family law attorney in Washington.
]]>Washington is a community property state, which essentially declares any property that a couple acquires during the marriage will be subject to division. As the Washington Courts note, community property law can be complicated and require professional assistance to navigate.
One potentially problematic issue can arise during the financial disclosure portion of the proceeding. Some people may try to hide assets in order to prevent the other spouse from getting part of them. Here are four ways to tell if that is happening:
There are several ways that financial statements can leave clues that assets have been misrepresented. First, if these documents used to arrive by mail or email but have suddenly stopped, it could be because the spouse does not want anyone to see certain activity.
Secondly, as Forbes magazine reports, someone may try to underreport income or assets on documents such as a tax return. Professionals nearly always use tax documents to review a couple's property. If the income has not been correctly reported, it may be left out of the equation during the divorce proceedings.
Financial Advisor magazine points out that some spouses may try to leave money on the table until after the divorce is final. For example, a spouse who is eligible for a bonus could wait to collect it, or an employee can defer salary.
Expenses may suddenly pop up, such as owing debt to friends or family members. This could be used as a guise to simply stash money until after the divorce is over. The Association of Divorce Financial Planners also states that a spouse might try to overpay creditors or pay down debts to hide funds. Lastly, it is possible that a spouse will simply start spending a lot of money, taking trips and buying expensive gifts as a way to keep funds from getting divided.
Stashing cash into a lock box or safety deposit box would be one way to hide money. In other situations, someone will actually create a new bank account and transfer funds into it. For example, a parent could open a new account using a child's Social Security number. This would give him or her access to the funds while attempting to conceal the true owner of the money.
The ADFP strongly urges anyone going through a divorce in Washington or elsewhere to ensure that the financial statements that are provided are accurate. Failing to do so could mean missing out on much-needed cash and property. Anyone who has questions about matters like this should consult with an attorney.
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