Bullying on the Bus: Bellevue School Discrimination Case

On August 29, 2016, the Washington State Court of Appeals (Division I) issued a published decision involving claims against the Bellevue School District regarding the bullying and retaliation the school bus. The case itself involves some legal technicalities, specifically around jury instructions. Specifically the question was essentially whether the trial court erred in using the statutory definition in the harassment, bullying, and intimidation statutory statute in a jury instruction and whether that created an improper higher standard for the family to meet in their negligence suit.

Case

Allen & Jennifer Quynn, Appellants v. Bellevue School District, Respondent; Docket No. 73825-9; Opinion Author – Dwyer; joined by Becker and Trickey; Attorney for Appellants – Katherine George; Attorney for Respondents James Baker and Kenneth Masters. 

Basic Facts

Parents sued the Bellevue School District, claiming that the district had been negligent in failing to protect their daughter (while the child is referenced by her name in appeal, to increase her privacy, she will be referred to as “Daughter”) from harassment, intimidation, and bullying that she suffered while riding the school bus during her eighth grade year of middle school. A group of boys where allegedly targeting female students and Daughter reported an especially serious incident. She then became the focus of the boys’ aggression. There was name calling, groping, and having items thrown at her that resulted in welts.

She did not report the harassment, intimidation, and bullying that occurred against her after her report. The claim in the case is that the District knew or should have known that bullying was a likely result from the reporting and the school should have done more to ensure Daughter’s safety.

The Family challenged the decision with regard to a jury instruction regarding the duty of the school district and the definition of harassment, intimidation and bullying. They challenged based on (1) The district owed the child the highest duty of care, one applicable to common carriers, (2) inclusion of the definition of harassment, intimidation, and bullying unfairly limited the reach of their negligence claim, and (3) the instruction improperly articulated the duty and responsibility owed to Daughter by the district.

Appellate Court Opinion

The Court of Appeals agreed that school districts have a special relationship with students that gives rise to a duty of care to prevent a third party from causing physical injury to another.  This case cites McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953), which held that because a child is compelled to attend school and has an involuntary relationship with the school district, the district has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect pupils in its custody from such dangers.”

In this case, the  Court of Appeals disagreed with the family that School Districts are required to provide the highest level of care on school buses. Instead the court held that the standard of care on a school bus, regarding the behavior of children, versus how a bus is driven, is the same as it would be anywhere else at school – reasonable care, “as it supervises the pupils within its custody, the district is required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances…The basic idea is that a school district has the power to control the conduct of its students while they are in school or engaged in school activities and with that power goes the responsibility of reasonable supervision.”

The Court of Appeals distinguished the heightened duty of a common carrier, which they linked to activities related to driving a bus from a lower level of duty, which they believed was more appropriate for behaviors of students on the bus. Basically the heightened duty of car is for driving functions, including making sure you use the stop sign so children can cross safely; reasonable care must be used with regard to the behavior of the children.

The next question involved a jury instruction that used the statutory language of the state harassment, intimidation and bullying law (“HIB Law”). In discussing the use of the statutory language in the instruction regarding negligence, the Court of Appeals noted that the HIB Law does not create a private right of action (meaning the HIB Law doesn’t allow parents to sue, so it’s not appropriate to use that definition when the suit doesn’t arise out of that law). The Court of Appeals found that by imposing the administrative definition of “harassment, intimidation, and bullying” the trial court improperly restricted the scope of the tort claim, which had the impact of requiring enhanced elements of proof in order to prevail.

Translation: the suit was regarding the school’s negligence. Instead of focusing on the question of whether the school was negligent, the jury was instructed to look at the HIB Law definition and determine whether the behavior of the bullying students reached a a level of physical harm, “substantially interfering with a student’s education” or “substantially disrupting the orderly operation of the school.”

The law around negligence not require physical harm. The court stated, “Indeed, to suggest that a bullied student cannot recover for emotional or psychological harm in the absence of actual physical injury runs completely counter to the analysis in McLeod.”

On top of the fact that physical harm is not required, proving that behavior had a “substantial” impact on a student or the school is a much higher burden than proving a school was negligent. The depth of the harm in a tort/negligence action is typically dealt with in determining the amount of damages (if any) and not whether the school was actually negligent.

The Court of Appeals said the error in this case required a new trial. As is all to often the case in cases involving schools, the litigation goes on longer than children are even in school. The incidents in this case occurred around December 2010. Now, in September 2016, the case is being sent down for another trial (that’s if the school district doesn’t appeal this ruling, if this ruling gets appealed and goes to the State Supreme Court and is heard and affirmed by the Washington State Supreme Court, resolution through a litigation process is likely still years off. The child was in the 8th grade when this incident occurred. Hopefully she’s in college now.

 

Washington State Supreme Court Case Re: School Negligence

The Washington State Supreme Court just issued a decision regarding school liability in a case where a 14 year female junior high student was raped by an 18 year male high school student who was also a registered sex offender. Approximately two years before, the male student, in the same school district, sexually assaulted a different junior high student. He was charged with indecent liberties and suspended for the rest of the school year. He was required to register as a level one sex offender and was not allowed contact with people two or more years younger than himself.

It is unclear to me whether the same principal was at the school when the original incident happened, but the principal at the time of second incident was notified by the Pierce County sheriff that the male student was registered sex offender. The record indicates that the principal did not inform the male student’s teachers, coaches, or relevant staff of the male student’s sex offender status. The evidence suggested that the principal did nothing to establish a safety plan and to help the male student avoid students two or more years younger than him.

The male student was allowed to participate in track and ran varsity for the Bethel High School varsity team. The high school and the junior high shared the track field. The male student was described as acting like a coach and mentor to the younger students on both schools’ teams. During practice a mutual friend introduced the targeted student and the aggressor. The very next day he invited her to lunch after school and she skipped track practice with the intention of going to Burger King for lunch, instead the male student took her to his home, under the pretense he had forgotten something, and then he raped the female student.

The female student told a friend and the friend told the school and the girl’s parent. The police were called and the male student was charged with third degree rape and plead guilty to second degree assault.

The trial court dismissed the case on summary judgment and the Supreme Court was addressing the questions: (1) Whether the school district’s responsibility to protect the student ended, and therefore its liability ended, when she left campus? And (2) Whether the alleged negligence, as a matter of law, could be the proximate cause of her injury?

A side note about proximate cause

Since the concept of “proximate cause” is central to the court’s analysis I want to elaborate on the issue for clarity for nonlawyers (the majority also did provided a quality description). This is a legal concept that involves two concepts – cause in fact, and legal cause. Cause in fact means that “but for” the A, B would not have happened. Legal cause is a policy determination about how far the consequences of a defendant’s acts should extend. There can be more than one proximate cause of an injury, and something else by a third party does not necessarily break the causal chain from the original negligence to final injury.

A couple of overly simplistic examples:

Proximate cause does not exist: D is texting and inadvertently lets her foot of the gas and rear ends E at a stop sign. D has a hummer and E has smart car, so there’s some damage, but everyone seems fine. A couple days later, E decides to go to E’s doctor because E has a sore neck that doesn’t seem to be going away. While coming back from the doctor, E is robbed. There is no proximate cause for D for the loss of money E sustained in the robbery because it is not a foreseeable consequence that someone could get robbed on the way back from a medical appointment.

Proximate cause exists: A shoots B and B gets in a car and drive to the hospital, and en route to the hospital gets hit by C and is B delayed in getting to the hospital by 25 minutes. A is still responsible for any injuries related to the gunshot, even if the delay possibly exacerbated the injury, because it is reasonably foreseeable that if you shoot someone, they may have a hard time getting to help. Proximate Cause Stops Existing: B gets fixed at the hospital and two weeks later is at a routine follow-up appointment and slips and falls at the doctor’s office. B breaks their arm in the fall. While on some level it is foreseeable that B would have follow-up care and that some people have accidents, as a policy the slip and fall is disconnected enough from the initial gun shot that as a legal matter we are likely to say that the A is not liable for injury related to slip and fall, even though, but for the initial gun shot, B would likely not have been at the doctor’s office.

Back to the School Discrimination Case

The issues in the school negligence case before the Washington State Supreme Court was about whether or not the fact that the incident occurred in the male students home was enough of another factor as to interrupt the school’s potential liability. In the dissent’s view, the school’s responsibility ended because a school cannot control the behavior of students in their homes. Fortunately that was the dissent and their view, that as a matter of law the school cannot be liable for its negligent acts if the injury occurs of school grounds or not at school activities. Instead the majority held that it was reasonably foreseeable and the school district may be liable for a foreseeable injury that is likely a proximate cause for the injury.

This decision doesn’t mean that a jury will find the school district was negligent. The school district will still have an opportunity to try to demonstrate that it was not essentially their fault that the 14 year old student was raped by an 18 year old student. Although, given that the then Superintendent of Public Instruction (OSPI) said that “the haphazard nature of Bethel’s approach to keeping its students safe from registered sex predators frankly boggles the imagination” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known,'” I don’t think the school district’s chance of success is very high.

This decision does say that a school district’s liability does not end at the schoolhouse doors (to adopt an expression about student rights). I expect that it will be a high threshold for school district liability, but a situation like this, where a school district has two types of knowledge, their own disciplinary history of the aggressor student and the report by the Sheriff’s office of the aggressor student’s sex offender registry status and the requirement not to be around students who were two years younger and that the day after he met this student at track practice he raped her make this a particularly compelling case. Even with the compelling facts, it was a narrow (5:4) decision.

Additional Case Details: 

N.L. v. Bethel Sch. Dist., Docket No. 91775-2, Counsel for Petitioner: Francis Stanley Floyd and John Armen Safarli at Floyd Pflueger & Ringer PS; Counsel for Respondent: Julie Anne Kays and Robert Connelly Jr at Connelly Law Offices.

Amicus briefs were filed by Gerald Moberg for Jerry Morberg & Associates on behalf of the Washington State School Directors Association, Association of Washington School Principals, and Washington Association of School Administrators. 

Amicus brief on Behalf of the Washington State Association for Justice Foundation was filed by Bryan Harnetiaux, Valerie Davis Mcomie, and Daniel Edward Huntingon (the court Supreme Court Information Sheet references a brief, but the brief was not found on Court website with the links to the briefs in the case).

Briefs in the case can be found on the Washington State Courts website under Supreme Court Petitions for Review

Family Law Unpublished Decisions from Division 2 -June 16, 2015

In follow-up to yesterday’s post about Division I unpublished family law cases, here are some updates from Division 2 that came down today.

 

In Re The Marriage Of Carrasco, Docket No. 45767-9; Opinion Author Worswick; Concurring: Johanson and Melnick; Attorney for Apellant/Cross-Respondent Josephine C Townsend; Attorneys for Respondent/Cross-Appellant Carolyn Marie Drew and Patricia S. Novotny

Basics of decision: Husband appealed the trial court’s decision regarding maintenance (a/k/a spousal support/alimony) and division of property. He argued that the trial court failed to impute income to his ex-wife for purposes of calculating spousal maintenacne and child support, the decision to award “supplemental” maintenance; securing payments via life insurance policy, ordering Husband to pay all expenses for his adult daughter’s eating disorder treatment, and using the trial date to calculate Wife’s share of the Husband’s retirement account. The court rejected Husband’s claims, affirmed the trial court’s decision, and granted Wife Attorney’s fees.

Basic Facts: 19 year marriage, married while Husband was in school, by the time of divorce, Husband was employed earning roughly $16,210 in gross monthly income. Shortly after marriage, Wife quit her job to raise the couple’s first of three children. From 1994 to 2012 the couple lived off of Husband’s student loans, grants, stipends, and financial aid. Couple acquired few assets. Owned one home in Vancouver, Washington.

Court provided for spousal maintenance of $5,500 per month for a total of nine years, a five year base, plus an additional four years to allow Wife the time to Wife to seek higher education. Husband ordered to have life insurance in Wife’s name equivalent to amounts owed for maintenance. Property divided as follows: Half of Husband’s retirement account to each spouse as separate property; house to Husband with half of the equity to Tarantino. (Parenting plan and child support also entered, but do not appear to be in dispute, except for the imputation of income issue).

Husband had also stipulated in trial that he was going to pay for their adult daughters treatments connected to her eating disorder and then sought not to pay it.

On interesting point of the appeal is that Husband sought to assign error to findings of fact, but did not argue the findings lacked substantial evidence so they are considered verities on appeal.

Division II rejected the claim that income needs to be imputed for maintenance, noting that the only limitation on the amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just. Husband failed to carry his burden of showing that the trial court abused its discretion by ordering an unjust maintenance award.

Division II rejected the argument that, for child support purposes, Wife should have been found to be voluntarily unemployed and her income should have been imputed to minimum wage. The trial court made findings that Wife had attempted to rejoin the workforce, that she was volunteering to gain experience, and that she was attempting to learn a new skill (medical billing). Division II said this provided tenable grounds for the trial court’s ruling that Wife was not intentionally unemployed. Thus, the trial court did not err by not imputing income to Wife for purposes of calculating child support.

The trial court awarded Wife maintenance for nine years, compensating wife for the unrealized benefits of Husband’s education. Husband argued that there was no proof that Wife supported him through medical school, so she should not be compensated and that maintenance should be limited to the number or years Wife needs to get an education. Division II rejected this argument noting that where there are unrealized education benefits a trial court must consider four factors (1) the amount of community funds expended for educational costs, the income the community would have earned had the student spouse worked rather than gone to school, (3) the nonstudent spouse’s lost educational or career opportunities given up due to the student spouse’s education, and (4) each spouse’s future earnings prospects. The court noted that the law does not require reimbursement for past separate expenditures but to reimburse the supporting spouse for expected future benefits from the educated spouse’s increased earning potential that had not yet come to fruition at dissolution. Division II also reiterated that there is no rigid formula for awarding maintenance.

Division II also rejected the argument that the trial court abused its discretion in requiring Husband to maintain a life insurance policy to cover maintenance payments to Wife. Husband’s arguments were (1) if he died and wife got a lump sum, she could invest it the money and the resulting interest would create a windfall, and (2) wife wouldn’t owe taxes on life insurance policy but she owes taxes on her monthly spousal maintenance payments, creating a windfall due related to the lack of taxation. The court rejected this stating that there is no requirement that a property division be mathematically precise – it must be just and equitable. Husband failed to show the trial court manifestly abused its discretion or created an unjust and inequitable result.

Division II rejected Husband’s argument that he intended a cap of approximately $20,000 on his daughter’s medical treatment. Division II noted the stipulation was made on the record in open court and that a stipulation made in open court is a binding contract. The trial court found that the parties agreed to Husband paying all expenses related to daughter’s eating disorder. The transcript clearly says “all treatment” without a cap. Division II also notes that Husband’s argument against the agreement is that Wife may some day seek to enforce the agreement in an absurd manner and the court says this claim is not ripe because there is no allegation that she is currently seeking to enforce it in an absurd manner. In the future, the context rule of contracts will permit a court to interpret the stipulation in a reasonable manner consistent with Husbands intent.

Division II rejected the argument that Wife had no right to retirement benefits after the separation – noting again that the court may divide up all property, community or separate, as shall appear just and equitable. The court noted that the characterization of property as community or separate does not control its distribution and a court must consider all relevant factors and has the discretion to dispose of separate and community property so long as it is just and equitable. Husband failed to prove that the trial court manifestly abused its discretion by using the trial date instead of separation date and notes that Husband did not argue that the award was not just or equitable.

Wife filed an affidavit of financial need at least 10 days before oral argument and finding that Wife had a financial need, the court granted her attorney fees on appeal in amount to be determined by the court’s commissioner.

In the Marriage of Allen, Docket No. 31619-0; Opinion Author: Fearing; Concurrence: Brown and Siddoway; Attorney for Appellant: Jeffrey Ray Allen   (Appearing Pro Se); Attorney for Respondent: Catherine Marie Allen   (Appearing Pro Se) and Kacie L Maggard, Yakima County Prosecutor’s Office

Father appealed an order increasing his child support obligation based upon (1) Commissioner should have recused himself because the commissioner previously represented Jeffrey against his former wife; (2) Court erred in denying request for change of venue; and (3) Court denied Father due process when another commissioner changed his child support obligation because he never received information about Mother’s finances. All of the Father’s arguments were rejected and the order modifying Father’s child support order were affirmed.

The Mother was receiving public benefits and the State of Washington moved in Grant County Superior Court, where the order was originally entered for an increase to the Father’s obligation. After divorce, Mother moved to Everett, Snohomish County, and father moved to Tacoma, Pierce County. Father moved to change venue to Snohomish County. Wife requested it remain in Grant County alleging the father was seeking to avoid modification.

The Court ordered a change of venue unless the State objected and the state objected to a change of venue on the ground that transferring venue would delay the motion to increase child support. The Motion to change venue was denied and the hearing was rescheduled. Father sought reconsideration, but mislabeled his motion for reconsideration causing confusion. At this time Father aslo argued the Commissioner should have recused himself since he used to be Father’s attorney. Father’s request for reconsideration was rejected as untimely.

Division III noted that Father’s brief contained no citation to the record and egregiously violated RAP 10.3 and 10.4 and thus, Father’s assigned errors are treated without merit. Division III noted that since Father did not raise the issue of disqualification until after the commissioner denied Father’s motion to change venue and so the issue was waived for assignment of error.

Division III noted that RCW 26.09.280 allows for a child support modification to proceed in the court in which the final order, judgement, or decree was entered, and so it was proper to be filed in Grant County. The Commissioner’s reliance upon the objection of the state and to avoid further delay modifying child support order was a validly articulated reason for the decision not to change venue and thus did not abuse discretion.

Father also made the claim that the state had the responsibility to provide proof of personal service or certificate of mailing. Division III said the Civil Rules allow for proof to be provided by a declaration of service and so Due Process was not denied to Father.

Attorney Fees – a portion of an opening brief must be devoted to fees or expenses under RAP 18.1(b). Argument and citation to authority are required under the rule to advise the court of the appropriate grounds for an award of attorney fees as costs. Both parties failed to devote a section of their briefs to their requests for attorney’s fees, therefor both requests were denied, plus they were pro se so likely incurred no fees.

 

Family Law Unpublished Decisions from Division 1 -June 15, 2015

There have not been many published family law cases of late. I thought since there were a couple of unpublished decisions, I would mention them, even though they do not seem to offer much in terms of legal interpretations, but sometimes it’s interesting to see what’s happening in other family law cases.

In Re Marriage Of: Halligan,, App., Docket No. 71391-4; Opinion Author: Linda Lau; Concurring; Dwyer and Shindler; Counsel for Appellant John Halligan (Pro Se); Counsel for Respondent Micheal Schein

Brief Facts: Couple married 9/1995 and separated 6/2012. One child born in 2011. Husband gross income ~$13,000; W gross income ~$3,200. Total assets about $564k distributed 60% to Wife and 40% to Husband. For a seventeen year marriage, wife was awarded five years of maintenance at $3,500. There was also a child support award amount, but the amount was unclear (at one point it looked as if the $3,500 may have been maintenance and child support, but I think it was on top of the $3,500 in maintenance).

Issue 1: Retirement Benefits: The parties used Steven Kessler, whom the court described as “an experienced certified public accountant” to calculate the value of their retirement plans. Husband did not challenge the valuation of one of the retirement pensions during the expert’s testimony, but did on his direct testimony. The admission of the report without objection and the lack of questioning the expert on this point were significant factors and the court felt his opinion was largely unchallenged factored heavily into the court’s decisions as there was nothing in the record to indicate that the trial court’s decision to rely on Kessler’s opinion was unreasonable or an abuse of discretion.

Issue 2: Attorney’s Fees: Husband also challenge the award of attorney’s fees to Wife at the trial level. When a party seeks to challenge the attorney’s fees, they must establish that “the court used its discretion in an untenable or manifestly unreasonable manner.” Wife had incurred attorneys fees of $60,621 and the court awarded $18,000 in attorney’s fees. Division 1 declined to overturn the court’s award of attorney’s fees.

Issue 3: Exclusion of Expert Witness: Husband attempted to provide the testimony and report of Neil Bennett, a vocation counselor. He did not disclose it in a timely manner and the court sanctioned Husband by excluding the witness. Here Division I notes that in Husband’s appeal he made factual assertions not supported by the record in violation of RAP 10.3(a)(6). Division I noted that when a trial court imposes a severe sanction, such as witness exclusion, the record must clearly demonstrate that the court considered (1) whether the violation was willful or deliberate; (2) whether the violation substantially prejudiced the opponent’s ability to prepare for trial; and (3) whether a lesser sanction would probably suffice. Division I noted that the trial court considered all three factors on the record and there is no evidence of abuse of discretion in the exclusion of the testimony.

An notes is that the trial court rejected the claim that a continuance automatically extended all discovery deadlines without entry of a new case scheduling order or the court’s approval.

Issue 4: Post-Separation Payments to Fidelity 401(k): The post-separation payments to the 401(k) were connected to a loan from the 401(k) to buy the property. The trial court noted this and found no need to provide credit for payment to a debt assigned under temporary orders. Division I found no abuse of discretion and also noted that mischaracterization of property is not grounds for setting aside the trial court’s property distribution if the division of the property is fair and equitable and that this post-separation payment was not crucial to the court’s decision.

Issue 5: Federal Tax Exemption: Husband made an argument that there was a scrivener’s error in allocating the tax exemption to the Wife instead of alternating, but the record indicates that the tax exemptions were awarded in connection with the amount of child support payments.

issue 6: Verification of Work-Related Daycare Expenses: Husband wanted some sort of proof for work-related daycare expenses, but he failed to provide any meaningful legal argument or citation to relevant authority and the court declined to consider his argument.

Attorney’s Fees on Appeal: Despite an overall tone of the opinion that sounded like there were at least some points the court thought were without merit, the court did not award attorney’s fees on appeal.

 

In Re The Marriage Of: Robin Maelee Hitz, Res. And Eric James Hitz, App.; Docket No. 71413-9; Opinion Author: Spearman, Concurring: Applewick & Dwyer; Counsel for Appellant: T Reinhard G ‘ron’ Wolff;  Counsel for Respondent: Robin Maelee Hitz   (Appearing Pro Se). 

Husband appeals, claiming that the trial court “lost jurisdiction” (Division I’s quote) ove the case. Division I notes Husband misrepresents relevant facts and that no authority supports is claim that the dissolution became a new proceeding for purposes of the statutory entitlement to a change of a judge when the bankruptcy court lifted a stay and allowed the dissolution to proceed.

Brief Facts: Husband and Wife owned a business together. The judge disclosed a relationship owned by his family and the bank and the parties waived any potential conflict. There was a nine-day trial. The decree assigned Wife the responsibility of liquidating the community assets as paying debts owed. Husband didn’t cooperate and his parents filed a lawsuit against the parties in 2012 claiming an unsecured promissory note (the judge disqualified itself from this case, but noted he thought it had been unnecessary). In April 2012, funds were ordered to be divided between the bank, the parents pursuant to their lawsuit and the parties. Husband filed motions for recusal without noting his motions for hearing. At some point Husband also filed for bankruptcy. After a stay lifted pursuant to the bankruptcy filing, the court denied the motion for recusal, awarded Wife $18,000 in attorney fees and entered a restraining order against Husband. The court also denied Husband’s motion for reconsideration an imposed sanctions against Husband of $5,000 under CR 11.

Division I Discussion: Division I notes that appellant’s brief must contain an argument with legal authority and references to the relevant part of the orders and that Husband’s legal arguments are based on assertions of fact largely unsupported by any reference to the records and that some citations are inaccurate or contradicted by the record.

Recusal – Division I notes that Husband’s argument is factually incorrect as the judge recused himself in a different case and expressly declined to recuse himself in this case. The affidavit of prejudice was also untimely and Husband’s argument that the bankruptcy court granting relief from the automatic stay did not somehow create a new action. It was not a modification, but a continuation of the original issue.

Attorney’s Fees – Husband’s request for attorney’s fees was denied. The court did find that appeal was frivolous, but did not impose additional sanctions. The court did award attorney’s fees for wife.

 

Nathan Brown, Iii, Appellant V. Mi K. Brown, Respondent, Docket No. 71398-1, Opinion Author: Dwyer; Concurring: Spearmand and Appelwick; Attorney for Appellant: Nathan Brown III   (Appearing Pro Se); Attorney for Respondent: Joseph Orry-leroy Baker  

Father’s petition for a parenting plan modification was dismissed and sanctions were imposed for his failure to comply with the court’s scheduling order. Court affirmed and found his appeal frivolous and awarded fees to Mother.

Basic Facts: Original parenting plan provided three sons reside a majority of time with Mother. Father sought to modify. A superior court commissioner entered orders finding adequate cause for a trial and appointed a GAL. After the GAL filed her report Father filed a motion for a temporary order adopting his proposed parenting plan and “several provisions of the GAL report” and terminating child support based on the age of the oldest child and requesting a change of residence for the other two children. The commissioner denied the request for change in the residential schedule pending trial and stated that no child support adjustment was properly before the court. Over the next couple of months Father did not file pleadings required by the case schedule or the pretrial conference order, including no witness or exhibit list, no financial declaration, and no trial brief. Mother filed a motion to dismiss the petition with prejudice and terms based on Father’s file to comply with the case schedule. The court found there was “absolute noncompliance” with court orders and nothing would suggest mitigating circumstances and awarded terms in the amount of 75% of Mother’s attorney fees.

Division I Discussion: While dismissal is disfavored it is justified when a party willfully and deliberately disregards reasonable court orders, resulting in prejudice to the other party, and impairing the efficient administration of justice under CR 41(b). Disregard of a court order without reasonable excuse or justification is deemed willful.

Division I rejects the following claims by Father:

1 – Commissioner’s temporary order resolved issues making trial unnecessary (new issue on appeal). The temporary order was only temporary pending trial – argument rejected.

2 – The “or” was disjunctive and therefore terms and sanctions should not have been awarded. Plain language is clear that this is not what the statute intends- argument rejected.

3- The trial court erred in placing the sanctions on Father instead of Father’s attorney. Statute is clear sanctions can be on individual or attorney – argument rejected.

4- Mother was not prejudiced and that Mother failed to sufficiently mitigate her prejudice. Mother’s attorney had to prepare and also attempted to follow-up with Father’s attorney to make sure deadlines were met – argument rejected.

5- Father was not sufficiently warned about sanctions (new issues on appeal). Terms are clear under KCLCR 4(g)(4), plus Mother’s attorney had numerous calls, e-mails and letters to Father’s counsel regarding failure to comply with case schedule – argument rejected.

Division I granted Mother’s request for fees on appeal. The court stated that Father’s appeal presented no debatable issues and mother entitled to an award of fees and costs on appeal.

Mercer Island School District v. Office of the Superintendent of Public Instruction and parents of B.W.

On April 13, 2015, Division I issued its decision in the Mercer Island racial discrimination case that I previously wrote about here. Division I found that in the the administrative context (i.e., working with the school district and OSPI as opposed to filing a civil suit for damages in court), school districts that have actual or constructive notice (also known as the knew or should have known standard) of racial harassment, the school must take immediate and appropriate action to investigate or otherwise determine what occurred. It further requires that every investigation should be prompt, thorough, and impartial. Finally, it imposes upon the school the duty to take prompt and effective steps reasonably calculated to end harassment, eliminate any hostile environment and its effects, and prevent harassment from recurring.

The knew or should have known standard is a lower standard than the deliberate indifference standard. The court noted that even though the deliberate indifference standard creates a lower burden for a school district, to avoid administrative liability the school district still failed to meet the deliberate indifference test. The court likely went into this discussion to make sure that if the case was appealed to the State Supreme Court that the justices would not doubt how Division I would have ruled. This would mean if the State Supreme Court eventually reverses the knew or should have known standard, the overall holding of this case will not be reversed, because the court of appeals clearly demonstrated that they would have ruled the same way using the higher threshold.

Mercer Island School District, Res. V. N.W. And R.W., On Behalf Of B.w., Apps., Docket No. 71419-8-I, File Date: April 13, 2015; Opinion: Dwyer, Concurrence in part: Verellen; Counsel for Appellant: Ernest Saadiq Morris; Counsel for Respondent Parker a Howell and Jeffrey Ganson Counsel for OSPI and Amicus on behalf OSPI: Justin Kjolseth; Amicus on behalf of the ACLU: Sara Dunne and La Rond Baker

Oversimplified facts: A student targeted B.W., calling him names on multiple occasions. B.W. The targeted student’s grades dropped in that class. Part of the reason the grade dropped was that instead of writing on topic, he submitted two papers describing a random and violent accident happen to the aggressor student. Once the targeted student transferred out of the class, he began earning “A’s” and there were no more concerns about his behavior.

The court first focused on the deliberate indifference standard. In order to satisfy the deliberate indifference standard, the parents were required to establish: (1) racial discrimination; (2) knowledge by an appropriate person of the discrimination; (3) deliberate indifference by the district; and (4) discrimination that was sufficiently severe, pervasive, and objectively offensive that it can be said to have deprived the targeted student of access to the educational opportunities or benefits provided by the school.

Per the opinion, the school made several mistakes in dealing with this situation. Based on the deliberate indifference standard, these include:

  • The school district looked at the incidents involving the harassment separately instead of holistically. A school district acts with deliberate indifference when it responds to report of a discriminatory act that is clearly unreasonable in light of all of the known circumstances. 
  • The  school failed to properly investigate the claim of discrimination, which resulted in a clearly unreasonable response to the harassment. 
    • Failed to have compliance coordinator/officer and failure to update its policies to reflect the nondiscrimination law and OSPI’s May 2011 regulations.
    • Co-principals conducted inadequate investigations, failing to follow even their own out-of-date policy and doing the following:
      • The school and the District only interviewed two of the four students working on the group project where the racial harassment incidents occurred. The reasons for not interviewing additional students were not credible, specifically that an Apserger’s diagnosis would have made B.W. mishear the racial comment. The District didn’t provide any any evidence to support that conclusion that an Asperger’s diagnosis would make B.W. unable to accurately hear and report a racial epithet.
      • The school failed to discover basic information that contextualized B.W.’s complaint and gave further credence to B.W.’s allegations.
      • The school continued to informally investigate the report after the parents told him they wished to file a formal complaint, which would have been handled by the District as opposed to the school.
      • The District did not discuss B.W.’s essay. The teacher expressed concern that if the parents saw the essay, the parents would see it as confirming the racial harassment allegations.
    • Formal investigation by the school’s frequently used outside counsel was “fraught with inadequacies.”
      • Attorney investigator did not ask B.W. about the two essays, nor did she ask the teacher or co-principals to explain why they withheld the existence of the essays from the parents. The reports weren’t even included in the text of the report, but they were appended to the report, which is the first time the parents learned of the existence of one of the essays.
      • She did not account for the conspicuous discrepancy between B.W.’s grades in other classes and his grades in the class he shared with his harasser.
      • She did not address the ostensible connection between the discussion of Mexico and the racially charged comments between two students and B.W.
    • District failed to meaningfully and appropriately discipline the aggressor student. He was only told not to use race as the basis for angry comments and to sign an “anti-harassment contract.”
    • District refused to consider any scenario in which B.W. was not to blame for the conflict with the aggressor student, believing the conflict was due to B.W.’s social deficits. Apparently the school was frustrated because shortly after entering this school district, B.W.’s IEP was withdrawn at the parent’s request.

Having satisfied the first three prongs of the deliberate indifference test, the next question is whether it was sufficiently severe, pervasive and objectively offensive so that it can be said to have deprived B.W. of access to educational opportunities or benefits provided by the school. The court said the racial comments were beyond simple teasing and name-calling, the student made it clear that it wasn’t that his skin color made him different, but that it made him stupid. It was also done in the context of group setting, increasing the humiliation B.W. felt. B.W. was new to this school, he cried in public, he wrote disturbing essays, and he received uncharacteristically low grades in this class.

Based on that, the court held that harassment was sufficiently severe. Then the question is – did it interfere with equal access to educational opportunities or benefits? The “dropoff” in grades can provide “necessary evidence of a potential link between” a students diminished educational opportunities.” B.W. was also forced to remain in the class with the harassing student. Once B.W.’s parents transferred him out of the class, his grades immediately went up to match his high achievement in his other classes.

Lower Standard Analysis 

After stating that the facts support a finding that the school district failed to meet the deliberate indifference standard, the court turned its discussion to the question of whether in the administrative context deliberate indifference applies. The Office of Civil Rights (of the U.S. Department of Education, the administrative agency tasked with enforcement of the Federal counterparts to the Washington nondiscrimination laws) requires “upon receiving actual or constructive notice of racial harassment, the school ‘take immediate and appropriate action to investigate or otherwise determine what occurred.'” Then the  District is required to take “prompt and effective steps” to end the harassment.” Applying this more lenient standard the court found that “it is abundantly clear that the District’s response violated the EEOL.” (EEOL is the Equal Education Opportunity Law prohibits discrimination on a several protected classes, including race.)

Concurrence

Verellan concurs that the District failed to meet the deliberate indifference standard in addressing the discrimination. Verellan would not take the next step and determine whether the OCR know or should have known standard should have been applied.

Take Away Points

When parents complain to the school district, or the school district knew or should have known about discrimination based on any of the of the protected classes identified in RCW 28A.642.010:

  • race,
  • creed,
  • religion,
  • color,
  • national origin,
  • honorably discharged veteran or military status,
  • sexual orientation including gender expression or identity,
  • the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.
  • Sex (is covered under the Sex Equity Law RCW 28A.640)

a school must take immediate and appropriate action to investigate or otherwise determine what has occurred. The investigation should be prompt, thorough, and impartial. If discrimination exists (including harassment) the District must take prompt and effective steps to end the harassment.

Missing Parts of the Opinion

Difference between Federal and State Laws

I would have liked to see a greater discussion on state vs. federal law and whether or not the deliberate indifference standard is truly required in state discrimination cases. The other case decided by Division I on this issues, S.S. v. Alexander, 143 Wn. App. 75, 177 P3d 742 (2008) also did not discuss this issue. The court mentioned Title IX and Title IX, which are interpreted consistently with each other. Both are based on the Congress’s power under the Spending Clause. Basically compliance with nondiscrimination rules are ensured because the federal government can place conditions on the receipt of federal funds. If schools take federal funding, they agree to abide by the rules, in “what amounts essentially to a contract between the Government and the recipient of funds.”  (Citing Gebser v. Lago Visto Indep. Sch. Dist. 524 U.W. 274, 286 (1998). 

There is no express right to a private suit in Title VI or Title IX, but the Supreme court has held that both statutes are enforceable through an implied right of action. The Supreme Court clarified that this private right of action is only available when a school acts with deliberate indifference. It would be inconsistent with the SPending Clause origins of Title IX and Title CI to impose damages liability unless a school authority with the power to remedy the discrimination had actual notice of and was deliberately indifferent to the conduct.

Despite discussing the above reasoning and pointing out that Title IX and Title VI require a deliberate indifference standard, the court doesn’t discuss the state statues and how they are not based on the Spending Clause. States get to tell schools what kind of nondiscriminatory standards they must comply with without basing it on any condition of funding. Plus our state statutes have express rights to pursue actions in civil courts. It’s not implied. Schools are on constructive notice that the must not discriminate and if they discriminate there may be administrative and judicial consequences. This distinction seems very important but it isn’t discussed. (See Pages 32-34 of the court’s decision for more discussion on this).

Multiple Identities 

The court likely limited its discussion to race because that was the issue before it, but since there was so much discussion about the targeted student’s Asperger’s diagnosis, I would have like to have the court point out that the failure of the school district to believe the targeted student because of his Asperger’s diagnosis was also a form of discrimination. Students who have multiple identities are often targeted for bullying because of the fact that they have multiple identities and the decision was remiss to spend so much time discussing the way the Apserger’s diagnosis interfered with the District’s handling of the case without stating that was also discriminatory.

Distinction between harassment, intimidation and bullying (HIB) and discrimination.

I was disappointed that there was no discussion about the difference between harassment, intimidation and bullying (“HIB”) and discrimination. There has been a lot more emphasis put in schools about HIB, there are state model policies and procedures. On Page 12, the court noted that the District’s November 4 decision was pursuant to the District’s Harassment, Intimidation, and Bullying policy. This flags for me that it was the wrong policy as it is in connection with a different law. The distinction between generalized HIB and HIB targeted at a student based on one of the protected classes identified in the state statue trigger different requirements for action. HIB targeted based on a protected class is likely going to be discrimination. Generalized HIB require individualized responses. HIB against a student because of a protected class requires schools to address the school atmosphere/climate and review their policies and procedures to make sure the school is not contributing to the issue of discrimination. HIB based on federally protected classes may overlap with federal nondiscrimination laws and may require a concurrent Title VI or Title IX investigation.

 

Characterizing Family Operated Businesses in a Dissolution

Family operated business can make the dissolution of a marriage more complicated. A recent published Division III case discusses characterizing the farm ground and equipment of a family farm where Husband worked the farm that the Father-in-Law tried to create as separate property for wife. Division III of Court of Appeals determined that the trial court erred in failing to recognize the community interest in the farming operations and assets and sent the case back to the trial court for a determination of whether the distribution would have been the same if the property was properly characterized.

The court’s ruling affirms a piece of advice from a KCBA Family Law Meeting presentation by Shelby Lemmel on April 3, 2015. Whenever possible, have a trial court clarify if it would have distributed property in the same manner regardless of the character of the property. It’s also good advice for judges who don’t want any part of their decisions remanded. If the court would have distributed the property in the same manner whether it was characterized as separate or community, and the court order stated this, the parties would not have to go back to trial.

In re the Marriage of: Jeannie Kile & Gordon B. Kendall, Docket No. 31523-1-III, File Date: 04/09/2015; Opinion: Siddoway; Counsel for Appellant Craig Mason; Counsel for Respondent Martin Louis Salina

The oversimplified facts of this case are Husband and Wife were together for approximate 28 years and had two adult children together. Wife’s father had a messy divorce and he was trying to keep the farm as his daughter’s separate property.  Husband learned farming business from Wife’s father and eventually quit his day job to farm the land full-time. He was paid for his work, the testimony was that he was paid fairly, but there was no evidence in of market wages or benefits in the record. Interestingly, Husband was in charge of determining how much he was paid.

It seems that from the appellate court’s perspective, one of the places where Father may have gone wrong to actualize this intent was charging fair market value for the lease, especially since Wife did not have separate property assets to pay the lease. Instead, the community and Husband bore “burdens and risks in performing the lease obligations.” Another interesting point was that the couple hadn’t entered into any kind of agreement regarding farm lease to clarify that there intent was that it would be separate property. There was another parcel of land where Husband issued a quit claim deed and the court found that (among other things) kept it as separate property (possibly with a right of community reimbursement for payments).

After Wife filed for divorce in 2011, her father sent a notice terminating the farm lease based on dissatisfaction with Husband’s performance asking that Wife turn the farming operations over to her son. Wife’s father died in January 2012, leaving the farm ground in trust in which Wife and Son have beneficial interests.

Husband was awarded about 80% of the parties’ separate property.

Regarding the Farm Lease as a gift “gift,” the court’s analysis focused on the concept of a gift as a voluntary transfer or property without consideration and that here, since there was an exchange of consideration because there was a lease/contract. Offering a contract on market terms is not a gift.

Turning next to the question of whether it qualified for separate property under RCW 26.16.010, rents, issues, and profits of separate property, the court noted that, where a spouse has separate property, the statute recognizes his or her authority to manage it “as fully, and to the same extent or in the same manner as though he or she were unmarried.” Here the court noted that it was not separate property in existence prior to marriage, Husband used part of his retirement to help fund the operations (even if they were restored at a later time) and Wife trusted Husband to pay himself a wage based on what was good for the farm. The court found that this was a spousal enterprise and did not qualify as separate property of a spouse, instead it fell squarely in the “fundamental premise of the community property system that both spouses contribute to property acquisitions in a joint effort to promote the welfare of the relationship.”

Wife failed to overcome the presumption of the community character of the farm lease. Wife admitted that the parties never executed any joint property agreement that would change the legal character of the farm lease and its profits from community to separate property.

In the case of the equipment lease, the father had forgiven a debt of approximately $50,000 and this evidence was determined to be sufficient to rebut any presumption of a gift to the community.

There was another property that was purchased during the marriage. Not only did the undisputed evidence support the trial court’s findings that the conveyancing deeds reflected Wife’s purchase in her name as separate property, but Husband also executed a quit claim dead. The court noted that since the farm made payments and the farm was determined to be community property there may be a right of community reimbursement but it does not result in a change (“transmutation”) of the property from separate to community.

The appellate court noted that remand was required where, “it appears the trial court’s division of property was dictated by a mischaracterization of the separate or community nature of the property.” The court said it is unclear whether the court would have divided the property the same way had the assets been properly characterized, which required remand to enable the trial court to make a just and equitable division of the property considering its correct characterization.

On the issue of spousal maintenance, the trial court found that Husband’s request was vague and there was no information regarding his willingness or ability to work. The spousal support statute is permissive (a court “may” grant). RCW 26.09.090. Trial court awarded Husband $650,000, including 80 percent of the parties’ community property and the court found that Husband failed to establish any abuse of discretion for failing to award maintenance on top of this. Though the court did note that with the re-characterization of property, the trial court has the authority to revisit its decision on maintenance on remand.

Family Law – Post-Secondary Support Case

Anne Sprute (Bradley), Respondent V. Eric Bradley, Appellant, 45608-7, Division II, March 10, 2015 (Published in Part)

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Post-secondary Support:

Couple divorced in 2003 and amended their child support order in 2011 to read  reserved post-secondary support.

Holdings:

(1) Sprute was not required to file her child support worksheets with her request for postsecondary educational support in order to timely request such support;

(2) Sprute’s GI bill benefits could only be applied to reduce her own postsecondary educational obligations under 38 USC § 3319(f)(3)

(3) the trial court did not abuse its discretion by failing to cap postsecondary educational support at the amount charged by UW, and

(4) the trial court erred by using the one-child column to calculate child support for the parties’ minor child because the parties were supporting two children.

 

May 2013, Sprute filed a petition to amend child support, requesting postsecondary educational support for the oldest child.  The initial petition did not include proposed child support worksheets and the court found rejected Bradley’s claim that since the child had graduated by the time the worksheets were filed that the petition for postsecondary support was untimely.

 

Court’s Analysis

(1) Worksheets do not need to be filed to in order to preserve filing date

Statute at issue – RCW 26.09. 175 ( 1), which states that a proceeding for the modification of a child support order ” shall commence with the filing of a petition and worksheets.”

Finding- Sprute exercised her right to request postsecondary educational support by filing her petition to modify for two reasons: language in CSO was that party had to exercise a right, not commence a proceeding and filing a petition to modify exercises that right and a petition to modify without worksheets is sufficient. (2) Following In re Marriage of Pollard, 99 Wn. App. 48, 55-56 (2000), effective date is the date filed, even if worksheets not filed for a year.

 

(2) Cannot Provide a Credit for Post 9/11 GI Bill Benefits 

Overall question – is providing a credit for the GI Bill an impermissible division of benefits under 38 U.S.S § 3319(f)(3)?

The Post 9/11 GI Bill allows a recipient to transfer a certain number of months to her children and it’s not allowed to be considered an asset in marital distribution. Court distinguishes from In re Marriage of Boisn, 87 Wn. App. 912, 943 .2d 682 (1997), which held that if a third party paid, then a parent wasn’t required to reimburse the other parent. Here the court found that there was no “third party” paying for college because the GI Bill belongs to Sprute.

 

(3) No Cap for Postsecondary Education Expenses

The court noted that Bradley did not reference RCW 26.19.009(2) and the non-exhaustive factors. Instead, Bradley argues that it is not fair to make him pay for the most expensive college alternative, and that he does not have sufficient income to pay the award. The court said that the parents’ current and future resources is only one of several factors the trial court can consider.

Bradley did cite In re Marriage of Shellenberger, 80 Wn. App. 71, 906 P.2d 968 (1995) in support for the argument he cannot afford to pay the award. The court found that Bradley produced no evidence that paying the child’s postsecondary support would burden him to the point of filing for bankruptcy.

The court also rejects Bradley’s argument that postsecondary educational support generally must be limited to the cost of public school based on Shellenberger and In re Marriage of Sterns, 57 Wn. App. 707, 789 P.2d 807 (1990).  In this case, the court found that the trial court made specific findings justifying Joshua’s selection of an out-of-state school, that the parties had a history of sending their children to private schools.

(4) Must use the column for support based on the total number of children receiving support. 

The court held that post-secondary support is support and so the support for the minor child should be reduced by using the column for the number of children for whom support is owed, in this case two children. The Court cites In re Marriage of Daubert, 124 Wn. App. 483, 502-03, 99 P. 3d 401 (2004) and In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2103).

 

The rest of the opinion was unpublished, but they are interesting issues, so I include a summary of those issues as well.

  1. Discovery Issues – There was a concern about the completeness of the discovery by Sprute. The court found no discovery abuse, but did order certain additional answers and documents. The standard on review is abuse of discretion, decision is based on untenable grounds. In this case the documents provided could answer the questions for which Bradley said he needed additional documents. There was also a question of whether the documents requested could lead to the discovery of admissible evidence regarding Sprute’s net income.

 

  1. 45 Percent Cap on Child Support. RCW 26.19.065(1) provides that child support should be capped at 45% of a parent’s income. Bradley attempted to raise this issue on appeal, but he did not bring and the court declined to address this argument on appeal.

 

  1. Attorney Fees. Court declines both parties’ requests for attorney’s fees. Sprute because RAP 18.1 does not provide an independent basis for the award of fees. Bradley failed to request attorney’s fees in his opening brief, as required by RAP 18.1(b).

 

That concludes the summary of the case. There are several issues at play in this case that would make for an interesting appeal to the State Supreme Court. The issue of post-secondary support is a particularly challenging issue. The cost of a college education has sky-rocketed. With that, the amount that parties end up paying for post-secondary can surpass how much they paid when the child was dependent. It seems to me that there should be a cap on post-secondary support, at minimum the 45% cap should apply, but perhaps no parent should ever pay more post-secondary support than they would pay for a dependent child. Although perhaps this cap has to be created by the legislature.

Pending Education Discrimination Case

On February 26, 2015, Division I heard Mercer Island School District v. N.W. and R.W. (Case no. 71419-8 – follow this link and type the case number to find all materials related to this case).

The rough outline of the case is that a student of color was targeted with racial comments by one main student and a couple of that students friends. The school district did respond, but there seems to be questions of whether the school district responded in a timely and appropriate manner.

When the parents complained about the students behavior and the school’s response, the school said there was no discrimination. The parents appealed to the school board and the school board denied the existence of discrimination. The parents then appealed to the Office of the Superintendent of Public Instruction (OSPI) and there was a hearing before an administrative law judge (ALJ). The ALJ found the school had acted in a discriminatory manner. The school district appealed in Superior Court and the Superior Court overturned on the ALJ’s major findings. The parents appealed the Superior Court decision to Division I.

At oral arguments, the judges honed in on what standard should be used in the administrative context when determining the liability of a school district. The School District argued for a high standard of “deliberate indifference” and the attorney for the parents, Ernest Saadiq Morris, noted that the Administrative Law Judge did use the deliberate indifference standard but that even under this standards the school district did not prevail with the ALJ and that based on administrative law, the ALJ findings should be upheld. In response to the specific question regarding the appropriate standard, the parents agreed that in the administrative context it should be the lower standard known or should have known standard is more appropriate, although I got the impression there was a concession that the higher standard should apply in a monetary damages setting.

In the guidance that exists on this question of the standard in the administrative context, both the Department of Justice and OSPI have stated that the known or should have known standard should apply and that schools are required to take prompt action to correct the discrimination and the effects of discrimination.

The deliberate indifference standard the school district advocated is based on the case law regarding when a individual files a suit against a school district for monetary damages. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), while the U.S. Supreme Court found a school district could be liable under Title IX for peer based sexual harassment, the standard was deliberate indifference – recipients response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.

Based on oral arguments – it seems that the main question the court will answer in its opinion is – in the administrative context can schools be held liable in the sense of requiring administrative fixes, improving policies and procedures, based on the known or should have known standard?

An important distinction that I did not feel was teased out is the reason that the court found reached the deliberate indifference holding. Title IX is considered a spending clause law, meaning that in order to receive federal funds a school district has to agree not to discriminate. However, the statutes at play here are state statutes, not federal statutes. States do not have to rely on spending clauses or anything else. They get to make rules within their borders and the rules have to be followed. The nondiscrimination laws, coupled with our laws against harassment, intimidation and bullying, make it clear that our legislature intends on schools having an affirmative duty to make sure that kids are safe in schools, even for peer harassment issues.

One of the Judges on the panel hearing this case was Judge Dwyer. Judge Drwyer wrote the majority opinion in one of the only state based discrimination appellate decision, a 2008 Title IX case by the name of S.S. v. Roe/University of Washington, 143 Wn. App. 75 (Wash.App. Div 1 2000)(case involved a student football player raping a student and the University’s poor response). In this context, Division I upheld the deliberate indifference standard. This was a suit for monetary damages and there was not a significant discussion on and Division I cited the Davis court that “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school.”

Division I follows the deliberate indifference theory when looking at the University’s potential liability. Again, this was a Title IX case, not a case based on the state nondiscrimination or sex equity laws.

It will be interesting to see what the court decides and whether either of the parties will appeal the decision to our state supreme court.

Friday, November 7, Appellate Case Round-Up

There were not many cases that addressed family law in the last two weeks. There were two cases that touch on family law issues, both from Division One, both unpublished.

The Post Dissolution Property Dissolution Issues

In re Marriage of Gass and Abdel-Wahed, involved property distribution, and whether a party could use the homestead statute exemption. Basically, the couple divorced and Husband was awarded the home. Wife was awarded assets that Husband was supposed to provide along with an order of spousal maintenance.

Husband did not make the spousal maintenance payments and did not provide the wife with the assets. Husband was found in contempt.

The court issued a judgment for the past-due spousal maintenance and the value of the assets that should have been transferred, plus attorney’s fees, interest, and costs. The judgment ordered the marital home be sold. Through another order, Husband was removed from the home.

The home was sold. From the proceeds of the sale, Wife received the funds to cover spousal support. Husband sought to withhold the rest of the funds under the protection of the homestead statute. Wife argued that she should be able to receive the funds from the judgment for what was ordered to her at the time of dissolution. The trial court imposed a constructive trust to hold the funds pending a decision. Husband objected to the constructive trust.

The court of appeals held that Husband’s attempt to insert a homestead exemption argument and attempt to convert the decree into a lien under RCW 6.13.090, where the homestead statute would apply, was improper. The court noted that Homestead Statute exemption arguments cannot be used to facilitate unjust enrichment or fraud, and the court in equity may impose a constructive trust.

The court found that Husband’s failure to transfer money per the order was intentionally culpable conduct, basically, he was attempting to use the homestead exemption to avoid paying for the home.

The court also awarded attorney’s fees to the wife because it was a continuation of the original dissolution action and the losing party’s conduct constituted bad faith.

 

The Dependency Decision

The second decision falls out side of the classic definition of family law because it is a dependency action and is therefore between the state and a parent instead of being between private parties. In re Dependency of L.D. (family law cases involving minors normally do not use the child’s full name in an effort to protect the child’s privacy.)

While unpublished decisions cannot be cited by courts, they do some times provide information that is helpful in understanding how courts view issues. This case provides little guidance and is very much a fact-specific case. There were concerns noted about the child’s safety because of abuse of the child and abuse of the child’s mother as well as the father driving while intoxicated with the child.

The trial court found that the child was dependent and ordered services to be provided to the father. Subsequently, Father completed the domestic violence assessment and the child had been returned to his care. Because of this, the court found the issue the father raised about procedural due process was moot, meaning they were no longer relevant and the court would not issue an opinion on the matter.

 

WLAD Appellate Case

In Washington, we have a law called the Washington Law Against Discrimination (WLAD). It’s a law designed to protect Washington State citizens from experiencing discrimination based on a sizable list of protected classes:

This chapter shall be known as the “law against discrimination.” It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of

  • race,
  • creed,
  • color,
  • national origin,
  • families with children,
  • sex,
  • marital status,
  • sexual orientation (Note, the definition of sexual orientation includes gender expression or identity.”
  • age,
  • honorably discharged veteran or military status, or
  • the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability

are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. … employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions because of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and the commission established hereunder is hereby given general jurisdiction and power for such purposes.

RCW 49.60 (Parenthetical description noting the inclusion of trans* status and bullet point for the protected classes are added).

Recently, the Washington Supreme Court decided a case that dealt with WLAD. In Scrivener v. Clark Collegethe court address an issue of age discrimination and being hired for tenure track. Scrivener had made the final four, but instead of hiring her, the College hired candidates who were under 40 years old.

The trial court decided the issue on summary judgement (before a trial on a legal issue). The trial court said that Scrivener failed to prove that the college’s stated reason for its decision was a pretext.

At the first round of appeals,the appellate court upheld the trial court’s decision. The Supreme Court reversed the trial court’s decision (sent it back to the trial court to decide in line with the Supreme Court’s opinion).

The Washington State Supreme Court clarified the standard that courts need to use when examining whether a plaintiff’s case should be dismissed on summary judgment (a hearing where one or both sides makes a motion arguing that the case should be decided on legal issues before it gets to trial).

The court adopted the McDonnell Douglas framework (a federal framework for addressing Title VII employment discrimination claims). First and employee has to establish a prima facie case of discrimination (something happened to the employee and they fit the protected class of employees). Once this is established (it’s called a prima facie case), the burden of shifts to the employer – the employer has to provide a legitimate, nondiscriminatory reason for either not hiring, firing, or other negative employment action. If the employer can do this, then the Plaintiff has to produce enough evidence to prove that Defendant’s reason was a pretext (not the real reason).

The Washington State Supreme Court said that in WLAD cases, employees must satisfy the pretext prong of the McDonnell Douglas framework by offering sufficient evidence to create genuine issues of material fact, either (1) that the employer’s articulated reason for its action is pretextual or (2) that, although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer

This standard wasn’t applied at the trial level. The Washington State Supreme Court believed that Scrivener created a genuine issue of material fact concerning whether age was a substantial factor motivating Clark College’s decision to hire younger candidates. The Supreme Court sent the case back to the trial court to proceed to trial.

One of the interesting components of the decision was the discussion of whether employees must prove that discrimination was the “determining factor” or a “substantial factor.” The court said that having a determining factor standard would be “contrary to Washington’s ‘resolve to eradicate discrimination’ and would warp this resolve into ‘mere rhetoric.'”

The court said that summary judgment to an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation.

Family Law Appeal Examples

In a recent post, I discussed appeals generally. In this post, I’m going to discuss examples of family law appeals that have been decided in the last 14 days. In a span of 14 days of the 23 published decisions, none of the published decisions were family law cases. There were 48 unpublished decisions and of those, about six had a connection to the issues families deal with. Below is an example of cases that impact families.

Published Decision

In re the Marriage of Olsen  (Division III)

In this case, the husband and/or his attorney failed to appear for trial on two prior occasions. On the third date trial was to proceed, they failed to appear again and the court proceeded with the trial based on wife’s evidence and entered a final order. Husband appealed the orders under CR 60(b)(1) ((b) (mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order). The Court denied his motion and so he appealed. The appellate court affirmed the lower court holding that a party, in this case the husband, bears responsibility for the negligence of his lawyer and is not entitled to relief from the trial outcome.

An unusual fact about this case, is the couple had been together for nine months. They were divorced in Kansas in October 2010, but the court did not decide financial issues because it lacked personal jurisdiction over Mr. Olsen (Mr. Olsen did not live in Kansas, the marriage didn’t take place in Kansas, etc.) Mr. Olsen then initiated a dissolution proceeding in Spokane County to decide child support, divide property, debt and apportion liability for attorneys fees.  Trail was initially set for January 2012, continued by agreement, unsuccessful mediation in March 2012, trail set for April 2012,  but Mr. Olsen and his attorney did not show (no reason indicated in the order) and the trail was continued to May 2012. On May 14, 2012, husband’s attorney appeared but husband failed to appear and trial was rescheduled to May 16, 2012. Husband’s attorney claimed he was having chest pains in the morning, court continued to the afternoon for documentation from a healthcare provider that a health issue prevented him from attending court (an unusual move by a court, one employed only if a court is under the belief they are being lied to as attorneys with a decent reputation would ordinarily be given the benefit of the doubt).  Father had not appeared in the morning. Father and attorney did not appear in the afternoon and no evidence of a medical issues was provided, so the court proceeded with trial. On June 13, 2012, the court issued it’s memorandum decision. It is unclear when Mr. Olsen filed his motion to vacate, but based on the Ms. Olsen’s arguments, it was likely more than 30 days after the decision was issued because one of her defenses was that he should have reconsidered (typically a 10 day deadline) or appealed (typically a 30 day deadline).

A legal issue the court discussed was whether orders entered after failure to appear at trial are default orders or just orders. The court clarified that if a trial is held, even if one side does not appear, the judgment will be on the merits, not a judgment by default.

No attorneys’ fees were granted for either party.

Update: On March 3, 2015 the Washington State Supreme Court denied the petition for review. 

Unpublished Decisions

In Re The Guardianship Of: Dorothy May Kertis (Note, this case would not be called a family law case, it would be a trust and estate litigation case) 

This was a case where there was five year domestic violence order in place restraining a son from having contact with his mother who was incapacitated (she has dementia).  The allegations included claims that he made his mother so agitated during his visits that it impacted the staff’s ability to care for her and he refused to follow the terms and conditions placed on visits. There also claims that he stole from his mother and had a long history of alcohol and drug abuse. The staff alleged he tried to sneak into his mother’s room at 1:00 a.m. and appeared to be intoxicated and was aggressive and threatening. The guardians petitioned for and were granted a domestic violence protection order (DVPO).  In 2013, the son tried to end (terminate) the DVPO. Before the hearing, he entered into an agreed order with the guardians that would allow for supervised visits. He then sought to have the DVPO terminated and the court rejected his motion based on insufficient evidence to find a substantial change in circumstances. The son appealed the decision and the court of appeal upheld the decision.

In Re The Marriage of Collins, (Division Two)

In this case, father appeals the primary residential placement with the mother. Couple married in August 2008 and separated in 2010, father filed for dissolution in 2012. They had one child who was three years old at the time of trial. Father, mother and a guardian ad litem (GAL) testified at trial. The GAL recommended that the father be the primary residential parent. The trial court disagreed. It found the father’s testimony was not credible and mother’s was credible. The court found that (1) father intentionally and with malice made material representations to mislead the trial court, (2) father intentionally and with malice aforethought refused to abide by a lawful court order granting mother residential time, (3) Father interfered with Mother’s relationship with the child, and (4) Father engaged in abusive use of conflict which created the danger of serious damage to the child’s psychological development.

On appeal, Father made an important error and he did not designate the final parenting plan as a part of the record on appeal, thus the actual plan was not before the court to review, which necessarily limited the scope of the court’s review. Thus the court limited its review to the question of whether the trial court abused its discretion by disregarding the GAL’s findings that there was no abusive use of conflict and the GAL’s recommendation that the Father be the primary residential parent.

The appellate court upheld the trial court’s decision. The court noted that the trial court had made detailed findings that outlined its decision. It also noted that the Father was arguing about credibility and the strength of evidence, two issues solely within the purview of the trial court. The appellate court also noted that the GAL was not as fully in support of the father as the father alleged. Noting that the father’s conduct could be viewed as abusive use of conflict and that if the father had followed the agreed plan, the child would have been shared equally with both parents, but the father failed to follow the plan.

D.B. v. E. B. (Division III) 

Father appeals parenting plan modification, which reduced his residential time with his son. The appellate court affirmed the trial court’s decision.

Additional details: Residential schedule was initially decided in 2006, when the child was four years old. In this plan, the child resided with father Wednesdays at 4:00 to Saturdays at 10:00 a.m. every other week. On the alternate week, from Wednesdays at 4:00 to Thursdays at 4:00.

During the 2010/2011 school year the child began to spend approximately half of his time with his father due to the mother’s new job which required her to work later. Father’s work schedule allowed him to pick up the child from school and the child would reside with him until the mother picked him up after work. In November 2011, child was struggling, so the parties agreed child would stay over with father when mother worked late. Then in the fall of 2012, the mother’s boyfriend began caring for the child on the nights that the mother worked and the mother went back to the parenting plan.

In response to reverting to the original schedule, the father filed a petition to modify the parenting plan because the parties had substantially deviated from the original residential schedule and that the child had been integrated into his home with the mother’s consent. He requested the parenting plan be modified and he be granted primary residential custody. The mother opposed the change.

The superior court commissioner determined there was adequate cause (the first threshold that must be passed in a modification) and that the parties could proceed to trial, based on a finding that the child was spending equal time with both parents in significant deviation from the original plan and ordered the parties to have a temporary 50/50 plan.

At trial, the court found that the parties had come together to decide a better option for the child, but it did not adopt the commissioner’s 50/50 plan, instead the court essentially allowed for the father to have overnights when the mother worked past 8:00 p.m., which was about 5 out of 21 nights. Plus every other weekend.

The father appealed, arguing that the trial court should have adopted the commissioner’s 50/50 plan. The court examined the issue based on whether the court had abused its discretion – meaning if the trial court decision was manifestly unreasonable or based on untenable grounds or reasons. The appellate court noted that there is a strong presumption against modifying a parenting plan and a two step process, first adequate cause must be found and then the parties must proceed to trial and prove (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child’s health, (3) the modification is in the child’s best interest, and (4) the change will be more helpful than harmful to the child.

The appellate court found that the father failed to show how the court abused its discretion in modifying the residential schedule, noting that the trial court is not bound by a commissioner’s adequate cause findings as adequate cause hearings simply determine whether the moving party has met the threshold burden of showing a substantial change in circumstances to warrant a full hearing on the petition.

The mother was awarded attorney’s fees and costs based on the finding that she was the substantially prevailing party.

In re Marriage of Hunt (Division III) 

Husband appealed the property and debt distribution, arguing that the trial court failed to include three community debts in the division and that the trial court abused its discretion when it refused to accepts additional documentation after trial. The appellate court found the trial court did not err and affirmed the trial court’s decision.

Details about the case, parties were married for five years before separation. They had personal property, debts, and a sheep ranch and butchering business. The court found the wife’s evidence more credible as she was much better at documenting and backing up her claims, whereas the husband did not provide support for his testimony and some of the content of his decisions were just difficult to believe.

After trial was all over, husband made a claim that there were almost $160k in debts of the community and business that he just failed to bring up at trial. The trial court heard a hearing but did not allow husband to reopen the trial and submit new evidence. The court noted it would be improper, especially based on weak evidence that was not credible. The appellate court affirmed, also noting that the evidence was not newly discovered (husband new about it before trial) and it could have been produced at trial with reasonable diligence. The court said that the evidence at trial does not support husband’s claims on appeal and noted that he had the ability and control over the documents to substantiate them at trial, and these claims were not credible, he was inconsistent and insufficient in his claims and proof.

Washington State Appellate Court Updates – September 5

There are two types of opinions, published and unpublished opinions. Unpublished opinions are not supposed to be cited as precedence, meaning it cannot be used to support an argument in a future case.  In a two week period there are approximately 60 published and unpublished decisions released, with most of the decisions being unpublished decisions. The Washington Courts release opinions as they come down every week. The most recent cases can be found online.

The cases vary, many of the cases are criminal cases, which are the cases that are State of Washington v., There are many civil cases, which are cases where someone sues a company, a person or sometimes a government entity, like a school/county.

To given an idea of the wide variety of the cases that are brought before the court for the week of September 5, there were four State Supreme Court cases.

Anderson v. Dussault, was about the management of a special needs trust. The Supreme Court held that because the young woman for whom the trust was set up was not represented by a guardian ad litem when the court approved the trust’s annual accounting, she did not have notice of the proceedings and that allowed her to bring a breach of trust action under the Trust and Estate Dispute Resolution Act (TEDRA). This means that she has an ability to sue for how the money that was set aside in her specials needs trust was spent. Now the case goes back to the trial court and she will be able to present her story to the court and see if the court agrees.

State of Washington v. McEnroe and Anderson, McEnroe and Anderson were charged with aggravated first degree murder and the state sought the death penalty for them. When the State filed its initial notice of its intent to seek the death penalty, the trial court ruled that it failed to state, in the charging instrument, that there was an absence of “sufficient mitigating circumstances to merit leniency.” The trial court provided the State two weeks to amend the petition and if the state failed, the defense could file a motion to dismiss the State’s notices of intent to seek the death penalty. The State appealed and sought to have the case reassigned to a different judge on remand (when it goes back to the trial). The Supreme Court held that the information did not need to be provided in the charging instrument, “the notice of special sentencing proceeding afforded the defendants constitutionally and statutorily adequate notice.” The Supreme Court also denied the State’s motion to have a new judge on remand (the new trial).

Gray v. Suttell & Assocs., The court held that debt buyers fall within the definition of “collection agency” under the Washington Collection Agency Act (WCAA) when the solicit claims for collection and thus need a license, follow certain procedures or adhere to a code of conduct. Midland Funding hired Suttell & Associates to file lawsuits, and from 2005 to 2010, they filed 1,082 and they were required to have a license.

Johnston-Forbes v. Matsunanaga, concerned rules of evidence (there are all sorts of rules of the things that can and cannot be put before the court and rules about how the evidence can be presented). In this case, there was a question about whether an expert’s testimony could be admissible or limited.