                                                                          FILED 

                                                                        OCT. 15,2013 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 



IN RE THE MARRIAGE OF:                           )      No. 30452-3-III
                                                 )
KENNETH J. NICHOLS,                              )
                                                 )
                      Appellant,                 )
                                                 )      UNPUBLISHED OPINION
       and                                       )
                                                 )
GLORIA D. NICHOLS,                               )
                                                 )
                      Respondent.                )

       KORSMO, C.J. -Kenneth Nichols and Gloria Nichols I dissolved their marriage

after three years. Their marriage produced one child, N.N. This appeal concerns the

parenting plan for N.N., evidentiary rulings excluding evidence, and the characterization

of one bank account as community property. We affirm the placement and the

evidentiary rulings, but reverse the characterization of the bank account.




       1 We   use first names for convenience.
No.304S2-3-II1
In re Marriage ofNichols


                                         FACTS

       Trial of this dissolution primarily revolved around the parenting plan for N.N.

During the pretrial proceedings the trial court received allegations from multiple sources

that Gloria regularly physically and verbally abused her two children from a prior

marriage. There also was evidence of a domestic dispute during which Gloria shoved

Ken into a door, resulting in Ken obtaining a protective order against Gloria. Ken had

primary placement ofN.N. throughout the dissolution, with Gloria having near equal

residential time.

       The guardian ad litem (GAL) appointed to represent N.N. 's interests investigated

these allegations. The GAL implied that most ofthe abuse allegations were either

unsubstantiated or not as severe as alleged. Ken could not perform his own investigation

into the abuse claims because Gloria obtained an order in the dissolution proceeding

involving her first husband that prohibited her two older children from aiding Ken in this

action. 2 The GAL did find that Gloria has an emotional control/anger problem and the

court commissioner ordered her to get counseling; she did not comply with the order.

       The GAL found N.N. to be well bonded with both parents, and also found that

both parents were capable of providing appropriate care and attention. Despite Gloria's

need for counseling, N.N. had bonded best with her, and there was no substantiated




       2 This court finds it troubling that a judge in one proceeding would willingly
prohibit witnesses from giving evidence in another proceeding. However, Ken did not
challenge this ruling.
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In re Marriage ofNichols


evidence that she had ever acted out against N.N. Accordingly, the GAL's final report

recommended primary placement with Gloria.

       After the discovery cutoff date, Ken sought to take depositions of the GAL,

Gloria, and Gloria's domestic violence advocate. 3 Ken sought to excuse his belated

request on the grounds that he believed that LSPR 94.05(e) prevented him from

conducting discovery prior to the GAL entering her final report and because of new

allegations that Gloria had abused her older children. Although ruling that the local rule

did not actually prevent Ken from conducting discovery earlier, the court still allowed

Ken to take the GAL's deposition. The court denied the request to take Gloria's

deposition because the evidence could be obtained at trial. The court declined to allow

the advocate's deposition on the basis of privilege.

       Around this same time, Ken belatedly filed his witness list; he blamed his

tardiness on difficulties getting Gloria's attorney to meet and file the joint pretrial report

that was supposed to include both parties' witness lists. The trial judge required strict

compliance with the scheduling order and excluded all of Ken's witnesses on direct

examination. However, the judge left open the possibility of their use as rebuttal

witnesses. Ken did not call any witnesses in rebuttal.

       Following trial the court entered an order adopting the GAL's placement and

counseling recommendations. The court also found that assets in several bank accounts

that Ken owned prior to marriage had become community property due to comingling

       3The commissioner had also ordered Gloria to undergo domestic violence
perpetrator treatment. Instead, Gloria sought out a domestic violence victim's advocate.
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No.30452-3-III
In re Marriage ofNichols


and ordered equal division of those accounts. Following entry of these orders, Ken

timely appealed to this court.

                                          ANALYSIS

       Ken challenges the decision to award primary placement ofN.N. to Gloria, the

discovery rulings, and the court's characterization of the funds in the bank accounts. We

discuss the issues in the listed order.

       Challenges to the trial court's final parenting plan are reviewed for abuse of

discretion. Mansour v. Mansour, 126 Wn. App. 1, 8, 106 P.3d 768 (2004). A court

abuses its discretion if, inter alia, "its decision is outside the range of acceptable choices

given the facts and the legal standard." Id. (quoting In re Marriage of Wicklund, 84 Wn.

App. 763, 770 n.1, 932 P.2d 652 (1996)).

       Ken argues that the trial court acted outside the range of available options by not

limiting Gloria's decision-making authority and residential time in accordance with RCW

26.09.191. That statute prohibits mutual decision-making and requires limited residential

time in any case in which it is found that a parent has engaged in "physical, sexual, or a

pattern of emotional abuse of a child" or "a history of acts of domestic violence as

defined in RCW 26.50.010(1)." RCW 26.09.191(1), (2)(a).4




       4 As relevant here, "domestic violence" means "[p ]hysical harm, bodily injury,
assault, or the infliction of fear of imminent physical harm, bodily injury or assault,
between family or household members." RCW 26.50.010(1). Family includes both
"spouses" and "persons who have a biological or legal parent-child relationship." RCW
26.50.010(2).
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No.30452-3-III
In re Marriage ofNichols


       In Mansour, the lower court abused its discretion by not applying RCW 26.09.191

after it had found that the father engaged in physical abuse of a child. Mansour, 126 Wn.

App. at 6. Ken strenuously argues that the statute and Mansour require reversal here in

light of the evidence that Gloria was abusive. However, they do not apply to this case

because the trial court never found the existence of child abuse or domestic violence.

While the record contains several alarming allegations of child abuse and domestic

violence, it does not appear that the trial court found those allegations credible or else did

not believe that they amounted to a "pattern of emotional abuse" or a "history of

domestic violence." Accordingly, the trial court did not abuse its discretion by declining

to apply the provisions ofRCW 26.09.191.

       Ken next argues that the trial court abused its discretion by excluding his
                                                                                                  I
witnesses on direct examination and by not permitting him to take Gloria's deposition

and the advocate's deposition. 5 "[AJ trial court has broad discretion as to the choice of
                                                                                                  I
                                                                                                  I
sanctions for violation of a discovery order." Burnet v. Spokane Ambulance, 131 Wn.2d             I
                                                                                                  !
                                                                                                  !
484,494,933 P.2d 1036 (1997). "Such a 'discretionary determination should not be                  !
                                                                                                 I~


disturbed on appeal except on a clear showing of abuse of discretion, that is, discretion        ~
                                                                                                 ,
                                                                                                  £


manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. '"         I
Id. (quoting Assoc. Mortg. Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229,548          It

       5We reject Ken's argument that LSPR 94.05(e) prevented him from making                    I
                                                                                                 t
timely discovery as unsupported by the plain language of the local rule. We also reject as       !
                                                                                                  f
harmless the refusal to allow the depositions. Ken never attempted to explain what he            f
                                                                                                 I
could have gained by deposing Gloria that he did not gain by cross-examining her at trial.       I
                                                                                                 ~
With respect to the advocate, Ken never explained how he intended to bypass the
domestic violence advocate privilege found in RCW 5.60.060(8).                                   1
                                                                                                 i­

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No.30452-3-III
In re Marriage ofNichols


P.2d 558 (1976)). However, exclusion of witnesses is only permissible where the court

has considered on the records whether lesser sanctions would suffice. Burnet, 131 Wn.2d

at 497. Ken has a colorable claim of abuse of discretion under Burnet since the court

never explained why exclusion of witnesses was the appropriate remedy here. However,

we cannot say that Ken has met his heavy burden of showing an abuse of discretion in

light of the fact that he never raised the Burnet argument to the court in a timely manner.

A trial court cannot abuse discretion that it was not asked to exercise. Colorado

Structures v. Blue Mountain, 159 Wn. App. 654, 660, 246 P.3d 835 (2011).

       Finally, Ken argues that the trial court finding that his separate property had

transmuted to community property is not supported by sufficient evidence. We agree.

       Property acquired prior to marriage or afterward by gift, bequest, devise, decent,

or inheritance is presumed to be separate. RCW 26.16.010; In re Estate ofBorghi, 167

Wn.2d 480,483,219 P.3d 932 (2009). The separate property presumption can only be

rebutted by clear and convincing evidence of conversion to community property. Id. at

490. "[O]nly when money in a joint account is hopelessly commingled and cannot be

separated is it rendered entirely community property." In re Marriage ofSkarbek, 100

Wn. App. 444, 448, 997 P.2d 447 (2000). "If the sources of the deposits can be traced

and identified, the separate identity of the funds is preserved." Id.

       Here, Ken came to the marriage with a substantial amount of cash that he

deposited in Wells Fargo bank accounts. Accordingly, the cash is presumed to be

separate property. When Ken and Gloria married, he added her name to two of the four


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No.30452-3-III
In re Marriage ofNichols


accounts at issue (#3823 and #0670). The couple always maintained relatively low

balances in these accounts, except that Ken deposited his paycheck into the one used for

household and other miscellaneous expenses (#3823). Ken maintained the bulk of his
                                                                                             f
                                                                                             !
cash in two other accounts to which he never added his wife (#4444 and #4586). Review        !


of the bank statements over the three years of the marriage shows that Ken made several      I
                                                                                             1
                                                                                             I
transfers from his individual accounts to cover expenses in the joint accounts and           t

minimal transfers from the joint accounts back to the individual accounts.

       The fact that this court has three years of bank statements and can count the

transfers back and forth shows that the money in these accounts are "clearly traceable"

and not "hopelessly comingled." The fact that Ken made transfers between these joint

and individual accounts did not in itself permit the trial court to recharacterize as

community property Ken's separate assets, especially when considering that Ken's

individual accounts always maintained a large base of funds that greatly exceeded the

total amount of all transfers between the accounts. Because the assets in account

numbers 4586 and 4444 (prior to it being closed) are clearly traceable, they remained

Ken's separate property and the court erred in treating them as community assets. We

reverse that aspect of the court's ruling and remand for reconsideration of the property

award. Skarbek, 100 Wn. App. at 445.

       The judgment of the trial court is affirmed in part, reversed in part, and remanded

for further proceedings.




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No.30452-3-III
In re Marriage ofNichols


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                       ,
                                                Korsmo, C.J.


WE CONCUR:



      Kulik, 1.




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