 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


IN RE PARENTAGE AND SUPPORT                        No. 70921-6-
OF:
L.L.


                     Minor child.                                                     p"t       <~


                                                                                      ro
KYLA ESTES,                                                                           in;

                                                   DIVISION ONE
                     Appellant,
                                                                                      CO
              v.
                                                   UNPUBLISHED OPINION
JONATHAN LaVOI,
                                                   FILED: September 22. 2014
                      Respondent.

       Spearman, C.J. — Kyla Estes appeals orders providing for the custody and

support of her child, L.L. Because Estes fails to demonstrate that the trial court erred,

we affirm.

                                        FACTS

       Kyla Estes and Jonathan LaVoi are the parents of L.L., born August 28, 2012.

The parents' brief romantic relationship had ended by the time L.L. was born, and their

parenting relationship has been fraught with conflict. After L.L's birth, LaVoi regularly

requested visitation with the child. On the occasions that Estes agreed, she would

either arrive late, cut the visit short, or cancel the visit altogether. More often than not,

however, Estes refused to allow LaVoi to visit.
No. 70921-6-1/2



       Estes filed a petition for a residential schedule and a parenting plan, and the trial

court entered a temporary order designating Estes as the primary residential parent of

L.L. and giving LaVoi visitation twice a week. Estes frequently violated this order by

failing to bring L.L. to scheduled visits.

       On the few occasions that LaVoi was able to see L.L., Estes interfered with their

relationship by making frequent allegations of abuse or neglect to third parties. For

example, Estes told a hospital social worker that LaVoi used drugs while L.L. was in his

care. Child Protective Services investigated Estes's claim and determined it to be

unfounded. Estes also told L.L.'s pediatrician that L.L. had suffered injuries during a visit

with LaVoi. The pediatrician did not observe any of the injuries alleged by Estes. Estes

repeatedly contacted the Kitsap County Sheriff's Department to demand they perform

welfare checks on L.L. while he was with LaVoi. Officers observed the child and saw no

cause for concern.

        Estes and her family also engaged in extensive hostile behavior towards LaVoi,

his attorneys, the guardian ad litem (GAL) and several visitation supervisors. When L.L.
was approximately one month old, Estes and her mother showed up unannounced at
LaVoi's home at approximately 6:00 a.m. With L.L. in her arms, Estes spent more than

ten minutes ringing LaVoi's doorbell, pounding on the door and yelling. Estes screamed
obscenities about LaVoi's new girlfriend and told LaVoi he would never see L.L. again.

Estes's mother also participated in the yelling. Estes contacted law enforcement at

least eight times to claim that LaVoi or his friends had abused or harassed her. She and
her parents filed multiple bar grievances against both LaVoi's attorney and the GAL and
No. 70921-6-1/3



sought an internal affairs investigation against an officer who performed a welfare check

on L.L.


          On May 8, 2013, the trial court ordered Estes to participate in a psychological

evaluation with a psychologist approved by the GAL. Estes failed to undergo the

evaluation.


          On September 26, 2013, the trial court ordered that LaVoi be the primary

residential parent of L.L. The trial court ordered Estes to bring L.L. to the courthouse by

4:00 p.m. that day. The order informed Estes that if she did not comply, the trial court

would issue a bench warrant for her arrest and a writ of habeas corpus to recover the

child. The trial court also entered a temporary restraining order restricting Estes from

having any contact with LaVoi or L.L. except for supervised visitation. Estes failed to

produce L.L. as ordered. The trial court issued a writ of habeas corpus and the King

County Sheriff's Office spent seven days attempting to locate L.L. Estes's parents

finally produced L.L. after a detective notified them that Estes would face criminal

charges. Estes later admitted that she hid at her parents' house with L.L. during that

time.

          Trial began on October 21, 2013. LaVoi was represented by counsel and Estes,

who had previously discharged her attorney, appeared pro se. Following three days of
testimony, the trial court entered findings of fact and conclusions of law, a parenting

plan and an order of child support. The trial court ordered that LaVoi remain L.L.'s

primary residential parent. The trial court found that Estes's contact with L.L. should be

restricted to a total of eight hours of supervised visitation a week because Estes
No. 70921-6-1/4



engaged in abusive use of conflict during the duration of L.L.'s life and had withheld

access to L.L. from LaVoi for a protracted period of time without good cause. CP 1183.

The trial court ordered Estes to pay LaVoi $10,000 in attorney fees due to her

"intransigence and filing of frivolous motions." Clerk's Papers (CP) at 1181. The trial

court also ordered Estes to pay LaVoi $296.23 per month in child support. In doing so,

the trial court found Estes to be voluntarily unemployed and imputed her income at

$1,345.00 per month based on her work history.

       Proceeding pro se, Estes appeals the September 27, 2013 order designating

LaVoi as the primary residential parent and the November 4, 2013 findings of fact and

conclusions of law, parenting plan and order of child support.

                                     DECISION


       In determining a parenting plan, the trial court exercises broad discretion.

In re Marriage of Kovacs. 121 Wn.2d 795, 801, 854 P.2d 629 (1993). Atrial

court's decision regarding custody or visitation will not be overturned absent

abuse of that discretion. In re Marriage of Rich. 80 Wn. App. 252, 258, 907 P.2d

1234 (1996). A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds. In re Marriage of Littlefield, 133

Wn.2d 39, 46-7, 940 P.2d 1362 (1997). We review the trial court's findings of fact

to determine whether substantial evidence supports the findings. Sunnvside

Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002). We

do not review the trial court's credibility determinations, nor do we weigh

conflicting evidence. Rich. 80 Wn. App. at 259.
No. 70921-6-1/5



       1.   September 26. 2013 Temporary Order

       Estes claims that the trial court erred in designating LaVoi as the primary

residential parent of the child and restricting her contact. She argues that she did

not receive sufficient notice because she believed the hearing scheduled for that

day was only a pretrial hearing and not one at which her status as primary

residential parent would be determined. Because any temporary parenting plans

entered pretrial are terminated by the final parenting plan, Estes's challenge to the

September 26, 2013 order is moot. See RCW 26.09.060(10)(c).

       2.   November 4. 2013 Final Orders

       Estes claims that the trial court erred in determining a residential schedule

without considering the required statutory factors in RCW 26.09.187(3)(a).1 But it
is clear from the court's lengthy and detailed findings of fact that the court did

       1 RCW 26.09.187(3)(a) requires the trial court to consider the following factors
when determining residential provisions:
             (i) The relative strength, nature, and stability of the child's
     relationship with each parent;
             (ii) The agreements of the parties, provided they were entered into
     knowingly and voluntarily;
            (iii) Each parent's past and potential for future performance of
     parenting functions ... including whether a parent has taken greater
     responsibility for performing parenting functions relating to the daily needs
     of the child;
             (iv) The emotional needs and developmental level of the child;
             (v) The child's relationship with siblings and with other significant
     adults, as well as the child's involvement with his or her physical
     surroundings, school, or other significant activities;
              (vi) The wishes of the parents and the wishes of a child who is
     sufficiently mature to express reasoned and independent preferences as to
     his or her residential schedule; and
             (vii) Each parent's employment schedule, and shall make
     accommodations consistent with those schedules.
No. 70921-6-1/6



consider the required factors in determining that LaVoi should be L.L.'s primary

residential parent:

   a. Jonathan LaVoi has a strong relationship with [L.L.]. Although Kyla
      Estes' failure to allow regular and consistent contact between
      Jonathan LaVoi and the child may have delayed their ability to have
      such a relationship, significant testimony established that Jonathan
      LaVoi and child have a strong, stable, bonded relationship at this
       time.


   b. Ms. Estes has a loving relationship with her son; however she has
      no acknowledgment that her actions potentially have had a
      detrimental impact on her child.

   c. The parties do not have any agreements regarding parenting of the
       child.


   d. Jonathan LaVoi is capable of and has demonstrated his ability to
      perform the parenting functions.

   e. Kyla Estes has demonstrated an inability to perform certain key
      parenting functions, such as assisting the child to develop and
      maintain appropriate interpersonal relationships, and exercising
      appropriate judgment regarding the child's welfare. The court does
      not find that she would physically harm her child but rather that she
      fails to recognize that her actions have potentially harmed her child
       emotionally.

   f. The emotional needs and development level of the child requires
       that the child be placed in the primary care of Jonathan LaVoi, who
       has demonstrated that he is capable of providing a loving and
       stable environment for the child.

   g. The emotional needs and developmental level of the child requires
      that Kyla Estes engage in the court ordered psychological
      evaluation. Lisa Barton, the guardian ad litem, recommended the
      psychological evaluation because without it, the court would be
       unable to determine whether Kyla Estes has mental health issues
       and whether she would continue to create conflict.
No. 70921-6-1/7



   h. The emotional needs and developmental level of the child requires
      that Kyla Estes have supervised visitation pending the
      psychological evaluation and the successful completion of its
      recommendations to ensure that Kyla Estes does not continue to
      interfere with the child's emotional needs, such as a regular and
      consistent relationship with Jonathan LaVoi, and the absence of
        conflict.


   i.   Jonathan LaVoi has surrounded himself with a suitable, stable and
        appropriate support system of friends and family with whom the
        child is developing positive relationships.

   j. The court is concerned about the child's relationship with the
      maternal grandparents and uncle based on their individual behavior
      and their assistance of Kyla Estes's willful and blatant violation of
      court orders, as well as their participation, engagement and
        initiation of hostile behavior and conflict.
   k. Jonathan LaVoi has demonstrated a desire and ability to have a
        positive, consistent, stable relationship with the child. The court
        finds credible Jonathan LaVoi's testimony that he wants the child to
        have a relationship with the mother. The court finds credible
        Jonathan LaVoi's testimony that he will not interfere with or violate
        court orders regarding Kyla Estes' visitation with the child.
        Jonathan LaVoi has not engaged in any behavior throughout the
        litigation which indicates otherwise.
   I.   The court finds that Kyla Estes has demonstrated no desire or
        ability to ensure that Jonathan LaVoi and child have a consistent,
        positive, stable relationship.
                1) Kyla Estes has engaged in the abusive use of conflict.
                2) Kyla Estes has violated multiple court orders, including
                   multiple missed visits and a blatant violation of the court's
                   September 26, 2013 transference of custody order for
                    seven days.
                3) The court does not find Kyla Estes' testimony that she
                    will not violate future orders credible.
   m. The only evidence the court has regarding either party's
      employment is Jonathan LaVoi's testimony about his employment.
      Jonathan LaVoi has a full time job, but has flexible hours regarding
      when he goes into work and leaves work each day.

   n. Kyla Estes testified that she has a business license and a job that
        allows her to be at home with the child during the day, however,
        she provided no evidence or testimony as to what her job is, how
No. 70921-6-1/8



       much it pays, and whether it is sufficient to support the child
       financially. The court finds that based on Kyla Estes' claims of
       "poverty," she is voluntarily unemployed.

CP at 1169-70. Estes does not challenge any of the findings of fact and we

therefore treat them as verities on appeal. See In re Marriage of Brewer, 137

Wn.2d 756, 766, 976 P.2d 102 (1999).

       Estes claims that the trial court erred in restricting her contact with L.L.

based on her abusive use of conflict and withholding of L.L. from LaVoi. She

argues that the trial court was instead obligated to restrict LaVoi's contact with

L.L. because LaVoi engaged in acts of domestic violence against her. A trial court

may limit a parent's residential time with a child ifthe parent engages in the

"abusive use of conflict by the parent which creates the danger of serious damage

to the child's psychological development" or "has withheld from the other parent

access to the child for a protracted period without good cause." RCW

26.09.191 (3)(e)(f). A trial court must limit a parent's residential time with a child if

the parent has a history of acts of domestic violence. RCW 26.09.191 (2)(iii).

       Again, the trial court made thorough and comprehensive findings regarding

Estes's abusive use of conflict, based on Estes's frequent violation of court orders

regarding visitation, false allegations of abuse and neglect, and harassment of

LaVoi, his friends, his attorneys and the GAL. The trial court also found that Estes

had allowed L.L. to witness her behavior and that it had a detrimental effect on his

well-being. Again, Estes does not challenge these findings and we treat them as

verities. The trial court also found that Estes's claims of domestic violence were



                                               8
No. 70921-6-1/9



not credible. The unchallenged findings support the trial court's limitation of

Estes's contact with L.L.

       Estes argues that the trial court erred in limiting her visitation with L.L. to

eight hours per week. The basis for Estes's claim appears to be that, following

the entry of the trial court's order, she has had unspecified difficulties scheduling

visits with LaVoi and the court-appointed visitation supervisor. This does not

establish that the trial court abused its discretion.

       Estes argues that the trial court erred in allowing LaVoi to take L.L. on an

out-of-state vacation without notifying her in advance as required by the parenting

plan. Because the vacation is alleged to have taken place after the trial, this claim

concerns matters outside the record. We consider only evidence that was before

the trial court at the time a decision was made. See RAP 9.1; 9.11. While we

recognize that Estes has filed her briefs pro se, pro se litigants are held to the
same standards as attorneys and must comply with all procedural rules on

appeal. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
       Estes contends the trial court erred in finding that she refused to undergo

the court-ordered psychological evaluation. She claims that she has had multiple

psychological evaluations and provided documentation to the trial court. Estes

does not cite to the trial court record but instead urges this court to consider two

documents she has attached to her brief. Because it is clear from the dates that

these documents were created after the trial, they were not part of the trial court

record and we will not consider them.
No. 70921-6-1/10



       Estes argues the trial court erred in failing to require LaVoi to establish

paternity. But the trial court found that LaVoi and Estes both signed an

acknowledgment of paternity alleging that LaVoi was the father of L.L. Estes does

not challenge this finding. An acknowledgement of paternity "is equivalent to an

adjudication of parentage of a child and confers upon the acknowledged father all

the rights and duties of a parent." RCW 26.26.320(1).

       Estes claims that the trial court erred in permitting LaVoi to question her

regarding bar grievances she had filed against his attorneys. She contends the

trial court should have sustained her objection to the question as irrelevant. But

Estes's actions were relevant to whether she had engaged in abusive use of

conflict. Estes also claims the trial court erred in permitting LaVoi to "berate and

victimize" her during closing argument. Br. of App. at 11. Because this was a

bench trial, we presume that the trial court based its decision solely on admissible

evidence. Crosetto v. Crosetto. 65 Wn.2d 366, 368, 397 P.2d 418 (1964).

       Estes challenges the trial court's award of attorney fees to LaVoi, arguing

that the trial court did not adequately consider her ability to pay. We review a trial

court's decision on attorney fees for abuse of discretion. In re Marriage of Burke.

96 Wn. App. 474, 476, 980 P.2d 265 (1999). Here, the trial court awarded LaVoi

$10,000 in attorney fees due to Estes's intransigence and filing of frivolous

motions. The trial court made detailed findings in support of its award:

       The court finds that a judgment should be entered against Kyla Estes
       in favor of Jonathan LaVoi in the amount of $10,000.00 for attorney
       fees. The court finds that Kyla Estes' intransigence and filing of



                                             10
No. 70921-6-1/11



      frivolous motions has unreasonably and unnecessarily increased
      Jonathan LaVoi's attorney fees. The court finds it is reasonable for
      Kyla Estes to be responsible for a portion of Jonathan LaVoi's legal
      fees.
      1.      As of October 14, 2013, Jonathan LaVoi had incurred
              $57,246.66 in attorney fees. It is reasonable to find that those
              fees increased during the week of October 14, 2013 for trial
              preparation, and during the week of October 21, 2013, during
              the trial.
      2.      Due to Kyla Estes's intransigence and blatant violation of court
              orders, Jonathan LaVoi had to file two motions for contempt.
              Both motions for contempt were granted. Both orders of
              contempt were upheld on revision.
      3.      Kyla Estes filed at least two frivolous motions - her motion to
              vacate pursuant to CR 60 and her motion to remove the
              guardian ad litem. Both motions were denied. As a result of
              her frivolous motions, Kyla Estes was found to have violated
              CR 11. The denial of her motions was upheld on revision.
      4.      Kyla Estes also sought a trial de novo and refused to agree to
              dismiss it, even after being notified by two judicial officers that
              it was inappropriate. As a result, Jonathan LaVoi incurred
              attorney fees in moving to have the trial de novo dismissed.
      5.      Jonathan LaVoi incurred substantial attorney fees between
              September 26, 2013, when the court granted him temporary
              custody, and October 3, 2013, when Kyla Estes returned the
              child. As a result of Kyla Estes' custodial interference, two
              additional hearings had to be held. Had Kyla Estes returned
              the child on the 26th of September, these two hearings would
              have been unnecessary.
      6.      Jonathan LaVoi has been awarded $3,000.00 in attorney fees
              and a $200 civil penalty in the orders for contempt. He was
              awarded $1,500.00 in attorney fees on the court's motion in
              finding that Kyla Estes had violated CR 11. He was awarded
              $500.00 in the court's order dismissing Kyla Estes' request for
              a trial de novo. Kyla Estes has not paid on any of the
              judgments. The award of fees Jonathan LaVoi has already
              received does not compensate him for the fees he has
              incurred as a result of Kyla Estes' frivolous motions and
              intransigence.
      7.      The court finds that the additional award of $10,000.00 in
              attorney fees to Jonathan LaVoi is reasonable.




                                              11
No. 70921-6-1/12



CP at 1181-82. Estes does not challenge these findings. Furthermore, if a trial

court awards fees on the basis of intransigence, the financial ability of the party to

pay the fees is not relevant. In re Marriage of Mattson, 95 Wn. App. 592, 604, 976

P.2d 157(1999).

       Estes also contends the trial court erred in ordering her to pay child

support, claiming she does not have the financial resources to do so. We review

a child support order for abuse of discretion. In re Marriage of Bell. 101 Wn. App.

366, 371-72, 4 P.3d 849 (2000). "This court will not substitute its own judgment

for that of the trial court where the record shows that the trial court considered all

relevant factors and the award is not unreasonable under the circumstances." [n

re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002). A court will

impute income to a parent for purposes of child support when the parent is

voluntarily unemployed or underemployed. RCW 26.19.071(6). "The court shall

determine whether the parent is voluntarily underemployed or voluntarily

unemployed based upon that parent's work history, education, health, and age, or

any other relevant factors." RCW 26.19.071(6).

       The trial court found that Estes had "failed to find meaningful and gainful

employment in order to support herself and the child" and that she had not
complied with a previous order to search for at least ten jobs a week. The trial

court found that there was "no evidence that she has actively sought reasonable

employment, or that she is employed." CP at1180. The trial court found that
Estes was voluntarily unemployed. Though Estes challenges this finding, Estes


                                              12
No. 70921-6-1/13



does not identify any evidence in the record from which the trial court could have

found otherwise. And though Estes claims that the trial court refused to consider

financial documentation that she provided, she provides no citation to the record

in support of this claim. Estes fails to demonstrate any abuse of discretion in the

child support order.

       Finally, Estes claims the trial court should not have required her to pay the

cost of visit supervision, citing her inability to pay. But Estes does not challenge

the trial court's finding that supervision was warranted. Moreover, the trial court's

finding that Estes was refusing to look for employment was supported by the

evidence. As a result, Estes does not demonstrate that the trial court abused its

discretion in obligating her to pay the cost of visit supervision.

       We affirm all of the challenged orders.




                                                   -?Af\t^<^ C-U.

WE CONCUR:




1 M ^ rT




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