                                                                        FILED
                                                                    DECEMBER 3, 2019
                                                                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 the Matter of the Marriage of              )
                                               )         No. 35836-4-III
 WESLEY S. PRUITT,                             )
                                               )
                      Appellant,               )
                                               )
        and                                    )         UNPUBLISHED OPINION
                                               )
 JENNIFER L. PRUITT,                           )
                                               )
                      Respondent.              )

       SIDDOWAY, J. — Wesley Pruitt appeals final orders in the dissolution of his

marriage to Jennifer Pruitt. He contends the trial court imposed untailored restrictions in

a final parenting plan that are not supported by the record and are not in his young

children’s best interests. He also contends the trial court ignored the value of separately

owned stocks that he brought into the marriage.

       We affirm the financial provisions of the decree but reverse the final parenting

plan and remand for the entry of findings of the harm justifying the visitation restrictions

that were imposed under RCW 26.09.191.
No. 35836-4-III
In re Marriage of Pruitt


                    FACTS AND PROCEDURAL BACKGROUND

       Wesley and Jennifer Pruitt were married on August 8, 2008. They have two

children: a son who was six years old at the time of the divorce trial, and a daughter who

was then three years old.

       Jennifer1 characterizes Wesley as abusive and controlling during their marriage.

She reports that he repeatedly physically abused her by forcing her to the ground and

lying on her with his full body weight until she stopped resisting. She claims he also

verbally abused her, criticizing her appearance and telling her how embarrassed and

ashamed he was of her. Jennifer explains that she did not report Wesley’s abuse because

she was scared and embarrassed.

       She contends that Wesley also directed abuse toward their two children. On

Memorial Day weekend 2016, she used her phone to take four videos to document the

abuse; according to Jennifer, she took the videos because she did not think anyone would

believe her otherwise. Three videos were of Wesley lying on top of his struggling son,

and the last was of Jennifer asking questions of her son about this lying-on-top-of-others

“game” that the boy says his father calls “tackle.” Clerk’s Papers (CP) at 106. A few

days later, on June 14, 2016, Jennifer applied for and obtained a temporary order of

protection against Wesley and changed the locks on the doors of their home.


       1
         Given the common last name of the parties, we refer to them by their first names
for ease of reading. We intend no disrespect.

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       Wesley was at work that day and found it strange that he had not heard from

Jennifer because they normally spoke during the day and she usually brought him lunch.

He went home at lunchtime and discovered he was locked out. He called the police, who

clarified what was happening by serving him with the temporary protection order.

       On June 10, Wesley petitioned for divorce. On the return date for the protection

order Jennifer had obtained on a temporary basis, Wesley opposed it, but it was granted.

His request to revise the protection order was denied.

       On June 14, Jennifer contacted the Spokane Police Department and reported

Wesley’s alleged abuse of the couple’s children. She provided police with copies of her

four videos. On July 8, Wesley was arrested and was charged with assault in the second

degree by suffocation. All contact between Wesley and his children was suspended until

further order of the court.

       The criminal charges against Wesley were dismissed without prejudice on

September 9, 2016. The order dismissing the charges also rescinded an order that Wesley

surrender weapons and quashed a bench warrant.

       Child Protective Services had received a police referral in June, when Jennifer

contacted the police department, and it had initiated its own investigations into Wesley’s

alleged abuse of the children. It originally arrived at “founded” findings of abuse of both

children, but it later reversed its finding with respect to the daughter, closing the



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allegations about her as unfounded. At the time of the divorce trial, Wesley’s challenge

to the founded finding of abuse of his son was on appeal.

       On September 12, 2016, having learned that the State had dismissed the criminal

charges against Wesley, Jennifer moved the trial court to limit his residential time with

the children to therapeutic counseling. Wesley opposed the request, but a court

commissioner granted it on September 22. Shortly thereafter, on September 29, Mary

Ronnestad was appointed guardian ad litem for all issues related to making a parenting

plan for the children, allegations of domestic violence and child abuse perpetrated by Mr.

Pruitt, and “[a]llegations of Ms. Pruitt regarding the children in ongoing litigation.”

Report of Proceedings (RP) at 29.

       In December 2016, Jason Raugust was approved by the court to handle therapeutic

visitation between Wesley and his children, and the visitation began. Although not court-

ordered to do so, Wesley undertook several actions in hopes of alleviating the trial court’s

concern about him resuming a full parental relationship with his children. Wesley

enrolled in an eight week parenting program that he completed in March 2017. He

completed a domestic violence (DV) assessment by a Washington State certified and

licensed domestic violence program. The assessment concluded that Wesley had

behaved in ways that could have been considered abusive but that there was not a pattern

of power and control and he did not require further treatment.



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       In the summer of 2017, Jennifer moved to renew the protection order. A court

commissioner denied her request in early July. Jennifer moved for revision, which was

denied. Later in July, Wesley’s residential time was expanded to add three Saturday

visits to the ongoing therapeutic visits with Mr. Raugust. The Saturday visits were

required to be monitored by at least one of Wesley’s parents.

       The dissolution trial took place over several days in October 2017. There was

diametrically different testimony about whether there was domestic violence in the

marriage. Jennifer insisted that Wesley abused her and the children. Wesley admitted

being critical and judgmental of Jennifer and testified that he regretted it; he also testified

that he and his wife argued during the marriage and that both raised their voices. But he

denied any physical violence. His claims that there was no physical violence were

supported by his parents and his sister.

       Ms. Ronnestad testified at trial that there had been no new reports of alleged abuse

by Wesley following Jennifer’s report on June 14, 2016. She testified that she spoke with

Mr. Raugust the Friday before her own testimony and, while he had told her he would not

be testifying,

       He just wanted to make sure that I was aware that Mr. Pruitt has been very
       consistent, and that everything has been very positive with him; that the
       children enjoy their time with him; that he sees a strong connection; that the
       kids really seem to be working on forming a bond with their dad and have a
       bond with their dad; that he does not see a fear on the kids’ part; that he
       sees a lot of progress from day one.


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             That the kids are engaging with their father; that they are speaking
      out—for hugs or kisses. They are disappointed when they have to leave.
      And that the kids are sharing things with dad that they have done, and
      they’re doing and things like that.

RP at 62-63.

      Ms. Ronnestad had reviewed the three video clips of Wesley “tackling” his son

and described them as follows:

             Q. How long was the video?
             A. Very short. There were, if I remember correctly, actually
      several—I think three—short, few second-long snippets. More than a
      second. Off the top of my head, ten seconds—
             I mean, they were very short.
             Q. Okay. And who—Is there a certain child in the video?
             A. [The son.]
             ....
             Q. Okay. Tell me what you see in the first snippet?
             A. They were all three similar, which would be Mr. Pruitt kind of
      laying on [his son], on a floor. And the person videoing was off to the side
      kind of facing them.
             ....
             Q. Okay. In your professional opinion, when you viewed these
      videos do you believe Mr. Pruitt was acting in an abusive manner?
             A. I can’t state looking at the videos, yes, they were absolutely
      abusive. I can state that they caused some questions and some concerns
      from looking at them.
             Q. Okay. Did you ask Mrs. Pruitt what she did to stop Mr. Pruitt
      from doing those things?
             A. I don’t know that I asked her specifically to stop. It was more of
      a conversation about what was happening in a larger picture, I guess.
             Q. So she talked to you about the context of those videos?
             A. Yes.
             Q. And what did she tell you the context of the videos were?
             A. She had stated that this was something that Mr. Pruitt did both to
      her and [her son], was to lay on them with his body weight. And if she
      would scream, he would sometimes put his hand over her mouth. And that

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      it wasn’t even necessarily a disciplinary thing, but that it was abusive. And
      it could be because he was angry, and sometimes it wasn’t. And that he
      had begun doing this with [their son]. And that [her son] would cry and
      want to get up.
              And that she didn’t believe anyone would believe her when she
      would tell this story, so that is why she took the videos.
              Q. Okay. You mentioned that he did that sometimes when he was
      angry.
              She give you any other motivations as to why Mr. Pruitt would do
      this?
              A. She had said sometimes he would just do this. This was the
      behavior. Because I specifically asked, is this something that he used
      necessarily always for discipline. And she said, no; sometimes it was,
      sometime[s] it wasn’t.
              Q. Did she give you any other references of people that also
      observed this behavior from Mr. Pruitt?
              A. No.
              Q. And the three snippets, three segments of video, Ms. Ronnestad,
      does [the son] cry in the video?
              A. Yes.
              Q. Does he cry in all three?
              A. No.
              Q. Does he just cry in one of them?
              A. I know for certain of one of them. I don’t believe in the other
      two.
              ....
              Q. Did you ever observe Mr. Pruitt in these video[s] putting his
      hand over [his son’s] mouth (indicating)?
              A. No. I don’t recall that.
              ....
              Q. Certainly one perspective is this was someone abusing their
      child; correct?
              A. Yes.
              Q. And the professionals have said it is abuse.
              A. Yes.
              Q. Could another possibility be that Mr. Pruitt was playing with [his
      son]?
              A. Yes.


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               Q. In your interviews with collaterals, Ms. Pruitt, her collaterals,
       Mr. Pruitt, his collaterals, how do the people that know [the son], how do
       they describe [him]? What is he like?
               A. He’s very boisterous. He is busy. And he is a happy, really nice
       kid.
               Q. Okay. Has Mr. Raugust in his observation of Mr. Pruitt in
       therapeutic visits, has Mr. Raugust described how [the son] plays with his
       dad?
               A. Yes.
               Q. How does [the son] play with his dad?
               A. Very well.
               Q. Is he physical with his dad; does he climb on his dad?
               A. Absolutely. He hugs him. He kisses him. All those things.
               Q. Did you observe any other videos that depicted alleged abuse in
       this case?
               A. No.

RP at 35-40.

       Ms. Ronnestad’s parenting recommendation was that Jennifer be the primary

caregiver for the children and that Wesley continue to have supervised contact with the

children that “might include two day visits three weekends per month plus therapeutic

visits.” Sealed Clerk’s Papers (SCP) at 317. She recommended that Wesley obtain

“some kind of appropriate therapy” to address his behavior and “[i]f this happens . . . this

matter be reviewed to provide for additional time.” SCP at 318.

       The only financial issue raised on appeal is whether the trial court failed to

consider the appreciation in Wesley’s separate property contributions to a 401(k) account

when it allocated that asset to the parties. Among Wesley’s evidence were account

statements showing that his 401(k) had a value of $78,000.00 at the beginning of 2008


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No. 35836-4-III
In re Marriage of Pruitt


(prior to the parties’ marriage) but had declined in value to $15,391.85, as of August

2008, when he and Jennifer wed. Wesley testified that the decline was the result of the

stock market crash, and he asked the trial court to treat $78,000.00 as separate property,

in light of the fact that the market recovered following the marriage.

       The trial court issued a letter decision following trial. Addressing the parenting

plan, the court largely adopted Ms. Ronnestad’s recommendations, placing the children

primarily with Jennifer and ordering Wesley to engage in and complete a DV treatment

program. Its decision provided that “[a]fter Mr. Pruitt has commenced and completed

three months of DV treatment he can motion the court for a review of the monitored

visitation and the need to continue the therapeutic visits. If treatment is progressing and

if there are not other significant issues, the Court would believe it would be appropriate to

move forward with unmonitored daytime contact for Mr. Pruitt.” CP at 343-44. The

court did not impose any other treatment conditions for Wesley and denied Jennifer’s

request for a new protection order.

       The decision stated that the court “will find that domestic violence has

occurred in the past by Mr. Pruitt against Ms. Pruitt and the children. Accordingly, [an

RCW 26.09.191] restriction is ordered.” CP at 343. It disclosed that it was “reluctant to

enter a plan that does not have finality to it. However, the Court is not ready to step to a

‘traditional’ plan at this time.” Id. It ordered the visitation schedule established in late

July 2017, to continue until further order.

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No. 35836-4-III
In re Marriage of Pruitt


       Addressing the single financial issue raised on appeal, the court treated the

$15,391.85 value of Wesley’s 401(k) plan as of August 2008, as the separate property

component of that asset, explaining:

       There was no evidence upon which the Court can segregate out earnings on
       the original balance. Additionally, there is no evidence upon which the
       Court can segregate out the earnings on post-separation contributions, so
       the increase in the account will be considered community, except for the
       contributions Mr. Pruitt and his employer have made into the account over
       the last seventeen months.

CP at 340.

       In December 2017, the trial court entered a final parenting plan. It included a

finding that Wesley had a history of domestic violence with Jennifer and the children that

supported placing limitations on him under RCW 26.09.191. Although characterized as a

final order, the parenting time schedule provision was interim in nature, consistent with

the court’s earlier written decision. Wesley appealed, challenging only the parenting plan

restrictions and the characterization of only $15,391.85 of his 401(k) as separate

property.

       The appeal was scheduled for decision without oral argument on June 13, 2019.

In conferencing on the appeal, the panel questioned whether the challenge to the

parenting plan restrictions had become moot, given the passage of time and Wesley’s

right to return to court for review of the restrictions. The parties were asked to inform the

court of their position on mootness and were given leave to submit evidence and


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In re Marriage of Pruitt


argument supporting their position on the issue. Wesley alone filed a submission and

contends the issue is not moot.

                                        ANALYSIS

I.     PARENTING PLAN

       RCW 26.09.187(3)(a) provides generally that in arriving at the residential

provisions of a final parenting plan:

       The court shall make residential provisions for each child which encourage
       each parent to maintain a loving, stable, and nurturing relationship with the
       child, consistent with the child’s developmental level and the family’s
       social and economic circumstances.

       RCW 26.09.191(2)(a)(iii) provides that a parent’s residential time with a child

shall be limited if it is found that the parent has engaged in certain types of serious

dereliction of parental duties, abuse, violence, or criminal conduct. One basis for

limitation is where “the parent has engaged in . . . a history of acts of domestic violence

as defined in RCW 26.50.010(3).” “Domestic violence” is defined to include “[p]hysical

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

injury or assault, between family or household members.” RCW 26.50.010(3)(a).

       Restrictions imposed under RCW 26.09.191(2)(a) “shall be reasonably

calculated to protect the child from physical, sexual, or emotional abuse or harm that

could result if the child has contact with the parent requesting residential time.”




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RCW 26.09.191(2)(m)(i). Restrictions under RCW 26.09.191 “cannot be imposed for

unfounded reasons.” In re Marriage of Katare, 175 Wn.2d 23, 37, 283 P.3d 546 (2012).

       At trial, Wesley’s lawyer characterized the parenting issues as “most important”

and asked the trial court to impose a tiered parenting plan, guided by input from Mr.

Raugust, under which “visitation is slowly built up over time until Mr. Pruitt . . . gets a

normal parenting plan.” RP at 18. Wesley argues that his own proposal would have met

the statutory requirement for a reasonable relationship between restrictions and the risk of

emotional abuse or harm. He argues that the more onerous restrictions imposed by the

trial court are not reasonably related to any articulated risk of emotional abuse or harm.

       Wesley satisfies us that the issue is not moot. The supplemental materials he has

submitted demonstrate that in early January 2018, Jennifer moved to disqualify Mr.

Raugust as the provider of therapeutic visitation because Wesley was receiving individual

counseling from someone who works from the same office suite as Mr. Raugust. A court

commissioner granted the motion in February 2018. It took until the end of April 2018,

for the parties and the court to arrive at court approval of a new therapeutic counselor.

The court-approved counselor turned out not to be accepting new patients.2




       2
         One year earlier, Wesley had filed a declaration outlining the difficulties in
identifying Mr. Raugust, stating it had been “very difficult to find a counselor who has
the availability to accept new clients, and who is willing to accept our case and provide
therapeutic visitation.” CP at 217.

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       In June 2018, Wesley moved to expand his residential time with his children,

supported by documentation that he had completed four months of domestic violence

treatment. Jennifer opposed expanded visitation. The most recent order, entered by a

court commissioner in August 2018, keeps the limitations in place and provides that

Wesley can move to expand his visitation time 30 days after therapeutic visitation

resumes. Wesley apparently remains subject to the challenged restrictions.

       A trial court’s parenting plan is reviewed for an abuse of discretion, which “occurs

when a decision is manifestly unreasonable or based on untenable grounds or untenable

reasons.” Katare, 175 Wn.2d at 35 (citing In re Marriage of Littlefield, 133 Wn.2d 39,

46-47, 940 P.2d 1362 (1997)). The trial court’s findings of fact are treated as verities on

appeal, so long as they are supported by substantial evidence. Id. (citing Ferree v. Doric

Co., 62 Wn.2d 561, 568, 383 P.2d 900 (1963)). “Substantial evidence” is evidence

sufficient to persuade a fair-minded person of the truth of the matter asserted. Id.

       We find no abuse of discretion by the trial court in finding a history of

domestic violence in order to exercise authority to impose tailored restrictions under

RCW 26.09.191(2)(a). At issue is whether the restrictions are tailored; that is, whether

they are reasonably calculated to protect the children from abuse or harm that could result

if Wesley is given additional, less restrictive, visitation.

       In In re Marriage of Chandola, 180 Wn.2d 632, 327 P.3d 644 (2014), our

Supreme Court reviewed a parenting plan restriction under a different subsection of

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In re Marriage of Pruitt


RCW 26.09.191—subsection (3)(g), which authorizes a court to impose restrictions if

necessary to protect against “adverse [effect] to the child’s best interests.” Part of the

court’s analysis in Chandola is applicable to all parenting plan restrictions imposed under

RCW 26.09.191(3), however. Reading the statute in light of chapter 26.09 RCW’s

statement of policy, the court concluded that “the legislature intended RCW 26.09.191(3)

restrictions to apply only where necessary to ‘protect the child from physical, mental, or

emotional harm,’ . . . similar in severity to the harms posed by the [factors] specifically

listed in RCW 26.09.191(3)(a)-(f).” Chandola, 180 Wn.2d at 648 (quoting RCW

26.09.002). It also held that a trial court abuses its discretion if it imposes a restriction

that is not reasonably calculated to prevent such a harm. Id. Most importantly for this

appeal, it held that a trial court must identify the harm that children will suffer if the

restrictions are not imposed. Id. at 654.

       In Chandola, the Supreme Court affirmed one limitation on the father’s visitation:

staged increases in the amount of visitation that would take place upon demonstrated

improvement in his parenting skills. Id. at 640, 651. The harm that the court agreed

justified the limitation was that the father had demonstrated an inability to provide his

young daughter with a proper diet, sleep schedule, or socialization. Id. at 649. A

different visitation limitation was reversed, however, because the court concluded it was

based only on the trial court’s opinion about proper child rearing. The court held that

“[b]y requiring trial courts to identify specific harms to the child before ordering

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parenting plan restrictions, RCW 26.09.191(3) prevents arbitrary imposition of the

court’s preferences.” Id. at 655.

       The Supreme Court’s decision in Chandola was not brought to the attention of the

trial court below when it entered the final parenting plan. The trial court did not identify

any harm that Wesley and Jennifer’s children would suffer without the significant

limitations that the final parenting plan imposed on visitation with Wesley. Chandola is

controlling authority that such findings are required. We reverse the final parenting plan

and remand for entry of a new plan that complies with Chandola’s requirements.

II.    SEPARATE PROPERTY VALUATION

       Wesley’s contention that the trial court failed to consider or value the growth on

his premarital 401(k) assets is easily rejected. He did not provide sufficient evidence that

traceable assets had appreciated in value.

       An asset is separate property if acquired before marriage, acquired during

marriage by gift or inheritance, acquired during marriage with the traceable proceeds of

separate property, or, in the case of earnings or accumulations, acquired during

permanent separation. In re Marriage of White, 105 Wn. App. 545, 550, 20 P.3d 481

(2001). Separate property brought into the marriage will retain its separate character as

long as it can be traced or identified. In re Marriage of Schwarz, 192 Wn. App. 180, 190,

368 P.3d 173 (2016). If community and separate funds are so commingled that they

cannot be distinguished or apportioned, the entire amount is rendered community

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property. In re Marriage of Pearson-Maines, 70 Wn. App. 860, 866, 855 P.2d 1210

(1993).

       A trial court has considerable discretion in making a property division, and “will

be reversed on appeal only if there is a manifest abuse of discretion.” In re Marriage of

Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). “‘A trial court abuses its

discretion if its decision is manifestly unreasonable or based on untenable grounds or

untenable reasons.’” Id. (quoting Littlefield, 133 Wn.2d at 46-47).

       Wesley’s evidence in support of his request to be credited with $78,000.00 for pre-

marital 401(k) assets was limited to his own testimony. He demonstrated that his 401(k)

assets were worth $78,000.00 at the beginning of 2008, and that the fall in value to

$15,391.85 in the month he and Jennifer wed was the result of a sharp market decline

during the Great Recession. His justification for the $78,000.00 separate property

valuation consisted of the following:

                Q.   Do you have a value, sir, that you would like to give it?
                A.   As it appears on here, 78,000.
                Q.   Did the market recover, sir?
                A.   Yes.

RP at 191-92.

       We can take judicial notice that the stock market did recover, and even that the




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price of some stocks recovered from 2008 lows within a matter of a few years. 3 But

Wesley presented no evidence that the stocks held in his 401 (k) account at the time of his

marriage remained unsold in the account and regained their earlier value. On appeal, he

suggests that by looking at the exhibits submitted, the trial court could have figured that

out for itself. We are not persuaded that it could; more importantly, it was Wesley's

burden to demonstrate appreciation in traceable premarital holdings. It was not the trial

court's job to figure it out.

       We affirm the financial provisions of the decree, reverse the final parenting plan,

and remand for further proceedings consistent with this opinion.

       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.




                                                  Siddoway, J.

WE CONCUR:




                                                  Fearing, J.

       3
         E.g., In re Atossa Genetics Inc. Sec. Litig., 868 F .3d 784, 799 (9th Cir. 2017)
("historical stock prices are 'not subject to reasonable dispute' and 'can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned'"
(quoting FED. R. EVID. 20l(b))).

                                             17
