Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re Marriage of,                          )       NOS. 66615-1-I
                                            )              66910-9-I
     KARI P. MAYO,                          )       (Consolidated Cases)
                                            )
                         Respondent,        )       DIVISION ONE
              and                           )
                                            )
     MARK B. MAYO,                          )       UNPUBLISHED OPINION
                                            )
                         Appellant.         )       FILED: April 30, 2012

       Lau, J.  --  Mark Mayo appeals a final parenting plan entered by the trial court 

after a three-day trial and several pretrial orders.  Finding no abuse of discretion, we 

affirm.

                                            FACTS
       Kari and Mark Mayo1 were married in 2004.  They separated on July 24, 2009.  

On December 7, 2010, the parties participated in a settlement conference on a 

parenting plan for their two young children.  At the time, Mark was incarcerated and 

participated by telephone.  Attorneys for Kari and Mark signed a proposed parenting 

plan ("negotiated plan").  Kari, however, asserted shortly after that she disagreed with 

       1 We use the parties' first names for clarity. 

66615-1-I/2

the negotiated plan.  The parties continued to negotiate the plan's terms.  Mark filed a 

motion to enforce the plan signed by each party's attorney.  Kari and her attorney filed 

declarations in opposition.  The court denied the motion.  The order denying the motion 

states:

              This matter came before the court on respondent's motion to enforce 
       settlement agreement and for terms, and the court having considered the 
       moving, opposition and in reply materials and briefs, and having reviewed the 
       legal file, now, hereby orders that respondent's motion is denied.  Although both 
       attorneys signed the proposed parenting plan, petitioner asserts that she did not 
       agree and advised counsel of the same within minutes.  She also asserts that 
       respondent continued to negotiate terms even after the attorneys signed the 
       proposed parenting plan.  The record is insufficient for the court to enforce this 
       proposed plan, as there was no final agreement.
              Respondent's motion to strike reply memo is denied.

(Capitalization omitted.)

       Following a three-day bench trial, the court made findings of fact and 

conclusions of law and entered a dissolution decree and permanent parenting plan.  
The findings incorporate the parenting plan by reference.  Mark appeals.2

                                          ANALYSIS

       Mark argues the court erred by failing to enforce the parenting plan signed by 

the parties' attorneys after the settlement conference.  He also challenges evidentiary 

rulings and the final parenting plan entered by the court after trial.

       We review a trial court's parenting plan decisions for an abuse of discretion.  In 

re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).  A trial court abuses 

       2 Mark moved for discretionary review of several pretrial orders.  We 
consolidated that appeal with his appeal of the final parenting plan entered by the 
court.

                                            -2- 

66615-1-I/3

its discretion when its decision is manifestly unreasonable or based on untenable 

grounds or untenable reasons. Littlefield, 133 Wn.2d at 46-47.  Because of its "unique 

opportunity to observe the parties to determine their credibility and to sort out 

conflicting evidence," the trial court's discretion in this regard is broad, In re Marriage of 

Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982), and appellate courts are 

reluctant to disturb a trial court's child placement decisions. In re Marriage of Kovacs,

121 Wn.2d 795, 801 n.10, 854 P.2d 629 (1993) (citing In re Marriage of Murray, 28 Wn.

App. 187, 189, 622 P.2d 1288 (1981)).  Determining the credibility of witnesses and the 

weight to assign conflicting testimony is for the trial judge, whose findings are reviewed 

only to determine whether they are supported by substantial evidence. In re Marriage 

of Pennington, 142 Wn.2d 592, 602-03, 14 P.3d 764 (2000).

       We first address Mark's motion to supplement the record with transcripts of the 

settlement discussions that took place during the settlement conference.  Kari objects

on the grounds that the transcripts are partial and their admission would violate ER
4083 and RCW 5.60.070.4  We agree.  In addition, Mark fails to satisfy RAP 9.10.

       3 ER 408 provides:  "In a civil case, evidence of (1) furnishing or offering or 
promising to furnish, or (2) accepting or offering or promising to accept a valuable 
consideration in compromising or attempting to compromise a claim which was disputed 
as to either validity or amount, is not admissible to prove liability for or invalidity of the 
claim or its amount.  Evidence of conduct or statements made in compromise 
negotiations is likewise not admissible.  This rule does not require exclusion of any 
evidence otherwise discoverable merely because it is presented in the course of 
compromise negotiations.  This rule also does not require exclusion when the evidence 
is offered for another purpose, such as proving bias or prejudice of a witness, negating 
a contention of undue delay, or proving an effort to obstruct a criminal investigation or 
prosecution."

       4 RCW 5.60.070 provides:  "(1) If there is a court order to mediate, a written 

                                            -3- 

66615-1-I/4

agreement between the parties to mediate, or if mediation is mandated under RCW 
7.70.100, then any communication made or materials submitted in, or in connection 
with, the mediation proceeding, whether made or submitted to or by the mediator, a 
mediation organization, a party, or any person present, are privileged and confidential 
and are not subject to disclosure in any judicial or administrative proceeding except:
       "(a) When all parties to the mediation agree, in writing, to disclosure;
       "(b) When the written materials or tangible evidence are otherwise subject to 
discovery, and were not prepared specifically for use in and actually used in the 
mediation proceeding;
       "(c) When a written agreement to mediate permits disclosure;
       "(d) When disclosure is mandated by statute;
       "(e) When the written materials consist of a written settlement agreement or 
other agreement signed by the parties resulting from a mediation proceeding;
       "(f) When those communications or written materials pertain solely to 
administrative matters incidental to the mediation proceeding, including the agreement 
to mediate; or
       "(g) In a subsequent action between the mediator and a party to the mediation 
arising out of the mediation.
       "(2) When there is a court order, a written agreement to mediate, or when 
mediation is mandated under RCW 7.70.100, as described in subsection (1) of this 
section, the mediator or a representative of a mediation organization shall not testify in 
any judicial or administrative proceeding unless:
       "(a) All parties to the mediation and the mediator agree in writing; or
       "(b) In an action described in subsection (1)(g) of this section.
       "(3) Beginning on January 1, 2006, this section governs only mediations 
pursuant to a referral or an agreement made before January 1, 2006.  Mediations 
pursuant to a referral or an agreement made on or after January 1, 2006, are governed 
by chapter 7.07 RCW."  

         5 RAP 9.10 provides:  "If a party has made a good faith effort to provide those 
portions of the record required by rule 9.2(b), the appellate court will not ordinarily 
dismiss a review proceeding or affirm, reverse, or modify a trial court decision or 
administrative adjudicative order certified for direct review by the superior court 
because of the failure of the party to provide the appellate court with a complete record 
of the proceedings below.  If the record is not sufficiently complete to permit a decision 
on the merits of the issues presented for review, the appellate court may, on its own 
initiative or on the motion of a party (1) direct the transmittal of additional clerk's papers 
and exhibits or administrative records and exhibits certified by the administrative 
agency, or (2) correct, or direct the supplementation or correction of, the report of 
proceedings.  The appellate court may impose sanctions as provided in rule 18.9(a) as 
a condition to correcting or supplementing the record on review.  The party directed or 
permitted to supplement the record on review must file either a designation of clerk's 
papers as provided in rule 9.6 or a statement of arrangements as provided in rule 9.2 
                                            -4- 

66615-1-I/5

   5  

       We next address Mark's evidentiary challenges.  We review evidentiary rulings 

for abuse of discretion.  City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 

(2004).  A court is presumed to rely only on admissible evidence.  In re Marriage of 

Morrison, 26 Wn. App. 571, 575 n.2, 613 P.2d 557 (1980).  In response to Mark's 

motion to enforce, Kari and her attorney submitted their declarations indicating the 

mediation efforts resulted in no final agreement on the parenting plan issues.  Mark 

filed a motion to strike these declarations on the grounds that the signatures "do not 

comply with the requirements of GR 30(d)(2)(A) and (B)," that the declarations violated

RCW 7.07.070, which protects the confidentiality of mediations, lacked foundation, and 

were irrelevant.  The court denied the motion to strike.  

       Mark failed to object below on the "hearsay" or "extrinsic evidence" grounds he 

now argues.  And even though he objected to improper signatures below, Mark fails to 

cite any relevant legal authority supporting any of his evidentiary objections on appeal.  

He also fails to provide meaningful legal analysis.  Procedural rules apply equally to 

litigants represented by counsel and litigants proceeding pro se.  In re Marriage of 

Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).  We generally do not address 

arguments made for the first time in this court.  RAP 2.5.  We do not address 

arguments that are not supported by cited authorities.  RAP 10.3(a)(6); In re Marriage 

of Fiorito, 112 Wn. App. 657, 669, 50 P.3d 298 (2002).  These claims fail.  

within the time set by the appellate court."

                                            -5- 

66615-1-I/6

       Mark also contends the court erred by denying his motion to enforce the 

negotiated plan.  He assigns error on the ground that "the court erred by considering a 

condition precedent" and that the court erroneously found the contract rescinded.  

Appellant's Br. at 10.  The court need not enforce a parenting plan that is not 

"knowing[] and voluntary[]."  See RCW 26.09.187(2)(a)(ii), (3)(a)(ii).  In opposition to 

the motion to enforce, Kari testified that, "I informed both attorneys that I rejected the 

plan and halted the mediation." It is undisputed that Kari never signed the negotiated 

plan.  The court acted well within its discretion when it denied the motion to enforce.  

The record fails to support Mark's claim that the court erroneously interpreted the 

negotiated plan as containing a condition precedent because the court correctly 

determined Kari did not agree to the negotiated plan. Likewise, the court did not find 

rescission because Kari never signed the plan.

       Mark moved for discretionary appeal of several other pretrial orders, including 

an order denying motions for additional findings and reconsideration and an order 

denying a motion for a continuance.  We consolidated those issues with this appeal.  

But Mark makes no argument in his opening brief about why the court erred in denying 

these motions.  We decline to consider these issues.  See First Am. Title Ins. Co. v. 

Liberty Capital Starpoint Equity Fund, LLC, 161 Wn. App. 474, 486, 254 P.3d 385 

(2011) (declining to consider an inadequately briefed argument).  

       Mark also argues the court should have entered the negotiated plan after trial 

and that the court prevented him from "an[] equitable opportunity to defend [himself]."  

Appellant's Br. at 11 (boldface omitted).  Mark also asserts that Kari and her attorney 

                                            -6- 

66615-1-I/7

made false or incorrect statements in the proceedings.  Based on our review of the 

record, which includes no trial transcript, Mark fails to demonstrate error.  

       Mark also challenges the following provision in the final parenting plan limiting 

his contact and decision making:

       2.2  Other Factors (RCW 26.09.191(3))
            The respondent's involvement or conduct may have an adverse effect on the 
            children's best interests because of the existence of the factors which follow:
                A long-term impairment resulting from drug, alcohol, or other substance 
                abuse that interferes with the performance of parenting functions.

But Mark candidly admitted to problems with alcohol in his declaration in response to 

Kari's proposed permanent parenting plan.  Mark admitted that alcohol contributed to a 

2007 car accident and "a criminal act" that took place on September 8, 2009 for which 

he eventually was incarcerated.  Even though Mark asserts he now receives treatment 

for alcohol abuse, the court properly considered that his long term alcohol impairment 

may interfere with parenting functions.

       Except for the provision discussed above, Mark assigns error to none of the 

court's findings of fact, and they are therefore verities on appeal.  The court's findings 

incorporate the final parenting plan.  The court considered proposed parenting plans 

and evidence from both parties.  The residential schedule set forth in the final order 

allows Mark substantial contact with the children upon his release from incarceration.  

Mark will receive Friday through Sunday visitation every other week, as well as mid 

week visitation on Thursdays on alternate weeks.  The children will also reside with 

Mark during many vacations and holidays.  Mark identifies nothing in the record that 

indicates the court prevented him from submitting evidence or that the court abused its 

                                            -7- 

66615-1-I/8

discretion when it entered a final parenting plan.  Mark's claim fails.

       Mark requests attorney fees on appeal.  Because he is not the prevailing party, 

he is entitled to no fees. RAP 18.1.

       Affirmed.

WE CONCUR:

                                            -8-