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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of            )       No. 66551-1-I
KAREN LYNN MADDEN,                          )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )
              and                           )       UNPUBLISHED OPINION
                                            )
MARR PAUL MADDEN,                           )
                                            )
                      Appellant.            )       FILED: April 16, 2012

       Schindler, J.  --  Marr Madden appeals several provisions of a final parenting 

plan.  We conclude substantial evidence supports the trial court's critical findings of 

fact, the court did not abuse its discretion in entering the challenged provisions, and 

Madden's challenge to the court's credibility determinations is unreviewable.  

Accordingly, we affirm.

                                            FACTS

       Karen Madden and Marr Madden married in 1997 and separated in 2009.  They 

have three children.  At the time of separation, Marr1 worked full time for the Boeing 

Company, generally from his home office.  Following the birth of the children, Karen 

worked in the home full time.  Karen supplemented the family income by providing 

       1 We refer to the parties by their first names for clarity.  No disrespect is intended. 

No. 66551-1-I/2

babysitting services and attended school in the evening to obtain a teaching certificate.  

Karen is planning to open a daycare center in the home.  The parties settled all 

property and support issues, reserving parenting and attorney fee issues for trial.

       Following a five-day trial, on December 17, 2010, the trial court entered the 

decree of dissolution, a final parenting plan, and findings of fact and conclusions of law.  

After considering the testimony by the parties, several other witnesses, and the court-

appointed parenting plan evaluator, the trial court found that Karen had been the 

children's primary caregiver and had taken the primary role in fulfilling all parental 

functions, including attending to the children's daily needs, administering discipline,

researching schools, arranging and attending playdates, and managing the children's 

nutritional needs.  

       The trial court found that Marr had a strong bond with the children and that he 

was an involved father who loved the children very much.  But the court flatly rejected

much of Marr's testimony as not credible, including his contentions that Karen had 

committed acts of domestic violence, that she was routinely absent from the home, and 

that he had been primarily responsible for the children's care.  The court further found 

Marr had been verbally and emotionally abusive to Karen, that he had humiliated and 

belittled her in front of her family and others, that he had engaged in an abusive use of 

conflict, and that he had used the litigation process to file baseless motions, meritless 

appeals, and abusive discovery requests.  The court rejected as completely 

unsupported Marr's allegations that Karen had mental and physical problems that were 

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No. 66551-1-I/3

detrimental to the children.

       The court entered a final parenting plan under which the children reside a 

majority of the time with Karen.  Based in part on the finding of Marr's abusive use of 

conflict, the court imposed restrictions under RCW 26.090.191, requiring Marr to 

complete an anger management course and awarding Karen sole decision-making 

authority.  The court also continued the restraining order against Marr for five years

and awarded Karen attorney fees incurred as a result of Marr's intransigence.

       Marr appeals.

                                          ANALYSIS

Continuing Restraining Order 

       Marr contends that the trial court erred in entering the restraining order.  He 

disputes the trial court's findings that he had a history of controlling behavior, abusive 

use of conflict, and inability to control his anger.    

       But Marr's challenge on appeal consists of nothing more than the same

conclusory allegations that he raised at trial.  The trial court considered those 

allegations, along with all of the evidence, and concluded that much of Marr's testimony

was not credible and that Karen's testimony was "forthright and honest."  

       This court cannot retry the facts on appeal.  Rather, we review the trial court's 

findings of fact for substantial evidence and the conclusions of law de novo.  In re 

Marriage of Zier, 136 Wn. App. 40, 45, 147 P.3d 624 (2006).  We defer to the trier of 

fact for purposes of resolving conflicting testimony and evaluating the persuasiveness 

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No. 66551-1-I/4

of the evidence and credibility of the witnesses. Thompson v. Hanson, 142 Wn. App. 

53, 60, 174 P.3d 120 (2007), aff'd, 168 Wn.2d 738, 239 P.3d 537 (2009).

       At trial, Marr admitted that he had removed Karen's name from community bank 

accounts on several occasions.  The court flatly rejected his claim that he did so 

because Karen had threatened to take the children to California.

       Karen and other witnesses testified about numerous incidents of ongoing verbal 

and emotional abuse, including Marr's repeated criticisms of Karen's mental and 

physical health and her parenting, housekeeping, cooking, and bookkeeping skills, his 

frequent use of profanity, in front of the children and others, his sexually aggressive 

behavior, and his allegations that Karen would not accommodate his sexual 

preferences.  The evidence also supports the trial court's findings that Marr had 

inappropriately monitored Karen's voicemails after moving out of the family home, sent 

her verbally abusive emails after the parties separated, and assaulted her on one 

occasion by grabbing her arms and shoving her out of the room.

       Karen testified that she found Marr's ongoing criticism of her in front of the 

children, acquaintances, and family members, as well as his graphic complaints about 

intimate matters to her relatives, to be embarrassing, degrading, hurtful, and 

humiliating.  She expressed fear that without continuing the restraining order, Marr's 

abusive behavior would continue and his anger would escalate.  

       The trial court has broad discretion to enter a continuing restraining order as 

part of the dissolution decree.  See RCW 26.09.050(1) (trial court authorized to include 

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No. 66551-1-I/5

"any necessary continuing restraining orders" when entering dissolution decree).  The 

evidence amply supports the trial court's findings and determination that Karen had a 

reasonable fear of harm based on Marr's history of controlling behavior, abusive use of 

conflict, and an inability to control his temper.  The trial court did not abuse its 

discretion in entering a continuing restraining order.

Imposition of RCW 26.09.191 Restrictions

       Marr also contends the trial court erred in imposing restrictions on him under 

RCW 26.09.191, including requiring him to complete an anger management course and 

granting Karen sole decision-making authority.  The trial court's decisions on parenting 

plan provisions are reviewed for an abuse of discretion.  In re Marriage of Littlefield, 

133 Wn.2d 39, 46, 940 P.2d 1362 (1997).

       RCW 26.09.191(3)(e) permits the court to impose limitations on the parenting 

plan if a parent's abusive use of conflict "creates the danger of serious damage to the 

child's psychological development."  As previously described, the evidence supported 

the trial court's findings that Marr had a history of controlling and abusive behavior and 

allowed his anger to cloud his judgment.  The trial court further found that Marr had 

repeatedly disparaged Karen in front of the children and involved them in the litigation 

by telling them about the status of the case, the results of hearings, and the contents of 

documents submitted to the court.  Margo Waldroup, the parenting evaluator, testified 

that Marr continued to have an anger management problem and concluded that his 

failure to understand that problem created a significant emotional risk for his children.

                                               5 

No. 66551-1-I/6

       Substantial evidence supports the trial court's findings.  The trial court did not 

abuse its discretion in imposing restrictions on Marr under RCW 26.09.191, including 

the requirement that Marr successfully complete an anger management course.

Decision-Making Authority

       The existence of a limitation under RCW 26.09.191 is also a factor that the court 

considers when determining decision-making authority in a parenting plan.  RCW 

26.09.187(2)(b)(iii) requires the trial court to award sole decision-making authority to 

one of the parents if one of the parents is opposed to mutual decision-making and the 

opposition is reasonable in light of specified statutory factors, including the existence of 

a limitation under RCW 26.09.191.  RCW 26.09.187(2)(b), (c). 

       The record shows that the trial court considered the relevant statutory factors, 

the parties' history of conflict, Marr's refusal to follow the recommendations of the 

children's treating professionals, and the potential effect of mutual decision making on 

the children.  The court did not abuse its discretion in awarding sole decision-making 

authority to Karen.2

Failure to Impose Restrictions under RCW 26.09.191

       Marr contends that the trial court erred in not imposing residential and decision-

making restrictions on Karen based on her alleged history of domestic violence.  RCW 

       2 Marr also contends that the trial court applied the wrong statutory standard when assessing the 
parties' "parenting functions." But this assertion rests on what is clearly a typographical error in the trial 
court's findings of fact referring to RCW 26.09.004(3) rather than RCW 26.09.004(2).  The record 
demonstrates that the trial court applied the correct statutory standards when making its decision, and 
Marr makes no showing to the contrary.

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No. 66551-1-I/7

26.09.191 requires the trial court to restrict a parent's residential time with a child and 

decision-making authority if the court finds the parent engaged in "a history of acts of 

domestic violence." RCW 26.09.191(2)(a)(iii). "Domestic violence" includes "[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)(a).  

       At trial, Marr repeatedly acknowledged he had withdrawn his claims for parenting 

restrictions against Karen based on alleged acts of domestic violence, emotional 

abuse, and mental instability.  The trial court's finding to this effect is unchallenged on 

appeal.  This court will generally not entertain arguments that are patently inconsistent 

with the position a party advanced at trial.  Postema v. Postema Enters., Inc., 118 Wn.

App. 185, 194, 72 P.3d 1122 (2003).

       Moreover, substantial evidence supports the trial court's decision not to impose 

restrictions on Karen based on RCW 26.09.191.  On appeal, Marr alleges that Karen 

committed numerous "undisputed" acts of domestic violence, including threats of bodily 

harm, pounding on the doors, damage to property, and multiple assaults.  But Karen 

testified at great length about each of the alleged incidents of domestic violence.  She 

disputed some of Marr's allegations outright and explained in detail the circumstances 

surrounding the remaining alleged incidents.

       Marr's allegations on appeal are nothing more than a repetition of his self-

serving trial testimony, and he fails to address all of the evidence that was before the 

trial court. The trial court found Karen's testimony to be open, honest, and forthright, 

                                               7 

No. 66551-1-I/8

while finding that Marr was not a credible witness.  Based on the evidence, the trial 

court could reasonably conclude that Marr's claims of domestic violence were either 

highly exaggerated or not credible.  We defer to the trier of fact on issues of credibility, 

conflicting testimony, and persuasiveness of the evidence.  State v. Fiser, 99 Wn. App. 

714, 719, 995 P.2d 107 (2000).  Substantial evidence supported the trial court's 

determination that neither parent engaged in a "history of acts of domestic violence"

requiring restrictions under RCW 26.09.191(1).

Pretrial Discovery

       Marr next contends that the trial court erred in granting Karen's motion for a 

protective order that limited the scope of his discovery.  Marr initially submitted more 

than 800 interrogatories and 85 requests for production, some which encompassed 

time periods exceeding the 12-year period of the marriage.  Finding that Marr's 

discovery requests were over burdensome and an "inappropriate use of the discovery 

process," the trial court granted Karen's request for a protective order.  The order 

specified that Marr could use the King County Bar Association's pattern interrogatories 

and requests for production for family law litigation and supplement them with 10

additional interrogatories and five requests for production.  The protection order also 

limited Marr to requests from the same period of time addressed in Karen's discovery 

requests.

       Marr offers no meaningful argument to support his assertion that the trial court's 

ruling demonstrated bias and provided Karen with an "unfair advantage" for trial 

                                               8 

No. 66551-1-I/9

preparation.  Nor has he made any showing that the permitted interrogatories and 

requests for production limited his ability to obtain all relevant documents, including 

"credit card statements, checking account balances, cancelled checks and payment 

histories."  Under the circumstances, Marr has not demonstrated any error, much less

that the trial court abused its broad discretion to limit the scope of discovery.  See

Nakata v. Blue Bird, Inc., 146 Wn. App. 267, 277, 191 P.3d 900 (2008).  Marr's 

allegations warrant no further consideration.  See Saunders v. Lloyd's of London, 113 

Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline to consider issues 

unsupported by cogent legal argument and citation to relevant authority).  

Family Calendars

       Marr next contends the trial court erred in excluding the family calendars that 

apparently contained handwritten entries from both Marr and Karen.  Marr contends the 

calendar corroborated his claim "that I watched our children more than Karen, and by a 

significant margin."

       We will reverse the trial court's decision to admit or exclude evidence only if it is 

an abuse of discretion.  State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). 

The trial court abuses its discretion when its decision is manifestly unreasonable or 

based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 

26, 482 P.2d 775 (1971). 

       Karen testified that the calendars consisted primarily of her handwritten entries 

documenting upcoming or planned family events, including doctor appointments, 

                                               9 

No. 66551-1-I/10

volunteer activities, and babysitting jobs.  Karen said that the calendars generally did 

not record the length of events, or when the children were in school or accompanied 

her to activities.  Nor did the calendars fully document Marr's activities.  Finally, Karen 

could not determine when the entries that were not in her handwriting had been made.

       Contrary to Marr's assertion, the trial court did not exclude the proposed 

evidence because of a lack of understanding.  Rather, the court was clearly concerned 

that because the calendars were incomplete and several years old, Marr would have to 

testify about how he was able to calculate the length of Karen's absence from the 

family home for many of the entries, a process that would have significantly extended 

an already lengthy trial.  More importantly, the trial court concluded that the probative 

value of the proposed evidence was, in any event, extremely limited:

       You know, Counsel, I really don't want to dwell on, this is not a helpful 
       area to dwell on.  Um, you know we're looking at, I think by all accounts, 
       everyone is asking for substantial amount of time for both parents.  This is 
       not [going to] be the factor that sways me one way or another.

Both parents testified at great length about their parenting activities and interaction with 

the children.  We conclude the trial court did not abuse its discretion in excluding the 

calendars.  See ER 403.  

Joint Counseling Records

       Marr contends that the trial court erred in denying his request for disclosure of 

Karen's counseling records.  He does not dispute that mental health counseling records 

are generally privileged.  See RCW 5.60.060(9).  Rather, he asserts the privilege did 

                                              10 

No. 66551-1-I/11

not apply because the sessions involved "joint" counseling.  See Redding v. Virginia 

Mason Med. Ctr., 75 Wn. App. 424, 428, 878 P.2d 483 (1994) (statements to 

psychologist not privileged in litigation between joint clients).

       The evidence at trial established that only Karen had entered into a counseling 

relationship.  Marr made no showing to the contrary.  Karen acknowledged that Marr 

was present at a couple of sessions at her request, but he has not cited any authority 

suggesting that such circumstances constituted "joint counseling" or otherwise entitled 

him to the release of Karen's counseling records.  His arguments on appeal therefore 

fail.

Attorney Fees

       Marr contends that the trial court erred in awarding attorney fees to Karen for his 

intransigence.  Karen requested attorney fees of $55,613 and the court awarded 

$17,839.  Marr claims that the parties' "CR2A" settlement agreement, executed on 

November 9, 2010, limited the award of any attorney fees for intransigence to the 

period "after the CR2A agreement was signed" and that his conduct was faultless 

during that period.

       The trial court found that Marr acted intransigently by:

       [E]ngaging in a serious and ongoing abusive use of the court process by 
       using litigation as a weapon in this divorce.  His actions directly caused 
       Ms. Madden to incur substantial attorneys' fees over and above what she 
       would have otherwise incurred in this divorce.  The court finds that Mr. 
       Madden filed unnecessary motions; made unsubstantiated, false, and 
       exaggerated allegations against Ms. Madden concerning her fitness as a 
       parent that caused her to incur unnecessary and significant attorneys'
       fees; and pursued meritless appeals causing substantial expense to Ms. 

                                              11 

No. 66551-1-I/12

       Madden.

Moreover, as the trial court expressly found, the CR2A agreement did not limit fees to 

those incurred after the agreement was signed.  Rather, the trial court was able to 

consider attorney fees incurred beginning with preparation for the settlement 

conference, including trial preparation and attendance, and any fees incurred in 

responding to both of Marr's pro se notices of discretionary review.  

       A court has discretion to award attorney fees when one parent's intransigence

causes the other parent to incur additional legal services, regardless of financial 

abilities.  In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997).  

Intransigent conduct includes "foot-dragging" or obstructionist behavior, repeatedly 

filing unnecessary motions, or making a trial unduly difficult with increased legal costs.

In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992). 

       Here, as the trial court noted, Marr aggressively pursued the imposition of RCW 

26.09.191 restrictions on Karen based on exaggerated allegations of her parental 

unfitness.  Marr withdrew these claims on the eve of trial, as well as a number of his 

proposed witnesses, causing unnecessary trial preparation costs for Karen.  Acting pro 

se, Marr also filed two meritless notices of discretionary review and a supporting 

motion. After Karen filed a response, Marr voluntarily withdrew his motions for review. 

The trial court also segregated the award based on intransigence, reducing the award 

to one-third of the incurred fees.  We find no abuse of discretion.

Attorney Fees on Appeal

                                              12 

No. 66551-1-I/13

       Karen has requested an award of attorneys fees based on need and on Marr's 

intransigence.  Under RCW 26.09.140, this court has discretion to award attorney fees 

on appeal after considering the financial resources of both parties.  See In re Marriage 

of Rideout, 150 Wn.2d 337, 357-58, 77 P.3d 1174 (2003).  Because the trial court did 

not award attorney fees to Karen based on need, and the record does not show that 

                                              13 

No. 66551-1-I/14

Marr continued his obstructive behavior on appeal, we deny her request for attorney 

fees under RCW 26.09.140.3  

       Affirmed.

WE CONCUR:

       3 Marr's request for "expenses" on appeal is also denied.

                                              14