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courtroomWhen a court sentences a defendant to community custody in a Washington criminal case, there are some conditions the court must impose and others that the court may impose in the court’s discretion.  These conditions are set forth in RCW 9.94A.703.  Pursuant to the statute, the court may require an offender to “[p]articipate in crime-related treatment or counseling services” or “in rehabilitative programs” that are reasonably related to the offense, the risk of reoffending, or community safety.  Additionally, a court may order an offender convicted of a domestic violence crime to participate in a domestic violence perpetrator program, if either the offender or the victim have a minor child.

In a recent case, a defendant challenged the imposition of domestic violence treatment.  The defendant was convicted of second degree assault, unlawful imprisonment, and felony harassment of his former girlfriend.  The jury found the defendant and the victim were members of the same family or household.

The state asked the trial court to require the defendant to complete domestic violence treatment.  He objected.  The defendant argued the statute only authorized the court to require domestic violence treatment if the offender or victim had a minor child.  The trial court found it did have the authority to require the treatment and did so. The defendant appealed.

financesIn a Washington divorce, the court must characterize the assets as separate or community property.  While categorizing some types of property are fairly straightforward, others can be more complicated.  Employee stock options, for example, are characterized based on when they were acquired.  The court must look not only at when the stock options were granted, but also when they vest and what they were intended to compensate.

If the stock options are vested, they are acquired when granted.  However, the court must apply the “time rule” to unvested stock options.  The time rule is a formula that allocates the stock options according to the services performed before and after separation.  The court must first determine if the employee received the stock options as compensation for past, present, or future services.  Unvested stock options granted for present services during the marriage while the spouses are living together are acquired when they are granted.  If the unvested stock options compensate for future services, they are acquired as they vest.  Once it makes this determination, the court then must apply the time rule to the first stock option to vest after the separation date.

In a recent case, the wife challenged the characterization of the husband’s employee stock awards as separate property and the husband challenged the split distribution of future stock awards. The couple married in 1994.  They moved to Seattle in 2013 for the husband’s job.  At the time of the trial, he was earning $185,000 in base salary, plus variable annual bonuses.

car accidentAn employer may be held vicariously liable for the negligence of its employees in a Washington automobile accident case when the employees are acting within the scope of their employment.  An employee is acting within the scope of employment when engaged in the performance of duties required or directed by the employer or engaged in the furtherance of the employer’s interest.  An employee is not acting within the scope of employment when engaged in conduct involving a personal objective that is not related to the employer’s business.  The issue of vicarious liability was recently before a Washington appeals court.

The defendant driver failed to stop in time to avoid rear-ending the plaintiff’s stopped vehicle.  The defendant driver works as a regional manager for the defendant employer.  He works from his home and frequently travels for his job.  The defendant employer provides him with a monthly vehicle allowance for the cost of his vehicle and insurance.  The defendant employer also reimburses 80% of his vehicle maintenance and operation expenses.  The defendant driver did not tell his employer about the accident.

The plaintiffs sued the defendant driver and he admitted liability for the accident.  The defendant employer was subsequently added to the lawsuit, and the plaintiffs ultimately added a vicarious liability claim against it. The defendant driver testified in his deposition that he was driving home after working at the time of the accident.

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criminal lawA misdemeanor Washington DUI can be elevated to a felony under some circumstances, including a prior conviction for “[v]ehicular assault while under the influence of intoxicating liquor or any drug.”  To elevate a charge, the state must prove the existence of the conviction and that it relates to the defendant.  Vehicular assault is an alternative means offense, with three alternatives, but not all of the alternatives qualify for the enhancement.  A Washington appeals court recently considered whether the state had proved a defendant’s prior conviction for vehicular assault qualified for the enhancement.

The defendant was charged with a DUI in 2016.  The state alleged the defendant’s prior conviction for vehicular assault while under the influence made the current offense a felony.  After finding the defendant had committed DUI, the jury was then asked to determine whether the defendant had a qualifying prior vehicular assault conviction. The state introduced the court records from the previous conviction as well as testimony from a police officer.  The jury found the defendant had a prior vehicular assault while under the influence of alcohol conviction.

The defendant appealed, arguing the state did not produce sufficient evidence to elevate the offense to a felony.  He argued the evidence only established a generic conviction for vehicular assault, rather than showing that he was convicted of vehicular assault while under the influence pursuant to RCW 46.61.522(1)(b).

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Legal News GavelCourts have broad discretion in ordering postsecondary educational support in Washington family law cases.  Washington law sets out a number of factors courts should consider, including the parent’s expectations for the child, the child’s aptitude, the nature of the education sought, and the parents’ level of education. RCW 26.19.090(2).  If the court considers the factors, it does not abuse its discretion in awarding postsecondary educational support.

A Washington appeals court recently considered whether a trial court abused its discretion in modifying an order for postsecondary educational support.  The father had obtained modification of child support through default after the mother did not appear or respond to his petition.  The modified child support order required the mother to pay for postsecondary educational support and 52% of the son’s uncovered medical expenses.  She was also required to maintain a life insurance policy.  The order allowed either parent to petition for modification as long as the son was enrolled full time in school until the age of 24.

The mother subsequently moved to reduce her child support obligation.  The husband moved to dismiss, arguing that there was not a substantial change in circumstances to justify the modification.  The appeals court noted, however, that the default order had provided for modification.  The court considered the financial evidence and how the parties expected their son’s college to be funded.  The court lowered the postsecondary support payment and eliminated the obligation to pay uncovered medical expenses and maintain life insurance.  The court also ordered all future postsecondary support payments be made to the son.  The father appealed.

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To convict a defendant of felony violation of a no-contact order, the state must prove that an order existed and that the defendant knew of the order.  The order is therefore generally relevant and likely admissible.  In a recent case, however, the defendant challenged the admission of a no-contact order because he had stipulated to the existence of his order and his knowledge of it.Legal News Gavel

The defendant was charged with several Washington domestic violence offenses, including felony violation of a no-contact order, after the woman with whom he was living told police he assaulted her.  The defendant was under Department of Corrections supervision at the time.  The defendant pleaded guilty to some of the charges, but the charge for felony violation of a no-contact order went to trial.

The state planned to admit two no-contact orders into evidence.   To prove the charge, the state would have to prove that there was a no-contact order in place and that the defendant knew of it.  The defendant requested that the no-contact order be excluded because he had agreed to stipulate to knowing of its existence.  The judge ultimately admitted the no-contact order over the defendant’s objection.

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Legal News GavelWhen one parent seeks a protection order against the other parent, they often ask that the order also be applied to the children.  However, when a court issues a domestic violence protection order, any provisions addressing the residential arrangement of minor children must be made in accordance with Washington child custody laws.  The court must make findings as to the relevant factors justifying the modification.  In a recent case, a Washington appeals court considered whether a protection order that included the child was an improper modification of the parenting plan.

The couple divorced in 2015 and the parenting plan gave each parent 50% residential time with their child.  In 2017, the ex-wife petitioned for a protection order, alleging her ex-husband had given her a threatening letter.  In the letter, he stated he had two things to live for:  “redemption by taking revenge on [his ex-wife]…” and protecting his son.  The wife also provided a post on a website purportedly made by the ex-husband in 2015, stating he “contemplated murder and considered violence” but that his “son was too young to be separated from his mother permanently.

Following a hearing, the commissioner issued a protection order restraining the ex-husband from contact with the ex-wife or the child except for his supervised visits.

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Legal News GavelWhen a person is killed due to someone else’s negligence, their loved ones may be able to pursue Washington wrongful death and survivorship claims.  Survivorship claims and wrongful death claims are similar, but not identical. A Washington appeals court recently considered whether a judgment in a survivorship claim precluded a wrongful death action.

The deceased sued several defendants after she was diagnosed with mesothelioma.  She settled with all but one of the defendants during trial, releasing all claims arising out of her personal injury claim and any future wrongful death claim.  The remaining claim was converted to a survivorship claim after she died during trial.  The jury returned a verdict in favor of the estate, but the court reduced it on a motion from the defendant.  The court also allocated 20% of the settlement proceeds to future wrongful death claims.  The court also reduced the judgment by 80% to offset the proceeds from the settling defendants.  Both parties appealed and the appeals court affirmed the verdict, but reversed the reduction.

The estate filed a wrongful death action against several defendants.  The trial court dismissed, finding the claims had been extinguished by the judgment in the survivorship case.  The estate appealed, arguing a wrongful death claim is a new and distinct cause of action.

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In a Washington divorce, parents generally cannot escape child support obligations by being voluntarily underemployed.  If the court finds the parent is underemployed for the purpose of reducing the child support obligation, the court can calculate child support based on imputed income.  A Washington court recently considered whether a father was subject to imputed income because he stopped working overtime after the separation.

Legal News GavelIn her motion for child support, the wife alleged the husband was voluntarily underemployed.  The trial court entered a child support order, imputing income to the husband based on past earnings.  The husband appealed.

The husband argued the court erred in finding him voluntarily underemployed and in imputing his income. The husband owns and operates a commercial harvest diving business. He previously owned and operated as many as four commercial dive boats and worked as boat captain and diver until about six months before the separation.  He stated he had previously worked over 80 hours per week and worked out of town for weeks at a time.  He claimed he had been able to work so much during the marriage because the wife had been a stay-at-home mother and homemaker.  He argued he was unable to maintain that schedule and care for his children on the shared schedule.  His salary dropped from $146,884 in 2015 to $93,094 in 2016.

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In Washington domestic violence cases, the prosecution or defense may want to present evidence of what one of the involved parties said about the events.  Hearsay evidence is generally not allowed, so such statements must fall within an exception to the hearsay rule to be admissible.   A Washington appeals court recently considered whether a victim’s statement to a police officer was appropriately admitted into evidence.

Legal News GavelThe couple lived together in the woman’s home at the time of the incident.  They got into an argument and the woman reached to take back a cell phone she had given the defendant.  According to the court’s opinion, the defendant wrapped his arm around her neck and strangled her for about 10 seconds.

The woman called 911.  When the deputies arrived, the woman described these events to one of them.

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