Published on:

Courts should remain impartial regarding religious beliefs and sexual orientation when considering custody arrangements and parenting plans.  When a court relies on and adopts the opinions and recommendations of witnesses who express biases based on these issues, the entire parenting plan may be called into question.  Such was the situation in a case recently decided by the Washington Supreme Court.

wedding ringsThe couple had been married for nearly 20 years at the time of their divorce.  They had three sons, whom they raised in a conservative Christian church and sent to Christian schools.  The wife had been the primary caretaker of the children, and the husband had been the primary wage earner for most of their marriage.

In 2011, the wife told the husband she thought she might be gay.  She stopped going to the family church and began a romantic relationship with a woman.

Continue reading

Published on:

Most automobile accident cases are based on negligence.  To succeed in a negligence claim, the plaintiff must show that he or she would not have been injured “but for” the defendant’s negligence.  In some cases, there are multiple causes of an accident, and fault and liability may be apportioned among several defendants.

stop signIn a recent case, a Washington appeals court considered whether the trial court had erred in granting summary judgment in favor of the defendant, based on the plaintiff’s failure to establish causation.  The plaintiff alleged he was injured in an accident with an intoxicated driver at an intersection near a church. The plaintiff sued the church for negligence, claiming that a tree the church owned obscured the stop sign the driver had run. The trial court granted summary judgment in favor of the church.  The plaintiff appealed.

The plaintiff was crossing the intersection with the right of way when his moped was hit by a car.  The other driver told police he had not stopped at the stop sign.  He ultimately pled guilty to vehicular assault.

Continue reading

Published on:

Under Washington law, police must advise individuals of the right to independent testing when a breath test is administered pursuant to the implied consent statute.  Under a previous version of the statute, this information was also required for blood tests.  A Washington appeals court has recently addressed whether police must still inform of the right to independent testing of blood when it is no longer specifically included in the statute.

Yellow lineThe defendant was convicted of vehicular assault as a result of a two-car collision.  The defendant appealed, arguing that blood test evidence should have been excluded because he was not informed he had the right to independent tests at the time the blood was taken.

According to the court’s opinion, the defendant caused the accident by crossing the center line. The defendant called 911.  The police officer smelled alcohol and noticed signs of impairment at the scene.   The defendant went to the hospital by ambulance.  The trooper who spoke with the defendant at the hospital also smelled alcohol and observed signs of impairment.  The defendant did not respond to the trooper’s requests for a field sobriety test or a portable breath test.  Blood was subsequently drawn pursuant to a warrant.  The defendant’s blood alcohol content was 0.12 three and a half hours after the collision.

Continue reading

Published on:

Washington courts are to consider several factors when determining property distribution in a divorce.  Those factors include the nature and extent of community property and of separate property, the duration of the marriage, and the financial circumstances of the parties.  Thus, although the court characterizes property as community or separate, it may award one party’s separate property to the other if necessary to reach a just and equitable distribution.  A Washington appeals court recently considered whether the duration of the marriage outweighed the characterization of property as separate.

farm landscapeThe couple was married approximately 45 years.  They lived on the property the husband’s grandparents had homesteaded without paying rent or mortgage.  The husband ultimately inherited the property. The husband had been a farmer, and the wife was employed by a department store.  They each earned around $20,000 per year and lived paycheck to paycheck.  The husband inherited several hundred thousand dollars, however.

The wife petitioned for dissolution in 2014, and they separated later that year.  They were 72 years old at the time.  The wife had a monthly income of about $1,100, including social security and a pension.  The husband had a monthly income of about $1,900 from social security and federal crop reclamation project payments.

Continue reading

Published on:

Under Washington law, a family member who is present at the scene of an accident in which a loved one was physically injured or arrives shortly thereafter may have a claim for negligent infliction of emotional distress (NIED).  A Washington appeals court recently reviewed a case to determine whether a plaintiff could bring an NIED claim when she knew about the accident before arriving at the scene.

motorcycleThe plaintiff’s husband died from injuries sustained in a motorcycle accident caused by an unknown driver. Her husband was riding motorcycles with some friends.  A van driving erratically passed them and then suddenly hit its brakes in front of the plaintiff’s husband, causing him to crash.  The van drove off, and the driver was never identified.

One of the other riders called the woman with the plaintiff and told her of the accident, saying they should come to the scene right away.  They got there shortly after the ambulance, approximately 10 to 15 minutes after they received the call.

Continue reading

Published on:

Threats of domestic violence should be taken seriously.  However, not all statements that suggest potential violence are true threats that can form the basis of a criminal conviction.  A Washington appeals court recently considered whether a statement that was made to a third party and that did not include a specific statement of an intent to harm was a true threat.

handcuffThe husband was convicted of two gross misdemeanor counts of harassment – domestic violence.  One of the counts was based upon a statement by the defendant to a third party.

According to the court’s opinion, there were issues of infidelity by both parties, and  the opinion references two extramarital relationships of the wife.  The first involved a neighbor in the same apartment complex as the couple who had also served in the military with the defendant.  The neighbor told the defendant about the affair and subsequently cut off most contact with the couple until the incident leading to the husband’s arrest.

Continue reading

Published on:

Health care can be very expensive, especially if the treatment is not covered by insurance.  A child support order will generally set out how uninsured medical expenses are allocated, but what happens when one parent seeks treatment for a child who is not covered by insurance?  The Washington Supreme Court considered this issue in a recent case.

emergencyThe child developed a kidney stone.  The condition grew worse while she was visiting her aunt, and she had a temporary stent installed at a hospital in the Cincinnati area.  She was also referred to a group in the area for lithotripsy, which would break open the stone by ultrasonic waves.

The child was covered by her father’s insurance, which was not available in the Cincinnati area where her aunt lived. The nearest facility covered by the insurer was in the Cleveland area.  The wife contacted the husband, who said the aunt should either drive the child to the in-network facility or wait to see if the insurer would approve an out-of-network provider.  The wife felt the daughter needed immediate treatment.  The aunt took the child to the physician group in Cincinnati, and they treated the stone with lithotripsy.  The medical expenses totaled about $13,000.  The insurer determined that the treatment was non-emergent and out-of-network and denied payment.

Continue reading

Published on:

A vehicle owner may be liable for the negligence of a driver if the driver was acting as the owner’s agent, and the owner controlled or had the right to control details of the physical movement of the agent.  Both parties must consent to the principal-agent relationship.

Car KeyA Washington appeals court recently considered whether an owner was vicariously liable for the negligence of a driver who had taken the vehicle without permission in an unpublished case.  The driver was returning the vehicle to the owner at the time of the collision.

The driver of the vehicle was the adult son of the owners.  He did not live with his parents at the time of the collision, but he would sometimes visit and spend the night.  According to the court’s opinion, the parents had made it clear to the son that he was not allowed to use the vehicle.  He took the vehicle on May 23 or 24, 2014, while they were gone.

Continue reading

Published on:

Pursuant to Washington ER 404(b), evidence of other crimes, wrongs, or acts may not be admitted to prove the defendant’s character to show that he acted in conformity with his character.  Evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent.   Washington courts have also allowed such evidence to be admitted under a “res gestae” or “same transaction” exception, allowing the evidence “if it is so connected in time, place circumstances, or means employed that proof of such other misconduct is necessary for a complete description of the crime charged, or constitutes proof of the history of the crime charged.” State v. Schaffer.  The purpose is to allow the jury to see a complete picture.

doorA court can only admit evidence under an exception to ER 404(b) if it first finds by a preponderance of the evidence that the misconduct occurred, determines that the evidence is relevant to a material issue, puts the purpose for the admission of the evidence into the record, and balances the evidence’s probative value against the risk of unfair prejudice.  The court must conduct the analysis on the record.

A Washington appeals court recently reviewed a case in which the trial court admitted some evidence of prior incidents.  The defendant was charged with residential burglary, fourth-degree assault, and interfering with domestic violence reporting, based on allegations that he had entered his wife’s residence, assaulted her, and prevented her from calling the police.  He was convicted of fourth-degree assault and residential burglary.  He appealed, arguing that the trial court abused its discretion by admitting evidence about prior incidents.

Continue reading

Published on:

Under Washington law, courts may order postsecondary support for children in some circumstances, but as a recent case reminds us, it is not automatic. Parents must be sure they understand the child support order and follow any deadlines for filing the petition for postsecondary support.  It is important that parents consult with their attorneys before the child turns 18 or graduates from high school.  The child support order may require the parent to petition for postsecondary educational support before the child’s high school graduation.

lecture roomIn this case, the child support order stated that support would continue until each child reached the age of 18 or graduated from high school, whichever was later, but not after a child reached the age of 19, except as provided in the paragraph on postsecondary educational support.  That paragraph provided that the right to petition for postsecondary support was reserved as long as it was exercised before the child turned 18.

The child had already turned 18 at the time the father filed for postsecondary educational support, but they were still in high school.  The court dismissed the petition as untimely, and the father appealed.

Continue reading