Seattle Attorneys Blog

First Amendment Protects Speech that Is Not a True Threat in Washington Domestic Violence

March 16, 2017 | by Blair & Kim, PLLC

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.

The 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.

Out-of-Network Expenses Are Uninsured Medical Expenses Under Washington Family Law

March 8, 2017 | by Blair & Kim, PLLC

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.

The 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.

Washington Vehicle Owner Not Liable for Accident Caused by Non-Permissive Driver

February 27, 2017 | by Blair & Kim, PLLC

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.

A 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.

Admission of Prior Incidents in Washington Domestic Violence Cases

February 27, 2017 | by Blair & Kim, PLLC

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.

A 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.

Untimely Petition for Postsecondary Education Support in Washington Divorce

February 17, 2017 | by Blair & Kim, PLLC

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.

In 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.

Washington Appeals Court Rules Drug Evidence from Impounded Motorcycle Inadmissible

February 17, 2017 | by Blair & Kim, PLLC

Criminal cases often hinge on whether evidence is admissible. Evidence obtained through an unlawful search is generally inadmissible. Vehicles can be especially vulnerable to questionable searches.

A recent case considered whether drug evidence seized in an inventory search of an impounded motorcycle should have been suppressed. A trooper stopped the defendant for speeding. During the stop, the trooper began to suspect the motorcycle the defendant was riding may have been stolen, although the court’s opinion does not detail what caused this suspicion. The trooper was unable to determine if the motorcycle was stolen. He did not arrest the defendant but also did not let him drive the motorcycle because he did not have a motorcycle endorsement. The officer impounded the motorcycle because of a Washington State Patrol policy that required the impound of motorcycles operated by a driver without an endorsement.

The trooper found two zippered cases during the inventory search. He opened them to see if they contained ownership documentation. He instead found drugs and drug-related evidence. The state charged the defendant with drug offenses. He moved to suppress the evidence from the motorcycle search, but the court denied his motion. A jury convicted him, and he was sentenced to 90 months incarceration. The defendant appealed.

When a Child Fails to Meet Conditions for Washington Post-Secondary Education Support

February 6, 2017 | by Blair & Kim, PLLC

Washington family law provides for child support to include post-secondary education in some circumstances. Before awarding this type of support, the court must first determine if the child is dependent on the parents for his or her reasonable necessities. The court has discretion in determining how long to award the support, based on a number of factors. The statute requires the child to be enrolled in an accredited institution, pursuing studies commensurate with his or her vocational goals, and to be in good academic standing. The statute requires an automatic suspension if the child fails to comply with these requirements. RCW 26.19.090.

If a court does award post-secondary education support, it must determine the consequences of the child’s failure to comply with the conditions in the order. A Washington appeals court recently considered this issue in an unpublished opinion.

The trial court had modified the child support order to include post-secondary education for one of the couple’s daughters in 2014. The order included a condition that the daughter “enroll in and attend school full-time.” The daughter was not a full-time student during the spring term of 2015, due to medical issues. A court commissioner granted the father’s motion to terminate support for the daughter. The superior court then denied the mother’s motion for revision and entered a judgment against the mother for the tuition the husband had paid and attorney fees. The court also denied the mother’s motion for reconsideration, and she appealed.

Issues Related to Children in Washington Divorces

January 26, 2017 | by Blair & Kim, PLLC

Matters related to children are often the most contentious aspects of a divorce. Ideally, parents will work together to reach a mutually agreeable arrangement regarding custody, decision-making, and support. When the parties cannot agree, however, the court may have to decide these issues based on factual findings and statutory requirements.

A Washington appeals court recently considered several issues related to parenting in a recent case. A temporary order granted equal residential time, appointed a guardian ad litem, and authorized joint decision-making. A subsequent stipulated order stated the parties agreed to update each other on the child’s health and follow the recommendations of his health care providers. Following the trial, however, the trial court entered an order limiting the father’s residential time based on findings of abusive use of conflict, neglect, and not acting in the child’s best interest.

The trial court determined the father’s net monthly income was more than $15,000, while the mother’s was less than $400, making the combined income greater than the top support schedule tier. RCW 26.19.020. The trial court ordered a transfer payment of $3,000 per month, which was greater than the amount provided in the statute. The husband appealed the child support order and the parenting plan.

State Doesn’t Have to Prove Ordinary Negligence in Washington Vehicular Homicide or Vehicular Assault

January 26, 2017 | by Blair & Kim, PLLC

The prosecution is generally required to prove some level of intent, or mens rea, to succeed in obtaining a guilty verdict in a criminal case. Some offenses, however, are strict liability offenses, meaning the prosecution does not have to prove intent. A Washington appeals court recently considered whether the vehicular homicide and vehicular assault statutes require the prosecution to prove a mens rea of ordinary negligence in the case of driving under the influence.

In a recent case, the defendant appealed convictions for vehicular homicide and vehicular assault, arguing the jury instructions were erroneous because they allowed the jury to find her guilty without a finding of ordinary negligence.

According to the opinion, the defendant’s truck spun out on an icy bridge, slid off the road, and hit two people who were investigating an accident scene. One man died, and the other was seriously injured. The officers restrained the defendant and had blood drawn at the hospital. The tests revealed a blood alcohol concentration of .09.

Complexities of Washington Divorce Involving Division of a Business

January 19, 2017 | by Blair & Kim, PLLC

Divorces can be very complicated when a valuable business is part of the community property. The party who keeps the business may be unable to pay their spouse’s share immediately, resulting in long-term property distribution payments and interest.

A Washington appeals court recently addressed these issues in the unpublished case of In Re: Marriage of Cheng. The wife had graduated from Harvard Business School in 2002 but had not really been employed since. The husband had a consulting and distance learning company that the court valued at $3.6 million. The trial court awarded the wife $640,000 in maintenance to be paid over 44 months and a judgment of $1.455 million with 6% interest over 15 years as property distribution. The court also awarded child support greater than the standard calculation. The husband appealed.

The husband argued that the wife was receiving an improper double recovery. Trial courts are to consider “all relevant factors including but not limited to” those listed in RCW 26.09.090(1) when considering how much maintenance should be awarded. The maintenance award must be just, but the trial court otherwise has broad discretion. One of the listed factors is the division of community property. If the maintenance and property award are paid from the same asset in a way that unfairly burdens the spouse that is paying, the maintenance may duplicate the property division.