A new case from the Court of Appeals, Division III, Marriage of Baker, docket # 27242-7 affirms and expands state law regarding the Homestead Act.
Over 100 years old, the Homestead Act was designed to protect the family home from creditors, regardless of financial misfortune. In its modern form, the act shields the first $125,000 of the home from levy and execution.
Thus, if you have a $400,000 home and someone files a lien, they can only expect to take $275,000 from the sale of the house, even if the lien is for more.
The issue here was whether the homestead included the house and the lot the house was built on, or, in addition, another contiguous lot owned by the same person. The creditor levied on the contiguous lot, but not the house and primary lot.
The trial court held that the homestead included the contiguous lot. The court of appeals affirmed.
Monday, March 16, 2009
Monday, March 2, 2009
Domestic Violence Statute Doesn't Apply to Persons in Dating Relationship Under Sixteen Years Old
A new case from the Court of Apeals, Neilson ex rel. Crump v. Blanchette, docket # 27066-1 (Division III), holds that the domestic violence statute does not cover acts between individuals in a dating relationship under the age of sixteen. The holding is based on the definition of “family or household members.”
“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”
Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.
The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.
“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”
Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.
The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.
Wednesday, February 25, 2009
Gag Order on Domestic Violence Perpetrator Violates 1st Amendment
A new decision from the court of appeals, Division II, Meredith v. Muriel, Docket No. 37098-1, held that a permanent domestic violence protection order restraining the father from contacting the US Department of Homeland Security regarding the mother’s immigration status violated the first amendment.
The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).
In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.
He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.
Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.
The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).
In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.
He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.
Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.
Tuesday, February 24, 2009
Mother Must Prove She Actually Incurred Daycare and Medicalcare Expenses
A new case from Division three, Fairchild v. Davis, Docket # 26818-6, ruled on the type of evidence necessary to prove that a parent actually incurred daycare and medical care expenses.
The child support statute provides that, where the transfer payment includes daycare and medical care costs, and those costs were not actually incurred, the person making the transfer payment is entitled to reimbursement if he has overpaid by at least twenty percent in a given year. RCW 26.19.080(3).
The statute doesn’t address what level of proof is required to establish that the expenses were actually incurred. This case addresses that issue.
Here, the mother, who was receiving support, submitted a declaration from herself, a statement of health insurance premiums, and a statement for orthodontia.
The commissioner concluded that the declaration was self-serving, and that the other “proof” was insufficient to establish that she actually incurred the expenses.
On revision, the court concluded that this level of proof was sufficient, because the mother was not required to keep detailed records of expenses over the years, reversing the commissioner.
The court of appeals reversed in turn, holding that more proof was required. In terms of daycare, the court held that “cancelled checks, prior tax returns, or declarations from childcare providers would have been more helpful.” In terms of medical expenses, details on co-payments, other medical expenses, and expenses actually incurred would have been more helpful.
The child support statute provides that, where the transfer payment includes daycare and medical care costs, and those costs were not actually incurred, the person making the transfer payment is entitled to reimbursement if he has overpaid by at least twenty percent in a given year. RCW 26.19.080(3).
The statute doesn’t address what level of proof is required to establish that the expenses were actually incurred. This case addresses that issue.
Here, the mother, who was receiving support, submitted a declaration from herself, a statement of health insurance premiums, and a statement for orthodontia.
The commissioner concluded that the declaration was self-serving, and that the other “proof” was insufficient to establish that she actually incurred the expenses.
On revision, the court concluded that this level of proof was sufficient, because the mother was not required to keep detailed records of expenses over the years, reversing the commissioner.
The court of appeals reversed in turn, holding that more proof was required. In terms of daycare, the court held that “cancelled checks, prior tax returns, or declarations from childcare providers would have been more helpful.” In terms of medical expenses, details on co-payments, other medical expenses, and expenses actually incurred would have been more helpful.
An Agreed Order of Dependency Does Not Constitute a Voluntary Placement Under the Indian Child Welfare Act
A new case from the court of appeals, division II, In Re the Welfare of MG, # 36975-3, held that the initial involuntary foster-care placement of an Indian child per the Indian Child Welfare Act cannot be considered voluntary at a later date, even if the mother later agrees.
The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.
In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.
In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.
In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.
However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.
The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.
In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.
In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.
In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.
However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.
Monday, January 26, 2009
Real Dad Must Pay Child Support
A new case from the court of appeals, In Re Parentage of M.K.R., 61138, division I, held that DCS has standing to file a petition challenging paternity whether or not there is a presumed father.
The ruling is a victory for the common-sense proposition that the actual father, as determined by DNA testing, ought to be liable for child support, as opposed to the presumed father, as determined by the person who was married to the mother at the time of the child’s birth.
The Washington Uniform Parentage Act, RCW 26.26 et. seq., makes a man the presumptive father of any child born to his spouse during marriage. That presumption becomes irrebuttable after two years, meaning that the husband becomes the legal father, even if he isn’t the biological father, if he fails to challenge paternity within two years.
However, at least four other parties have an interest in a given child’s paternity: the child, the state, the mother, and any other potential father. The child’s interest and the parent’s interests are fairly obvious. The state’s primary interest is the collection of child support so the child won’t go on welfare.
By statute, all these parties have standing to adjudicate their interests. This case clarifies that the state (DCS) has standing whether or not there is a presumed father. In this case, the presumed father neglected to deny paternity within the two year deadline. However, DCS did file within the two-year deadline.
The biological father, who did not want to be stuck with child support, argued that the presumed father’s failure to timely file was fatal and the presumed father was stuck with paying child support for someone else’s child.
The presumed father, on the other hand, argued that DCS’ timely filing of the petition effectively kept the window open for him, allowing him to avoid child support and make the biological father pay. The trial court agreed with the biological father.
The appellate court reversed.
The ruling is a victory for the common-sense proposition that the actual father, as determined by DNA testing, ought to be liable for child support, as opposed to the presumed father, as determined by the person who was married to the mother at the time of the child’s birth.
The Washington Uniform Parentage Act, RCW 26.26 et. seq., makes a man the presumptive father of any child born to his spouse during marriage. That presumption becomes irrebuttable after two years, meaning that the husband becomes the legal father, even if he isn’t the biological father, if he fails to challenge paternity within two years.
However, at least four other parties have an interest in a given child’s paternity: the child, the state, the mother, and any other potential father. The child’s interest and the parent’s interests are fairly obvious. The state’s primary interest is the collection of child support so the child won’t go on welfare.
By statute, all these parties have standing to adjudicate their interests. This case clarifies that the state (DCS) has standing whether or not there is a presumed father. In this case, the presumed father neglected to deny paternity within the two year deadline. However, DCS did file within the two-year deadline.
The biological father, who did not want to be stuck with child support, argued that the presumed father’s failure to timely file was fatal and the presumed father was stuck with paying child support for someone else’s child.
The presumed father, on the other hand, argued that DCS’ timely filing of the petition effectively kept the window open for him, allowing him to avoid child support and make the biological father pay. The trial court agreed with the biological father.
The appellate court reversed.
Thursday, January 8, 2009
New Case Undermines Predictability of Child Support Schedule
A new case from Division I, Marriage of Krieger and Walker, docket 01-3-02588-4, held that a court may order child support above the advisory amount established by the child support table without a showing of extraordinary need. This holding is consistent with the statute, which provides that a court has discretion to award child support in excess of the advisory amount upon written findings. (“Upon written findings” is a lower standard than “extraordinary need.”)
However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.
The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.
Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.
Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.
Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.
However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.
The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.
Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.
Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.
Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.
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