No. 52680-4-I.The Court of Appeals of Washington, Division One.
Filed: October 18, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-3-01245-4. Judgment or order under review. Date filed: 06/19/2003. Judge signing: Hon. Charles S French.
Counsel for Appellant(s), Don L. Westfall (Appearing Pro Se), 3616 Colby Ave., #384, Everett, WA 98201.
Counsel for Respondent(s), Richard W Swanson, Attorney at Law, 5010 Grove St, Marysville, WA 98270-4475.
Sheryl B. Westfall (Appearing Pro Se), 5720-182nd St. N.W., Stanwood, WA 98292.
PER CURIAM.
Donald Westfall appeals the decisions entered by the trial court in his divorce case, but his appellate brief does not establish that either the facts or law support his claims of error. We affirm the trial court’s orders.
Statement Of Facts
Sheryl and Donald Westfall married in 1988. For five years, Donald[1] worked for the Boeing Company, earning more than $65,000 per year. In 2001, Boeing laid him off. That same year, Sheryl filed for divorce, but she and Donald continued to live together until April 2002, when Donald committed an act of domestic violence and was arrested.[2]
An attorney from the law firm representing Donald in the criminal case agreed to represent Donald in the divorce action until he could find a family law attorney. But almost a year later, Donald still had not hired another attorney. Less than two weeks before trial, he asked for a continuance. The court denied the motion.
At trial, the court found Donald to be voluntarily unemployed. Based upon Donald’s earnings at Boeing, the court imputed earnings to him of $2,846 per month and ordered him to pay $883.82 per month in child support. The court also limited Donald’s residential time with the children to one four-hour, supervised visit per week based upon the domestic violence incident, Donald’s neglect or substantial nonperformance of parenting functions, and his long-term impairment from alcohol or other substance abuse that interfered with his performance of parenting functions.
Donald moved for reconsideration or a new trial. The court denied his motion. This appeal followed.
Sparse Record Does Not Show That The Trial Court Abused Its Discretion When It Denied A Continuance
On appeal, Donald argues that the trial court erred when it denied his motion to continue the trial. He contends that if his motion had been granted, he would have been able to hire competent counsel and prepare for trial. But Donald has not met his burden to perfect the record on appeal, and we do not have sufficient evidence in the record to conclude that the trial court abused its discretion.
Donald did not designate his motion for a continuance as part of our record. When an appellant does not meet his burden to perfect the record on appeal so that the reviewing court has all the evidence relevant to the issues before it, the court may decline to reach the merits of [the] issue. Rhinevault v. Rhinevault, 91 Wn. App. 688, 692, 959 P.2d 687
(1998). This court, however, will not resolve issues based upon compliance or noncompliance with the rules of appellate procedure except in compelling circumstances where justice demands, and subject to the restrictions in RAP 18.8(b).[3] RAP 1.2(a).
Our only evidence of Donald’s motion for a continuance is a quote from Sheryl’s brief. But Donald did not reply to challenge the quote. Therefore, assuming that Sheryl’s representation of the record is correct, and although the record is sparse, we reach the merits of the issue. A ruling on a motion for a continuance is within the discretion of the trial court and is reversible only for a manifest abuse of discretion. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554
(1990). A court abuses its discretion if it is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. State ex. rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
According to Sheryl, Donald’s motion was based only upon the vague explanation that he had not had time to fully prepare for trial:
Defendant has not had time to fully prepare for this trial, all attempts at communication with the Petitioner through counsel have failed, and it appears that Trial will be the likely form of resolving this matter.
Donald did not argue that he needed a new lawyer or explain why he was unable to adequately prepare for trial. Nor did he renew his motion for a continuance before the trial judge. Under these circumstances, the lower court did not abuse its discretion when it denied Donald’s motion to continue the trial.
Notice of Appearance Issue Not Preserved
Donald next contends that the trial court erred when it allowed Sheryl’s attorney to represent her at trial, even though the attorney previously had withdrawn from the case and had not filed another notice of appearance. Madeline Renkens, Sheryl’s lawyer, filed the divorce petition in 2001, but she filed a notice of intent to withdraw in April 2002. After the domestic violence incident occurred, however, she proceeded again with Sheryl’s divorce action.
The court reminded Renkens at the start of trial that she had not filed a notice of appearance and asked Renkens to file one before the proceedings concluded. Donald did not object. Renkens filed her notice after the trial concluded, but before the decisions were entered.
Donald does not cite any authority that supports his argument that Renkens should not have been allowed to represent Sheryl at trial.[4]
The only authorities he cites, Civil Rules 52(c), 54(e), and 54(f)(2), are completely irrelevant to his argument. They relate to the presentation of judgment and the notice required for such presentation.
Moreover, Donald did not object to Renkens representing Sheryl at trial or raise the issue in his motion for reconsideration. In general, we will not consider an issue raised for the first time on appeal unless the issue involves a manifest error affecting a constitutional right. Wilson v. Steinbach, 98 Wn.2d 434, 440, 656 P.2d 1030 (1982). Donald does not contend that allowing Renkens to appear at trial was a manifest error affecting his constitutional rights. He does not claim that he was prejudiced by Renkens appearance at trial. Because he has not cited any relevant authority in support of his argument and did not raise the issue below, we do not consider whether Renkens should have been allowed to represent Sheryl at trial.[5]
Record Does Not Support Argument That The Trial Court Considered Only Sheryl’s Documents
Donald next contends that the trial court erred by reviewing only documents presented on Sheryl’s behalf. In support of that contention, he refers to the judge’s comment at the beginning of the trial that he had reviewed Sheryl’s documents, including a proposed parenting plan, child support schedule, and financial declaration.
The trial court referred only to Sheryl’s documents because Donald did not submit any documents before trial. In fact, he never did file a financial declaration, proposed parenting plan, or any of the other documents required in a divorce that involves children. Furthermore, the trial court admitted the only two exhibits that Donald offered at trial a letter from his substance abuse counselor and a monthly progress report from his domestic violence counselor.
Donald has not established that the trial court erred by considering only Sheryl’s documents. The claim of error, therefore, does not entitle him to relief.
Brief Inadequate To Consider Other Alleged Errors
Donald next contends that the trial court erred by considering only Sheryl’s testimony. But he does not cite anything in the record or relevant authority to support his argument. Without references to evidence in the record or legal authority, it is impossible to determine whether he is entitled to relief.
Moreover, Donald’s brief does not satisfy the Rules of Appellate Procedure. RAP 10.3(a) requires:
(3) Assignments of Error. A separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error.
. . .
(5) Argument. The argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.
Donald has not cited relevant parts of the record or legal authority, so we cannot determine that the trial court erred by considering only Sheryl’s testimony.
Similarly, Donald complains that the trial court rushed to complete the trial in half of a day and did not allow the parties to settle before trial. He does not cite either the record or any authority in support of these arguments. Without any facts or relevant law to consider, these issues do not entitle Donald to relief.
Donald also complains that he was not given notice of the presentation of the decree of dissolution, parenting plan, and other final orders. No evidence in the record, however, supports his claim, and his own brief suggests that he was given sufficient notice of the proposed orders.
Civil Rule 54(f) generally requires opposing counsel to be served with a copy of a proposed order or judgment and given notice of presentation five days before the order or judgment may be signed. Donald complains that on June 10 he was served with Sheryl’s proposed final orders and received notice that the orders would be presented at a June 12 hearing. Donald acknowledges, however, that final orders were not entered until June 19, nine days after he was served with the proposed orders. Furthermore, he does not contend that the findings and conclusions or other orders were inaccurate, or that they do not accurately reflect the judge’s decisions. He accuses the judge of ignoring his request to wait until June 27 to sign the orders, but he does not explain how the outcome would have been different if the judge had waited to sign them.
Donald has not articulated the issue relating to the alleged failed notice or provided relevant citations to the record for this court to properly decide the issue. Once again, without references to facts in the record or legal authority, it is impossible to determine that Donald is entitled to relief.
Record Supports Supervised Visits
Donald contends that the trial court erred when it ordered his limited, once-a-week visits with his children to be supervised. He asserts that he cannot afford to pay the cost of supervised visits and, therefore, the court has effectively terminated his parental rights. The error, Donald argues, is one of constitutional magnitude.
Again, he cites no authority or evidence in the record to support his argument that the court’s order has effectively terminated his parental rights and violated the constitution. Neither does he challenge the court’s finding that supervised visits were warranted. The record shows that Donald had problems with substance abuse, domestic violence, and gambling. Before the separation, he belittled the children. After the separation, he did not see them at all. Under these circumstances, we do not conclude that the trial court erred.
Record Supports Decision To Impute Income
Donald argues that the trial court erred when it found that he was voluntarily unemployed and improperly imputed income to him RCW 26.19.071(6). We disagree.
To determine whether a parent is voluntarily unemployed and, hence, whether to impute income, a court considers the parent’s work history, education, health, age, and any other relevant factors. RCW 26.19.071(6). In this case, the court had evidence that Donald earned more than $65,000 when he worked at Boeing. The court was given little else to consider. Donald testified that he is disabled and unemployable, but he did not provide any evidence to support those claims. He did not submit tax returns or offer other evidence to prove that a disability prevents him from working.
Furthermore, he told the court that he had diligently looked for work, so his claim that he was disabled was not credible. Under these circumstances, the court did not err when it found Donald to be voluntarily unemployed and imputed income to him.
Donald Has Not Established Error Related To The Trial Court’s Denial Of His Motion For Reconsideration
Donald further argues that the trial court erred when it denied his motion for reconsideration. He complains that the trial court improperly allowed Sheryl to argue that the motion was untimely and denied the motion for that reason. The record, however, does not support his contentions.
Donald contends that the motion was to be decided without oral argument, but that the trial court erroneously allowed Sheryl to orally argue that the motion was untimely. The record, however, shows only that Sheryl appeared at the hearing and objected to the motion as untimely. Nothing indicates she was allowed to present oral argument.
Nor does the record support Donald’s argument that the trial court denied Donald’s motion for reconsideration because it was untimely. The record shows only that the court denied the motion.
Donald based his assertion that he was entitled to a new trial upon CR 59(a)(1) and (9). They provide as follows:
(a) The verdict or other decision may be vacated and a new trial granted to all or any of the parties and on all or part of the issues when such issues are clearly and fairly separable and distinct, on the motion of the party aggrieved for any one of the following causes materially affecting the substantial rights of such parties:
(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;
. . .
(9) That substantial justice has not been done.
CR 59(a)(1) and (9).
Donald argued that his attorney was not prepared for trial and, therefore, he was prevented from putting on evidence that would show that the property division was unfair, the amount of child support was unreasonable, and supervised visits were unwarranted. Generally, however, the neglect of a party’s own attorney is not a sufficient reason to grant relief from a judgment in a civil action. Lane v. Brown
Haley, 81 Wn. App. 102, 103, 912 P.2d 1040 (1996). Donald has not offered any explanation why this court should not follow that general rule.
Furthermore, a motion for reconsideration is a discretionary decision that will be overturned only if the trial court abused its discretion. Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). A court abuses its discretion if its decision is manifestly unreasonable or is based upon untenable grounds. Washington State Physicians Ins. Exch. Ass’n. v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
Although Donald based his motion for reconsideration on CR 59(a)(1) and (9), he did not show that any irregularity in the proceedings or abuse of discretion denied him a fair trial or that substantial justice had not been done. He, therefore, has not established that the trial court abused its discretion when it denied his motion for reconsideration.
Conclusion
Donald has not shown that either the facts or the law entitle him to a new trial. The trial court’s decisions are affirmed.
APPELWICK, SCHINDLER and BECKER, JJ., concur.