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In re C.C.S.

September 9, 1996


Appeal from Superior Court of King County. Docket No: 92-5-01129-9. Date filed: 02/10/94. Judge signing: Hon. Liem E. Tuai.

Ellington, J. WE Concur:

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Mother (CS) filed a parentage action against father (BH) while he was in prison. A trial date was set to establish a parenting plan and support for their son, C. The trial was continued to allow BH to arrange to be present, but BH did not act, and six days after the second trial date he asked for another continuance for the same reason. The court denied the request. BH then fired his lawyer and asked for another continuance. That request also was denied and trial proceeded without him. BH did not submit information about his financial resources, as required by statute, but the court concluded, based upon CS's evidence, that BH earned an income while in prison and, therefore, ordered him to pay child support. The court also limited BH's visits with his son and restrained BH from contact with CS.

BH argues that the court abused its discretion when it refused to continue the trial and ordered him to pay child support, that the court's visitation restrictions and restraining orders were not supported by substantial evidence, and that attorney fees should have not have been awarded without considering the parties' ability to pay. We disagree. Because BH made no attempt to be present and did not provide the required financial information when he had the opportunity, the trial court did not abuse its discretion when it denied additional continuances and ordered him to pay child support. Additionally, although not all of the findings the court used to justify the limitations on visitation and the restraining orders are supported by substantial evidence, the limitations were justified by the findings that are supported. *fn1 Finally, BH waived his argument regarding attorney fees. We therefore affirm the trial court's decision. Facts/Procedural Background C was born to BH and CS on July 31, 1989. C's parents were not legally married, but they lived together until August 1991, when BH began serving a prison sentence for convictions related to the operation of his businesses. After BH went to prison, CS filed a petition to establish C's parentage, followed by a motion for a temporary parenting plan and order of support. BH did not contest parentage. A trial to establish a final parenting plan and child support was set for March 12, 1993.

In February 1993, BH moved for a continuance because the Federal Bureau of Prisons had denied his request to attend the trial. BH asked that the trial date be continued until he was released from prison, or at least until he had time to pursue a writ to compel the federal prison to release him to attend trial. The court granted the continuance and moved the trial date to October 26, 1993, "because of incarceration." However, BH took no steps whatever to secure his release or his transfer to a local facility, and was still incarcerated on the new trial date.

Apparently the case was held on the trial calendar from October 26 until November 1, 1993, when BH again asked that the trial be postponed so he could be present at trial. The presiding Judge denied the motion, but the assigned Judge, Judge Liem Tuai, effectively granted a continuance by scheduling the trial for January 10, 1994. On December 22, 1993, BH's counsel filed a motion to withdraw, which was granted. An order entered soon after that reiterated that the trial would not be again continued.

In a letter to Judge Tuai dated December 30, 1993, BH again asked for a continuance. He explained that for financial and other reasons, he was no longer represented by counsel. On the day of trial, Judge Tuai acknowledged he had received BH's letter, but because BH had not sought another attorney, had given conflicting information about when he would be released, *fn2 and seemed only to be trying to delay the trial as long as he could, he denied the motion. The trial was held in BH's absence with only CS and a Court Appointed Special Advocate (CASA) testifying.

The court concluded that BH had assets with which to pay support, but that he had manipulated his funds so that his assets could not be readily ascertained. The court, therefore, assigned BH an income equal to that set forth in the Washington State Child Support Schedule as the median income for a male of his age, and ordered him to pay child support based upon that amount. The court also restricted BH's visits with C, restrained BH's contact with CS, and ordered BH to pay CS's reasonable attorney fees. *fn3 Acting pro se, BH filed a motion for a new trial, but the court did not rule on the motion because BH filed a notice of appeal. Due Process We first consider whether the trial court denied BH his right of due process and thereby abused its discretion when it denied his motion for a continuance. Prisoners have a constitutional right of access to the courts, including the right to bring actions for dissolution of marriage and other related matters. Whitney v. Buckner, 107 Wash. 2d 861, 865-66, 734 P.2d 485 (1987). Trial courts must exercise their discretion consistent with the dictates of due process to afford indigent prisoners a meaningful opportunity to prosecute domestic relations actions. Whitney, 107 Wash. 2d at 869. Judgments entered without complying with due process are void. In re Marriage of Ebbighausen, 42 Wash. App. 99, 102, 708 P.2d 1220 (1985). But a prisoner's right of access to the courts is not absolute. Whitney, 107 Wash. 2d at 866.

The denial of a motion for continuance is within the sound discretion of the trial court and will not be disturbed unless the court abused its discretion. In re Detention of G. V., 124 Wash. 2d 288, 295, 877 P.2d 680 (1994). A trial court abuses its discretion if its exercise was manifestly unreasonable, based upon untenable grounds, or granted for untenable reasons. G. V., 124 Wash. 2d at 295. A trial court does not abuse its discretion if it denies a continuance when the moving party has already been granted one continuance and is not ready to proceed because of his or her own lack of diligence. See State v. Early, 70 Wash. App. 452, 458, 853 P.2d 964 (1993).

BH argues the trial court abused its discretion when it allowed the trial to proceed without him, depriving him of his right to a meaningful hearing without sufficient justification. We agree that BH had a constitutional right to participate and that important rights were at stake, but BH denied himself access to the court by his own lack of diligence. At his request, BH was granted a seven month continuance so he could arrange to be present at trial if he was not released. It appears, however, that BH intended to allow trial to proceed without him, because he took no steps to be personally present, and presumably his attorney was present and prepared to proceed on the October 26 trial date. BH gave conflicting information about when he would be released and did not explain his failure to take any steps to secure his presence. The trial court reasonably did not believe him when he claimed he again needed a continuance to arrange to be present at trial, later said he needed a continuance because he could no longer afford counsel, and then requested a new trial date well before federal officials expected to release him. Under the circumstances, the trial court reasonably believed BH was only trying to postpone the trial as long as possible. The trial court, therefore, was justified in denying BH's motions for additional continuances and did not abuse its discretion. *fn4

Child Support We next consider whether the trial court erred when it ordered BH to pay child support even though he was in prison. Under RCW 26.19.071(1), each parent must disclose all his or her income and resources for the court to consider when determining the parents' child support obligations. The King County Local Rules also require each party to file a "Declaration of Financial Information" and worksheets providing financial information based upon the Washington Uniform Child Support Guidelines. King County Local Rule 94.04(d). When the income of a parent is unknown, the instructions for the worksheets advise courts to refer to "INCOME STANDARD #6: Imputation of income." Income Standard No. 6 states that "in the absence of information to the contrary, a parent's imputed income shall be based on the median income of year-round full-time workers[.]"

By statute, although a court may impute income to a parent who is voluntarily unemployed, it may not impute income to a parent who is unemployable. RCW 26.19.071(6). Prisoners are not "voluntarily unemployed" within the meaning of RCW 26.19.071(6) unless imprisoned for a crime of nonsupport or for civil contempt for failure to pay support. In re Marriage of Blickenstaff, 71 Wash. App. 489, 496-98, 859 P.2d 646 (1993). Therefore, under Blickenstaff, a court generally may not impute income to a prisoner. However, even though prisoners cannot be treated as voluntarily unemployed, courts have the discretion to impose a child support obligation if a parent has the means to pay his or her obligations. See Blickenstaff, 71 Wash. App. at 498 ("Where the obligor has other means of paying his or her child support obligation, the trial court has the discretion to enforce the obligation even in the face of a total lack of income.")

The trial court in this case concluded that BH had the means to support C, but, unable to determine those resources with exactitude, imputed to BH an income equivalent to the median income for a male of his age under the Washington State Child Support Schedule.

But BH was imprisoned; relying upon Blickenstaff, BH argues the trial court improperly imputed income to him. He further argues that there was not sufficient evidence to conclude he had ...

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