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Andersen v. Razey

March 31, 1997

ALAN ANDERSEN, APPELLANT,
v.
BARBARA RAZEY, ET VIR., AND RITA BENDER, ET VIR., RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 93-2-26770-3. Date filed: 10/05/94.

Authored by Mary K. Becker. Concurring: C. Kenneth Grosse, H. Joseph Coleman.

The opinion of the court was delivered by: Becker

BECKER, J. -- Alan Andersen appeals the trial court's order on summary judgment dismissing claims of malicious prosecution and abuse of process against his ex-wife. Andersen contends that the dismissal of his malicious prosecution claim on summary judgment was improper because of an unresolved factual issue that depends upon a credibility determination. Because Andersen created the factual issue through a declaration directly contradicting his earlier deposition testimony, the trial court rightly ignored it and dismissed the claim. Because the record contains no direct evidence that Razey had an ulterior purpose in instigating the custodial inference prosecution, the court also properly dismissed the abuse of process claim. We affirm.

FACTS

Barbara Razey and Alan Andersen were divorced in December of 1985. Their decree of dissolution provided for joint legal custody of the parties' son, Ian, and granted residential custody to Razey. The decree allowed Andersen two weeks of visitation with Ian during the summer. The decree also provided in the event Andersen moved from the Puget Sound area, he would have six weeks of visitation during the summer, "either together or as two three-week periods, as agreed by the parties."

The essential dispute in this case arises from a misunderstanding about a trip that Andersen and Ian took to California in June of 1990, when Ian was nine years old. Andersen claims Razey knew he was moving to California and that they might be gone as long as six weeks unless Ian decided to come back earlier. Razey claims the trip was understood to be the normal two-week summer visitation, and that Andersen agreed to return Ian to her by July 5.

Shortly after Andersen and Ian left for California on June 15, Razey discovered that Andersen's home and work telephones had been disconnected, and that Andersen had moved all of his belongings from his home and his business. Ian sent postcards to her saying that he would be staying in California with his father, and said the same thing when she finally was able to reach him by telephone at Andersen's parents' house on July 10. Razey claims she feared Andersen had abducted Ian. She went to the police and made a criminal complaint.

On July 12 the prosecutor filed an affidavit of probable cause, describing the facts which he believed supported an arrest warrant. The prosecutor necessarily relied on what Razey told him, as well as the provisions of the decree.

Andersen was arrested in California on July 14 on a charge of custodial interference. Trial of the criminal custodial interference charges against Andersen took place in February, 1991. A jury acquitted him of these charges.

While the custodial interference charges were pending, Razey filed a petition to modify the parties' decree of dissolution. At a hearing on August 15, 1990, the commissioner issued a temporary order providing that Ian's visitation with Andersen in the future would be supervised. He also awarded Razey $2,391.70 for her attorney fees and costs of securing the return of Ian. Andersen then filed his own petition to modify the custody determination. On October 12, 1990, the commissioner dismissed Andersen's petition for modification of custody and awarded Razey attorney fees after concluding that Andersen's petition was brought in bad faith. The commissioner's order permitted Razey's petition for modification to proceed to trial. That trial did not occur, as the parties reached an agreed order on visitation, entered August 19, 1991.

On March 1, 1993, Andersen filed a civil suit against Razey alleging that her instigation of the criminal action against him was malicious prosecution and, coupled with her later petition to modify visitation, that it also amounted to abuse of process.

The trial court granted Razey's motion for summary judgment dismissing both claims. Andersen appeals.

When reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court. Failor's Pharmacy v. D.S.H.S., 125 Wash. 2d 488, 493, 886 P.2d 147 (1994). All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994). This court will affirm an order granting summary judgment if ...


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