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In re Marriage of Susan Parfomchuk

April 14, 1997


Appeal from Superior Court of Whatcom County. Docket No: 94-3-00448-4. Date filed: 09/29/95. Judge signing: Hon. Michael F. Moynihan.

PER CURIAM. The 10-year marriage of Stephen and Susan Parfomchuk (now Williamson) was dissolved in 1995. The trial court gave Williamson major decision-making authority regarding their 6-year-old daughter Stephanie. The court also replaced the couple's voluntary pretrial joint custody arrangement with a more traditional approach, awarding primary custody to Williamson. The court also divided the parties' assets and liabilities. Parfomchuk challenges these decisions on several grounds. We reject Parfomchuk's contentions that the trial court violated his constitutional rights to due process and free exercise of religion and uphold the court's parenting plan and property Disposition.

Due process

Parfomchuk argues the trial court violated his constitutional right to due process by making rulings mid-trial, thereby prejudging the case before he was given an opportunity to present his evidence. The trial court took testimony over three days. But at the end of the second day, the court inexplicably stated, "Let me give you a little guidance. Got your pencils ready? This is not obviously the end of it, but as far as I'm concerned . . . ." The court then engaged in property Disposition. *fn1 When Parfomchuk's counsel indicated he had more evidence to present, the court stated, "Then see me about and [sic] reopening and reconsidering what I said here. Maybe we can just set another trial date and wrap it up."

About three weeks later, trial resumed. Parfomchuk called two additional witnesses, a counselor and a day care provider. Parfomchuk also testified in his case-in-chief, providing, among other things, greater detail as to property.

We are troubled by the timing of the court's rulings here. The constitutional right to due process applies in the context of a marital dissolution trial. *fn2 The right to due process includes the opportunity to be heard. *fn3 A trial court, especially when acting as fact-finder, must remain open-minded during the presentation of evidence. *fn4 All evidence, whether presented by plaintiff or defendant, must be considered by the court. *fn5

A trial court may provide guidance and does not necessarily err by indicating which way it is leaning on certain evidentiary matters. *fn6 But here, the court went beyond providing guidance when it ordered the parties to transfer some items of property in their possession and refused to charge the community with costs to repair the well and remove the fuel tank. Where a trial court makes rulings before hearing all the evidence, it calls into question the fairness of the proceedings. Therefore, we strongly advise against making rulings before all evidence is heard.

Nevertheless, under the circumstances of this case, we do not agree the court violated Parfomchuk's due process right.

Contrary to Parfomchuk's claim, the court demonstrated it was open-minded after making its mid-trial rulings. For example, even after closing argument, the court invited additional comment from counsel about property and debt division. After that, the court granted Parfomchuk's request for a continuance to respond to Williamson's proposed property orders. The court reset the case for a "brief mini-trial in regards to personal property issues," requested more information about personal property, and invited Parfomchuk to submit any proposed orders before the hearing. The court explained it "wanted to get this case wrapped up so that I can send the parties on their way. I can't do that on the personal property."

About 6 weeks later, the court entertained more argument about property matters.

It is apparent that the information presented during these additional proceedings did not fall on deaf ears. For example, Parfomchuk argued Williamson was being awarded $15,000 more in personal property items than he was. Although the court found Parfomchuk's valuations to be inflated, it agreed Williamson was coming out ahead and adjusted its final award to reflect an additional $7,500 to Parfomchuk. The court also agreed with Parfomchuk's argument the parties should share responsibility for capital gains taxes owed on the 5 acres of real property they sold, and ordered that $6,000 be reserved for payment of the taxes. Additionally, the court's valuation of the parties' vehicles reflected its consideration of Parfomchuk's post-ruling testimony. Finally, the court awarded Parfomchuk an additional $500 for a washer and dryer Williamson removed from the home.

Moreover, at the time of its remarks, the court had already heard much of Parfomchuk's property evidence. *fn7 For example, Parfomchuk had offered expert testimony as to the possible cost of repairing a water well and removing an underground fuel tank, and how those potential problems affected the value of the couple's real property. Parfomchuk had also filed a 7-page proposed division of property, including detailed itemized valuations, from which his post-ruling testimony did not markedly deviate.

Finally, Parfomchuk did not object when the trial court began making mid-trial rulings. Nor did he object or move for a mistrial when the case reconvened more than 3 weeks later. After considering all of these factors, we hold Parfomchuk received a fair trial and that the court did not violate his right to due process.

Free exercise of religion

Parfomchuk argues that the trial court's order placing sole decision-making authority for Stephanie's religious upbringing in Williamson violates his constitutional right to free exercise of religion. The court based its decision on a finding that Williamson reasonably opposed mutual decision-making because the couple demonstrated an inability and lack of cooperation in decision-making regarding Stephanie's education, health care and religious upbringing, and had been unable through dispute resolution to resolve issues concerning Stephanie. *fn8

Parfomchuk's argument is based on In re Marriage of Jensen-Branch. *fn9 There the court placed sole decision-making authority in the mother. It permitted the father to take the children to his church when they were with him, but expressly prohibited him from providing "any religious education or indoctrination." *fn10 This court found the prohibition restricted the father's free exercise rights. We held the trial court "could restrict [father] from teaching his children his faith only upon a substantial showing of potential or actual harm to the children[.]" *fn11 Had the court not placed the teaching restriction on the father, however, its decision to place sole decision-making authority in the mother would have been reviewed under the abuse of discretion standard even if the court considered the parents' religious affiliations in making its decision. *fn12

The critical feature of Jensen-Branch -- an express prohibition placed on the father from teaching his faith to his children -- is absent in Parfomchuk's case. This distinction militates against finding a free exercise restriction and thereby applying the Jensen-Branch "substantial showing" test here. But also absent here is a finding permitting Parfomchuk to take Stephanie to his church when she is with him. If the trial court intended not only to place sole decision-making in the mother, but also to prevent Parfomchuk from taking Stephanie to his church, Parfomchuk's free exercise claim would be strong. Considering all of the circumstances, however, we conclude the court did not intend to prohibit Parfomchuk from taking Stephanie to his church when she is with him.

In its written provisions, the court authorized each parent to "make decisions regarding the day-to-day care and control of each child while the child is residing with that parent." In its oral ruling, the court explained, "If the child is with [Parfomchuk] for his time, he can take the child to his church or place of assembly. I have no trouble with that at all. When the child is with [Williamson], she makes the decision as to how to worship." Although the court should have included this oral permission in its written findings, we may resort to the oral ruling so long as it is not inconsistent with its written decision. *fn13 The court's oral ruling is consistent with that portion of the parenting plan which places day-to-day control with the residing parent. Therefore, we may consider the court's oral ruling and conclude the court clearly intended to reserve to Parfomchuk the right to take Stephanie to his church when she is with him.

Because of this permission, and the absence of any other restrictions on his free exercise rights, we reject Parfomchuk's constitutional claim.

As Jensen-Branch does not apply, the court's decision to place decision-making authority in Williamson need not be supported by the "constitutional" showing of ...

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