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Fernando v. Nieswandt

April 28, 1997

JIM FERNANDO, RESPONDENT,
v.
BERNHILD M. NIESWANDT, APPELLANT.



Appeal from Superior Court of Skagit County. Docket No: 92-5-00109-1. Date filed: 12/18/95. Judge signing: Hon. George E. McIntosh.

Motion to Supplement Petition for Review Granted and Petition for Review Denied October 7, 1997,

Authored by Susan R. Agid. Concurring: H. Joseph Coleman, William W. Baker.

The opinion of the court was delivered by: Agid

AGID, J. -- Bernhild Nieswandt and Jim Fernando separated about eight months after their child, A., was born. Nieswandt moved from their LaConner home to her parents' home in Portland. Fernando brought a paternity and custody suit to secure his visitation rights. The trial court entered a permanent parenting plan giving him one 5-day visit each month plus additional time at holidays. Nieswandt appeals, arguing that the plan was not supported by substantial evidence and that the trial court erred by: (1) relying on evidence outside the record; (2) awarding Fernando attorney fees; and (3) reducing his child support payments based on his obligations to other children. We disagree and affirm.

FACTS

Nieswandt and Fernando lived together in LaConner, Washington, for over two years and had one child, A. In February 1992, Nieswandt decided to leave LaConner and return to Portland, Oregon, to live with her parents and attend the Western Culinary Institute. She brought A. to Portland with her. In June, Fernando filed a petition for determination of paternity and establishment of a parenting plan.

In preparation for trial, Fernando petitioned the court to appoint a guardian ad litem. The court appointed Eileen Butler, a member of the Washington State Bar who has limited her practice to guardian ad litem work. Butler met with A. at Fernando's house, and also observed her with Nieswandt. In addition, she consulted Nieswandt's expert, Dr. Friesen, and reviewed reports written by Dr. Young, a counselor who saw all parties. She interviewed Nieswandt about her reports that A. behaved differently after she visited with her father and spent some time with them immediately after a visit. She testified that she did not observe any difference in A.'s behavior after the visits. In her report, Butler recommended that Nieswandt be the primary residential parent. But she also recommended that Fernando have visitation because A. had a strong bond with her father and his other children and, as a mixed race child, she needed to learn about her father's culture as well as her mother's. Butler recommended that A. visit with her father in LaConner four to five days per month and that Fernando have liberal and frequent visitation with her in Portland.

In response to Butler's recommendations, Nieswandt presented three experts. Dr. Bohlin, a family therapist, recommended against visitation as too traumatic for A. He also testified that guardians ad litem are generally not qualified to make recommendations for the care of a child because they have no scientific training. Walt Friesen, a marriage and family counselor, testified that his observations of A. after visits with her father lead him to believe that she was not emotionally bonded to Fernando and that she acted out upon her return from these visits because they were disturbing to her. Dr. Reilly, a psychologist, testified that A. suffered from depression after her visits with Fernando, resulting from post-traumatic stress disorder. He opined that the visitation would damage A.'s relationship with both parents.

The trial court rejected the experts' testimony and adopted Butler's recommendations. It found that both parents were competent and that nothing in the record, including video tapes of A. becoming upset at being put in the car to go to Fernando's house, convinced him that A. was traumatized. It also found that much of the testimony of Nieswandt's experts was contrary to the standards underlying Washington's Domestic Relations Act, RCW 26.09. The parenting plan ordered 5-day visitations in LaConner each month until A. began school, as well as two 2-week visits in the summer and half of Christmas break. The court also granted Fernando's request for attorney fees and reduced his child support payments because he supported a child from his last marriage.

Discussion

Nieswandt first argues that the trial court abused its discretion by allowing the guardian ad litem to testify to her recommendations. She argues that the testimony was an inadmissible opinion under ER 702 because Butler is not an expert. A trial court may appoint a guardian ad litem to make recommendations to the court about appropriate parenting arrangements. RCW 26.09.220, 26.12.175. The guardian is expressly permitted to interview doctors or experts who have seen the child in the past and report those impressions to the court. The guardian need not have any specific training. Rather, the statute requires that each guardian ad litem provide information about their background to the family court program. RCW 26.12.175(3). If a party believes that the guardian is not qualified to render opinions in the matter, that party may move to substitute the guardian within three days of the appointment. RCW 26.12.177(2)(c).

The statutes which authorize the appointment of the guardian ad litem authorize the family courts to hear the opinions of a witness who would not be a traditional expert under ER 702. A guardian ad litem is not appointed as an "expert." Rather, she is appointed to investigate the child and family situation for the court and make recommendations. In effect, she acts as a neutral advisor to the court and, in this sense, is an expert in the status and dynamics of that family who can offer a common sense impression to the court. But the court is also free to ignore the guardian ad litem's recommendations if they are not supported by other evidence or it finds other testimony more convincing.

Butler has no special training in child parenting matters except that she has several small children and took legal education courses on guardian ad litem work. However, her recommendations are expressly admissible under RCW 26.12.175(b). She developed her opinion about the appropriate visitation after observing A. with each of her parents and conducting interviews with her treating therapists and Nieswandt's experts, as the statute permits. The statute clearly anticipates that the guardian will testify about her recommendations. Therefore, the court did not abuse its discretion when it considered Butler's testimony.

Nieswandt also argues that the parenting plan was not supported by sufficient evidence because the trial court relied more heavily on Butler's recommendations than those of her experts. She admits that the trial court considered the testimony of the experts and commented on it during its oral ruling, but argues that the court could not have found the testimony of ...


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