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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

In re the Parentage of:                                          No.  41648-4-II

M.J.,?

                              Child,

DANIEL JONES,

                             Respondent,

       v.

VERONICA THOMPSON nka BIEHNER,                             UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Veronica L. Thompson1 appeals a final parenting plan.  We affirm because 

the trial court did not abuse its discretion (1) by denying Thompson's continuance motion as

untimely, without good cause, and for being in the child's best interest, (2) by granting Jones sole 

decision-making authority, and (3) by denying Thompson's motion for reconsideration.

? We use juveniles' initials to protect their privacy.

1 Veronica Thompson married on March 27, 2010.  Her new married name is Biehner; we refer to 
her as Thompson because that is the name generally used in the record.   

No. 41648-4-II

                                            FACTS

       Thompson and Daniel Jones lived together for several years, never married and had one 

child together, M.J.  Thompson's older child, Z.H.       also lived with them.  During their 

relationship, the parties jointly cared for the children.  In May 2006, Thompson and Jones 

separated; M.J. and Z.H. moved with Thompson from the shared residence.  In November 2009, 

Z.H. alleged physical abuse and the State removed both Z.H. and M.J. from Thompson's care.  

Jones arranged to have both children brought to his parents' house; then he moved in with his 

parents to care for the children.  Jones's parents supervised Thompson's visits with both children 

in their home.

       In January 2010, Jones petitioned to be the primary residential parent and proposed 

unsupervised visits for Thompson every other weekend.  In February 2010, Jones amended his 

proposed parenting plan, proposing supervised visits for Thompson because of the pending 

criminal charges alleging abuse.  Later that month, the State dismissed M.J.'s dependency petition 

and placed M.J. in Jones's care.  Jones and M.J. moved to Jones's townhouse.  Z.H. continued to 

live with Jones's parents until May 2010.

       In March 2010, the court commissioner ordered a temporary parenting plan for M.J. that 

designated Jones the primary residential parent, granted joint decision-making authority, granted 

Thompson supervised visitation every other weekend, and authorized Thompson's husband Jason 

Biehner to provide visitation transport.

       On the day of trial, September 16, 2010, Thompson argued to continue the trial date for 

the permanent parenting plan.2   She argued that (1) her pending November 3 trial for second 

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No. 41648-4-II

degree felony assault charges would prejudice her, (2) the trial court should appoint a guardian ad 

litem (GAL) for M.J., and (3) she needed to arrange for expert testimony regarding her 

psychological evaluation conducted in the dependency case.

       Jones responded that (1) Thompson's motion was untimely because the trial date had been 

set well in advance, (2) a GAL was unnecessary because the court had appointed a GAL, Sharon 

Green, for M.J.'s dependency, and (3) local rules require parties to subpoena expert witnesses 

two months before trial and Thompson had not complied with the local rule.  The trial court 

denied Thompson's continuation motion because it was untimely and without good cause, and 

because resolution was in the best interests of the child. 

       At trial, Green testified that she had investigated Jones as part of M.J.'s now dismissed 

dependency case.  Green testified that she had visited Jones's home, had seen him with M.J., and 

had concluded that Jones's home was appropriate and healthy.  Jones's parents, Margaret and 

Irving Jones, each testified on behalf of Jones.  Jones and Thompson each testified. After hearing 

from the parties and their witnesses, the court noted its concern that Thompson "is angry and 

disrespectful" and she had alienated the family and friends who might otherwise be visitation 

supervisors.  2-B Report of Proceedings (RP) at 201.  The court ruled that Jones would be the 

residential parent, granted Thompson professionally supervised visitation every other Saturday for 

ten hours, and ordered Thompson to pay child support.

       On December 10, 2010, the parties informed the court that the State had dismissed the 

criminal case against Thompson and returned Z.H. to Thompson's care.  Based on these changed 

2 Thompson filed a written motion to continue on September 8, 2010.

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No. 41648-4-II

circumstances, the court granted Thompson alternating weekend, unsupervised visitation with 

M.J.  Jones asked the court to grant him sole decision-making authority over M.J. because of 

cooperation and communication issues; Thompson responded that no legal basis existed to restrict 

Thompson's decision-making authority over M.J.  The court found that joint decision-making 

authority over M.J. was reasonable and signed the order.

       Both parties moved the court for reconsideration and the court heard the motions on 

December 23, 2010.  Jones told the court that previously, it had not considered issues involving 

Thompson's strong religious views against medical care, and asked the court to grant him sole 

decision-making authority regarding religious, medical, and education issues because Thompson's 

staunch position negatively affected M.J.'s welfare.  

       Thompson asked the court to restore her as the primary residential parent or in the 

alternative, increase visitation time and grant a downward deviation for her child support 

payments based on her custody of Z.H.  The court responded:

              The court:         I remember this case.  I remember that she was 
       recalcitrant, the mother was.  She also had problems with the juvenile dependency, 
       and so on, issues that she had, which have now been resolved.  But, historically, 
       she, for whatever reason, in my opinion, when I entered my decision, I did not 
       think that she had the child's best interests at heart.  And, therefore, I ruled the 
       way I did at that time.
              Now, the only thing that has been removed from that is the dependency 
       thing, that they have said that she is not -- didn't adjudicate that she has a problem.  
       Isn't that the bottom line, don't you both -- 
              [Thompson'S COUNSEL]:   Your  Honor, the felony charges that were 
       against her were dismissed.
              The court:       That's what I said.
       . . . .
              . . . if anyone looks at the history of this case, and the mother's interaction 
       with the child that I have responsibility for, I think they are going to see that she 
       has been less nurturing than she should be.

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No. 41648-4-II

              [THOMPSON'S COUNSEL]:  Well, your Honor, in the testimony that 
       was given, it was more so focusing on why the child wasn't in her care, and that 
       was because of the dependency  -- 
              The court:       I know.  I'm not going to argue anything.

RP (Dec. 23, 2010) at 9-10.

       Then, Thompson argued that no legal reason existed to restrict her decision-making.  For 

example, there had been no testimony that Thompson had impaired judgment.  The court 

responded that in its opinion, Jones has "continually and throughout had the interests of the child 

as primary" and "I don't find that with the mother." RP (Dec. 23, 2010) at 11.  The court noted, 

"I'm not going to take a chance with the child.  So, the health, education, and religious issues are 

going to be the responsibility of the father." RP (Dec. 23, 2010) at 11.  The Amended Parenting 

Plan Final Order, dated December 23, ordered "[s]ole decision making" over M.J. on the legal 

basis that one parent was opposed to "mutual decision making." Clerk's Papers (CP) at 297.

       Next, Thompson argued for reconsideration regarding child support.  Thompson argued 

for a downward deviation because she had Z.H. back in her home.  Jones argued that the 

deviation was not automatic and that Thompson received child support from Z.H.'s biological 

father.  The court ordered verified income from both parties, including documents verifying 

whether Thompson actually received child support from Z.H.'s father.  The trial court signed the 

previously calculated child support order and told Thompson, "[I]f you want to modify it, you 

have to follow what I've indicated you need to have in order to modify it." RP (Dec. 23, 2010) at 

17.  Thompson appeals.

                                          ANALYSIS

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No. 41648-4-II

                                  I.  Motion to Continue Trial 

       Thompson argues that the trial court abused its discretion by denying her continuance 

motion because (1) the pending criminal trial, less than two months away, was an exceptional 

circumstance, which was the reason for the removal of M.J.; (2) a continuance would have 

permitted a GAL to investigate3; and (3) she required time to arrange for expert testimony 

regarding her psychological evaluation conducted in the dependency case. We disagree.

                                    A.  Standard of Review

       This court reviews a trial court's decision to deny a continuance for manifest abuse of 

discretion.  In re Dependency of V.R.R., 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006).  A trial 

court abuses its discretion when it exercises that discretion based on untenable grounds or 

reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  In deciding a 

motion to continue, the trial court takes into account a number of factors, including diligence, due 

process, the need for an orderly procedure, the possible effect on the trial, and any prior 

continuances.  V.R.R., 134 Wn. App. at 581.  The decision to deny a continuance when a witness 

is absent remains discretionary, even when dismissal is the result.  City of Kent v. Sandhu, 159 

Wn. App. 836, 841, 247 P.3d 454 (2011).  When denial of a continuance motion allegedly 

violates constitutional due process rights, the appellant must show that the denial caused prejudice 

or that the result of the trial would likely have been different if the trial court had granted 

3 Thompson assigns error to the trial court's failure to appoint a GAL and includes this statement 
in her argument heading.  But Thompson provides no argument or legal authority regarding the 
trial court's denial of her request for another GAL and we decline to review it.  RAP 10.3(6); 
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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No. 41648-4-II

continuance.  V.R.R., 134 Wn. App. at 581.

                     B.  No Abuse of Discretion nor Showing of Prejudice

       Thompson argues that the trial court abused its discretion by denying her continuance 

motion because her pending criminal and associated dependency proceedings constituted an 

exceptional circumstance.  But contrary to her argument, the record demonstrates that the trial 

court designated Jones the primary residential parent for reasons unrelated to Thompson's 

criminal and dependency proceedings.  The trial court expressly stated that Thompson was "angry 

and disrespectful," had been less nurturing than she should be, and did not have M.J.'s best 

interests at heart.  RP at 201.  The trial court based this decision on the testimony of Jones, his 

parents, the GAL assigned to the dependency proceedings, and its direct observations of 

Thompson.  Therefore, the result of the trial would not have been different, even if the court had 

granted a continuance until after the criminal trial.  Thompson can show no prejudice.

       Here, Thompson's pending criminal and dependency proceedings did not prevent her from 

presenting evidence that she was the better parent.  Additionally, Thompson's pending 

proceedings were not a surprise circumstance and Thompson could have timely moved to 

continue the trial, rather than wait until the day of trial.

       Thompson also argues that the trial court abused its discretion by denying her continuance 

motion because she required time to arrange for expert testimony regarding her psychological 

evaluation conducted in the dependency case.  But she did not make an offer of proof telling the 

trial court the expected content or import of the expert testimony.4    Thus, this court cannot 

4 Neither did Thompson's written continuance motion explain the significance of the potential 
testimony.  
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No. 41648-4-II

evaluate the consequence to Thompson of not presenting her expert witness.  She also does not 

explain why she did not arrange for this expert testimony in the months leading up to the trial.  In 

exercising discretion to grant or deny a continuance, trial courts may consider many factors, 

including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly 

procedure.  V.R.R., 134 Wn. App. at 581.

       Thompson fails to show that the trial court abused its discretion when it denied her 

continuance motion because her motion was untimely, without good cause, and resolution was in 

the best interests of the child.

                                   II.  Sole decision Making

       Thompson argues that the trial court abused its discretion by granting Jones sole decision-

making authority without applying the statutory factors or outlining its findings as provided by 

statute.  We disagree.

                                    A.  Standard of Review

       We review the trial court's decisions in the final parenting plan for abuse of discretion.  In 

re Marriage of Mansour, 126 Wn. App. 1, 8, 106 P.3d 768 (2004).  The trial court abuses its 

discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable 

reasons.  Mansour, 126 Wn. App. at 8.  In matters dealing with the welfare of children, the trial 

court has broad discretion.  In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 

(1993).  The reviewing court is reluctant to disturb child custody dispositions because of the trial 

court's unique opportunity for personal observation of the parties.  Kovacs, 121 Wn.2d at 801

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No. 41648-4-II

n.10.

                                  B.  Statutory Requirements

       Thompson argues that the trial court granted Jones sole decision-making authority without 

meeting the statutory requirements of RCW 26.09.187(2).5  But her argument erroneously relies 

on inapposite case law.6 The applicable statute is RCW 26.09.187(2), which provides: 

              (b)  SOLE DECISION-MAKING AUTHORITY.  The court shall order 
       sole decision-making to one parent when it finds that:
              . . . .
              (iii) One parent is opposed to mutual decision making, and such opposition 
       is reasonable based on the criteria in (c) of this subsection.
              (c) MUTUAL DECISION-MAKING AUTHORITY.  Except as provided 
       in (a) and (b) of this subsection, the court shall consider the following criteria in 
       allocating decision-making authority:
              . . . .
              (iii) Whether the parents have a demonstrated ability and desire to 
       cooperate with one another in decision making in each of the areas in RCW 
       26.09.184(5)(a).

       Jones asked the court to grant him sole decision-making authority based on RCW 

26.09.187(2)(c)(iii).  After initially finding joint decision-making authority reasonable, the trial 

court reconsidered when learning that joint decision-making was not viable because of 

Thompson's strong religious views against medical care, including immunizations and the use of 

5 Thompson contests only whether the trial court followed statutory requirements, arguing that 
the standard of review is abuse of discretion.  Thompson does not contest Jones's representation 
of her views, nor does she argue that the trial court's grant of sole decision-making touches on 
religion or requires the higher standard of substantial evidence.

6 Thompson relies on case law regarding whether the trial court modified the original parenting 
plan without a showing of substantial change in circumstances as required by RCW 26.09.260, 
and whether the trial court's  finding of physical abuse warranted remand for imposition of 
mandatory limitations under RCW 26.09.191.  See In re Marriage of Shryock, 76 Wn. App. 848, 
852, 888 P.2d 750 (1995); Mansour, 126 Wn. App. at 10.  These issues are not applicable here.
                                               9 

No. 41648-4-II

any medications, including cold medicine.  Jones argued that Thompson's staunch position did not 

accommodate compromise, i.e., parents either have a child fully immunized or they do not, thus 

joint decision-making is not possible.  Jones further argued that Thompson's staunch position 

raised health and welfare concerns.  Based on Jones's argument and on its observations of 

Thompson, the trial court granted Jones sole decision-making authority regarding religious, 

medical, and educational issues.  

       Here, the trial court granted sole decision-making authority to Jones in accordance with 

RCW 26.09.187 because (1) it was uncontested that Thompson staunchly rejected the use of 

medical treatment, and the trial court found that (2) she was uncooperative, and that (3) she did 

not have the child's best interest at heart.  In matters dealing with the welfare of children, the trial 

court has broad discretion and none of these reasons shows that the trial court abused its 

discretion in granting Jones sole decision-making authority.  Kovacs, 121 Wn.2d at 801.

                                III.  Motion for Reconsideration

       Thompson argues that the trial court erred by (1) failing to rule on the arguments in her 

reconsideration motion regarding designation of the primary residential parent or a downward

deviation to her child support payments and (2) by directing her to set a modification motion with 

the commissioner instead of hearing her motion.  We disagree.

       Here, the trial court orally denied Thompson's reconsideration motion regarding restoring 

her as the custodial parent.

              The court:         I remember this case.  I remember that she was 
       recalcitrant, the mother was.  She also had problems with the juvenile dependency, 
       and so on, issues that she had, which have now been resolved.  But, historically, 
       she, for whatever reason, in my opinion, when I entered my decision, I did not 

                                               10 

No. 41648-4-II

       think that she had the child's best interests at heart.  And, therefore, I ruled the 
       way I did at that time.
              Now, the only thing that has been removed from that is the dependency 
       thing, that they have said that she is not -- didn't adjudicate that she has a problem.  
       Isn't that the bottom line, don't you both -- 
              [Thompson'S COUNSEL]:         Your  Honor, the felony charges that were 
       against her were dismissed.
              The court:       That's what I said.
       . . . .
              . . . if anyone looks at the history of this case, and the mother's interaction 
       with the child that I have responsibility for, I think they are going to see that she 
       has been less nurturing than she should be.
       . . . .
              The court:       I know.  I'm not going to argue anything.

RP (Dec. 23, 2010) at 9-10.  The court recognized that the State had dismissed Thompson's 

criminal charges; nevertheless, the court believed that Jones was the better parent to be the 

primary residential parent.  Additionally, the trial court did not fail to rule on Thompson's request 

for a downward deviation of her child support payments; the trial court denied the request and 

asked for additional information.  We reject Thompson's arguments that the trial court failed to 

rule on her motions.  Until Thompson complies with the trial court's request for additional 

information, the specifics of the child support order are not properly before this court.  RAP 2.2.

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

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No. 41648-4-II

                   Hunt, J.

                 Penoyar, C.J.

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