posted on Jan, 13 2005 @ 08:55 PM
Following is the full text of the transcript of the Judge's oral ruling. The names of the lawyers and the court reporter have been removed. The
Judge gave careful consideration to the matter and, I think, made a fair and basically correct decision
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF SPOKANE I
n Re: The Marriage Of:
Cause No. 04-3-00840-7
SHAWNNA J. HUGHES,
CARLOS A. HUGHES,
VERBATIM REPORT OF PROCEEDINGS
(Court's Oral Decision)
BE IT REMEMBERED that on the 4th day of November, 2004, the above-entitled cause came on for hearing before the Honorable PAUL A. BASTINE, Judge,
Department No. 8, Spokane County Superior Court.
(November 4, 2004; 4:00 p.m.)
THE COURT: Well, let me speak to the question that I raised first, and I think Mr. Beggs addressed.
Over on the wall above Mr. Kim's head is a plaque that deals with professionalism.
And having practiced law for 40 years in this community, there are certain unwritten rules that are expected, and that is, one of the more important
ones I guess from my perspective is that if you know that there is a question as to the propriety of your proceeding, and specifically if you know
that someone on the other side or someone who is directly involved involved in this case disagrees with your position, it is imperative that you give
them notice and allow them to be heard, give them the courtesy and give the court the courtesy and the benefit of this problem.
I don't believe Ms. Sloyer, who I have had some dealings with, intentionally tried to go around
Ms. Valentine. But everybody was on notice that there was a problem here.
And I suspect it is one of those matters that just proceeded. Certainly there were some places at which it should have been caught before it reached
the point it is
at today: Should have been caught at the prosecutor's office, it should have been caught, at your office, it should have been caught across the
And had we not had 'a pro tem commissioner sitting there, it would have been caught there. Because not only is it the policy of this Court, it is the
policy of the state that you cannot dissolve a marriage when one of the parties is pregnant.
Now, you won't find a statute with regard to that. But it is implicit in everything we have in the case law and the statutory law.
And in fact, RCN 26.26.550 almost directly addresses that issue when it says you can start an action to disestablish paternity but you can't finalize
it until after the child is born.
In effect what you did was attempted to disestablish paternity in contravention of 26.26.550. Because if you look at the other statutes involved,
starting with 26.26.101, which establishes the father/child relationship, on to 26.26.116, which puts in play the presumptions, and you go on to
26.26.630(3), by, proceeding in the manner in which you did, there was an adjudication.
Now, as far as the constitutional argument that
Ms. Hughes is being deprived of her right to dissolve her
marriage, she's not deprived of. that, absolutely not.
There are two alternatives here: Her marriage could be dissolved with full disclosure to Mr. Hughes that she is pregnant, and he may legally be the
father under the law, which was not done.
We don't need to go any further because that voids the decree in and of itself, in my view. I think it is very clear, he was not put on notice as to
what his legal status is here, was not served with the documentation.
It may have been true and correct at the time that the petition was filed, but it wasn't true at the time the final documents were. entered.
And there is a basic principle: You cannot in a default ask for more or ask for something different than what you asked for in the papers originally
It is that simple.
Secondly, her other alternative is to wait until after the child is born.
So she is not denied the right to dissolve her relationship. There is. a restriction on the time.
The state imposes restrictions on dissolving dissolutions without prejudicing the person's constitutional rights. We have a 90-day waiting period. We
have a requirement that the party be served. We have a requirement that the papers be filed for a specific
period of time.
This is simply saying, we are putting the child's paramount rights ahead of you getting a dissolution within the 90 days or immediately after the
If you are going to go out and commit an intentiona act, that changes the circumstances, which is what occurred here,then you have created the
situation by you own actions that delay your opportunity to disolve your marriage.
Now, as for the argument that she's terminating her relationship with Mr. Hughes by proceeding with the dissolution, it couldn't be further from the
truth, because in fact now, even assuming that your arguments are all legitimate, she is forced into a situation, again, by her own action, of
commencing a lawsuit, a civil lawsuit, to disestablish paternity.
She has got to involve him as a party again or get him to sign a paternity affidavit declaring that he is not the father.
Her relationship with him is not dissolved by dissolving the marriage. It's only complicated.
And the state's role is complicated. And the court's role is complicated by having proceeded in this fashion.
So while it may seem like an inconsequential kind of thing, it is not inconsequential in terms of the legal effects it has on all, the parties
involved, and more particularly, the child.
There are any number of cases, State v. Santos is probably the predominant case, that says a child has a vested right and a right to be represented
and an interest in matters like this.
And while some of that has been irradicated,or set aside I guess for lack of a better term -- which is a better term, probably -- by the paternity
affidavit and some of the other procedures, the fact of the matter is that if you go in and try to disestablish paternity without notice to the
father, the child has the right to contest that up until age 18, and maybe the statute of limitations doesn't run for a period of time after that.
So, again, what you have created here by the manner in which you proceeded is an incredible morass of legal issues that are easily taken care of,
simply resolved, by not allowing the dissolution to proceed until after the child has been born and then an adjudication can proceed properly.
But the fact of the matter, again, is that if we allow this decree to stand, two things have occurred, and I think it is quite clear: Under RCW
has been an adjudication of the paternity.
What that adjudication is, I have no idea because the documents say he's not the father, but the documents don't make any other determination. So it
becomes a legal nightmare.
But even more than that, the initial issue is, Mr. Hughes wasn't given notice. You entered a decree that was contrary to the documents that were
served on him. He has a right to be here. He had a right to be here at the time the decree was entered..
If you were going to try to take a default at that time, you needed to serve him and give him notice that his rights as a father or as a nonfather
were being determined in that matter. It wasn't done.
The decree will be vacated.
And I don't know where you want to go in terms of determining or disestablishing paternity, but that is an issue now that I think almost certainly
has to follow in some fashion.
As far as disadvantaging Mrs. Hughes by her marrying the biological father, that I suppose, again, is an issue that you are going to have to work
through the legal aspects of that because that simply doesn't establish paternity either under the circumstances.
I don't know whether you want to prepare an order
that vacates the decree and vacates the documents that were entered on the 26th of October, or whether you want me to.
MR. BEGGS: We'll be happy to, Your Honor.
THE COURT: Okay.
MR. BEGGS: We'll bring them over to you.
MS. VALENTINE: Thank you, Your Honor.
THE COURT: The Court will be in recess.
THE CLERK: Please rise.
[edit on 1/13/2005 by dubiousone]