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 Marriage of:                                           No.  40922-4-II

ELISA KOLETTE PAISLEY,
                                                           UNPUBLISHED OPINION
                             Respondent,

       v.

GREGG EDWIN PAISLEY,

                             Appellant.

       Armstrong, P.J.  --  Gregg Paisley appeals his dissolution from Elisa Paisley,1 arguing that 

the trial court erred in (1) granting Elisa primary residential care of their three children because 

she is Bipolar, (2) awarding Elisa property he owned before the marriage, and (3) awarding Elisa 

excessive attorney fees.  We affirm.

                                            FACTS

       Elisa and Gregg have three children.  At the time of trial, Will was 12, Tainn was 10, and 

Chenoa was 8.  Both Gregg and Elisa have masters degrees in business.  

       During most of their marriage, Gregg worked for technology companies.  Starting in 

2002, Gregg quit working full time and, instead, maintained his real estate rentals and opened his 

1 Because the parties have the same last name, we use their first names for clarity. 

No.  40922-4-II

own part-time business in text-mining.  Currently, Gregg does business with the Blackfeet Tribe 

through his company Chief Mountain Technologies.  Elisa obtained a real estate license and began 

selling real estate in 2003.    

       In March 2005, Elisa experienced her first Bipolar I manic episode.  Such episodes are 

characterized by extreme high levels of energy, increased motivation and confidence, 

hallucinations, and hyper-talkativeness.  She experienced a delusion or psychotic break in 2005.  

Gregg took her to Swedish  Hospital, but because she became aggressive with the medical 

personnel, she was involuntarily committed to West Seattle Psychiatric Hospital for several 

weeks. 

       Medical providers seek to stabilize a Bipolar I patient's mood with medications.  A 

Bipolar I patient statistically has several episodes during her lifetime (between 9 and 30).  Elisa 

"ramped up" twice since her 2005 episode.2 Report of Proceedings (RP) (Mar. 18, 2010) at 166.  

The first was in March 2006, which she attributes to her doctor attempting to wean her off of 

Lithium.  The second was between May and August 2007, when a blood test showed her Lithium 

level to be negligible.  The parties dispute whether Elisa caused the low level by not taking her 

medications or whether her body was not reacting appropriately to the Lithium she was taking.  

       The trial court ordered psychological evaluations by Dr. Schau of both Elisa and Gregg.  

Dr. Schau recommended the court grant Elisa primary parent status and a majority of residential 

time because her Bipolar I was in remission, and she was complying with her treatment plan.  

Further, Dr. Schau recommended that Elisa's parenting role not be restricted because she had no 

2 Patients may exhibit symptoms of mania or depression, but not be in a full swing episode, which 
the experts call "ramping up."

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No.  40922-4-II

co-morbidity3 or indicators of future violence. 

       Dr. Schau opined that Gregg has an undiagnosed personality disorder that will hinder his 

parenting abilities.  Dr. Schau believed that although Gregg was present in the home, he was 

emotionally detached.  Dr. Schau also believed that Gregg cannot provide the sustainable 

structure or energy necessary to parent full time.  Ultimately, Dr. Schau expressed concern for 

Gregg's emotional impairment and distortion of reality.

       The trial court appointed a guardian ad litem (GAL), who also recommended that the 

court grant primary residential care to Elisa.  The GAL reasoned that Elisa has consistently been 

the primary caregiver in the children's lives and there was no evidence her Bipolar I condition 

interfered with her parenting.    

       The trial court named Elisa as the primary residential parent with Gregg having the 

children on Tuesday nights and every other weekend during the school year.  The trial judge 

ordered the parties to split the holidays and the summer vacation nearly evenly.  The trial court 

further ordered Elisa to execute a release allowing Gregg to call her medical providers to confirm 

her compliance with treatment.4  

       Gregg and Elisa owned the following parcels of property, which the trial court 

characterized as community property:  (1) the home on Lake Tapps; (2) the Shelton farm 

3 Dr. Schau explained that co-morbidity is "a medical condition that exists alongside another 
condition, independent of it but with the conditions potentially affecting one another."  
Psychological Evaluation of Elisa at 7.

4 Gregg does not assign error to the trial court's order for child support or its maintenance award 
to Elisa.    
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No.  40922-4-II

property; (3) the Lake Forest Park multi-use property; and (4) the Renton condominium.  They 

also owned the following parcels, characterized as separate property (acquired by Gregg before 

the marriage):  (1) the Portland commercial use property and (2) the Shoreline warehouse 

property.  The trial judge awarded the Lake Tapps home and the Lake Forest property to Elisa 

and the other properties to Gregg. 

       The trial judge classified the Lake Forest property as community property.  Gregg bought 

that property before the marriage.  In 1996, Gregg executed a quit claim deed transferring the 

property to himself and Elisa as husband and wife to refinance with a loan in Elisa's name alone. 

The deed recited the consideration as "to create community property." Ex. 13, at 3.

       Finally, the trial court awarded Elisa attorney fees in the amount of $56,526.75 and costs 

of $3,936.40.   

                                          ANALYSIS

                                       I.  Parenting Plan

       Gregg assigns error to the trial court's decision to name Elisa the primary residential 

parent.  Specifically, Gregg argues that the trial court should have placed restrictions on Elisa 

because of her Bipolar I diagnoses and because she engages in abusive use of conflict.  Finally, 

Gregg argues that the trial court abused its discretion by relying on the psychological evaluations 

because the reports were based on false information.  

A.     Standard of Review

       We review the trial court's decision regarding a parenting plan for an abuse of discretion.  

In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993).  "A trial court abuses its 

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No.  40922-4-II

discretion when its decision is manifestly unreasonable or based on untenable grounds." Kovacs, 

121 Wn.2d at 801.  

       In creating a permanent parenting plan, the trial court should primarily consider the "best 

interests of the child." RCW 26.09.002.  Specifically, the court should seek to (1) provide for 

physical care of the child; (2) maintain emotional stability; (3) provide for the needs of the child 

now and in the future; (4) set decision making authority; (5) minimize exposure to conflict 

between the parents; and (6) encourage parents to meet their responsibilities to the child.  RCW 

26.09.184.  The trial court does this by establishing future dispute resolution mechanisms, 

granting decision making authority as between the parents, and establishing the residential 

schedule.  RCW 26.09.184.  The residential provisions should encourage a stable, loving, and 

nurturing relationship with the parents, and be consistent with the child's developmental needs.  

RCW 26.09.187.  The trial court considers several factors in determining the residential schedule, 

such as the relative strength of the child's relationship to the parent.  RCW 26.09.187.

B.     Restrictions on Parents

       RCW 26.09.191 allows the court to restrict a parent's involvement in the child's life.  

Section (3) of the statute, at issue here, is permissive, and allows the trial court to impose such 

restrictions if one of the statutory factors is present and will adversely affect the child's best 

interests.  RCW 26.09.191(3); see also In re Marriage of Watson, 132 Wn. App. 222, 232, 130 

P.3d 915 (2006).  Gregg argues that the trial court should have restricted Elisa's parenting under 

section (3)(b), which allows restrictions where there is "long-term emotional or physical 

impairment which interferes with the parent's performance of parenting functions."   Br. of 

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No.  40922-4-II

Appellant at 13; see also RCW 26.09.191(3)(b).

       The trial court may restrict a parent's role where substantial evidence demonstrates that 

the restrictive factor, here Elisa's  Bipolar condition, makes her unrestricted "involvement or 

conduct" with the children likely to adversely affect them.  Watson, 132 Wn. App. at 233.  In 

Watson, the mother accused the father of sexually abusing their daughter.  Watson, 132 Wn. App. 

at 226.  After a hearing, the trial court found the sexual abuse allegations unproven, but then 

imposed restrictions based on grounds not alleged or argued by the parties.  Watson, 132 Wn. 

App. at 227.  We held that the trial court abused its discretion by using grounds not alleged or 

argued, and we reversed the order imposing restrictions because it was not supported by 

substantial evidence.  Watson, 132 Wn. App. at 235.  In contrast, a court abuses its discretion by 

granting the wife custody of the child where the record was "replete with evidence" that she was 

unfit to care for the child because of her ongoing mental illness.  In re Marriage of Nordby, 41 

Wn. App. 531, 533, 705 P.2d 277 (1985), superseded by statute, RCW 26.09.187.5

       We agree with Gregg that RCW 26.09.191(3)(b) comprehends mental illness as a reason 

for a "long-term emotional . . . impairment" restriction.  Br. of Appellant at 13.  But unlike 

Watson, substantial evidence supports the trial court's decision that Elisa's Bipolar I was under 

control and did not affect her ability to parent the children.  Her current psychiatrist, Dr. Zaidi,6

5 The mother had been in and out of mental hospitals for several years, her trial testimony was 
disjointed and rambling, neighbors testified to her erratic behavior, and an independent 
psychiatrist recommended the father as primary parent. Nordby, 41 Wn. App. at 533.

6 Dr. Zaidi started treating Elisa in 2008.  This is relevant because, as Gregg points out, Dr. Zaidi 
has never seen Elisa during an episode.  However, Dr. Zaidi did testify that he read Elisa's 
medical history and was aware of her prior episodes. 

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No.  40922-4-II

testified that Elisa is compliant with her treatment plan, and prognostic indicators show that she is 

likely to function well in the future.7 Additionally, the independent psychologist found that Elisa's 

ability to parent is not severely hampered by her Bipolar I diagnoses and that restrictions were 

unnecessary.  Finally, the GAL also recommended Elisa as the primary residential parent.  The 

GAL reported that Elisa appeared to be fully compliant with her treatment plan and found no 

evidence that Elisa's illness was interfering with her parenting functions.  Unlike Nordby, where 

the trial court ignored substantial evidence of the mother's inability to parent full time, the trial 

court had substantial evidence to support its decision not to restrict Elisa's parenting of the 

children.   

       Furthermore, Gregg's assertion that Elisa is certain to have another violent episode is 

unsupported by the evidence.8 The experts agreed that violence among Bipolar I patients is rare, 

and Elisa presents none of the indicators for future violence. Dr. Shau stated Elisa does not show 

signs of future violence; Gregg's expert stated that Bipolar I patients rarely create imminent risk 

to others; and Elisa's medical care providers were not concerned that potential future episodes 

would put the children in danger.9   Similar to the Watson case, the likelihood that Elisa will 

7 Prognostic indicators that show Elisa will function well include: she is female, she is compliant 
with treatment, her inter-episode recovery is good, she had few or no depressive symptoms, she is 
highly educated, and she had good pre-morbid functioning.

8 Gregg picks several passages from the record to support his "violence is likely" theory.  
However, Gregg fails to include the other testimony that such violence in patients like Elisa is 
rare.  RP (Mar. 17, 2010) at 49, (Mar. 22, 2010) at 416. 

9 Gregg emphasizes the fact that Elisa was violent during her first episode in 2005 when she was 
aggressive and attacked medical personnel at the hospital.  But the experts agreed that Elisa's one 
violent episode was not a good predictor of future violence.  

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No.  40922-4-II

experience another violent episode is not supported by the evidence. 

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No.  40922-4-II

       Finally, Gregg asserts that the trial judge ignored Elisa's mental illness.  The record does 

not support this reading.  During the trial court's oral ruling, it stated that Elisa appears capable of 

ensuring the safety of her children, including the safety plan she has implemented.  Elisa testified 

that she already started setting up a support system.  Furthermore, the trial judge ordered Elisa to 

give Gregg permission to contact her medical providers at any time to confirm that Elisa is 

compliant with her medical treatment.  Thus, the trial court sufficiently considered Elisa's illness 

in allocating parental responsibilities. 

C.     Abusive Use of Conflict

       Gregg contends that the trial court should have restricted Elisa's parenting role because of 

her abusive use of conflict.  

       RCW 26.09.191(3)(e) permits a trial court to place restrictions on a parent's involvement 

in the child's life where there is "abusive use of conflict by the parent which creates the danger of 

serious damage to the child's psychological development."       The statute does not require a 

showing of actual damage to the child's psychological development, only a danger of such 

damage.  In re Marriage of Burrill, 113 Wn. App. 863, 872, 56 P.3d 993 (2002).  

       Generally, a court finds an abusive use of conflict where one parent inserts the child into a 

parental conflict, which could psychologically damage the child.  See generally Burrill, 113 Wn. 

App. 863.  For example, if the parent makes unsubstantiated reports about the other parent's drug 

use, anger management problems, and possible sexual abuse of the child, the court can find 

abusive use of conflict.  See Burrill, 113 Wn. App. at 868-70.  Or, a parent who falsely claims 

that the children hate going to the other parent's home, is subject to parental restrictions for an 

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No.  40922-4-II

abusive use of conflict.  Burrill, 113 Wn. App. at 869.  

       Gregg points to Jewel Paisley's10 testimony about Will's change in attitude to support the 

claim that Elisa engages in abusive use of conflict.11 But Elisa disputed the claim and the trial 

court evaluates credibility of witnesses and the persuasive force of the evidence.  See  In re 

Marriage of Timmons, 94 Wn.2d 594, 600, 617 P.2d 1032 (1980).  The trial court found no basis 

to restrict Elisa's parenting for an abusive use of conflict, a finding we will not disturb.

       Gregg also points to Elisa sending Will to counseling because, according to Elisa, Will 

said he wanted to kill himself.  The GAL spoke to Dr. Wyma, Will's therapist, who reported that 

Will viewed his relationship with Gregg as problematic, but not that Will was suicidal.  We 

conclude that the trial court did not abuse its discretion in rejecting Gregg's claims that Elisa had 

abusively used conflict.   

D.     Basing Decision on Psychological Evaluation

       Finally, Gregg argues that the trial court erred by relying on psychological evaluations that 

were based on false information that conflicted with the trial testimony.  Gregg is particularly 

critical of Dr. Schau's report, pointing to several inconsistencies and false statements that Gregg 

attributes to Elisa.  Essentially, Gregg asks us to assess the credibility of particular witnesses and 

the persuasive force of their testimony, an exercise that lies beyond the scope of our power.  

Timmons, 94 Wn.2d at 600-01.  We will not disturb the trial court's credibility evaluations and 

10 Jewel Paisley is Gregg's mother.

11 Jewel Paisley testified that Will had a litany of complaints about  his dad that were "almost like 
a record playing back again of the things and the phrasing that I had heard from Elisa over the 
time on her complaints about what Gregg did and didn't do.  And I thought, my God, how much 
has this child been brainwashed." RP ( Mar. 22, 2010) at 429.
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No.  40922-4-II

the weight of particular evidence. See In re Marriage of Greene, 97 Wn. App. 708, 714, 986 

P.2d 144 (1999). 

       We conclude that the trial court did not err in granting Elisa primary parent status. 

                                    II. Lake Forest Property

       Gregg next argues that the trial court should have designated the Lake Forest property as 

his separate property and awarded it to him. 

       We review a trial court's characterization of property de novo.  In re Marriage of 

Chumbley, 150 Wn.2d 1, 5, 74 P.3d 129 (2003).  Because the trial court has broad discretion in

dissolution proceedings, we review its distribution of assets for an abuse of discretion.  In re 

Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).  

       Property acquired before marriage is the separate property of the person acquiring it.  In 

re Marriage of Skarbek, 100 Wn. App. 444, 447, 997 P.2d 447 (2000).  Such property maintains 

its separate character "until some direct and positive evidence to the contrary is made to appear."  

Chumbley, 150 Wn.2d at 6 (quoting Estate of Dewey, 13 Wn.2d 220, 226-27, 124 P.2d 805 

(1942).  For example, separate property may be converted by "deed, agreement of the parties, 

[or] operation of law . . . ."  Skarbek, 100 Wn. App. at 447.  The burden to prove the conversion 

is on the spouse claiming community property.  Jones v. Davis, 15 Wn.2d 567, 569, 131 P.2d 433 

(1942).

       Here, the trial court did not err in characterizing the Lake Forest property as community 

property.  Gregg bought the property before the marriage.  But during the marriage, he deeded 

the property from himself to Elisa and himself, as husband and wife.  The quit claim deed recited 

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No.  40922-4-II

the consideration as "to create community property."  Ex. 14, at 3.  This was sufficient to show 

that Gregg intended to convert the property from separate to community property.  See Skarbek, 

100 Wn. App. at 447.     And Gregg does not argue that the court should have awarded the 

property to him even if it was community property.   

                                   III. Attorney Fees Below

       Finally, Gregg argues that the trial court erred in awarding approximately $56,500 in 

attorney fees and approximately $4,000 in costs to Elisa and not allowing his attorney to argue 

the issue.   

       RCW 26.09.140 allows a court to award reasonable attorney fees to either party.  The 

court must first consider the financial situation of both parties.  RCW 26.09.140.  The party 

contesting the award of attorney fees has the burden to show that the trial court abused its 

discretion.  In re Marriage of Knight, 75 Wn. App. 721, 729, 800 P.2d 71 (1994).  In determining 

an award of attorney fees, the trial court should consider "(1) the factual and legal questions 

involved; (2) the time necessary for preparation and presentation of the case; and (3) the amount 

and character of the property involved."  Knight, 75 Wn. App. at 730. 

       The trial court considered both Elisa's need and Gregg's ability to pay the attorney fees.  

Elisa was not working, she owed her father for money borrowed to sustain the litigation, and she 

assumed certain liabilities in connection with the assets she received from the dissolution.  Gregg 

was making approximately $21,000 per month, which left him with substantial income after 

paying maintenance and child support.  Moreover, Elisa supported her requests for fees and costs 

with declarations and detailed billing statements.  The trial court did not abuse its discretion in 

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No.  40922-4-II

awarding Elisa attorney fees.

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No.  40922-4-II

                                  IV. Attorney Fees on Appeal

       Elisa requests attorney fees on appeal.  Additionally, Elisa requests compensatory 

damages under RAP 18.9 for a frivolous appeal.

       RAP 18.1 allows a party to seek attorney fees on appeal if a statute grants the right to 

recover.  Under RCW 26.09.140, we can order a party to pay for the costs and attorney fees of 

the other party on appeal.  In determining whether to award fees, we consider "'the parties'

relative ability to pay' and 'the arguable merit of the issues raised on appeal.'"  In re Marriage of 

Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005) (quoting In re Marriage of Leslie, 90 

Wn. App. 786, 807, 954 P.2d 330 (1998)). 

       Here, Elisa's financial declaration reports that she is still unemployed, and her only income 

is Gregg's maintenance and child support payments.      The declaration details Elisa's monthly 

expenses and Gregg's monthly income; it shows that Elisa is unable to cover her expenses and 

Gregg makes approximately $21,000 per month.  Since Gregg has the ability to pay and Elisa 

does not, we order Gregg to pay Elisa's reasonable attorney fees and costs on appeal as 

determined by the commissioner.

       RAP 18.9 allows us to impose sanctions for filing a frivolous appeal.  An appeal is 

frivolous if there are "no debatable issues upon which reasonable minds might differ, and [] the 

appeal is so devoid of merit that there is no possibility of reversal."  Advocates for Responsible 

Dev. v. W. Wash. Growth Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010).  We 

resolve all doubts regarding frivolity in favor of the appellant.  Advocates for Responsible Dev., 

170 Wn.2d at 580. This appeal is not frivolous, and we reject Elisa's RAP 18.9 argument.  

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No.  40922-4-II

       Affirmed.

       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.

                                                 Armstrong, P.J.
We concur:

Hunt, J.

Johanson, J.

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