118 Wash. App. 185 | Wash. Ct. App. | 2003
Jeff Scarbrough brought an action against Albert Postema for the wrongful death of his three year old son. Under instructions narrowly defining “support,” a jury determined Scarbrough had not regularly contributed to the support of his child’s financial well-being and accordingly could not maintain the wrongful death action. After trial, the court ruled that the legislature’s 1998 amendment to the wrongful death statute stating its intent to expand the definition of support did not make substantive changes in the definition, and it denied Scarbrough’s posttrial motions. Although we conclude that he did not properly object to the court’s definition of “support” at trial, we reach the issue because it is critical to this case and the correct statutory construction is necessary to the correct decision. We conclude the trial court erred in its interpretation of the 1998 amendment because it did change the definition of “support” in RCW 4.24.010 and remand for a new trial under CR 59(a)(9).
FACTS
On March 10, 2000, three-year-old Elijah Gauthier was riding in a 16-ton Peterbilt dump truck with his half-sister, Monique Postema, and her father, Albert Postema. When the passenger door unexpectedly flew open, Elijah fell under the truck and was killed. Elijah’s mother, Stacy Postema, sued her ex-husband Albert under RCW 4.24.010, which creates a cause of action for parents of an injured or dead child. Jeff Scarbrough, Elijah’s father, joined the action. After Stacy settled with Albert, Jeff’s claim proceeded to trial.
After he rested his case, Scarbrough moved for judgment as a matter of law that he had standing to bring the claim, arguing that no reasonable jury could find that he failed to regularly contribute to Elijah’s material support. The trial court again denied the motion. In formulating jury instructions, both counsel and the court discussed in detail jury instruction 6 which defined “regular” support contributions. Scarbrough submitted the following instruction:
INSTRUCTION NO._
In order for a parent to recover damages for the death of a child, the parent must have regularly contributed to the support of his or her minor child.
The word “regularly” signifies a frequency which is greater than occasional but less than constant. Contributions may be of money, or of material goods, or of the personal efforts of the parent.[3 ] No specific amount of support is required. Nor is it required that the contribution be made according to a fixed periodic timetable. In making your assessment you are to consider all the factors bearing upon this issue over the life of the parent-child relationship.
It is sufficient if the parent makes reasonable contributions at such time as the needs of the child are apparent, and with due regard to the financial ability of the parent to contribute.
The trial court gave the following version of the instruction:
*191 INSTRUCTION NO. 6
In order for a parent to recover damages for the death of a child, the parent must have regularly contributed to the support of his or her minor child.
“Support” means providing for the child’s material well being. This may include the payment of money, or contributing to housing, food, clothing, or healthcare services of the child incurred after his birth. The law does not set a required amount of support.
“Regularly’ means consistently, not occasionally or sporadically.
The plaintiff has the burden of proving by a preponderance of the evidence that he regularly contributed to the support of his child. If you find from your consideration of all the evidence that plaintiff has proved that he regularly contributed to the support of the child, your verdict should be for the plaintiff. On the other hand, if plaintiff has not proved he regularly contributed to the support of the child, your verdict should be for the defendant.
Scarbrough objected to instruction 6 on the same grounds he argued in his motion for judgment as a matter of law — that whether a parent regularly contributed to his or her child’s support is a determination properly made by the court. He also objected to the court’s definition of the term “regularly.” But he did not object to the definition of the term “support” or the standard a plaintiff must meet to bring a claim under RCW 4.24.010. The court gave the jury a special verdict form asking whether the plaintiff “regularly contributed” to Elijah’s support. The jury answered “no” to the question.
After the jury’s verdict, Scarbrough moved for a new trial under CR 59 and for a judgment as a matter of law under CR 50. He argued that the legislative intent section of the 1998 statutory amendment to RCW 4.24.010 stating that “support” could include “emotional, psychological, or financial support”
ANALYSIS
I. CR 50 Motions for Judgment as a Matter of Law Before and During Trial
“ ‘Granting a motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.’ ”
The trial court properly denied Scarbrough’s motions for judgment as a matter of law at the close of his case and at the conclusion of the evidence because the evidence presented, when viewed in the light most favorable to the nonmoving party, could sustain a verdict that he did not “regularly” contribute to his child’s material well-being. At this point in the proceedings, Scarbrough had not argued that the statute permitted the jury or the court to consider anything other than material support to determine whether he could bring his claim. The evidence showed that he paid child support for 23 of the 39 months Elijah was alive and, except for a short period in August 1999, there was never a child support order in effect.
The critical question is whether the trial court’s decision to deny the final posttrial motion, which presented a new theory of the case, was also proper.
II. Preservation for Review
An appellate court may refuse to review any claim of error which was not raised at the trial court level.
Postema asserts this court cannot review the alleged error of law because Scarbrough failed to argue the “substantial involvement” standard at trial and therefore failed to preserve the issue for appeal. Scarbrough argues that he preserved the issue by objecting to the erroneous definition of “regularly” in instruction 6. He asserts he proposed a jury instruction that properly defined “regularly” and incorporated this theory of the case because it would have allowed the jury to consider the “personal efforts of the parent” in
The objection to instruction 6 was inadequate to preserve the question whether “substantial involvement” in a child’s life is the appropriate standard to determine whether a parent may bring a claim for wrongful death of a child. A general objection or exception is not sufficient because the exception must be sufficient to apprise the trial judge of the nature and substance of the objection.
Nor was the objection to the instruction in his posttrial motion sufficient to preserve the issue. In reviewing an instructional error, an appellate court considers the objection at the time of trial and the context in which it was made, but it does not consider statements made in motions for a new trial or reconsideration.
The court need not entertain arguments that are patently inconsistent with the positions advanced at trial.
But, all this being said, we conclude that determining the meaning of RCW 4.24.010 is critical to this case and resolving it is necessary to making a proper decision.
III. Effect of 1998 Amendment
Construction of a statute is a question of law that we review de novo under the error of law standard.
In Guard v. Jackson, we examined the meaning of the term “support” used in RCW 4.24.010.
NEW SECTION. Sec. 1. It is the intent of this act to address the constitutional issue of equal protection addressed by the Washington state supreme court in Guard v. Jackson, 132 Wn.2d 660[, 940 P.2d 642] (1997). The legislature intends to provide a civil cause of action for wrongful injury or death of a minor child to a mother or father, or both, if the mother or father has had significant involvement in the child’s life, including but not limited to, emotional, psychological, or financial support.
Sec. 2. RCW 4.24.010 and 1973 1st ex.s. c 154 s 4 are each amended to read as follows:
((The)) A mother or father^ or both ((may-maintain an action as-plaintiff for the injury or death of a)), who has regularly contributed to the support of his or her minor child, ((or)) and the mother or father, or both, of a child on whom either, or both, are dependent for support((: PROVIDED, That in the case of an illegitimate child the father cannot)) may maintain or join as a party an action ((unless paternity has been-duly established and-the-father has regularly contributed to the child’s-support-)) as plaintiff for the injury or death of the child.
This section creates only one cause of action, but if the parents of the child are not married, are separated, or not married to each other damages may be awarded to each plaintiff separately, as the ((court)) trier of fact finds just and equitable.
If one parent brings an action under this section and the other parent is not named as a plaintiff, notice of the institution of the suit, together with a copy of the complaint, shall be served upon the other parent: PROVIDED, That ((when the mother of an illegitimate child initiates an action,)) notice shall be required only if ((paternity)) parentage has been duly*198 established ((and-the father has regularly contributed to the child’s support)).[28 ]
Scarbrough argues the history of the statute
When this court interpreted the meaning of the term “support” in Guard, the statute provided no guidance about its meaning. This is no longer the case because in the face of our contrary definition, the legislature has now adopted a statement of intent defining the term. Although a court cannot use a statement of intent to contradict the plain language of a statute, clear statements of intent consistent with the statutory language clarify a statute’s meaning.
Reversed and remanded.
Appelwick and Schindler, JJ., concur.
Review denied at 151 Wn.2d 1011 (2004).
RCW 4.24.010.
The only evidence Jeff presented on this issue was of his monetary contributions in the form of child support. In so doing, he relied upon our ruling in Guard v. Jackson, 83 Wn. App. 325, 921 P.2d 544 (1996), aff’d, 132 Wn.2d 660, 940 P.2d 642 (1997).
Where a term is not defined by a statute, the court looks to the statute’s subject matter and the context in which the word is used. In the context of statutes dealing with parent-child relations, “support” generally means providing for a child’s needs for housing, food, clothing, education and health care. We therefore construe RCW 4.24.010 as requiring the father to contribute regularly to the child’s material well-being.
83 Wn. App. at 329 (footnotes omitted).
Although at first glance the phrase “personal efforts of the parent” seems to suggest that nonfinancial contributions could be considered, a discussion between the trial court and the parties clarifies the intended meaning of the phrase. Jeff argued that “personal efforts of the parent” was intended to include improvements Jeff made to his hair salon so that both parents could work there and make money to support the family. The court rejected this type of labor as “support” and refused to include it in the instruction.
Laws of 1998, ch. 237, § 1.
Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997)).
Rhoades v. DeRosier 14 Wn. App. 946, 948 n.2, 546 P.2d 930 (1976).
Scarbrough’s own records confirmed only 17 of 38 payments, but Stacy Postema’s records reflected 23 payments. Although he claimed he made other payments in cash, Stacy disputed his contention. See Guard, 83 Wn. App. at 329 (concluding that a parent who went for months at a time without making payments and missed more payments than he made did not “regularly contribute” to his child’s support).
But the records also show the longest period of time Stacy denies receiving support was during the nine months she and Scarbrough lived together.
RAP 2.5(a).
Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 527, 20 P.3d 447, review denied, 145 Wn.2d 1004 (2001).
In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995).
See also supra note 8.
Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 339, 878 P.2d 1208 (1994).
Id. at 340.
Kohl v. Zemiller, 12 Wn. App. 370, 373, 529 P.2d 861 (1974).
In re K.R., 128 Wn.2d at 147.
Falk v. Keene Corp., 113 Wn.2d 645, 659, 782 P.2d 974 (1989) (permitting review of an instruction despite counsel’s inadequate objection because determining the meaning of the act was at the heart of the case and necessary to making a proper decision).
City of Pasco v. Pub. Employment Relations Comm’n, 119 Wn.2d 504,507,833 P.2d 381 (1992).
Schumacher v. Williams, 107 Wn. App. 793, 799, 28 P.3d 792 (2001), review denied, 145 Wn.2d 1025 (2002).
New Castle Invs. v. City of LaCenter, 98 Wn. App. 224, 229, 989 P.2d 569 (1999) (citing People’s Org. for Wash. Energy Res. v. Utils. & Transp. Comm’n, 104 Wn.2d 798, 825, 711 P.2d 319 (1985)), review denied, 140 Wn.2d 1019 (2000).
Id. (citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813, 828 P.2d 549 (1992)).
Id. (citing Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987)).
State v. Contreras, 124 Wn.2d 741, 747, 880 P.2d 1000 (1994).
83 Wn. App. 325, 921 P.2d 544 (1996), aff’d, 132 Wn.2d 660, 940 P.2d 642 (1997). In relevant part, before it was amended in 1998, RCW 4.24.010 stated as follows:
4.24.010 Action for injury or death of child. The mother or father or both may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either, or both, are dependent for support: PROVIDED, That in the case of an illegitimate child the father cannot maintain or join as a party an action unless paternity has been duly established and the father has regularly contributed to the child’s support.
This section creates only one cause of action, but if the parents of the child are not married, are separated, or not married to each other damages may be awarded to each plaintiff separately, as the court finds just and equitable.
If one parent brings an action under this section and the other parent is not named as a plaintiff, notice of the institution of the suit, together with a copy of the complaint, shall be served upon the other parent: PROVIDED, That when the mother of an illegitimate child initiates an action, notice shall be required only if paternity has been duly established and the father has regularly contributed to the child’s support.
Guard, 83 Wn. App. at 329.
Id.
Guard v. Jackson, 132 Wn.2d 660, 940 P.2d 642 (1997) (the Supreme Court addressed only the question whether the support requirement violates the equal rights amendment, Washington Constitution article XXXI, section 1, and held that it did).
Laws of 1998, ch. 237.
He notes the statute originally provided a cause of action for a father, unless he died or deserted his family. Wilson v. Lund, 80 Wn.2d 91, 102, 491 P.2d 1287 (1971) (Wright, J., concurring) (citing Laws of 1869, ch. 1, § 9, p. 4). He asserts the legislature’s change from “desertion” to “regular contribution” should not be interpreted as a simple mechanical adherence to complying with a child support order.
State v. Wiggins, 114 Wn. App. 478, 482, 57 P.3d 1199 (2002) (concluding if a statute “is susceptible to two constructions — one of which will promote the purpose of the statute and the second of which will defeat it — [the] courts will adopt the former”); Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1,11, 43 P.3d 4 (2002) (stating that although the plain meaning rule directs a court to construe and apply words according to the meaning that they are ordinarily given, the rule also permits the court to consider underlying legislative purposes, background facts, and statutory context to determine its plain meaning).
ITT Rayonier, Inc. v. Dalman, 122 Wn.2d 801, 807, 863 P.2d 64 (1993) (a term in a regulation should not be read in isolation but rather within the context of the
Mitchell v. Bd. of Indus. Ins. Appeals, 109 Wn. App. 88,91, 34 P.3d 267 (2001) (concluding that a court is “obliged to construe a statute in a way that is consistent with its underlying purpose”).
On remand the trial court is free to determine, as a matter of law and in view of the evidence presented in the first trial, whether Scarbrough provided sufficient support to recover damages.