Scarbrough v. Postema
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 50718-4-I
Title of Case: Jeff Scarbrough, Appellant V Postema Enterprises,
Inc., et Al., Respondents
File Date: 07/21/2003
SOURCE OF APPEAL
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Appeal from Superior Court of Snohomish County
Docket No: 00-2-08034-2
Judgment or order under review
Date filed: 06/07/2002
JUDGES
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Authored by Susan R. Agid
Concurring: Ann Schindler
Marlin J. Appelwick
COUNSEL OF RECORD
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Counsel for Appellant(s)
Peter Malden Brown
Pence & Dawson LLP
1111 3rd Ave Ste 3050
Seattle, WA 98101-3214
Robert Kevin Dawson
Pence/Dawson
1111 3rd Ave Ste 3050
Seattle, WA 98101-3214
Kenneth Wendell Masters
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Charles Kenneth Wiggins
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Counsel for Respondent(s)
Timothy R. Gosselin
Attorney at Law
1501 Market St Ste 300
Tacoma, WA 98402-3333
Edwin J Snook
Snook Schwartz
25 Central Way Ste 410
Kirkland, WA 98033-6158
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STACY GAUTHIER POSTEMA, )
personally, and in her capacity as duly ) No. 50718-4-I
appointed personal representative of )
the Estate of Elijah R. Gauthier, ) DIVISION ONE
)
Plaintiff, )
)
and )
)
JEFF SCARBROUGH, personally, )
) PUBLISHED OPINION
Appellant, )
)
v. ) FILED:
)
POSTEMA ENTERPRISES, INC., and )
ALBERT J. POSTEMA, personally, )
)
Respondents. )
)
AGID, J. -- 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 post
trial 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 Civil Rule
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.
RCW 4.24.010 provides that a parent can only maintain an action for
the wrongful death of a child if he or she has 'regularly contributed to
the support' of the minor child.1 Jeff argued in his trial memoranda that
the court should decide as a matter of law whether he regularly contributed
to Elijah's support and had standing to bring the claim.2 Only after the
court makes this threshold determination, he argued, should the jury
consider his loss of love, companionship, and the parent/child relationship
to assess damages. Although the trial court rejected his motion and
submitted the question to the jury, Scarbrough pursued the theory
throughout trial that he could bring an action if he regularly contributed
to Elijah's material well-being. He presented evidence detailing the
monetary contributions he made to support Elijah. He also presented
damages testimony from several friends and family establishing his close
relationship with his son. This testimony suggested Scarbrough fully
exercised his visitation rights under the parenting plan and took
additional time with Elijah when he could. He took Elijah fishing, to
parks, and to the zoo. He and Stacy took Elijah on vacation together to
the Oregon Coast. His neighbors, Frank and Betty Green, testified they saw
Jeff with Elijah 'five or six hundred times' and they considered him an
active father. Frank Green noted that he and his wife raised four children
and he 'really thought {Jeff} did a little better job with Eli than {he}
did with {his} own kids.' The owner of the salon where he worked described
the relationship between Jeff and his son as 'caring' and testified that he
had pictures of Elijah at his work station. His stepmother testified that
Jeff and Elijah had a very special bond and he 'obviously adored {Elijah}.'
She noted Jeff was with Elijah every moment he could be. Finally, Jeff
presented evidence showing that he was devastated by Elijah's death.
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:
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'4 meant that no reasonable jury could conclude that he
failed to provide the requisite support. He admitted that he failed to
discover this uncodified section until after the jury rendered its verdict
on what he argues is the wrong legal standard. The trial court denied both
motions, and this appeal followed.
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.''5 Whether a
verdict should have been directed is a question of law.6
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.7 His own testimony revealed that Stacy reported him twice to the
Department of Social and Health Services (DSHS) to enforce the support
obligation. George Smylie, a DSHS employee, testified he did not know
whether Scarbrough actually made payments because they were not paid
through the State, but he said it would be unacceptable to the State if he
only provided support 65 percent of the time.8 Because this evidence could
sustain a verdict that Scarbrough did not 'regularly' contribute to his
child's material well-being, the trial court properly refused to grant the
motions for judgment as a matter of law under the standard Scarbrough
argued at trial.
The critical question is whether the trial court's decision to deny the
final post-trial 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.9 The purpose of this general rule is to
give the trial court an opportunity to correct errors and avoid unnecessary
retrials.10 A court normally will not vacate a verdict and grant a new
trial for errors of law if the party seeking a new trial failed to object
to or invited the error.11
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 determining the amount of 'support.'12 He also argues that
he preserved the issue by raising it in his post-trial motion, which the
trial court improperly denied.
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.13 There is no evidence in the record that
Scarbrough made any objection to the definition of the term 'support' in
Instruction 6. In fact, because both parties concede that neither
discovered the Legislature's statement of intent until after the jury
verdict, Scarbrough could not have objected to the instruction on these
grounds or apprised the trial court of a theory of which he was unaware.
Nor was the objection to the instruction in his post-trial 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.14 Scarbrough correctly argues
that failure to object to jury instructions does not preclude an appellate
consideration of the trial court's denial of a motion for a judgment as a
matter of law. But here he not only failed to object properly to
Instruction 6, he also argued a position at trial that is inconsistent with
the one he advances in his post-trial motion and on appeal.
The court need not entertain arguments that are patently inconsistent with
the positions advanced at trial.15 The Washington Supreme Court has
concluded counsel cannot set up an error and then complain of it on appeal.16
By failing to discover the Legislature's statement of intent before the end
of the proceedings and arguing a different standard throughout trial,
Scarbrough invited the error and cannot complain on appeal that his own
erroneous arguments at trial resulted in the jury finding for the
defendant.
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.17 In the interest of justice, we will review the question
whether the intent statement adopted by legislative amendment in 1998
expanded the definition of 'support' to include non-monetary contributions
to a child's life and well-being.
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.18 A court's principal objective in interpreting
a statute is to give effect to the Legislature's intent,19 and its clear
language.20 If a term is defined in a statute, we must use that definition.21
Absent a statutory definition, the term is generally accorded its plain and
ordinary meaning unless there is a contrary legislative intent.22 A court
should avoid construing a statute in a manner which renders a provision
meaningless.23
In Guard v. Jackson, we examined the meaning of the term 'support' used in
RCW 4.24.010.24 We concluded RCW 4.24.010 violated the Equal Rights
Amendment by creating an impermissible classification on the basis of
gender. And, as discussed above, we interpreted the meaning of the word
'support' in RCW 4.24.010 as being limited to 'material well-being.' The
appellant in Guard had argued that 'support' meant the 'expression of love
and affection, expression of concern for a child's well-being, and the duty
to provide social and moral guidance.'25 Because ''support' generally means
providing for a child's needs for housing, food, clothing, education and
health care,' we construed RCW 4.24.010 'as requiring {a parent} to
contribute regularly to the child's material well-being,' holding that a
parent could meet this standard by showing compliance with a support order.26
The Washington Supreme Court affirmed our decision.27 In response to Guard,
the Legislature amended the statute, removing the gender-based
classification and adding a statement of intent. The amendment stated in
part:
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 (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 lst 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 constituted 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 dependant 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 established ((and the father has regularly contributed to the child's
support)).{28}
Scarbrough argues the history of the statute29 combined with the
Legislature's statement of intent establishes that it intended to provide a
cause of action for parents who provide emotional, psychological, financial
or other support for a child, thus superceding Guard's holding that
'support' is limited to material support. Postema argues that the 1998
amendment did not substantively change the meaning of 'support' in the
statute. Rather, it only cured the constitutional deficiency. To
interpret the statement of intent as making such a change, he argues,
violates the rules of statutory construction. We disagree.
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.30 And because a court must interpret individual
provisions of a statute in the context of the entire act,31 a clear
legislative statement of intent is important to construing the meaning of
statutory language. In this case, the Legislature clearly indicated its
intent by including in its intent statement a definition for the term
'support' that contradicted the Guard court's interpretation of that term.
Were we to agree with Postema's position, we would render the Legislature's
statement of intent meaningless. This we cannot do.32 The statement of
intent is consistent with the language of the act, so we must give effect
to it. Accordingly, we conclude the Legislature's intent provision
overrules our definition of 'support' in Guard. The jury instruction in
this case was erroneous, and the trial court erred by concluding, even when
presented with this argument, that the instruction properly stated the law.
Because this previously unsettled question of law deprived Scarbrough of
his right to recover for his son's death, substantial justice has not been
served in this case, and we remand for a new trial under CR 59.33
Reversed and remanded.
WE CONCUR:
1 RCW 4.24.010.
2 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 (citations omitted).
3 Although at first glance the phrase 'personal efforts of the parent'
seems to suggest that non-financial 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.
4 Laws of 1998, ch. 237, sec. 1.
5 Guijosa v. Wal-Mart Stores, 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)).
6 Rhoades v. DeRosier, 14 Wn. App. 946, 948, 546 P.2d 930 (1976).
7 Scarbrough's own records only confirmed 17 of 38 payments, but Stacy
Albert'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).
8 But the records also show the longest period of time Stacy denies
receiving support was during the nine months she and Scarbrough lived
together.
9 RAP 2.5(a).
10 Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 527, 20 P.3d 447, review
denied, 145 Wn.2d 1004 (2001).
11 In re K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995).
12 See also infra n.8.
13 Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 339, 878 P.2d 1208
(1994).
14 Id. at 340.
15 Kohl v. Zemiller, 12 Wn. App. 370, 373, 529 P.2d 861 (1974).
16 In re K.R., 128 Wn.2d at 147.
17 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).
18 City of Pasco v. Pub. Employment Relations Comm'n, 119 Wn.2d 504, 507,
833 P.2d 381 (1992).
19 Schumacher v. Williams, 107 Wn. App. 793, 799, 28 P.3d 792 (2001), review
denied, 145 Wn.2d 1025 (2002).
20 New Castle Invs. v. City of LaCenter, 98 Wn. App. 224, 229, 989 P.2d 569
(1999) (citing People's Org. for Wash. Energy Resources v. Wash. Util. &
Transp. Comm'n, 104 Wn.2d 798, 825, 711 P.2d 319 (1985)), review denied,
140 Wn.2d 1019, 5 P.3d 9 (2000).
21 Id. (citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813-14,
828 P.2d 549 (1992)).
22 Id. (citing Dennis v. Dep't of Labor & Indus., 109 Wn.2d 467, 479-80, 745
P.2d 1295 (1987)).
23 State v. Contreras, 124 Wn.2d 741, 747, 880 P.2d 1000 (1994).
24 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 1997, 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.
25 Guard, 83 Wn. App. at 329.
26 Id.
27 132 Wn.2d 660 (1997) (the Supreme Court only addressed the question
whether the support requirement violates the Equal Rights Amendment and
held that it did).
28 Laws of 1998, ch. 237.
29 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) (citing Laws of 1869, ch. 1, sec. 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.
30 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); State, Dept. 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).
31 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 regulatory and statutory scheme as a whole; statutory
provisions must be read in their entirety and construed together, not by
piecemeal).
32 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).
33 On remand the trial court is free to determine whether, in view of
evidence presented in the first trial, to determine as a matter of law that
Scarbrough provided sufficient support to recover damages.