Jessica Lee Bodge v. Brian Eugene Bodge ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) No. 76954-5-1
) (consolidated with
JESSICA BODGE, ) Nos. 77155-8-1 and 77494-8-1)
Appellant, ) DIVISION ONE IV
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BRIAN BODGE, ) Divrt
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Respondent. ) FILED: September 4, 2018 rr-
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TRICKEY, J. — Brian Bodge and Jessica Bodge dissolved their marriage in
2015.1 Their three children primarily resided with Jessica. In 2016, Jessica filed
a notice of intent to relocate with the children to Alabama.
Following a relocation trial, the trial court granted Jessica's request to
relocate with the children, conditioned upon her completion of a psychological
evaluation and entry into any recommended treatment. Jessica failed to complete
the required psychological examination. The trial court made Brian the parent with
whom the children primarily reside. Jessica appeals, arguing that the trial court
committed numerous errors. Finding no error, we affirm.
FACTS
Jessica and Brian married in December 1997. They separated in
September 2010 after Jessica alleged that Brian perpetrated domestic violence
'For clarity, this opinion will refer to Jessica Bodge and Brian Bodge by their first names.
No disrespect to the parties is intended.
No. 76954-5-1 /2
against her. The parties reconciled, and Brian completed domestic violence
treatment. On October 9, 2012, Jessica again filed for legal separation.
On October 10, 2014, the children's guardian ad litem (GAL) submitted a
report.2 The GAL recommended that Jessica be the parent with whom the children
primarily reside and have sole decision-making authority, and that parental
disputes would be submitted to arbitration. The GAL recommended parenting
classes for Brian, along with psychological therapy.
On July 9,2015, Jessica and Brian's marriage was dissolved. The trial court
entered an agreed final parenting plan resulting from mediation (the July 2015
parenting plan). The July 2015 parenting plan stated that Jessica would be the
parent with whom the children primarily reside, imposed a domestic violence
limiting factor on Brian, set forth the process by which Jessica could relocate with
the children, and granted sole decision-making authority to Jessica.3 The July
2015 parenting plan required that Brian's relationship with the children be repaired
prior to Jessica being allowed to relocate with the children.
The July 2015 parenting plan called for Alecia Richards, a therapist, to
assist in determining whether Brian's parenting had improved such that he could
have overnights with the children, and whether to allow Jessica to relocate.
Richards became unable or unwilling to evaluate the children or provide testimony.
On June 6, 2016, Jessica filed a notice of intended relocation with the
children to Alabama in order to be closer to her extended family. Brian filed an
2 The trial court admitted the entirety of the GAL's report, and directed the parties to
challenge its relevance during trial as necessary.
3 The July 2015 parenting plan provided a phased residential schedule for Brian and
required the parties to submit disputes to arbitration.
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objection to the relocation, a petition to modify the July 2015 parenting plan, and a
motion for a temporary order preventing the intended relocation.
The trial court restrained Jessica from moving with the children prior to trial.
The trial court noted that Brian's relationship with the children had still not been
repaired. The trial court stated that a neutral third party should conduct
reunification counseling between Brian and the children. The trial court found that
Jessica had not engaged in good faith efforts to undergo arbitration and assist
Brian in gaining overnights with the children.
On August 30, 2016, the parties went to arbitration to resolve the process
by which Brian could transition to having overnights with the children. On
September 14, 2016,the arbitrator issued his decision. The arbitrator decided that
another therapist, Pat Martinelli, would take over Richard's role under the July
2015 parenting plan. The arbitrator stated that, once Martinelli determined that
Brian's time could be expanded, Brian would be allowed overnights with the
children immediately!'
The relocation trial began on January 18, 2017. Brian expressed regret
during his testimony for having agreed to the domestic violence limiting factor in
the July 2015 parenting plan. He pointed out that the criminal case resulting from
the alleged 2010 domestic violence incident had been dismissed with prejudice,
and stated that he had been acting in self-defense. He denied perpetrating
domestic violence upon the children.
Domestic violence experts for both Brian and Jessica testified that a
4 The trial court denied Jessica's subsequent motion for superior court review of the
arbitration decision.
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perpetrator blaming the victim, claiming self-defense, or changing the narrative
about the incident would be concerning or indicate that domestic violence
treatment was Ineffective.
Martinelli testified that her interviews with the children and Brian indicated
that they had good relationships, and that Brian had demonstrated good parenting
techniques. Martinelli stated that while she was treating Brian and the children,
Jessica improperly attempted to share information with Martinelli.
On February 1, 2017, Brian moved to modify the July 2015 parenting plan.
Brian argued that the children's current living situation was harmful to their
physical, mental, or emotional health, and that Jessica had not followed the July
2015 parenting plan, citing evidence from the relocation trial. Brian requested joint
decision-making, removal of the domestic violence limiting factor against him,
imposition of an abusive use of conflict parental conduct factor against Jessica,
and modification of his child support obligation.
The final day of testimony was March 16, 2017. On April 14, 2017,the trial
court issued a memorandum decision, including findings of fact and conclusions
of law. The trial court considered the mandatory RCW 26.09.520 factors and
concluded that they favored allowing Jessica's intended relocation. The trial court
also found that Jessica had engaged in abusive use of conflict, and imposed an
abusive use of conflict limiting factor on Jessica. The trial court increased Brian's
visitation time, which would be spent in larger blocks because of the distance the
relocation would create.
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The trial court also stated,
as a condition of custody, [Jessica] will be required to undergo a
psychological evaluation and follow the recommendations for
treatment. In the course of this evaluation all collaterals who
participated at trial shall be reviewed. [Jessica] shall comply within
a discrete time frame set by the court. And if there is failure to
comply, custody will change to [Brian1.(61
The trial court lifted Brian's domestic violence limiting factor as it applied to
the children pursuant to RCW 26.09.191(2)(n), in part based on Martinelli's
testimony. The trial court did not lift Brian's domestic violence limiting factor as to
Jessica In light of her continued allegations of Brian's abusive use of conflict and
Brian's minimization of the 2010 domestic violence allegation prior to the relocation
trial. The trial court conditioned a complete lifting of the domestic violence limiting
factor on Brian submitting to a domestic violence reevaluation and completion of
any recommended treatment.
The trial court found that joint decision-making was warranted following the
imposition of the abusive use of conflict limiting factor upon Jessica. The trial court
required the parties to submit disputes to a designated case manager or parenting
plan monitor. Any dispute that could not be resolved by the case manager or
parenting plan monitor would be resolved by motion to the trial court.
On May 10, 2017, the trial court held a hearing for presentation of final
orders and to rule on various motions. The trial court noted its continuing concerns
over Jessica's mental health condition.6 Jessica's attorney had flied a motion to
withdraw, as she could not afford to be Jessica's attorney any longer. Brian
$ 1 Clerk's Papers(CP)at 186 (footnote and boldface omitted).
6 Jessica had recently called the suicide crisis line, and the evaluator was concerned
enough to call 911. The police and Brian conducted a welfare check on Jessica.
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No. 76954-5-1 /6
opposed the motion, and the trial court denied Jessica's attorney's motion.
During the hearing, the trial court clarified that "all collaterals who
participated at trial shall be reviewed" meant that Jessica's psychological
evaluation had to demonstrate that all collaterals at trial had been contacted,
although that did not require in person contact.7
On May 11, 2017, the trial court issued its final order and findings, which
incorporated its prior findings and conclusions. Jessica was required to undergo
a psychological evaluation by a court-approved psychiatrist by July 14, 2017, and
be in active treatment no later than August 11,2017. Karen Ballantyne was named
as the parties' parenting plan monitor.
On June 8, 2017, the trial court filed the modified final parenting plan (the
June 2017 parenting plan). The June 2017 parenting plan incorporated the trial
court's findings of fact and conclusions of law, and made several changes to the
parties' visitation schedule and communications.
On June 8, 2017, Jessica filed a pro se notice of appeal in this court. She
sought review of the trial court's April 14, 2017 findings of fact and conclusions of
law and its related May 11, 2017 final order.
On June 10, 2017, Jessica's attorney filed another notice of intent to
withdraw, effective June 23, 2017.
On June 19, 2017, Brian completed a domestic violence and anger
management evaluation performed by Tim Tackels. Tackels recommended that
7 After noting that there had been a suggestion that the phrase meant only certain people
at trial, the trial court stated, No, that's not what it says. I want the evaluator to have a
full picture of what happened at trial." 13 Report of Proceedings(RP)(May 10, 2017) at
1652.
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No. 76954-5-1 /7
Brian undergo an abbreviated six-month domestic violence treatment program.
On July 3, 2017, Jessica filed a psychological evaluation report prepared by
JoAnne Solchany. Solchany is a psychiatric nurse practitioner, psychotherapist,
and infant mental health specialist.8 Solchany reviewed the parties' prior
psychological evaluations and medical records; the GAL report; motions,
declarations, exhibits, and other evidence from the relocation trial; letters from
treatment providers; the parties' closing arguments; and the trial court's June 2017
parenting plan and related documents.
On July 7,2017, Brian moved to become the parent with whom the children
reside a majority of the time based on Jessica's failure to complete a satisfactory
psychological evaluation. On July 14, 2017,the trial court held a hearing on Brian's
motion. Jessica represented herself at the hearing.
The trial court stated that Solchany's evaluation did not satisfy the July 2017
parenting plan's psychological evaluation condition. The trial court noted that it
had not approved Solchany and that she was not a psychiatrist. The trial court
also concluded that her psychological evaluation was Insufficient because she had
not reviewed the trial transcript or all the collaterals who participated at trial. The
trial court granted Brian's motion and ordered that Brian would be the parent with
whom the children primarily reside.8
8 Solchany diagnosed Jessica In part with Acute Stress Disorder and ongoing Post-
Traumatic Stress Disorder.
9 Brian also moved to have his domestic violence limiting factor regarding Jessica lifted In
light of Tackles's evaluation. The trial court denied Brian's request to remove the domestic
violence limiting factor as to Jessica. The trial court stated that Brian could move to have
the limiting factor lifted as to Jessica if he completed the treatment recommended by
Tackels.
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On August 16, 2017, the trial court held a hearing on the entry of a final
parenting plan. New counsel represented Jessica.1° Jessica argued that the trial
court lacked jurisdiction to modify the June 2017 parenting plan because she had
appealed it. The trial court rejected Jessica's argument, concluding that her failure
to complete a condition in the June 2017 parenting plan necessitated the entry of
a new final parenting plan, and thus did not constitute a modification.
Brian also requested a cease and desist order against Jessica's use of the
children's images on her GoFundMe online account with an accompanying
statement that the children were survivors of domestic violence and abuse. The
trial courtfound that Jessica's use of the children's images and statement that they
had been abused were inherently harmful to the children, and ordered her to
remove the children's images from the GoFundMe account.
On September 27, 2017, the trial court entered a new final parenting plan
(September 2017 parenting plan). The September 2017 parenting plan provided
for a phased visitation schedule for Jessica." The trial court granted Brian sole
decision-making authority over major decisions in light of Jessica's abusive use of
conflict and the parties' inability to cooperate with one another in decision-making.
Jessica filed two motions to stay the trial court's decision, both of which a
'° Dennis McGlothin of Western Washington Law Group represented Jessica at the
hearing.
11 Under Phase 1, Jessica would have supervised contact with the children for specified
hours twice a week. Jessica would move to Phase 2 of the residential schedule if she did
not engage In abusive use of conflict for three months and underwent a satisfactory
psychological evaluation. Under Phase 2, Jessica would have *unsupervised residential
time on alternating weekends and one mid-week.' 8 CP at 3352. Phase 2was analogous
to Phase III of Brian's residential schedule under the July 2015 parenting plan.
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commissioner of this court denied.12
Jessica appeals.13
ANALYSIS
Subject Matter Jurisdiction
Jessica argues that the trial court erred when it entered the September 2017
parenting plan because it lacked subject matter jurisdiction to modify the June
2017 parenting plan. Specifically, she argues that she had appealed the June
2017 parenting plan and the trial court did not obtain this court's permission prior
to modifying the June 2017 parenting plan. Because the trial court's entry of the
September 2017 parenting plan was an enforcement action that did not require
permission from this court, we disagree.
In a civil case, except to the extent enforcement of a judgment or
decision has been stayed as provided in rules 8.1 or 8.3, the trial
court has authority to enforce any decision of the trial court and a
party may execute on any judgment of the trial court. Any person
may take action premised on the validity of a trial court judgment or
decision until enforcement of the judgment or decision is stayed as
provided in rules 8.1 or 8.3.
RAP 7.2(c).
12 Commissioner's Ruling Denying Motion to Stay, entered July 26,2017; Commissioner's
Ruling Denying Motion to Stay, entered December 26, 2017.
13 Brian argues that the statement of facts in Jessica's opening brief Is improper because
It does not accurately represent the facts and contains argument. We disagree.
The parties' briefs on appeal should contain "[a] fair statement of the facts and
procedure relevant to the Issues presented for review, without argument. Reference to
the record must be Included for each factual statement. RAP 10.304(5).
In her statement of facts, Jessica generally provides citations to the record in
support of her stated facts. Further, her statement of fads does not contain improper
argument. Therefore, we conclude that Jessica's statement of facts does not violate RAP
10.3(a)(5).
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The trial court has authority to hear and determine (1) postjudgment
motions authorized by the civil rules, the criminal rules, or statutes, and (2)actions
to change or modify a decision that is subject to modification by the court that
initially made the decision? RAP 7.2(e). "If the trial court determination will change
a decision then being reviewed by the appellate court, the permission of the
appellate court must be obtained prior to the formal entry of the trial court decision:
RAP 7.2(e).
Here, the trial court's entry of the September 2017 parenting plan was
necessitated by Jessica's failure to undergo the psychological evaluation the June
2017 parenting plan required. Thus, it constituted an enforcement action of a prior
decision of the trial court under RAP 7.2(c) rather than a modification of a decision
subject to appea1.14
Although the September 2017 parenting plan differed from the June 2017
parenting plan in terms of Jessica's residential schedule and the parties' decision-
making authority, these changes were premised on prior findings of the trial court.
Further, the changes flowed from Brian becoming the parent with whom the
children primarily reside following Jessica's failure to satisfy the condition in the
June 2017 parenting plan. Therefore, we conclude that the trial court did not lack
subject matter jurisdiction under RAP 7.2(e).
14 We note that a commissioner of this court previously rejected Jessica's argument that
this court lacked subject matter jurisdiction under RAP 7.2(e) when denying Jessica's
motions to stay the trial court's order. Commissioner's Ruling Denying Motion to Stay,
entered July 26,2017; Commissioner's Ruling Denying Motion to Stay, entered December
26, 2017. A three-judge panel of this court denied Jessica's subsequent motion to modify
the commissioner's July 26, 2017 ruling. Order Denying Motion to Modify, No. 76954-5-1
(consol. with Nos. 77155-8 and 77494-5), entered December 7, 2017.
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Jessica also argues that the trial court could not modify the June 2017
parenting plan because Brian did not file a petition to modify. See In re Marriage
of Christel and Blanchard, 101 Wash. App. 13, 22, 1 P.3d 600(2000)(three ways to
change a permanent parenting plan are "by agreement, by petition to modify, and
by temporary order). This is unpersuasive.
As discussed above, the trial court's entry of the September 2017 parenting
plan was necessitated by Jessica's failure to satisfy a condition contained in the
June 2017 parenting plan. The June 2017 parenting plan specified that Brian
would become the parent with whom the children primarily reside if Jessica failed
to undergo a satisfactory psychological evaluation. The change in Jessica's
visitation schedule between the June 2017 parenting plan and the September 2017
parenting plan was temporary, as it was conditioned on her completion of a
satisfactory psychological evaluation. Similarly, granting sole decision-making
authority to Brian was necessitated by his becoming the parent with whom the
children primarily reside, combined with the abusive use of conflict finding against
Jessica and the lack of cooperation between the parties.
Thus, we conclude that the trial court did not impermissibly modify the June
2017 parenting plan by entering the September 2017 parenting plan, although
Brian did not file a petition to modify.
Joint Decision-Making
Jessica argues that the trial court erred when it ordered joint decision-
making between the parties in the June 2017 parenting plan because of Brian's
history of domestic violence. Because the September 2017 parenting plan granted
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No. 76954-5-1 / 12
sole decision-making authority to Brian, with disputes resolved by the parenting
plan monitor or the trial court, we conclude that this issue is moot.
'A case is moot if a court can no longer provide effective relief.'" In re
Marriage of Homer, 151 Wash. 2d 884, 891, 93 P.3d 124(2004)(quoting Orwick v.
City of Seattle, 103 Wash. 2d 249, 253,692 P.2d 793(1984)).
Here, the September 2017 parenting plan, which granted sole decision-
making authority to Brian, superseded the June 2017 parenting plan. Jessica
acknowledges that joint decision-making ended when the September 2017
parenting plan was filed. Therefore,this court cannot provide Jessica with effective
relief for any error in the decision-making section of the June 2017 parenting plan,
and we reject her argument as moot.
Findings Related to Abusive Use of Conflict
Jessica argues that the trial court's findings regarding her abusive use of
conflict are not supported by substantial evidence. We will examine each of her
challenges in turn.15
We review the trial court's findings of fact for substantial evidence. In re
Marriage of Rockwell, 141 Wn. App. 235,242, 170 P.3d 572(2007). "'Substantial
evidence exists if the record contains evidence of sufficient quantity to persuade a
15 We note that Jessica has not cited to the record In support of her argument, and thus
has not directed the court's attention to which findings of the trial court she Is challenging.
RAP 10.3(a)(6). Further, she has not provided a separate assignment of error for each
finding of fact that she Is challenging on appeal. RAP 10.3(g); see Appellant's Opening
Br. at 4("The trial court erred when [it] found that (Jessica] had engaged in abusive use
of conflict because the court's findings of fact are not supported by substantial evidence").
Nonetheless, we will assume that she is challenging the listed examples underlying the
trial court's finding that Jessica engaged in abusive use of conflict, and reach the merits
of her arguments.
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fair-minded, rational person of the truth of the declared premise.'" In re Marriage
of Griswold, 112 Wash. App. 333, 339, 48 P.3d 1018 (2002) (quoting Bering v.
SHARE, 106 Wash. 2d 212, 220, 721 P.2d 918(1986)).
"Where the trial court has weighed the evidence, the reviewing court's role
Is simply to determine whether substantial evidence supports the findings of fact
and, if so, whether the findings in turn support the trial court's conclusions of law?
In re Rockwell, 141 Wash. App. at 242. "A court should 'not substitute [its]judgment
for the trial court's, weigh the evidence, or adjudge witness credibility.'" In re
Rockwell, 141 Wash. App. at 242 (alteration in original) (quoting In re Marriage of
Greene, 97 Wn.App. 708,714, 986 P.2d 144 (1999)).
First, Jessica argues that the trial court's finding that she has continued to
portray Brian in a negative light and that this portrayal has adversely impacted his
relationship with the children is not supported by substantial evidence. We agree.
At trial, Martinelli testified that Jessica cast Brian in a negative light by
frequently pointing out his deficits, and that she assumed that Jessica discussed
Brian with the children. And Jessica's arguments before the trial court frequently
touched on Brian's real or perceived deficits. But testimony in the record also
established that Jessica did not voice her negative views of Brian in front of the
children. Brian has not cited evidence in the record supporting the trial court's
finding that Jessica's negative portrayals of Brian, either in or out of court, have
negatively impacted his relationship with the children.
Martinelli's testimony regarding Jessica's portrayal of Brian is insufficient to
support the trial court's finding. Martinelli could not conclusively say that Jessica
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No. 76954-5-1 / 14
had portrayed Brian negatively to the children, and did not testify about the
negative impact of any such portrayal. Multiple other witnesses testified that
Jessica did not voice her negative portrayals in front of the children. Therefore,
we conclude that this finding was not supported by substantial evidence.
Second, Jessica argues that the trial court's finding that Jessica attempted
to influence a reviewer's decisions and impressions of the parties was not
supported by substantial evidence. Specifically, she contends that the record does
not clearly demonstrate that her e-mail to retired Commissioner Arden Bedle,
whom the parties had as a potential arbitrator, supports the trial court's finding that
she attempted to influence him. We disagree.
In its list of examples supporting its finding that Jessica engaged in abusive
use of conflict, the trial court stated, "Evidence presented of other attempts to
engage in communications with decision makers in this case (email to ret.
Commissioner Bedle) in an attempt to Influence the reviewers decisions and
impressions of the parties."1°
In a declaration, Jessica stated that "Brian contacted retired Commissioner
Arden Bedle to see if he'd arbitrate. I exchanged emails with Commissioner Bedle,
and informed him of the past [domestic violence] and 191 restrictions.
Commissioner Bedle stated that he did not have appropriate facilities."17 Jessica's
declaration establishes that she informed a prospective decision maker of Brian's
history of domestic violence and the imposition of a domestic violence limiting
factor against him. This constitutes substantial evidence supporting the trial court's
161 CP at 185.
17 4 CP at 1540. Neither party provided a citation to the e-mail itself in the clerk's papers.
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No. 76954-5-1 / 15
finding that Jessica attempted to influence the views of decision makers to Brian's
detriment. We reject Jessica's challenge to this finding.
Third, Jessica argues that the trial court's finding that she attempted to
intimidate or seek retribution against Martinelli for testifying at the relocation trial is
not supported by substantial evidence "because [Jessica's] claim that Martinelli
failed to report as a mandatory reporter was taken seriously by the Department of
Health."18 We disagree.
At trial, Martinelli testified that she was a mandatory reporter. She testified
that she made a report to Child Protective Services(CPS)about an incident when
Brian left the children alone at his home, at Jessica's urging. Martinelli also
testified that she was aware that Jessica was unhappy with Martinelli's role in
assisting Brian in being able to have overnights with the children.
During the relocation trial, Jessica filed an online complaint to the
Department of Health that Martinelli had failed to report as a mandatory reporter.
Martinelli's conduct underlying Jessica's complaint had occurred months prior to
Jessica filing her complaint. Martinelli testified that the timing indicated that
Jessica's complaints were retaliatory or for intimidation purposes. Martinelli noted
that she had not seen the family since early November, and that "if these were
legitimate complaints they would have been filed in November or October when all
of these things were occurring. But the fact that they occurred and were filed at
the same time that the trial was going on was ...just too coincidental."18
n Appellant's Opening Br. at 47.
la 7 RP (Jan. 31, 2017) at 832.
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Here,the trial court's finding primarily pertains to Jessica's intent in bringing
a formal complaint against Martinelli only after she assisted Brian in obtaining
overnights with the children and testified at trial. The merit of Jessica's complaint
to the Department of Health does not bear on Jessica's underlying intent.
Further, the trial court's finding that Jessica's filing of formal complaints
against witnesses during trial was done for retaliatory or intimidation purposes is
supported by substantial evidence. Martinelli's testimony established that her
alleged failure to report had occurred in October or November 2016, but Jessica
waited until trial began in January 2017 to file her complaint. In addition, Martinelli
testified that she was aware of Jessica's displeasure at Martinelli's role in assisting
Brian. Viewed together, Martinelli's testimony and the timing of Jessica's filing of
complaints against her during trial constitute substantial evidence supporting the
trial court's finding.
The remainder of Jessica's challenges are without merit. Two of her
challenges concern alleged findings by the trial court regarding Jessica's court and
arbitration filings, including that they increased costs and constituted abuses of the
process. Neither of these alleged findings appear in the trial court's listed
examples supporting its overall finding that Jessica engaged in abusive use of
conflict. Jessica has not cited to the record in support of her arguments, and thus
has not directed the court's attention to which findings she is challenging. RAP
10.3(a)(6). Therefore, we reject these arguments.
Jessica also argues that she cannot be penalized for truthful testimony
about Brian's deficiencies or for Martinelli's testimony about the inconsistency
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No. 76954-5-1/17
between the children's statements and their demeanor around Brian. Jessica also
argues that the trial court erred in stating that her call to CPS was ultimately
deemed unfounded, and that the trial court erred when it noted that the volume
and content of her text messages was concerning. Jessica's arguments attack the
trial court's recitation of evidence presented at the relocation trial, or require this
court to reweigh the evidence or judge witness credibility on appeal. In re
Rockwell, 141 Wash. App. at 242. We reject Jessica's challenges.
In sum,we conclude that the trial court's finding that Jessica portrayed Brian
In a negative light and that this portrayal adversely impacted the children is not
supported by substantial evidence. We otherwise reject Jessica's challenges to
the trial court's findings regarding Jessica's abusive use of conflict, including the
lack of merit in her call to CPS and the volume and content of her text messages.
We also note that Jessica has not challenged the remainder of the trial court's
findings supporting its overall finding that she engaged in abusive use of conflict.
Therefore, we conclude that the trial court's overall finding is supported by
substantial evidence.
Findings Supporting Modification
Jessica argues that the trial court erred when it failed to make mandatory
findings prior to modifying the July 2015 parenting plan.2° Because the trial court
made the requisite RCW 26.09.260 findings, we disagree.
20 Jessica also argues that the trial court's order naming Brian as the parent with whom
the children would primarily reside constituted an impermissible sanction against her for
failing to comply with the trial court's order. Jessica does not cite legal authority In support
of this argument. RAP 10.3(8)(6). Further, her argument is premised on her contention
that the trial court's decision was erroneous because It did not make required findings and
Its decision was not supported by substantial evidence. We reject this argument.
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No. 76954-5-1/18
[The court shall not modify a prior custody decree or a parenting
plan unless it finds, upon the basis offacts that have arisen since the
prior decree or plan that were unknown to the court at the time of the
prior decree or plan, that a substantial change has occurred In the
circumstances of the child or the nonmoving party and that the
modification is in the best interest of the child and Is necessary to
serve the best interests of the child.
RCW 26.09.260(1).
"In determining whether a substantial change in circumstances has
occurred to warrant modification,the trial court must look only at the circumstances
of the child or the custodial parent and not those of the noncustodial parent."
George v. He!liar, 62 Wash. App. 378, 383,814 P.2d 238(1991).21
"A parent's involvement or conduct may have an adverse effect on the
child's best interests, and the court may preclude or limit any provisions of the
parenting plan, if any of the following factors exist: . ..(e) The abusive use of
conflict by the parent which creates the danger of serious damage to the child's
psychological development." RCW 26.09.191(3)(e).
"Generally, a trial court's rulings dealing with the provisions of a parenting
plan are reviewed for abuse of discretion." In re Marriage of Littlefield, 133 Wn.2d
39,46, 940 P.2d 1362(1997). "A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons."
In re Littlefield, 133 Wash. 2d at 46-47.
"Because of the trial court's unique opportunity to observe the parties, the
appellate court should be 'extremely reluctant to disturb child placement
21We note that a relocation petition may also serve as a basis for modifying an existing
parenting plan. RCW 26.09.260(6). The statute 'also expressly permits consideration of
new parenting plans as a result of a relocation request." In re Marriage of McDevitt and
Davis 181 Wash. App. 765, 771, 326 P.3d 865(2014).
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dispositions.'" In re Parentage of Schroeder, 106 Wn.App.343,349,22 P.3d 1280
(2001)(quoting In re Marriage of Schneider,82 Wn. App. 471,476, 918 P.2d 543
(1996), overruled on other grounds by In re Littlefield, 133 Wash. 2d at 57).
Here, following Brian's motion to modify the July 2015 parenting plan, the
trial court made the findings required under RCW 26.09.260 in its memorandum
decision following the relocation trial. Jessica's abusive use of conflict arose after
the entry of the July 2015 parenting plan. The trial court noted that Jessica's
abusive use of conflict was "relentlessly' and could harm the children if left
unchecked.22
The trial court concluded that the new parenting plan, which imposed an
abusive use of conflict limiting factor on Jessica and conditioned her remaining the
parent with whom the children primarily reside on completion of a psychological
evaluation, was in the best interests of the children. Thus, the trial court made the
findings required under RCW 26.09.260 prior to modifying the July 2015 parenting
plan, and was justified in limiting Jessica's rights to relocate and remain the parent
with whom the children primarily reside under RCW 26.09.191(3). We conclude
that the trial court did not abuse its discretion.23
"1 CP at 186.
23 Jessica also argues that the trial court erred when it modified the parties' residential
schedule following the relocation trial because it did not make required findings under
RCW 26.09.260(2). This is unpersuasive.
Generally, the trial court *shall retain the residential schedule established by the.
.. parenting plan." RCW 26.09.260(2). But 'Mlle court may order adjustments to the
residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a
relocation of the child? RCW 26.09.260(6).
Here, the June 2017 parenting plan was a modification of the July 2015 parenting
plan. The modification followed Jessica's filing of a notice of intent to relocate and a trial
on her request. Because the modification of the residential schedule was justified under
RCW 26.09.260(6), we reject Jessica's argument.
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No. 76954-5-1 /20
Brian as Parent with whom the Children Primarily Reside
Jessica argues that the trial court erred by establishing Brian as the parent
with whom the children primarily reside because of Brian's history of domestic
violence. She argues that the trial court did not adequately consider the ongoing
effects of the past domestic violence involving the children, relying primarily on
Rodriquez v. Zavala, 188 Wash. 2d 586, 398 P.3d 1071 (2017).
In Rodriquez, the Washington Supreme Court, in analyzing the broad
definition of domestic violence in RCW 26.50.010(3), held that a person who is the
victim of domestic violence which includes violent threats against that person's
children may petition for a domestic violence protection order prohibiting the
perpetrator from contacting the children. 188 Wash. 2d at 590, 598-99. In its
discussion of the case, the Supreme Court noted the need to protect a child even
if the child did not witness the abuse of the victim. Rodriquez, 188 Wash. 2d at 588.
Similarly, this court has stated that "[e]ven when there is no evidence of a direct
assault on a child, fear of violence is a form of domestic violence that will support
an order for protection." Maldonado v. Maldonado, 197 Wash. App. 779, 791, 391
P.3d 546(2017).
Here, unlike Rodriquez, the trial court acknowledged the past history of
domestic violence as it affected the children. It did not minimize the impact of
Brian's actions. The trial court carefully examined his behavior. It relied on
Martinelli's testimony that Brian had demonstrated good parenting techniques, and
that her interviews with the children and Brian indicated that they had good
relationships. The trial court found in its consideration of the relocation factors
20
No. 76954-5-1/ 21
that, "in the best interest of the children, that [Brian] is no longer a threat to the
children in compliance with and as required by RCW 26.09.191(2)(n). The
testimony of Ms. Martinelli supports this, the children's performance supports this,
and the general circumstances support this finding."24 This court cannot reweigh
the evidence at the relocation trial. In re Rockwell, 141 Wash. App. at 242.
Therefore, we conclude that Jessica's cited case law and the record before the
trial court do not support her contention that the trial court erred in establishing
Brian as the parent with whom the children reside the majority of the time.25
Appointment of Case Manager
Jessica argues that the trial court erred when it appointed a case manager
and required the parties to submit disputes to her. Because the trial court properly
appointed a case manager while maintaining the parties' right to superior court
review, we disagree.
24 1 CP at 489 (footnote omitted). Jessica briefly argues that there was insufficient
evidence for Brian to meet the RCW 26.09.191(2)(n) exception. But as discussed above,
the trial court's determination was based on Martinelli's testimony and its consideration of
the circumstances of the case. This constitutes substantial evidence supporting the trial
court's finding. In re Griswold 112 Wash. App. at 339. We reject Jessica's argument.
In her reply brief, Jessica argues for the first time that the trial court erred when It
did not make specific findings required by RCW 26.09.191(2)(n). We reject this argument
as untimely. Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d
549(1992); see RAP 10.3(c).
25 Jessica also argues that the trial court erred when it lifted Brian's domestic violence
limiting factor as to the children because he continued to deny that he committed acts of
domestic violence toward the children. Jessica contends that the trial court's decision
should be reversed as a matter of public policy because s[t]he restrictions in RCW
26.09.191 should not be removed if there is still evidence that the domestic violence
perpetrator has not yet internalized the lessons of domestic violence treatment and is still
engaged in abusing one of his victims? Appellant's Opening Br. at 41. Jessica does not
cite case law supporting her argument. We decline to reach the merits of Jessica's
argument in light of her failure to provide citations to legal authority in support of her
argument. RAP 10.3(8)(6).
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No. 76954-5-1 / 22
"A process for resolving disputes, other than court action, shall be provided
unless precluded or limited by RCW 26.09.187 or 26.09.191. A dispute resolution
process may include counseling, mediation, or arbitration by a specified individual
or agency, or court action? RCW 26.09.184(4). "The parties have the right of
review from the dispute resolution process to the superior court." RCW
26.09.184(4)(e).
The Court of Appeals reviews questions of statutory construction de novo.
In re Marriage of Brown, 159 Wash. App. 931, 935, 247 P.3d 466 (2011). A trial
court's decisions regarding the provisions of a parenting plan are reviewed for
abuse of discretion. In re Littlefield, 133 Wash. 2d at 46.
Here, the statute governing dispute resolution processes in permanent
parenting plans uses permissive language. It does not limit trial courts to the listed
examples of dispute resolution processes. Thus, the trial court could delegate
dispute resolution authority to a case manager while providing the parties with the
option of superior court review or resolution of the dispute.
The September 2017 parenting plan provided a dispute resolution section
that stated:
From time to time, the parents may have disagreements about
shared decisions or about what parts of this parenting plan mean.
a. To solve disagreements about this parenting plan,the parents will
go to (check one):
Court (without having to go to mediation, arbitration, or
counseling, but after utilizing the services of Karin Ballantyne, the
Parenting Plan Monitor).1261
"8 CP at 3354.
22
No. 76954-5-1 / 23
If Jessica disagreed with a major decision made by Brian, as the parent with
sole decision-making authority, Jessica "shall submit her disagreement... to the
parenting plan monitor for resolution. The parenting plan monitor shall render a
decision. If the dispute is not resolved by the parenting plan monitor, then either
party may submit the dispute to the Court?"21
Neither of these provisions created improper dispute resolution procedures.
The trial court performed its duty to provide a process for resolving disputes. The
trial court acted within its discretion under the statutes in requiring the parties to
initially submit their disputes to a case manager.28 And the trial court provided the
parties with a means to submit disputes that could not be resolved by the case
manager to the trial court.
Therefore, we conclude that the trial court complied with the applicable
statutes and did not abuse its discretion in crafting the September 2017 parenting
plan's dispute resolution procedures.
Prior Restraint on Speech
Jessica argues that the trial court's order to take down the children's images
from her GoFundMe online account was a prior restraint of speech that violated
her First Amendment rights. Because the trial court's order was limited to her use
of the children's images on her GoFundMe online account, we disagree.
Prior restraints are "'[a]dministrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications
are to occur.'" In re Marriage of Suggs, 152 Wash. 2d 74, 81, 93 P.3d 161 (2004)
22 8 CP at 3353(boldface omitted).
28 See Kirshenbaum v. Kirshenbaum, 84 Wn. App.798, 806-07,929 P.2d 1204(1997).
23
No. 76954-5-1/24
(internal quotation marks omitted)(quoting Alexander v. United States 509 U.S.
544, 550, 1135. Ct. 2766, 125 L. Ed. 2d 441 (1193)).
Constitutional challenges are reviewed de novo. In re Suoos, 152 Wash. 2d
at 79.
Here, Jessica posted a picture of her and the children to her GoFundMe
online account, which also described the children as victims of domestic abuse.29
The trial court ordered Jessica to immediately remove the children's images from
her GoFundMe online account.
The trial court's order did not constitute an unconstitutional prior restraint of
speech. The trial court's order was confined to Jessica's present use of the
children's images on her GoFundMe online account Further,the trial court's order
does not apply to Jessica's use of the children's images on other platforms or in
other contexts, presently or in the future. Thus, we conclude that the trial court's
order does not constitute an unconstitutional prior restraint of speech.393I
Jessica - Attorney Fees on Appeal
"The description stated In part that the money was so that Jessica and the children could
*relocate out of State to escape years of abuse. We are survivors of domestic violence!
9 CP at 3665. The description also stated,'My children witnessed my abuse and they
endured it as well! 9 CP at 3665.
"Jessica also argues that the trial court erred because her statements that the children
had been abused by Brian were supported by the record and were therefore protected
speech. But the trial court explicitly declined to make findings about whether the
GoFundMe online account's description was defamatory towards Brian. Therefore, we
decline to reach this Issue.
31 For the first time In her reply brief, Jessica argues that the trial court did not engage in
sufficient inquiry to determine whether her use of the children's Images was protected.
Jessica also argues that the trial court did not conduct a balancing test between her
freedom of expression and the State's parens patriae duties. *An issue raised and argued
for the first time In a reply brief Is too late to warrant consideration? Cowiche Canyon
Conservancy 118 Wash. 2d at 809; RAP 10.3(c). Thus, we decline to reach the merits of
Jessica's arguments.
24
No. 76954-5-1/25
Jessica argues that she is entitled to her attorney fees on appeal under
RCW 26.09.140.
The court... after considering the financial resources of both parties
may order a party to pay a reasonable amount for the cost to the
other party of maintaining or defending any [dissolution] proceeding
... and for reasonable attorneys'fees..., including sums for legal
services rendered and costs incurred prior to the commencement of
the proceeding or enforcement or modification proceedings after
entry ofjudgment.
Upon any appeal, the appellate court may, in its discretion,
order a party to pay for the cost to the other party of maintaining the
appeal and attorneys'fees in addition to statutory costs.
RCW 26.09.140.
Here, both parties submitted financial declarations to this court. Jessica
declared that her net monthly income is $2,304.00 and her total monthly expenses
following the parties' separation are $3,851.79. She also declared that her total
attorney fees for the case are "$1275,122.00," with $53,000.00 currently
outstanding.32 Jessica declares that her total available assets total $1,595.95.
Brian declares that his net monthly income is $34,907.39. His total monthly
expenses and payments for other debts following the parties' separation are
$14,547.00. He has spent $142,940.00 in attorney fees.
In its order denying in part and granting in part Jessica's motion for
reconsideration regarding attorney fees, the trial court noted below that Jessica
received $500,000.00 net after the sale of the family home, and received an
additional $100,000.00 in cash from her parents as a loan. Jessica claimed that
these funds were completely dissipated, but did not provide documentation of how
32Financial Decl. of Jessica Bodge at 5. It is unclear whether Jessica's total attorney costs
are over $1,000,000.00 or there is an error In her financial declaration.
25
No. 76954-5-1 / 26
these funds were distributed. The trial court concluded that there was insufficient
proof in the record of Jessica's need and that there was an inference of financial
waste by Jessica.
The parties' financial declarations demonstrate a disparity between
Jessica's and Brian's monthly incomes. But on appeal Jessica has still not
accounted for the funds that she received during litigation. Thus, we decline to
award Jessica her attorney fees on appeal under RCW 26.09.140.33
Brian - Attorney Fees on Appeal
Brian requests his attorney fees on appeal based on Jessica's intransigence
throughout this litigation.
A party's intransigence may be a basis for an award of attorney fees to the
opposing party. Chapman v. Perera,41 Wn.App.444,456,704 P.2d 1224(1985).
"Intransigence includes foot dragging and obstruction,filing repeated unnecessary
motions, or making the trial unduly difficult and costly by one's actions." In re
Marriage of Bobbitt, 135 Wash. App. 8, 30, 144 P.3d 306(2006).
Here, Brian relies on Jessica's filing of motions to stay the trial court's
enforcement actions to justify his request for attorney fees on appeal based on
Jessica's intransigence.34 This is insufficient to justify an award of attorney fees
33 Despite arguing that she is entitled to attorney fees on appeal under RCW 26.09.140,
Jessica's arguments implicate the trial court's decision to not award her the majority of her
attorney fees below. Jessica has explicitly stated that she Is not contesting the trial court's
denial of her request for attorney fees on appeal. Thus, we reject any arguments
concerning the trial court's decision to deny Jessica's request for attorney fees below.
34 Brian cites Jessica's actions below, including her ``behavior and choices at trial that
served to unnecessarily lengthen the time for trial and Increase the litigation costs for
[Brian]." Resp't's Br. at 48. But Brian has not challenged any decision of the trial court
below regarding attorney fees and Jessica's Intransigence. We reject Brian's citations to
Jessica's actions below.
26
No. 76954-5-1/27
for intransigence. Jessica's motions presented debatable issues for consideration
by a commissioner of this court and did not overly extend the length of this appeal.
We reject Brian's argument.
Brian also argues that he is entitled to attorney fees under RAP 18.9(a)
because Jessica's appeal is frivolous.
The appellate court has discretion to order a party "to pay terms or
compensatory damages to any other party ... or to pay sanctions to the court" if
the party files a frivolous appeal. RAP 18.9(a). "'(Am n appeal is frivolous if it raised
no debatable issues on which reasonable minds might differ and it is so totally
devoid of merit that no reasonable possibility of reversal exists.'" Hanna v.
Margitan, 193 Wash. App. 596, 615, 373 P.3d 300 (2016) (quoting Protect the
Peninsula's Future v. City of Port Angeles, 175 Wash. App. 201, 220, 304 P.3d 914
(2013)).
Here, Jessica has raised debatable issues on appeal, such as whether the
trial court impermissibly modified the parenting plan governing the parties and
whether its findings of fact were supported by substantial evidence. We conclude
that Jessica's appeal is not frivolous, and deny Brian's request for attorney fees on
this basis.
Brian states in the header for this section of his brief that he is entitled to an
award of his appellate attorney fees as the prevailing party on appeal. But Brian
does not provide further argument or cite to legal authority in support of this claim.
We decline to grant Brian his attorney fees on appeal as the prevailing party. RAP
10.3(a)(6).
27
No. 76954-5-1 / 28
Affirmed.35
I
WE CONCUR:
174:hinI 41.e.2-
35 On April 18, 2018, following oral argument, this court received a letter from Brian
challenging factual assertions made by Jessica during oral argument Jessica filed a
response asking this court to not consider the contents of the letter and requesting
sanctions against Brian for violation of the Rules of Appellate Procedure. We did not
consider the contents of the April 18 letter when reaching our decision in this opinion, and
deny Jessica's request for sanctions.
28