In Re The Marriage Of: Kathryn Suzanne Ward, App. And Kenneth Eugene Ward, Res. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of No. 74318-0-1
O
KATHRYN SUZANNE WARD, CO
Appellant,
and
en
C.J
KENNETH EUGENE WARD, UNPUBLISHED OPINION
Respondent. FILED: October 31, 2016
Verellen, C.J. — A parenting plan providing for "Possinger1 review" in the
near future allows consideration of any plan provision governed by the parenting plan
standards of RCW 26.09.187. There is no need to satisfy the modification standards
of RCW 26.09.260.
Kathryn Ward argues the trial court abused its discretion and exceeded its
authority in 2015 by changing nonresidential provisions of the 2013 parenting plan.
Although there are some discrepancies in the trial court rulings, we conclude the trial
court did not abuse its discretion by granting Kenneth Ward relief consistent with
RCW 26.09.187 as part of its authorized Possinger review of the 2013 parenting
plan.
1 In re Marriage of Possinger. 105 Wash. App. 326, 19 P.3d 1109 (2001).
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We also conclude the trial court did not abuse its discretion in limiting the
scope and duration of the mother's offer of proof regarding a dispute between the
father and the nanny.
But we agree with Kathryn that the trial court should not have altered a no-
contact order to allow supervised contact with the paternal grandfather because there
was no evidence presented to support such a change.
We reverse the portion of the 2015 final parenting plan allowing the paternal
grandfather supervised visitation and affirm the trial court's other orders and rulings.
FACTS
Kathryn Ward (the mother) filed a petition to dissolve her marriage to Kenneth
Ward (the father). Before trial, the mother and the father reached an agreement on a
parenting plan (2013 parenting plan) for their three children. Because the father was
in early sobriety, the 2013 parenting plan limited his residential time with the children.
Once he met certain benchmarks in his recovery, his residential time under the 2013
parenting plan could be increased.
As part of the residential schedule section of the 2013 parenting plan,
subsection 3.2, "School Schedule," provided, "This parenting plan is entered under
the procedure utilized in In re Marriage of Possinger and will be reviewed pursuant to
Possinger the August prior to [the oldest child] beginning kindergarten."2 Among
other provisions, the 2013 parenting plan provided for no contact between the
children and their paternal grandfather, the mother makes major decisions, the
2 Clerk's Papers (CP) at 520.
No. 74318-0-1/3
mother may reguire the father to submit to urinalysis (UA) testing if she suspects he
is not sober, and the parties submit disputes to a mediator.
In 2015, the mother filed a petition to modify the 2013 parenting plan under
RCW 26.09.260. The mother asserted a substantial change of circumstances had
occurred because the father had moved to Lake Tapps. She reguested a reduction
in the father's residential time, alleging he was consuming alcohol again, and claimed
the father was not following mandatory provisions of the 2013 parenting plan.
The father did not file a counter-petition to modify, but moved for a Possinger
review. The father's proposed parenting plan would have increased the children's
residential placement with him.
The court set both the mother's modification and the father's Possinger review
for trial and appointed a guardian ad litem (GAL). The court directed the GAL to
address "all issues relating to development of the parenting plan, and the Guardian
ad litem shall also report to the court on any other issues discovered that could affect
the safety of the children."3
In her written report, the GAL recommended several changes to the 2013
parenting plan: counseling for both parents, joint decision making on all major
decisions, including some extracurricular activities, and limits on the mother's
authority to compel UA tests. At trial, the GAL also recommended eliminating regular
UA testing for the father, giving a case manager the ability to reguest UA testing,
deleting sole decision-making authority for the mother, selecting a post-decree case
3 CP at 454.
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manager to resolve disputes over decision making, and requiring the parents to
participate in the Family In Transition program.
In its oral ruling, the court revised the mother's authority to compel UA tests,
directed both parents to use common courtesy during exchanges, ordered
counseling through New Ways for Families, adjusted decision-making provisions, and
ordered the father and the mother to hire a case manager to help them manage
disputes.
At the presentation hearing, the father requested a change to the paternal
grandfather no-contact provision. Over the mother's objection, the court allowed the
paternal grandfather supervised contact.
The court implemented several changes in its written 2015 final parenting
plan:
3.10 Restrictions. The court changed the mother's ability to
request the father to take a UA test and revised the original no-contact
provision to allow supervised contact between the paternal grandfather
and the children;
3.11 Transportation Arrangements. Agreed-upon transportation
provisions were added;
3.13 Other. The father and the mother were ordered to attend
and complete the New Ways for Families Program. The court also
changed the time requirement for the father to provide the mother with
his work schedule;
4.2 Major Decisions. Decision making regarding counseling was
changed from the mother to being a joint decision. Decision making
concerning religious upbringing was changed from the mother to either
parent's decision. Joint decision-making provisions also included
tattoos prior to 18, body piercing prior to 18, marriage prior to 18,
military prior to 18, and driver's licenses, and the notice requirement for
nonemergency decisions was changed;
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5 Dispute Resolution. A post-decree case manager rather than
a mediator was provided for to assist the parents in resolving disputes;
6 Other Provisions. Telephone use provisions were extended to
allow reasonable texts, emails, video contact, or other technology as
may come available and is appropriate for the children's use. A firearm
safety provision was added. The mother was ordered not to remind the
father about the children's activities. Both parties were ordered to act
with civility during exchanges.
In addition to the 2015 final parenting plan, the trial court entered its
November 2, 2015 order, addressing both the mother's motion to modify and the
father's Possinger review. The court concluded that the mother failed to meet her
burden to prove the elements for a major modification:
The custody decree/parenting plan/residential schedule should
not be adjusted because none of the statutory reasons set forth in
RCW 26.09.260(10) apply.
Despite this, both parents are ordered to participate in
classes/coaching to assist them in their communication with each other
and to alleviate the acrimony between the parents, especially during
child exchanges. A post-decree case manager is also appointed to
assist the parents. Finally, this Court has ordered certain conduct
during exchanges. These provisions are in the child's best interests.[4]
In section III of the order, the court stated:
The petition to modify/adjust the custody decree or parenting
plan/residential schedule is denied.
Other: This court has reviewed the residential provisions of the
November 2013 Permanent Parenting Plan pursuant to In Re
Possinger, as contemplated and set forth in the November 2013
Permanent Parenting Plan.
This Court does not have authority to modify the Decision
Making Provisions in the November 2013, Parenting Plan. Despite this,
4 CP at 450 (emphasis added).
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the court has modified the decision making provision in one respect to
adopt the parents' agreement regarding extracurricular activities.151
The mother appeals.
ANALYSIS
/. Parenting Plan
The mother argues the trial court abused its discretion and exceeded its
authority when it modified nonresidential provisions of the 2013 parenting plan.
This court reviews a trial court's ruling concerning parental decision making for
abuse of discretion.6 The burden is on the appellant to prove an abuse of discretion.7
A trial court's decision is exercised on untenable grounds or for untenable reasons
when it relies on unsupported facts or applies the wrong legal standard.8 Should the
court adopt a view that no reasonable person would take despite applying the correct
legal standard to the supported facts, the court's decision is manifestly
unreasonable.9
(i) Provisions Subject to Possinger Review
The mother argues the nonresidential provisions were not subject to Possinger
review. But consistent with Possinger and RCW 26.09.187, the trial court had
authority to reach any parenting plan issue.
5 CP at 451 (emphasis added).
6 In re Marriage of Jensen-Branch. 78 Wash. App. 482, 490, 899 P.2d 803
(1995).
7 Lewis v. Simpson Timber Co.. 145 Wash. App. 302, 328, 189 P.3d 178 (2008).
8 Id. (quoting Maverv. Sto Indus.. Inc.. 156 Wash. 2d 677, 684, 132 P.3d 115
(2006)).
9 id, (guoting Mayer, 156 Wash. 2d at 684).
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The "'major purpose behind the reguirement of a detailed permanent parenting
plan is to ensure that the parents have a well thought out working document with
which to address the future needs of the children.'"10 Trial courts have the authority
under Possinger to defer the permanent and final resolution of parenting issues for a
short time following entry of the decree of dissolution of marriage.11 When
conducting such a review, the court applies the criteria in RCW 26.09.187 for
establishing a permanent parenting plan rather than the criteria in RCW 26.09.260 for
modifying a parenting plan.12
In Possinger, the trial court awarded the father substantial residential
placement, but the school schedule subsection of the parenting plan provided for
review in one year to determine if the plan was workable.13 After the review, the trial
court awarded primary residential placement to the mother and altered the decision
making provisions of the plan.14 On appeal, this court upheld both residential and
nonresidential changes. Possinger focused on the best interests of the child.15 This
court reasoned:
10 Possinger, 105 Wash. App. at 335 (quoting In re Marriage of Pape. 139 Wash. 2d
694, 705, 989 P.2d 1120 (1999)).
11 Id. at 336-37. Possinger does not stand for the proposition that trial courts
may retain an open-ended reservation for parenting plan review. See In reC.M.F.,
179Wn.2d411, 425-27, 314 P.3d 1109 (2013): In re Marriage of Adler, 131 Wn.
App. 717, 724-26, 129 P.3d 293 (2006).
12 Possinger. 105 Wash. App. at 337 (emphasis added).
13 Id, at 329-330.
14 jd, at 331.
15 jd. at 334-35 ("'In any proceeding between parents under this chapter, the
best interests of the child shall be the standard by which the court determines and
allocates the parties' parental responsibilities. The state recognizes the fundamental
No. 74318-0-1/8
"The best interests of the child are served by a parenting arrangement
that best maintains a child's emotional growth, health and stability, and
physical care. Further, the best interest of the child is ordinarilyserved
when the existing pattern of interaction between a parent and child is
altered only to the extent necessitated by the changed relationship of
the parents or as required to protect the child from physical, mental, or
emotional harm."^
The review authorized in Possinger allows the trial court to apply RCW 26.09.187 to
any parenting plan issues.
The mother analogizes to In re Marriage of Shrvock. but we do not find any
helpful parallels.17 In Shrvock, a father petitioned to modify a permanent parenting
plan under RCW 26.09.260(2)(b).18 Despite finding that none of the statutory
reasons for modification under RCW 26.09.260 were present, the trial court
substantially reduced the father's residential time with the child and granted the
mother sole decision-making authority.19 The trial court abused its discretion
because it modified an original parenting plan after it had found there were no
statutory reasons justifying a modification under RCW 26.09.260.20 Shrvock. decided
six years before Possinger. was limited to the criteria for modification under
RCW 26.09.260. But here, consistent with Possinger. the trial court performed its
analysis using RCW 26.09.187.
importance of the parent-child relationship to the welfare of the child, and that the
relationship between the child and each parent should be fostered unless
inconsistent with the child's best interests.'") (guoting RCW 26.09.002).
16 id (guoting RCW 26.09.002) (emphasis added).
17 76 Wash. App. 848, 888 P.2d 750 (1995).
18 id, at 849.
19 id, at 852.
20 Id. at 851-52.
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The mother also argues the language and location of the Possinger provision
in the 2013 parenting plan, together with the father's narrow request for relief, limited
the scope of the trial court's Possinger review. But section 3.2 of the 2013 parenting
plan expressly provided, "This parenting plan is entered under the procedure utilized
In Re Marriage of Possinger and will be reviewed pursuant to Possinger the August
prior to [the oldest child] going to kindergarten."2^ This language specified when the
Possinger review would occur; it did not purport to restrict the scope of that review.
The mother notes that the November 2, 2015 order recites the court "has
reviewed the residential provisions of the November 2013 Permanent Parenting Plan
pursuant to In Re Possinger. as contemplated and set forth in the November 2013
Permanent Parenting Plan."22 But we do not read this as a concession that the
scope of the Possinger review was limited to residential provisions. Notably, it is
clear that the trial court focused on the RCW 26.09.187 criteria as to both residential
and nonresidential provisions.
And the father's narrow proposed order did not compel the trial court to ignore
problems that made the existing plan unworkable. Many aspects of a parenting plan
are interrelated. For example, a lack of civility in handing off a child can frustrate
residential provisions, contrary to the best interests of the child. It would be
inconsistent with the underlying purpose and rationale of Possinger and
RCW 26.09.002 to artificially limit the trial court to a residential-change-or-nothing
review.
21 CP at 520 (emphasis added).
22 CP at 451.
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The mother challenges the change in alternative dispute resolution from a
mediator to a case manager with authority to make binding recommendations. She
contends RCW 26.09.184 limits the court to counseling, mediation or arbitration. The
statute provides, "A dispute resolution process may include counseling, mediation, or
arbitration by a specified individual or agency, or court action."23 Commentators
recognize that other choices are available:
The mandatory parenting plan form lists three possible choices
for dispute resolution, counseling, mediation, or arbitration although the
parties are free to list another option if it will be useful for them. For
example, the use of a "Parenting Coordinator" has seen considerable
recent favor. The parenting coordinator is usually a mental health
professional or attorney. The parties agree to use the individual as a
form of "private referee" on minor parenting issues.[24]
The 2015 final parenting plan here provides the case manager may make
recommendations "which the parties will follow until any objection to those
recommendations are sustained by this Court upon application to the King County
Superior Court Family Motions Calendar. . .. The parties have the right of review
from the dispute resolution process to the superior court.25
The mother cites no authority exploring whether this "case manager" dispute
resolution provision is a form of "private referee" or arbitration combined with the
mandated right of review to superior court. The mother's "passing treatment" of the
statute is not meaningful briefing on the question of what limits apply to alternative
23 RCW 26.09.184(4) (emphasis added).
24 20 Scott J. Horenstein, Washington Practice: Family and Community
Property Law §33.22, at 320 (2d ed. 2015).
25 CP at 426.
10
No. 74318-0-1/11
dispute resolution in parenting plans.26 On this limited briefing, the mother does not
establish a basis for any relief.
There are discrepancies in the trial court's November 2, 2015 order and its
oral decision.27 More than once, the court refers to its lack of authority, then seems
to suggest that it is ordering changes anyway. But the mother's reliance on such
apparent inconsistencies is not compelling. For example, the court cites
RCW 26.09.260(10) in its statement that it has no authority to alter nonresidential
provisions, but in the subsequent paragraph, the court ordered the parents to
participate in classes "to assist them in their communication with each other and to
alleviate the acrimony between the parents, especially during child exchanges... .
These provisions are in the children's best interests."28 We read this as a direct
reference to RCW 26.09.187(1 )(a) standards, consistent with a Possinger review.
At one point in the oral decision, the trial court observed that it did not have
authority under Possinger to alter the sole decision-making provisions of the 2013
parenting plan.29 Additionally, in its November 2, 2015 order, the court noted that it
did not have authority to change decision-making provisions under RCW 26.09.260,
but adopted the parents' agreed changes to scheduling extracurricular activities and
26 West v. Thurston County. 168 Wash. App. 162, 187, 275 P.3d 1200(2012)
(quoting Holland v. Citvof Tacoma. 90 Wash. App. 533, 538, 954 P.2d 290 (1998));
RAP 10.3(a)(6).
27 It appears that the written orders were drafted by the mother, even though
she had not prevailed.
28 CP at 432.
29 See Report of Proceedings (RP) (Sept. 23, 2015) at 1042.
11
No. 74318-0-1/12
transportation to such activities.30 The mother does not challenge the agreed
changes. As to the other changes to decision-making provisions, Possinger affirmed
changes to decision-making provisions of a parenting plan. Even if the trial court was
confused about the extent of its authority, its changes to decision-making provisions
were consistent with the application of RCW 26.09.187 standards as part of a
Possinger review.
Most importantly, in its oral decision, the trial court carefully worked through
the RCW 26.09.187 standards. Despite some discrepancies, the oral and written
decisions, viewed in context, reflect that the trial court granted the father relief
applying the standards of RCW 26.09.187, consistent with a Possinger review.
We conclude the trial court did not exceed its authority or abuse its discretion
when it altered nonresidential provisions of the 2013 parenting plan. The trial court
had the authority under Possinger. RCW 26.09.002, and RCW 26.09.187 to make
changes in the best interests of the children. The GAL report and testimony supports
the trial court's findings of fact. In turn, those findings support the trial court's
conclusions of law making changes to both residential and nonresidential provisions
of the parenting plan.
(ii) Provision Ordering No Contact With Paternal Grandfather
The mother also argues the trial court abused its discretion when it modified
the provision ordering no contact with the paternal grandfather to supervised contact.
We agree.
30
See CP at 451.112.9
12
No. 74318-0-1/13
The GAL report did not mention the provision, and the trial court did not
receive any evidence on the issue. The father made a single reference to the
paternal grandfather during his closing argument. The no-contact provision was not
raised until the presentation hearing. After the mother objected, the court said "Well,
I'm going to do it anyway," explaining that "when you have what I'm assuming to be
an aging parent, to indicate no contact with the children, hypothetical^, what if the
grandfather is critically ill and is dying and his children - the father wants the children
to be able to say good-bye?"31
Because the record at trial contained absolutely no evidence concerning this
provision, the court could only offer its own hypothetical factual scenario to support its
decision. The trial court abused its discretion when it changed the paternal
grandfather no-contact provision in the absence of any evidence supporting such a
decision.
11. Proffer of Evidence
The mother contends the trial court prevented her from making a sufficient
offer of proof for appeal. We disagree.
Mikayla Thompson, the children's nanny, testified at trial. The court sustained
the father's objection to a line of questioning about two interactions between the
father and Thompson. The mother asked to make an offer of proof. The mother
proffered that the father had not made payments to Thompson in the last two months
in full, and that
31 RP(Oct. 15, 2015) at 1072.
13
No. 74318-0-1/14
[djuring the text message exchange where she was trying to get her
check, that that, combined with her picking up~[the father] referring her
to pick up a check from him at the McDonald's in the Maple Valley area
where she live[d] in the summer of 2014, where he pulled up in a large
truck without his shirt on, sunglasses, would not get out of the truck.'32]
The father objected on relevance grounds. The trial court allowed the mother to
continue. Counsel did so, stating:
And that he would not get out of the truck, made her come to the truck,
and then as a result of that [Thompson] felt very intimidated.[33]
When the father renewed his objection, the court ruled that any additional proffer
would be "inappropriate."34
An offer of proof is one means of preserving an issue for appeal.35 "An offer of
proof performs three functions: it informs the court of the legal theory under which
the offered evidence is admissible; it informs the judge of the specific nature of the
offered evidence so that the court can assess its admissibility; and it creates a record
adequate for review."36 "The offer of proof must be sufficient to advise the appellate
court whether the party was prejudiced by the exclusion of the evidence.'"37 The trial
court has discretion regarding offers of proof.38
32 RP (Sept. 15, 2015) at 356.
33 id, at 356-57.
34 id, at 357.
35 ER 103(a)(2); Teter v. Deck. 174 Wash. 2d 207, 221, 274 P.3d 336 (2012).
36 Thor v. McDearmid. 63 Wash. App. 193, 204, 817 P.2d 1380(1991).
37 Brougham v. Swarva. 34 Wash. App. 68, 81, 661 P.2d 138 (1983) (quoting
Donald W. Lvle. Inc. v. Heidner & Co.. 45 Wash. 2d 806, 814, 278 P.2d 650 (1954)).
38 Jd. ("The offer of proof submitted by [appellant] was so general and
indefinite that its rejection was not erroneous.").
14
No. 74318-0-1/15
Here, the court allowed the proffer to continue until itwas clear that Thompson
would testify to her interactions with the father concerning a dispute over payment
and an alleged attempt by the father to intimidate Thompson. The mother suggests
that the offer of proofwas prematurely terminated and that Thompson's testimony
would establish the father's abusive use of conflict. But she always had the option to
present the court with a written offer of proof.39 The mother does not establish that
the trial court abused its discretion by limiting the scope and duration of the offer of
proof. Neither does she establish any prejudice.
CONCLUSION
We reverse the portion of the 2015 final parenting plan altering the order
precluding the paternal grandfather from contact with the children. We remand with
directions to reinstate the no-contact order. We otherwise affirm the trial court's
orders and rulings.
WE CONCUR:
tSecA<&(? /f .
39 See State v. Gulov. 104 Wash. 2d 412, 429, 705 P.2d 1182 (1985) (expert's
proposed testimony was presented in the form of an affidavit).
15