Araceli Felix v. Luis Melendez ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
March 14, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Marriage of: No. 48132-4-II
ARACELI FELIX,
Appellant,
v. UNPUBLISHED OPINION
LUIS MELENDEZ,
Respondent.
MELNICK, J. — Araceli Felix appeals the trial court’s order granting Luis Melendez
permission to permanently relocate their two daughters from Washington to Florida and denying
her petition for a modification of the parenting plan to make her the primary residential parent.
We conclude that the trial court did not err by granting the petition for relocation, denying the
petition for modification, or denying Felix’s motion for reconsideration. We do not consider
whether the trial court erred in its evidentiary rulings. We affirm.
FACTS
Felix and Melendez married on October 5, 2007. They had two daughters. Felix and
Melendez separated on April 1, 2011.
On March 8, 2012, Felix served Melendez with a petition for dissolution of their marriage.
Richard Bartholomew became the guardian ad litem (GAL) for the children.
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The superior court entered a final parenting plan and ordered that upon enrollment in
school, the children would primarily reside with Melendez. It also ordered that the children were
not to be left alone with Virgilio Martin Rodriguez, Felix’s fiancé, and that Rodriguez obtain a
domestic violence assessment.
Felix alleged Amica Santiago, Melendez’s wife, abused the children and filed two ex parte
motions for restraining orders against Santiago. The trial court temporarily placed the children
with Felix, and restrained Melendez from allowing the children to be around Santiago. After a
hearing, the trial court denied Felix’s motions. The trial court ordered both Felix and Melendez to
complete mental health evaluations. The trial court again appointed Bartholomew as the GAL for
the children. Finally, the trial court ordered the parties to return to the previous parenting schedule.
Melendez filed a notice of intended relocation to Florida.1 Felix filed an objection to
relocation, a motion to restrain any temporary relocation, and a petition for a major modification
of the parenting plan. After a hearing on the motion, the superior court allowed the relocation on
a temporary basis.
II. TRIAL
The trial court held a trial on both Felix’s petition for a major modification of the parenting
plan and Melendez’s petition for permanent relocation.
Bartholomew did not see any grounds for a modification of the parenting plan, and he did
not find abuse in either household, nor did Child Protective Services (CPS). Bartholomew testified
that the only applicable modification factor was that the children’s present environment was
detrimental to the children’s physical, mental or emotional health, and the likely harm to be caused
1
This document is not included in the record on appeal. In addition, Felix’s motion for a major
modification of the parenting plan related to the alleged abuse by Santiago is also not included in
the record on appeal.
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by a change was outweighed by the advantage of a change. He did not see anything negative in
Melendez’s house that would warrant a modification. Bartholomew testified that the children
reported to their counselors that Felix told them that Santiago was mean to them and that Melendez
did not love them. When Bartholomew spoke with the children about statements they made about
alleged abuse by Santiago, they could not provide him with details; they would respond, “Well,
that’s what mom told us.” 1 Report of Proceedings (RP) at 28. Bartholomew did believe that
Santiago had been “rougher with [one of the children]” but not to the level of abuse. 1 RP at 28.
CPS determined any referrals either “unfounded” or lacking a need for investigation. 1 RP at 28.
Bartholomew visited the children in Felix’s home. He observed the children to be
comfortable there. They were comfortable with both Felix and Rodriguez. Bartholomew also had
a Skype conversation with the children after they moved to Florida. He also observed that in their
Skype conversation, Melendez’s Florida house looked appropriate, the children were “clearly
comfortable” and “clearly happy where they were.” 1 RP at 34. When he observed the children
in Melendez’s home, the children were very comfortable with Santiago. He did note that in the
past, Felix had problems getting one of the children to school on time, even though they lived
within walking distance.
Melendez testified that he moved to Florida with the children, approximately 25 to 30
minutes from Orlando. Their new house in Florida was a three bedroom, two bathroom house
with an office. Melendez enrolled the girls in a highly rated elementary school in Florida.
Melendez testified that he moved in “good faith” because he was subject to a layoff, and
neither party had family in Washington, but he and the children had an established support system
in Florida, including extended family. 2 RP at 268. Melendez worked at Joint Base Lewis-
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McChord (JBLM) as a helicopter mechanic. He quit because Santiago acquired a position in
Florida and moved there with her own children.
Melendez testified that disrupting the children’s contact with him would impose a safety
risk to the children. The children did not have serious problems in school and were doing well in
Florida. He also opined that if the court prevented the relocation, it would put their education at
risk because Felix had difficulty getting one of the children to school on time or at all when they
lived close to the school.
Melendez testified that the children have a bond with both sets of parents, and they have a
bond with their step-siblings and half-siblings, but he was the primary residence for two years and
two months.
Felix also testified that the children had a great bond with both herself and Melendez. The
children were close to both their step-siblings and their half-siblings. Felix believed that disrupting
the children’s relationship with Melendez would be “less beneficial for their emotional well-
being.” 2 RP at 305. She testified that her daughters told their counselors and CPS reporters that
they would prefer to live with her.
Felix believed that she opposed the relocation in good faith because she did not have the
financial means to relocate to Florida and would be unable to move to Florida for another five to
six years. In addition, she could not move because her fiancé and father of her other two children,
Rodriguez, was in the military and assigned to a unit at JBLM.
After hearing the evidence and asking specific questions of both parents related to the
relocation factors, the trial court expressed its findings on each factor on the record. The trial court
concluded that the evidence supported permitting Melendez to relocate the children. The trial
court denied Felix’s modification petition. The trial court entered a final parenting plan and order
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on relocation that permitted Melendez to relocate the children with specific findings on each
relocation factor. The order denied Felix’s motion for a major modification.
Felix filed a motion for reconsideration of the parenting plan and relocation order. She
argued that the children’s physical, mental, and emotional well-being were in danger based on a
recent incident in Florida, where she alleged in her declaration Melendez joined a “cult” that calls
itself a church. Clerk’s Papers (CP) at 420. In the declaration, Felix stated Melendez called the
police because Santiago would not let him take the children to a meeting of the cult. Felix further
stated that from the information she received from Santiago, “this has been going on for a year.”
CP at 423. Felix included an e-mail from Santiago, which stated that the church or cult in
Washington was a few people in a house, and in Florida, it was based in a hotel. Felix included
screen shots of text messages with Santiago that also stated that Melendez previously participated
in this church while living in Washington.
The trial court denied Felix’s motion for reconsideration in a written order without oral
argument because it found that none of the allegations raised by Felix constituted newly discovered
evidence under CR 59. Felix appeals.
ANALYSIS
I. NONCOMPLIANCE WITH RAP’S
As an initial matter, neither Felix nor Melendez complied with the Rules of Appellate
Procedure in their briefs. Both parties are self-represented litigants (SRL’s). In general, SRL’s
are held to the same standard and rules of procedure as attorneys. In re Marriage of Olson, 69
Wash. App. 621, 626, 850 P.2d 527 (1993).
RAP 10.3(a)(5) requires a party to make “[a] fair statement of the facts and procedure
relevant to the issues presented” and include “[r]eference to the record . . . for each factual
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statement.” Both parties provided minimal citations to the record to support their statement of the
facts or their arguments. The purpose of this rule is to enable the court and opposing counsel to
efficiently and expeditiously review the accuracy of the factual statements made in the briefs.
Litho Color, Inc. v. Pac. Emp’rs Ins. Co., 98 Wash. App. 286, 305-06, 991 P.2d 638 (1999). We
disregard any alleged facts not supported by the record. Lemond v. Dep’t of Licensing, 143 Wn.
App. 797, 807, 180 P.3d 829 (2008).
Felix argues that the trial court violated her right to a fair trial and due process because it
made “comments at the September 2015 hearings indicating the judge had decided the case prior
to hearing testimony.” Br. of Appellant at 25. She does not indicate which specific comments she
challenges. We are not required to search the record to locate the portions relevant to a litigant’s
arguments, and we decline to do so with respect to these arguments. Cowiche Canyon
Conservancy v. Bosley, 118 Wash. 2d 801, 819, 828 P.2d 549 (1992). In addition, “parties raising
constitutional issues must present considered arguments to this court. . . . ‘[N]aked castings into
the constitutional sea are not sufficient to command judicial consideration and discussion.’” City
of Tacoma v. Price, 137 Wash. App. 187, 200-01, 152 P.3d 357 (2007) (quoting State v. Johnson,
119, Wn.2d 167, 171, 829 P.2d 1082 (1992)). We decline to consider this issue.
II. EVIDENTIARY CHALLENGES
Felix assigns error to the trial court’s refusal “to enter evidence into the exhibit list” and
“to [allow] witness(s) to speak about abuse within the home of the father despite that the evidence
pertaining to the adequate cause which is the reason why the [trial] was initially started.” Br. of
Appellant at 4. We do not consider these issues.
Felix provides no citation to the record or authority for either of these assignments of error.
Because Felix provides no substantive argument on these assignments of error, we do not consider
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them. RAP 10.3(a)(6); In re Marriage of Fahey, 164 Wash. App. 42, 59, 262 P.3d 128 (2011). As
stated above, we are not required to search the record to locate the portions relevant to a litigant’s
arguments, and we decline to do so with respect to these arguments. Cowiche Canyon, 118 Wash. 2d
at 819.
III. RELOCATION
Felix argues that the trial court erred by granting the relocation and entering the new
parenting plan because substantial evidence did not support the decision. We disagree.
A. LEGAL PRINCIPLES
Washington’s Child Relocation Act provides procedural and substantive rules for a primary
custodial parent to relocate the children. RCW 26.09.405–.560; In re Custody of Osborne, 119
Wash. App. 133, 140, 79 P.3d 465 (2003). “If a person entitled to residential time or visitation
objects to a child’s relocation, the person seeking to move the child may not relocate the child
without court approval.” In re Marriage of McNaught, 189 Wash. App. 545, 553, 359 P.3d 811
(2015), review denied, 185 Wash. 2d 1005 (2016).
RCW 26.09.520 provides the framework under which a court must decide if a parent can
relocate the children. First, the person proposing the relocation must provide his or her reasons
for the intended relocation. RCW 26.09.520. There is a rebuttable presumption that the intended
relocation will be permitted. RCW 26.09.520. The basis for this “‘presumption’” is that a “‘fit
parent will act in the best interests of [his or her] child.’” In re Marriage of Horner, 151 Wash. 2d
884, 895, 93 P.3d 124 (2004) (quoting Osborne, 119 Wash. App. at 144). A party may object to the
relocation by demonstrating that “the detrimental effect of the relocation outweighs the benefit of
the change to the child and the relocating person” based on consideration of 11 child relocation
factors. RCW 26.09.520. “Upon a proper objection, a trial court must conduct a fact-finding
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hearing on the proposed move.” McNaught, 189 Wash. App. at 553. The person opposing the
relocation must rebut the presumption by a preponderance of the evidence. McNaught, 189 Wn.
App. at 553-54.
A trial court has discretion to grant or deny a relocation after considering all 11 relocation
factors contained in RCW 26.09.520. Horner, 151 Wash. 2d at 894; Fahey, 164 Wash. App. at 56. We
defer to the trial court’s relocation ruling unless it is an abuse of discretion. Horner, 151 Wash. 2d
at 893. A court abuses its discretion when its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons. Horner, 151 Wash. 2d at 893.
The relocation factors are not weighted and no inference is to be drawn from the order in
which they are listed, include:
(1) The relative strength, nature, quality, extent of involvement, and
stability of the child’s relationship with each parent, siblings, and other significant
persons in the child’s life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person with
whom the child resides a majority of the time would be more detrimental to the
child than disrupting contact between the child and the person objecting to the
relocation;
(4) Whether either parent or a person entitled to residential time with the
child is subject to limitations under RCW 26.09.191 [which limits residential time
if the parent has engaged in willful abandonment, abuse, domestic violence or
assault];
(5) The reasons of each person for seeking or opposing the relocation and
the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely
impact the relocation or its prevention will have on the child’s physical,
educational, and emotional development, taking into consideration any special
needs of the child;
(7) The quality of life, resources, and opportunities available to the child
and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the
child’s relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for
the other party to relocate also;
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(10) The financial impact and logistics of the relocation or its prevention;
and
(11) For a temporary order, the amount of time before a final decision can
be made at trial.[2]
RCW 26.09.520.
“When considering whether a trial court abused its discretion by allowing relocation, we
first look to see if the trial court entered specific findings of fact on each factor.” Bay v. Jensen,
147 Wash. App. 641, 655, 196 P.3d 753 (2008). “The trial court must enter specific findings on each
factor, or parties must have presented substantial evidence on each factor with the trial court
making findings and oral articulations that reflect its consideration of each.” McNaught, 189 Wn.
App. at 556. The trial court abuses it discretion when it fails to consider each factor or satisfy
either method of documenting its consideration of the factors. McNaught, 189 Wash. App. at 556;
Bay, 147 Wash. App. at 655.
We uphold trial court findings that are supported by substantial evidence. In re Marriage
of McDole, 122 Wash. 2d 604, 610, 859 P.2d 1239 (1993). “‘Substantial evidence exists if the record
contains evidence of sufficient quantity to persuade a 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)). We review conclusions
of law to determine whether factual findings that are supported by substantial evidence in turn
support the conclusions. In re Marriage of Myers, 123 Wash. App. 889, 893, 99 P.3d 398 (2004).
B. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDINGS ON FACTORS
The trial court heard testimony on each of the factors from both the parents and the GAL.
The trial court filed written findings on the each of the relocation factors. In addition, in its oral
2
The eleventh factor is not relevant to this case since it does not involve a temporary relocation.
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ruling, the trial court articulated its consideration of each of the factors. We view the written order
as implicitly embodying any findings made by the court, and we look to the oral ruling, which was
consistent with the written order, to help interpret these implicit findings. In re Marriage of
Kimpel, 122 Wash. App. 729, 735, 94 P.3d 1022 (2004). Accordingly, we must determine whether
substantial evidence supported each factor and reflected its consideration of each in its findings.
McNaught, 189 Wash. App. at 556.
Felix does not assign error to any of the trial court’s findings in its order, rendering them
verities on appeal. Postema v. Pollution Control Hr’gs Bd., 142 Wash. 2d 68, 100, 11 P.3d 726
(2000).
We have reviewed the record and conclude that substantial evidence supports each of the
trial court’s findings of fact on every relocation factor. In addition, the trial court’s conclusions of
law allowing the relocation are supported by its findings of fact. The trial court did not abuse its
discretion.
IV. MODIFICATION
Felix also challenges the trial court’s denial of her petition for a major modification of the
parenting plan and its denial to make her the primary custodial parent. The trial court did not abuse
its discretion.
A. LEGAL PRINCIPLES
We consider a challenge to a modification ruling for abuse of discretion. In re Marriage
of Zigler, 154 Wash. App. 803, 808, 226 P.3d 202 (2010). A trial court abuses its discretion when it
is exercised on untenable grounds or for untenable reasons. In re Marriage of McDevitt, 181 Wn.
App. 765, 769, 326 P.3d 865, review denied, 181 Wash. 2d 1018 (2014). There is a strong
presumption against modification. McDole, 122 Wash. 2d at 610.
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RCW 26.09.260 governs modification of a parenting plan. Subsection (1) and (2)(c) state:
(1) Except as otherwise provided in subsections (4), (5), (6), (8), and (10)
of this section, the court shall not modify a prior custody decree or a parenting plan
unless it finds, upon the basis of facts that have arisen since the prior decree or plan
or 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.
....
(2) In applying these standards, the court shall retain the residential schedule
established by the decree or parenting plan unless:
....
(c) The child’s present environment is detrimental to the child’s physical,
mental, or emotional health and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the child.
(Emphasis added).
In a relocation case, it is not necessary for the court to consider whether substantial change
in circumstances exist other than the relocation itself, or to consider the factors contained in RCW
26.09.260(2). In re Marriage of Raskob, 183 Wash. App. 503, 513, 334 P.3d 30 (2014).
The best interests of the child are served by “parenting arrangement[s] that best maintain a
child’s emotional growth, health and stability, and physical care.” RCW 26.09.002. The “best
interest of the child is ordinarily served 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.” RCW 26.09.002.
Because the trial court hears evidence firsthand and has a unique opportunity to observe
the witnesses, we are “‘extremely reluctant to disturb child placement dispositions.’” In re
Parentage of Schroeder, 106 Wash. App. 343, 349, 22 P.3d 1280 (2001) (quoting In re Marriage of
Schneider, 82 Wash. App. 471, 476, 918 P.2d 543 (1996), overruled on other grounds by Littlefield,
133 Wash. 2d 39).
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B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
Felix moved for a major modification based on an allegation that Santiago abused the
children. Felix testified that she believed that the primary person taking care of the children was
Santiago, not Melendez.
Bartholomew testified that the only applicable modification factor involved whether the
children’s present environment was detrimental to the children’s physical, mental, or emotional
health, and whether the likely harm to be caused by a change was outweighed by the advantage of
a change. He focused on this factor because of Felix’s allegations of abuse by Santiago.
Bartholomew testified that the children reported to their counselors that Felix told them that
Santiago was mean to them and that Melendez does not love them. However, when Bartholomew
spoke with the children they could not provide him with details of any abuse. They responded,
“Well, that’s what mom told us.” 1 RP at 28. Bartholomew did believe that Santiago had been
“rougher with [one of the children]” but not to the level of abuse. 1 RP at 28. CPS determined
any referrals were either “unfounded” or it did not require an investigation. 1 RP at 28.
Bartholomew opined no grounds for a modification of the parenting plan existed, and that
there was no abuse in either household. When Bartholomew observed the children in Melendez’s
home, the children were very comfortable with Santiago. In addition, the children’s counselor also
expressed an opinion that the children were comfortable with Santiago when she attended their
counseling sessions.
The trial court denied Felix’s petition for modification at the same hearing it permitted the
permanent relocation of the children, and entered a new parenting plan.
We conclude that the trial court did not abuse its discretion by denying Felix’s petition for
modification.
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V. MOTION FOR RECONSIDERATION
Felix argues that the trial court erred by denying her motion for reconsideration because
she submitted new evidence. We disagree.
A. STANDARD OF REVIEW
We review a trial court’s decision to grant or deny a motion for reconsideration for an abuse
of discretion. Jacob’s Meadow Owners Ass’n v. Plateau 44 II, LLC, 139 Wash. App. 743, 752 n.1,
162 P.3d 1153 (2007). A trial court’s decision is an abuse of discretion if it is manifestly
unreasonable or based on untenable grounds or reasons. Horner, 151 Wash. 2d at 893. The decision
is “‘manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the
legal standard.’” Horner, 151 Wash. 2d at 894 (quoting Littlefield, 133 Wash. 2d at 47). Thus, the court
must base its decision on the correct legal standard and correctly apply that standard to the facts,
which in turn must be supported by the record. Horner, 151 Wash. 2d at 894.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
Felix filed her motion for reconsideration under CR 59(a)(4), which allows for a motion’s
reconsideration based on “[n]ewly discovered evidence . . . which the party could not with
reasonable diligence have discovered or produced at trial.”
The trial court denied Felix’s motion for reconsideration without oral argument because
none of the allegations raised by Felix constituted newly discovered evidence under CR 59. The
trial court stated in its order that one document submitted had been offered at trial by Felix and
admitted.
The trial court thought that another document Felix relied on in her motion, an e-mail from
Santiago, had been admitted as a trial exhibit. However, the trial court was mistaken. The e-mail
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was written to “serve[ ] as a record of what happened” on that same evening when Melendez called
the police, but this was not determined to be newly discovered evidence either. CP at 427.
Felix also alleged that she had newly discovered evidence on a cult with which Melendez
had involvement. However, the trial court ruled that Felix knew about Melendez’s involvement
with this organization at the time of trial.
Because the trial court properly found none of the information Felix alleged in her motion
for reconsideration constituted newly discovered evidence under CR 59, it did not abuse its
discretion in denying the motion.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Maxa, A.C.J.
Lee, J.
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