Ethan Joseph Bergerson v. Maria Teresa Zurbano , 432 P.3d 850 ( 2018 )

ILL U
C URT OF APPEALS DiV
STATE OF WAS~HGTW
2Oi80EC2~ ~ 9:01
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ETHAN JOSEPH BERGERSON, ) No. 77407-7-I
Appellant, )
v. )
) PUBLISHED OPINION
MARIA TERESA ZURBANO, )
) FILED: December24, 2018
Respondent.
VERELLEN, J. — The child relocation act (CRA)1 does not apply to a 50/50
parenting plan. The statute still does not apply even though the parents added
language to the plan that either one of them must give notice of relocation under the
CRA.
Ethan Bergerson appeals the trial court’s dismissal of his petition to relocate,
which he submitted pursuant to the CRA. But the trial court did not commit any
reversible error. First, it correctly followed In re Marriage of Worthley2 in declining to
apply the CRA to a 50/50 parenting plan. Second, parties to a 50/50 parenting plan
cannot use an agreement on notice pursuant to the CRA to avoid the heightened
statutory protections for the child’s interests that otherwise would apply to a major
change in a residential schedule.
1 RCW 26.09.405-.560.
2 198 Wn. App. 419, 393 P.3d 859 (2017).
No. 77407-7-1/2
Therefore, we affirm.
FACTS
Ethan Bergerson and Maria Zurbano have one child. In 2012, they divorced
and agreed to a parenting plan. From the time of divorce through mid-2016, as
provided in the parenting plan schedule, the child resided a majority of the time with
his mother. In 2016, the court approved a new, mutually agreed-upon parenting plan.
The plan changed so “[r]esidential time shall be equally shared on a 50/50 basis,
adhering to a 2-2-5-5 biweekly schedule.”3 The parents also share joint decision
making. The plan designated both parents as custodians with “equal rights and
responsibilities. . . and wherever the law allows be deemed to be joint
custodians. . . . for purposes of all state and federal statutes which require a
designation or determination of custody.”4
The mandatory portion of the 2016 plan summarizing the CRA included two
customized provisions. The first states, “If either parent plans to move, that person
shall give notice to every person entitled to court ordered time with the child.”5 The
second states, “Because each parent has the child 50 [percent] of the time, this
provision will be deemed to apply equally to both parents. That is, either parent must
give the requisite notice to the other and to all affected parties as specified by the
statute.”6
~ Clerk’s Papers (CP) at 2.
~ CP at 5-6.
5CPat6.
6CPat7.
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No. 77407-7-1/3
On April 26, 2017, the father filed a “Notice of Intent to Move with Children
(Relocation)” form pursuant to the CRA.7 He wanted to move from Seattle to
Baltimore with his new wife and his son because his wife matched into a five-year
residency in emergency medicine and pediatrics at the University of Maryland Medical
Center beginning in late June of 2017.
The father served the mother with notice of his relocation petition on April 30,
2017. One month later, the mother filed an objection. At a hearing on the father’s
petition, the court concluded that the CRA did not apply and that the father had not
shown adequate cause to hold a modification hearing. The court dismissed both the
relocation petition and the mother’s objection because they were made pursuant to
the inapplicable CRA. The court granted the father’s motion to reconsider but again
denied his petition and dismissed the proceeding.
The father appeals.
ANALYSIS
Whether a court erred in its interpretation and application of a statute is a
question of law we review de novo.8 Interpretation of a parenting plan is also a
question of law we review de novo.9 If a parent seeks to modify a parenting plan,
7CPatll7.
8 In re Welfare of A.G., 155 Wn. App. 578, 596, 229 P.3d 935 (2010); In re
Marriage of Wilson, ll7Wn. App. 40,45,68 P.3d 1121 (2003).
~ Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 803, 929 P.2d 1204 (1997);
see In re Marriage of Cota, 177 Wn. App. 527, 534, 312 P.3d 695 (2013)
(“Interpretation of a child support order is a question of law that we review de novo.”)
(quoting In re Marriage of Sagner, 159 Wn. App. 741, 749, 247 P.3d 444 (2011)).
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No. 77407-7-1/4
a court has discretion when deciding whether adequate cause exists to hold a
modification hearing.10 A court abuses its discretion if its decision is “based on
untenable grounds or untenable reasons.”11
I. ApplicabiHty of the CRA to a 50/50 Parenting Plan
The CRA defines “relocate” as “a change in principal residence either
permanently or for a protracted period of time.”12 When a parent with whom the child
is scheduled in the parenting plan to reside a majority of the time decides to relocate,
he or she must notify anyone “entitled to residential time or visitation with the child.”13
Relocations are presumptively permitted and must be allowed if no one objects within
30 days of receiving notice.14
However, where the parties have a 50/50 parenting plan, the plain language of
the CRA prevents its application. “In a 50/50 residential schedule, neither parent is ‘a
person with whom the child resides a majority of the time,’ so neither parent is
entitled to the CRA’s presumption permitting relocation.”15
In this case, both parents equally share residential time on a 50/50 basis as
well as being joint decision makers. Because the court found the parties have a
50/50 parenting plan and the CRA does not apply to 50/50 plans, the father cannot
10 In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d 664 (2003).
~ In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
12 RCW 26.09.410(2).
13 RCW 26.09.430.
14 RCW26.09.500(1), .520.
15In re Marriage of Snider, No. 77583-9-I, slip op. at 6 (Wash. Ct. App. Dec. 3,
2018), http://www.courts.wa.gov/opinions/pdf/775839.pdf (quoting RCW 26.09.430).
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No. 77407-7-1/5
petition for relocation pursuant to the CRA. Consistent with In re MarriaQe of Snider16
and Worthley,17 the court did not err by dismissing the father’s petition.
The father contends the court erred by refusing to consider the best interests
of the child when it dismissed his petition. But the court is not required to consider
the child’s best interests during a procedural adequate cause hearing, and the court
has discretion when determining whether a modification hearing is necessary.18
The court concluded the father did not make a showing of adequate cause
because he petitioned for relocation based only on the CRA rather than following the
modification procedures listed in RCW 26.09.260 and .270. The parent seeking
modification must submit affidavits to show adequate cause exists to require a
modification hearing.19 The court did not abuse its discretion by declining to hold a
modification hearing.20
The required showing of adequate cause is a statutory procedural requirement
that does not directly implicate the child’s best interests.21 Once adequate cause is
established and the court is engaged in an evidentiary modification hearing, then the
16 No. 77583-9-I, slip op. at 6 (Wash. Ct. App. Dec. 3, 2018),
http://www.courts.wa.gov/opinions/pdf/775839.pdf.
17198 Wn. App. at 428.
18 Jannot, 149 Wn.2d at 128.
19 RCW 26.09.270.
20 We note the court invited the father “to refile. as a motion action and see if
. .
you can meet adequate cause in order to be able to go forward,” but he appealed
instead. Report of Proceedings (July 7, 2017) at 16.
21 See Jannot, 149 Wn.2d at 128 (holding that courts have discretion when
evaluating affidavits setting forth facts supporting the requested modification to
determine whether a modification hearing is necessary).
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No. 77407-7-116
child’s best interests come into play. The trial court correctly declined to consider the
best interest of the child at this stage of the proceedings.22
In the alternative, the father contends the court did not need to hold a
modification hearing because he merely sought a “minor modification” pursuant to
ROW 26.09.260(5). But minor modifications cannot “change the residence the child
is scheduled to reside in the majority of the time.”23 Under the current 50/50
parenting plan, the parties’ son does not reside anywhere the “majority of the time.”
The father’s proposed parenting plan would have his son reside with him a majority of
the time, unless the mother relocated to within 30 minutes of his residence in
Maryland.24 Because this would significantly change the residence the child is
scheduled to reside in a majority of the time, this is not a minor modification.25
II. Applying the CRA to a 50/50 Parenting Plan by Agreement
Regardless of the CRA’s own terms, the father argues the customized
language in the parenting plan incorporates the CRA by agreement. The narrow
issue before us is whether the agreed customized language in this parenting plan
22 The father also argues In re Marriage of Homer, 151 Wn.2d 884, 894, 93 P.3d
124 (2004), requires explicit consideration under the CRA of the child’s best interest as
measured by all 11 factors in section .520 when dismissing a relocation petition. But
Homer is distinguishable because the child in that case was scheduled to reside a
majority of the time with the relocating parent, so the CRA applied. Homer, 151 Wn.2d
888 n.2.
23 RCW 26.09.260(5).
24 The record does not reveal any prospect of the mother relocating to Maryland.
25 See Snider, No. 77583-9-I, slip op. at 8-9 (holding a mother’s proposed
relocation was not minor because it would effectively modify her 50/50 parenting plan to
something other than a 50/50 by creating a residence where the children reside a
majority of the time).
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No. 77407-7-1/7
results in application of the CRA. We need not reach the broader and more general
question of whether any language contained in 50/50 parenting agreement approved
by the court might have some impact on a proposed relocation. Because
incorporating the CRA by agreement into this plan, where it is otherwise inapplicable,
raises a variety of concerns, we are not persuaded by the father’s argument.
Section 3.14 of the parties’ 50/50 parenting plan is titled “Summary of ROW
26.09.430-480, Regarding Relocation of a Child.”26 Most of the language in the
section is identical to the form language used in their initial parenting plan and to the
notice provisions of the CRA, but the parents agreed on two customized additions.
The first addition states, “If either parent plans to move, that person shall give notice
to every person entitled to court ordered time with the child.”27 The second addition
states, “Because each parent has the child 50 [percent] of the time, this provision will
be deemed to apply equally to both parents. That is, either parent must give the
requisite notice to the other and to all affected parties as specified by the statute.”28
But the summary itself in section 3.14 does not address whether the CRA’s other
provisions, such as the statutory presumption and relocation factors in
RCW 26.09.520, would apply. The plain language and policy of the CRA suggests
they should not.
The CRA eases the process for relocation by the parent with whom the child
resides a majority of the time by creating “a rebuttable presumption that the intended
26CPat6.
27CPat6.
28 CP at 7.
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No. 77407-7-1/8
relocation of the child will be permitted.”29 It “incorporates and relies on [the]
traditional presumption” that fit parents act in a child’s best interest, so any relocation
by the parent with whom the child is scheduled to reside a majority of the time must
be in the interests of both that parent and the child.3°
By contrast, a 50/50 plan is a court-approved endorsement of the parents’
equal fitness. When one parent in a 50/50 plan petitions for relocation and the other
opposes it, then, consistent with the traditional presumption, both equally fit parents
are acting equally in the child’s best interest. Because the CRA’s rebuttable
presumption cannot be logically applied, it is inapplicable to this 50/50 plan.31
Even if the parents had expressly agreed to apply the CRA except for the
rebuttable presumption, the CRA’s relocation factors do not squarely fit their 50/50
plan.32 A court evaluating a relocation petition following a parental objection “must
consider each of the [11] child relocation factors” listed in RCW26.09.520 to
determine “whether the ‘detrimental effect of the relocation outweighs the benefit of
the change to the child and the relocating person.”33 Several factors do not fit the
parents’ 50/50 plan.
29 RCW 26.09.520.
30Worthley, 198 Wn. App. at431.
31 In re Marriage of McDermott, 175 Wn. App. 467, 488, 307 P.3d 717(2013) (“When construing statutes, ‘[ut is fundamental that. we avoid absurd
. .
results.”) (alterations in original) (quoting Lowy v. PeaceHealth, 174 Wn.2d 769, 779,
280 P.3d 1078 (2012)).
32 See Homer, 151 Wn.2d at 895 n.10 (“Many of the child relocation factors refer
to the interests and/or circumstances of the relocating person.”).
j4 (quoting RCW 26.09.520).
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No. 77407-7-1/9
First, a court would be forced to alter or disregard two of the factors. Factor
three states a court must weigh “[w]hether 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.”34 This factor expressly presumes there is a parent with
whom the child is scheduled to reside the majority of the time. We cannot rewrite this
factor on appeal to apply to the 50/50 plan.35
Factor seven states a court must weigh “[t]he quality of life, resources, and
opportunities available to the child and to the relocating party in the current and
proposed geographic locations.”36 By its plain language, this factor considers only
the relocating parent’s current and proposed circumstances, with no counterbalanced
consideration of the other parent’s circumstances. Such a one-sided approach
undermines the nonrelocating parent’s interests and makes little sense when, as
here, equally fit parents are deemed to both be acting in their child’s best interests.
Second, parents may not alter by agreement the statutory protections provided
for their child by the Parenting Act of 1 987`` and the CRA.38 As we recognized in In
~ RCW 26.09.520(3) (emphasis added).
~ Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186 (2010) (terms of a statute
should not be interpreted to render them meaningless or superfluous).
36 RCW 26.09.520(7).
~ Chapter 26.09 RCW.
38 See Littlefield, 133 Wn.2d at 58 (“[A] trial court is not required to follow the
terms of a separation agreement which relate to the parenting of children.”) (citing
RCW 26.09.070(3)); Hammack v. Hammack, 114 Wn. App. 805, 808, 60 P.3d 663(2003) (“Courts have found [parental agreements waiving child support] unenforceable
even if in a final order agreed upon by the parties and not appealed.”). The cases
9
No. 77407-7-1110
re Marriage of Adler, parents may waive statutory protections for themselves but not
their children.39 In Adler, a parenting plan provided that for the first seven months of
the plan, either party could request review of the residential schedule and decision-
making provisions without conducting the usual adequate cause hearing required by
ROW 26.09.260(1) and .270.~° We upheld the provision because the prerequisite
adequate cause determination for a modification hearing existed to protect the
parents, not the children, from useless evidentiary hearings.41 “The best interests of
Bergerson relies on for this point are not germane because none involve parental
waiver of protections for children. In re Marriage of Short, 125 Wn.2d 865, 868-69, 890
P.2d 12 (1995) (childless couple disputing unique terms in a spousal maintenance
agreement); In re Marriage of Lee, 176 Wn. App. 678, 688, 310 P.3d 845 (2013)
(upholding additional provisions in a spousal maintenance agreement); In re Marriage of
Hulscher, 143 Wn. App. 708, 180 P.3d 199 (2008) (upholding additional terms in a
spousal maintenance agreement). The father cites In re Marriage of Raskob, 183 Wn.
App. 503, 507-09, 334 P.3d 30 (2014) for the proposition that courts uphold agreed-
upon modifications to the CRA. But the Raskob court merely enforced an agreed plan
provision that the mother, with whom the children were scheduled to reside a majority of
the time, give 60 days’ notice if she sought to relocate beyond a 30-minute driving
distance from the father’s residence. In re Marriage of Raskob, 172 Wn. App. 1014, *1
n.5, 2012 WL 5992097 (2012) (unpublished opinion). The agreement to give the
nonrelocating parent additional protection did not alter the applicable protections of the
child. The father also cites In re Marriage of Grigsby, 112 Wn. App. 1, 57 P.3d 1166(2002), to support his argument. But the parents in Grigsby explicitly agreed in their
Colorado dissolution decree that the mother would have primary residential custody, the
plan functioning as a 50/50 residential split. k~. at 4, 16. Thus, while not directly
addressed on appeal, the trial court’s reliance on the CRA’s relocation factors was
appropriate because the plan designated a “primary residential custodian.”
~ 131 Wn. App. 717, 723-24, 129 P.3d 293 (2006).
ki. at 721. Although the parent who requested review did so after about 18
months, k~. at 720-21, this does not appear to have been an issue on appeal.
41 ki. at 724.
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No. 77407-7-Ill I
the children remain protected by the standards in RCW 26.09.260 as applied by the
court in the modification hearing.”42
Relying on Adler, the father contends that the parents’ agreement requires us
to apply the CRA’s relocation factors. So we must consider whether the relocation
factors in RCW 26.09.520 provide the same protections to children as the
modification statute or the provisions of RCW26.09.187, which govern residential
schedules in the first instance.
The underlying goal of RCW 26.09.1 87(3) is to protect the best interests of the
child.43 Although RCW 26.09.520 also aims to protect the best interests of the child,
the statutes address different considerations.44 For example, relocation factor (5) in
RCW 26.09.520 considers “[t]he 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” and does not consider the child’s interests at all.45
In addition, the criteria from RCW 26.09.187(3)(a) are weighted differently than
those in RCW 26.09.520. Central among the factors in RCW 26.09.187(3)(a)(i) is
42 Id.~ See RCW 26.09.002 (“[T]he 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.”).
“See Homer, 151 Wn.2d at 894 n.9 (“Factors 1, 3, 6, and 8 [of RCW 26.09.520]
focus on the child’s interests. Factors 7, 9, and 10 focus on the family and its material
needs. Factors 2, 4, and 11 focus on special circumstances. Factor 5 considers the
reasons of the relocating and objecting parties.”).
~ RCW26.09.520(5); see Homer, 151 Wn.2d at 894 (noting that under the CRA
“the standard for relocation decisions is not only the best interests of the child” because
“the interests and circumstances of the relocating person” are “[p]articularly important”
as well).
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No. 77407-7-1/12
“[t]he relative strength, nature, and stability of the child’s relationship with each
parent.” The legislature requires that this factor “be given the greatest weight.”46
Weighting the child’s relationships with his parents more than other factors provides
considerable protection to the child’s interest in stability. By contrast, the factors
listed in RCW 26.09.520 “are not weighted.” This significant distinction would be lost
if we allowed the parents to change by agreement the criteria for their son’s
residential schedule.
Because of these concerns, we decline to accept the father’s argument that
some version of the CRA applies to his 50/50 parenting plan due to the customized
language agreed upon by the parties.
Ill. Law of the Case
The father also argues the law of the case doctrine requires that the CRA
continue to apply to his parenting plan. He asserts, “When the trial court signed the
2016 parenting plan, it adopted all of the provisions therein, including the stipulation
to the application of the CRA.”47
“The term ‘law of the case’ means different things in different
circumstances.”48 First, it refers to the effect of jury instructions in a trial.49 Second, it
46 RCW 26.09.187(3)(a).
~ App. Br. at 30.
48Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746(1992); 14A K. TEGLAND, WASHINGTON PRAcTIcE: CIVIL PROCEDURE § 35.55, at 589 (2nd
ed. 2009).
~ Lutheran Day Care, 119 Wn.2d at 113.
12
No. 77407-7-1/13
refers to the binding effect of appellate determinations on remand.5° Third, it refers to
the principle that an appellate court will generally not reconsider the rules of law it
announced in a prior determination of the same case.51
The father’s argument does not fit within the law of the case doctrine. The
approval of the 2016 parenting plan was not a legal ruling on whether the CRA
applies to a 50/50 parenting plan.
IV. Attorney Fees on Arpeal
The mother requests attorney fees pursuant to RAP 18.1 and ROW 26.09.140.
RAP 18.1(c) requires that a party requesting statutory fees submit a financial affidavit
‘no later than 10 days prior to the date. . . set for oral argument” where applicable
law mandates consideration of a party’s financial resources. ROW 26.09.140
authorizes awards of attorney fees “considering the financial resources of both
parties.” The mother failed to submit a financial affidavit. We decline to award
attorney fees.
V. Motion to File Surplemental Assignments of Error
The father moves to file supplemental assignments of error in his reply brief,
and the mother moves to strike his reply as a nonconforming brief in violation of RAP
10.3(c).
The father filed his appellant’s brief on April 9, 2018, and the mother filed her
respondent’s brief on June 14. Two weeks later, Division III of this court published In
50 Id.51 Id.13
No. 77407-7-1/14
re the Marriacie of Jackson.52 Jackson states that courts considering a relocation
petition should determine where the child has actually been residing, regardless of
the parenting plan’s designations, before deciding whether to address the merits of
the relocation petition.53 He argues Jackson represents a change in the law and,
relying on Jackson, the father moves to add the supplemental assignments of error
contained in the reply brief he simultaneously filed. The mother moves to strike the
reply brief and seeks sanctions against the father for filing a nonconforming brief.
A reply brief must be “limited to a response to the issues in the brief to which
the reply brief is directed.”54 Generally, a court will not review an issue raised and
argued for the first time in a reply brief.55 But appellate courts have discretion to
consider a case on its merits, despite technical flaws.56 RAP 1 .2 allows a court to
waive the rules “to serve the ends of justice,” and courts should “liberally interpret[ 1”
the rules “to promote justice and facilitate the decision of cases on the merits.”57
Accordingly, a court should exercise its discretion to reach an appeal’s merits unless
there are compelling reasons not to do so, such as prejudice to the respondent.58
524Wn. App. 2d 212, 220, 421 P.3d 477 (2018).
~ Id.~ RAP 10.3(c).
~ Matter of Rhem, 188 Wn.2d 321, 327, 394 P.3d 367 (2017); RAP 10.3(c).
56 State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995) (citing RAP 1.2(a)).
~ RAP 1.2(a), (c).
58 Olson, 126 Wn.2d at 323
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No. 77407-7-1/15
We deny the father’s motion because the mother would be prejudiced by
considering his proposed supplemental assignments of error in his reply brief.59 The
father predicated his initial arguments on the parties sharing a 50/50 parenting plan,6°
and the respondent’s brief does the same. Now he seeks to add a completely
different argument. The father contends that Jackson addresses new legal issues,
but the same issues decided in Jackson were considered in a 2011 case cited in the
appellant’s brief, In re Marriage of Fahey.61 The father could have raised these
issues in his opening brief, but he chose not to.62
We deny the motion to file supplemental assignments of error. We decline to
consider the portions of the reply brief addressing the proposed supplemental
assignments of error, so there is no need to formally strike the father’s reply brief.
We decline to sanction the father for filing a nonconforming reply brief in these
circumstances.
~ RAP 10.1(b); In re Dependency of O.J., 88 Wn. App. 690, 693 ni, 947 P.2d
252 (1997) (“It would be unfair, however, to allow the appellant to use those delinquent
assignments of error to raise any new issues not addressed in its opening brief because
the respondent has had no opportunity to reply to them.”).
60 See, e.g., App. Br. at 1 (“This appeal asks whether the court has authority to
proceed under the Child Relocation Act (CRA) when the parties have an agreed 50-50
parenting plan that specifically incorporates and customizes portions of the CRA
stipulating that either parent may seek to relocate with child.”).
61164 Wn. App. 42, 55, 262 P.3d 128 (2011) (“[The father] argues that because,
as a matter of fact, [his children] resided with him a majority of the time since 2006, [the
mother] cannot invoke the relocation statutes and is not entitled to the rebuttable
presumption favoring her relocation decision.”).
62 The father was clearly aware of this theory, as revealed in his motion for
reconsideration in the trial court: “[The mother’s] frequent travel for work results in
many missed residential days, which could and may have forfeited the 50-50 status of
the parenting plan. . . If the parenting plan was not 50-50, Worthley would not apply.
.
Thus, the CRA would apply.” CP at 290.
15
No. 77407-7-1/16
For the foregoing reasons, we affirm.
WE CONCUR:
/IAJ\. (‘2/. /44
16