In the Matter of the Marriage of: Michael L. Branning & Laura E. Branning ( 2019 )

FILED
DECEMBER 5, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of ) No. 35735-0-III
)
MICHAEL L. BRANNING, )
)
Respondent, )
) UNPUBLISHED OPINION
and )
)
LAURA E. BRANNING, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Laura Branning appeals the residential schedule
ordered by the trial court, which grants mostly equal residential time for the parties’
three children. She argues the trial court abused its discretion by failing to consider the
RCW 26.09.187(3)(a) residential factors. We agree and remand for adequate findings.
No. 35735-0-III
In re Marriage of Branning
FACTS
Michael and Laura Branning were married on September 9, 2000. Michael and
Laura have three minor children: H.B., L.B., and C.B.1
H.B. was born in October 2007. Laura took three months leave from work to care
for H.B., while Michael took one week of leave. After the first three months, Laura
returned to work, and H.B. was placed in daycare. Laura took H.B. to daycare and picked
him up after work.
L.B. was born in May 2010. Laura took three months leave from work to care for
L.B., and Michael took about 10 days of leave. In mid-October 2010, Laura briefly
returned to work, but her job ended in November. She then cared for the two children at
home, while Michael worked fulltime. In June 2011, Laura began working from home as
a real estate agent. For the next several years, Laura was the primary caregiver for the
children, including C.B., who was born in September 2014.
1
When parties share the same last name, we customarily refer to them by their first
names. This promotes clarity and avoids the overuse of “Ms.” and “Mr.” Also, we use
initials to refer to minors. See General Court Order for Courts of Appeals, In re Changes
to Case Title (Wash. Ct. App. Aug. 22, 2018).
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The parties separated in August 2016. A court commissioner ordered the children
placed with Laura for 8 of 14 days, and with Michael for 6 of 14 days. An actual
temporary parenting plan was not entered until April 14, 2017. Substantial evidence
shows that the parties did not follow this mostly shared residential schedule. In general,
Laura cared for any child who was sick or not in school on days Michael was working.
Sometime before the October 2017 trial, Michael’s position with his employer
changed. He testified the change gave him increased flexibility so he could work from
home.
At trial, Michael proposed a parenting plan that alternated weekly residential time
with the children. Although a bit unclear from our record, Laura proposed a parenting
plan in which she would have the children 9 of 14 days. The court adopted Michael’s
plan with one modification: During Michael’s week with the children, the children would
spend one evening with their mother.
The trial court did not enter any written findings pertaining to the residential
schedule. Instead, the final parenting plan referred to the trial court’s oral ruling.
Because this appeal asks us to determine whether the trial court sufficiently considered
the statutory residential factors, we set forth the portion of the trial court’s oral ruling that
pertains to the residential schedule:
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[B]oth of you are in unusual employment situations where you both have
flexible jobs and more time can be spent with [the] children throughout the
workweek. For that reason, I do think that it’s in the best of interest of your
children to adopt the proposed parenting plan by Mr. Branning. . . .
. . . I think you also understand the importance of your children
spending time with their mother and there’s going to be times during your
custody period that I hope and I expect that you’re going to provide her
additional time because I think especially for a two-year-old having that
long period away could be problematic. And I’m going to order that at
least on [Laura’s] noncustodial weeks I want to at least give a Wednesday .
. . I want to give her a guaranteed time during your week to make sure that
she has frequent contact. I’m going to order that it be all of your children,
because I’ll respect the parameters of what you originally agreed to and I
also agree your children’s best interest is served by keeping the siblings
together.
....
And, sir, the other reason why I came to this decision again, I believe
your testimony, and the Court’s going to kind of rely on you, that I hope
that you give her as much time during your time as you possibly can
because it is in your children’s best interest to do that and you testified to
holding that principle.
....
. . . I just think in the best interest of your kids, given the
employment that you have, given the circumstances that you’ve been in, I
think this plan will provide sufficient stability for your children and give
them the ability to have great relationships with both of their parents.
Report of Proceedings (RP) at 390-94 (emphasis added).
Laura timely appealed to this court.
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ANALYSIS
PARENTING PLAN
Laura contends the trial court abused its discretion by adopting a parenting plan
without sufficiently considering the statutory residential factors. We agree.
A parenting plan is reviewed for an abuse of discretion. In re Marriage of
Chandola, 180 Wash. 2d 632, 642, 327 P.3d 644 (2014). “An abuse of discretion occurs
only when the decision of the court is ‘manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.’” State v. McCormick, 166 Wash. 2d 689, 706, 213 P.3d
32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775
(1971)). There are various ways in which a trial court’s decision can be manifestly
unreasonable. One way is if the trial court did not correctly apply the legal standard. In
re Marriage of Littlefield, 133 Wash. 2d 39, 47, 940 P.2d 1362 (1997).
RCW 26.09.187(3)(a)2 requires the trial court to consider various factors when
determining the residential schedule. If the trial court does not enter written findings that
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(3) RESIDENTIAL PROVISIONS.
(a) The court shall make residential provisions for each child which
encourage each parent to maintain a loving, stable, and nurturing
relationship with the child, consistent with the child’s developmental level
and the family’s social and economic circumstances. The child’s residential
schedule shall be consistent with RCW 26.09.191. Where the limitations of
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reflect consideration of the residential factors, we may review the trial court’s oral ruling.
In re Marriage of Murray, 28 Wash. App. 187, 189, 622 P.2d 1288 (1981). When evidence
of those factors is before the trial court and its oral opinion reflects consideration of those
factors, specific findings on each factor are not required. In re Marriage of Croley, 91
Wash. 2d 288, 292, 588 P.2d 738 (1978). This is because the trial court’s oral comments on
a factor sufficiently reflect its consideration of that factor. Id. But any presumption that
the trial court considered a contested statutory residential factor is rebutted by the trial
RCW 26.09.191 are not dispositive of the child’s residential schedule, the
court shall consider the following factors:
(i) The relative strength, nature, and stability of the child’s
relationship with each parent;
(ii) The agreements of the parties, provided they were entered into
knowingly and voluntarily;
(iii) Each parent’s past and potential for future performance of
parenting functions as defined in RCW 26.09.004(3), including whether a
parent has taken greater responsibility for performing parenting functions
relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant
adults, as well as the child’s involvement with his or her physical
surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is
sufficiently mature to express reasoned and independent preferences as to
his or her residential schedule; and
(vii) Each parent’s employment schedule, and shall make
accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
(Emphasis added.)
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court’s failure to discuss that factor in its written findings or oral ruling. Murray, 28 Wn.
App. at 189-90.
Here, there was substantial evidence presented by the parties concerning at least
four of the seven statutory residential factors—(i) (relative strength of child-parent
relationship), (iii) (a parent’s past and potential for future performance of parental
functions), (iv) (emotional needs and developmental level of a child), and (vii) (each
parent’s employment schedule). Michael argues the trial court’s oral ruling reflects that it
considered these statutory factors. We disagree.
The trial court mainly considered only one factor, each parent’s employment
schedule. Nowhere did the trial court discuss the relative strength of the parent-child
relationship, or each parent’s past and potential for future performance of parental
functions. The trial court did discuss the emotional needs of the children and its
comments show this factor weighed in Laura’s favor.
In their closing arguments, the parties addressed the statutory residential factors.
The trial court commented that it gave careful thought to the parenting plan and may well
have considered the factors argued by the parties. But the legal standards that control our
review require more. The trial court must consider the disputed residential factors either
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No. 35735-0-111
In re Marriage ofBranning
in its written findings or in its oral comments. Here, neither the trial court's written
findings nor its oral comments addressed the disputed residential factors.
The required remedy is to remand for adequate findings. To the extent insufficient
evidence was presented on any particular residential factor, the trial court should note this
and need not make any specific finding. Given our disposition, we deny Michael's
request for attorney fees.
Remand for adequate findings.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, C.J.
WE CONCUR:
Siddoway, J.
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