Marriage Of Alexandra Swaka v. James Swaka ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
In the Matter of the Marriage of:
ALEXANDRA SWAKA,
Respondent, No. 42758 -3 -II
Consolidated with No. 43518 -7 -II
and PART PUBLISHED OPINION
JAMES SWAKA,
Appellant.
MAXA, J. — James Swaka appeals the trial court' s decision to allow Alexandra Swaka to
Skypel
testify via from Spain at a relocation trial. We hold that the trial court did not abuse its
discretion in allowing remote testimony under CR 43( a)( 1) and therefore, affirm on that issue. In
the unpublished portion of this opinion, we address James Swaka' s additional assignments of
error and affirm on all issues except for the award of attorney fees relating to various pre -trial
motions. We reverse and remand for further proceedings with regard to the attorney fee award.
1 Skype is a live video chat and long -distance voice calling service. See, e. g., Fuqua v. Fuqua, 57
So. 3d 534, 537 ( La. Ct. App. 2011).
No. 42758 -3 - II, consolidated with No. 43518 -7 -II
FACTS
This appeal arises from ongoing litigation between former spouses James and Alexandra
Swaka over Alexandra' s2 move to Spain with the parties' two children. James and Alexandra
married in 2002, the couple separated in November 2006, and Alexandra filed for dissolution in
March 2007. James did not respond or appear, and in September Alexandra obtained a default
dissolution order, child support order, and parenting plan. Alexandra was designated as the
primary residential parent.
In August 2009, Alexandra moved to Spain with the children for a study abroad program.
James did not object to the relocation at that time. In June 2010, while still in Spain, Alexandra
and the children began living with Juan Gonzalez and his two children, who were the same ages
as the Swaka children. Alexandra eventually decided to remain in Spain permanently. In April
2011, Alexandra moved for an order permitting her to permanently relocate to Spain and for an
order waiving notice requirements for relocation. The trial court granted the motions.
In June 2011, James moved for reconsideration of the trial court' s order waiving notice
requirements and he objected to the relocation. The trial court allowed Alexandra' s relocation to
Spain pending trial and issued a temporary order stating that the children would remain with
Alexandra and that the original 2007 parenting plan would remain in full force and effect.
The relocation trial took place in March 2012. Alexandra moved for an order permitting
her to testify via Skype at trial. In support of her motion, Alexandra argued that it would be
inconvenient and disruptive to their children if she had to travel to Washington to testify. She
also argued that she was worried that her parents might try to have her detained in Washington
2
Because the parties share the same last name, we refer to them by their first names for clarity.
We intend no disrespect.
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No. 42758 -3 -II, consolidated with No. 43518 -7 -II
in order to get their hands on my kids." Clerks Papers ( CP) at 650 -51. Alexandra' s concerns
were based on her parents' previous efforts to force her to return to the United States with the
children, including threatening to have her arrested and attempting to have her deported from
Spain. The trial court granted the motion over James' s objection. James appeals this decision.
ANALYSIS
James argues that the trial court abused its discretion when it allowed Alexandra to testify
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via Skype under CR 43( a)( 1). We disagree because Alexandra showed good cause in
compelling circumstances for testifying remotely.
A. INTERPRETATION OF CR 43( a)( 1)
CR 43( a)( 1) provides:
In all trials the testimony of witnesses shall be taken orally in open court, unless
otherwise directed. by the court or provided by rule or statute. For good cause in
compelling circumstances and with appropriate safeguards, the court may permit
testimony in open court by contemporaneous transmission from a different
location.
The second sentence of CR 43( a)( 1) was added in 2010 and was modeled after an identical
provision in Federal Rule of Civil Procedure (FRCP) 43( a). WASHINGTON STATE REGISTER
WSR) 10 -05 -090 ( 2010).
The question here is whether the trial court properly found that there was " good cause in
compelling circumstances" to allow Alexandra to testify via Skype. CR 43( a)( 1). Because CR
43( a)( 1) states that the trial court " may" permit remote contemporaneous testimony, the rule is
Although James also assigns error to the trial court' s order permitting Alexandra' s witnesses to
testify via Skype, he argues in his briefing only that the trial court should not have permitted
Alexandra to testify via Skype. Accordingly, we consider only James' s arguments regarding
Alexandra' s Skype testimony. RAP 10. 3( a)( 6); Kadoranian v. Bellingham Police Dep' t, 119
Wash. 2d 178, 191, 829 P.2d 1061 ( 1992), overruled on other grounds by State v. Jimenez, 128
Wash. 2d 720, 911 P.2d 1337 ( 1996).
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by its plain terms discretionary and we review the trial court' s ruling on the issue for abuse of
discretion. See United States v. Kivanc, 714 F.3d 782, 791 ( 4th Cir. 2013) ( rulings regarding use
of remote testimony under FRCP 43( a) reviewed for abuse of discretion), cert. denied, 134 S. Ct.
301 ( 2013). A trial court abuses its discretion if its decision is manifestly unreasonable or based
on untenable grounds or untenable reasons. In re Marriage ofLittlefield, 133 Wash. 2d 39, 46- 47,
940 P.2d 1362 ( 1997).
No Washington court has interpreted the new language in CR 43( a)( 1) allowing remote
contemporaneous testimony. In Kinsman v. Englander, 140 Wash. App. 835, 843 -44, 167 P.3d
622 ( 2007), we held that under the pre -2010 version of CR 43( a)( 1) a trial court could not allow
telephonic testimony without the consent of all parties. But Kinsman does not apply to the
current version of the rule, which contemplates allowing remote testimony under certain
circumstances.
The drafters of the 2010 amendment intended that Washington courts seek guidance from
the 1996 Advisory Committee Note to FRCP 43 when interpreting this provision. WSR 10 -05-
090:
The federal advisory committee note provides in relevant part:
The importance of presenting live testimony in court cannot be forgotten. The
very ceremony of trial and the presence of the factfinder may exert a powerful
force for truthtelling. The opportunity to judge the demeanor of a witness face -to-
face is accorded great value in our tradition. Transmission cannot be justified
merely by showing that it is inconvenient for the witness to attend the trial.
The most persuasive showings of good cause and compelling circumstances
are likely to arise when a witness is unable to attend trial for unexpected reasons,
such as accident or illness, but remains able to testify from a different place.
Contemporaneous transmission may be better than an attempt to. reschedule the
trial, particularly if there is a risk that other — and perhaps more important —
witnesses might not be available at a later time.
Other possible justifications for remote transmission must be approached
cautiously.... An unforeseen need for the testimony of a remote witness that
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arises during trial ... may establish good cause and compelling circumstances.
Justification is particularly likely if the need arises from the interjection of new
issues during trial or from the unexpected inability to present testimony as
planned from a different witness....
A party who could reasonably foresee the circumstances offered to justify
transmission of testimony will have special difficulty in showing good cause and
the compelling nature of the circumstances....
Safeguards must be adopted that ensure accurate identification of the witness
and that protect against influence by persons present with the witness. Accurate
transmission likewise must be assured.
FRCP 43 advisory committee' s note to 1996 amendments.
Where a state rule has the same language as a federal rule, we may look for guidance to
courts applying the federal rule. Beal v. City ofSeattle, 134 Wash. 2d 769, 777, 954 P.2d 237
1998). In fact, the drafters of the amendment to CR 43( a)( 1) also intended that Washington
courts seek guidance from federal court interpretations of FRCP 43( a). WSR 10 -05 -090.
Federal appellate courts reviewing trial courts' rulings under FRCP 43 (a) allowing
remote contemporaneous testimony have been reluctant to reverse such rulings. See, e. g., El-
Hadad v. United Arab Emirates, 496 F.3d 658, 669 ( D. C. Cir. 2007) ( trial court acted within its
discretion when permitting plaintiff to testify via Internet video from Egypt when he had tried
and failed to obtain visa to. U. S.); Thornton v. Snyder, 428 F.3d 690, 698 -99 ( 7th Cir. 2005)
affirming trial court' s decision to allow trial by video conference due to plaintiff's incarceration
and high escape risk and need for 20 additional witnesses to travel from different parts of the
state); Beltran -Tirado v. Immigration and Naturalization Serv., 213 F.3d 1179, 1186 ( 9th Cir.
2000) ( decision to allow witness who lived in Missouri to testify telephonically at hearing in San
Diego did not violate due process because remote testimony would have been admissible under
FRCP 43( a)).
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No. 42758 -3 -II, consolidated with No. 43518 -7 -II
Federal appellate courts generally have affirmed trial court rulings refusing to allow
remote testimony as well, deferring to the trial court' s discretion. See, e. g., Kivanc, 714 F.3d at
791 ( trial court did not abuse discretion in denying motion for two claimants in a forfeiture
action to testify from Turkey after weighing conflicting testimony regarding one claimant' s
ability to travel and because second claimant' s reason for testifying remotely was that he was
simply " `` unwilling to come back' " to the U. S.); Air Turbine Tech., Inc. v. Atlas Copco AB, 410
F.3d 701, 714 ( 11th Cir. 2005) ( affirming trial court' s denial of motion to use video conference
testimony, noting that whether to allow video teleconference testimony was " a matter expressly
reserved to the sound discretion of the trial court").
B. GOOD CAUSE IN COMPELLING CIRCUMSTANCES
Determining whether a party has shown " good cause in compelling circumstances"
involves a fact -specific inquiry that rests in the sound discretion of the trial court. We hold that
under the circumstances here, the trial court did not abuse its discretion in allowing Alexandra to
testify remotely from Spain.
1 First, traveling from Spain to Washington would have been a hardship for Alexandra and
the children. In her declaration in support of her motion to testify via Skype, Alexandra stated,
I reside in Spain, and would have to travel internationally to appear at court in person. I would
also have to either take my children out of school so that they could travel with me or place them
in the care of others while I travelled." CP at 625. She also stated, "[ I] t will not just be
inconvenient for me to travel to Washington, but extremely difficult on my entire family. I play
a vital role in the daily functioning of our family." CP at 650.
James notes that Alexandra did not allege that she was unable to travel, and argues that
inconvenience is not a " compelling circumstance" because trial testimony is inconvenient for
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No. 42758 -3 - II, consolidated with No. 43518 -7 -II
most witnesses. And the 1996 advisory committee note to FRCP 43 states that remote testimony
cannot be justified merely by showing that it is inconvenient for the witness to attend the trial."
However, the fact that travel would have disrupted the children' s education and their lives shows
actual hardship, not mere " inconvenience." Requiring Alexandra to travel to Washington to
testify would have forced her to choose between uprooting the children and having them travel
with her or leaving them in a foreign country in the care of a nonrelative.
Further, even if Alexandra' s concerns can be characterized as inconvenience, significant
inconvenience may be a factor that the trial court can consider in its discretion along with other
factors in making the good cause determination. Beltran -Tirado, 213 F.3d at 1186 ( the
government had " reason to arrange" telephonic testimony because the witness lived in Missouri
and the hearing was in San Diego); Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 480 ( D. Md. 2010)
the cost of international travel provided good cause for contemporaneous transmission of
testimony when plaintiffs from Honduras made no more than $7, 000 per year).
Second, James and Alexandra' s son had a serious skin condition that was subject to
aggravation by air travel. James himself expressed concern about this medical condition in a
trial
pre - pleading, stating that the condition " could be life -
threatening." CP at 167. Again, if
Alexandra was required to travel to Washington for trial she would have to choose between
irritating her son' s medical condition or leaving him in a foreign country with a nonrelative.
Third, Alexandra had a legitimate concern that her parents might try to interfere with her
custody of the children if she traveled to Washington either alone or with the children. She
stated in her declaration:
T] he Snellers have tried everything possible ( including lying to the Spanish
authorities that I falsified my visa) to get the kids and me back in Washington.
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Their desperation makes me very worried.about what they might try to do to have
me or Juan detained in Washington in order to get their hands on my kids.
CP at 650 -51. The record reflects that Alexandra' s parents previously had made threats against
Alexandra to take legal action to get the children back to the United States, including having her
arrested. The record also shows that Alexandra' s parents had taken other steps against her,
including having her visa revoked and attempting to have her and the children deported from
Spain. Under the circumstances, it was appropriate for the trial, court to consider this factor in
assessing good cause under CR 43( a)( 1).
Fourth, this case involves a bench trial. Video testimony is not the same as actual
presence, and in certain cases the ability to observe a witness' s demeanor might be affected. See
Thornton, 428 F.3d at 697. However, a trial court may be better able than a jury to evaluate the
testimony and assess the credibility of a witness testifying remotely.
We hold that under the specific circumstances presented in this case, the trial court did
not abuse its discretion in finding " good cause in compelling circumstances" to justify remote
contemporaneous testimony under CR 43( a)( 1). And James does not argue that the trial court
did not provide " appropriate safeguards" regarding the remote testimony as CR 43( a)( 1)
requires. Accordingly, we affirm the trial court' s decision to grant Alexandra' s motion to allow
her to testify via Skype.
We consider James' s remaining arguments in the unpublished portion of this opinion, and
affirm on all issues except for the award of attorney fees to Alexandra. We reverse and remand
on that issue only.
No. 42758 -3 - II, consolidated with No. 43518 -7 -II
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
We now address James Swaka' s remaining arguments. We hold that ( 1) the trial court
did not abuse its discretion when it dismissed James' s petition to modify the parenting plan for
failure to show adequate cause because James failed to show changed circumstances justifying a
major modification of the parenting plan; ( 2) the trial court did not abuse its discretion when it
denied appointment of a guardian ad litem (GAL) because James failed to show how additional
investigation into allegations of sexual abuse and his relationship with the children would have
been helpful and because James did not present a way to have the GAL meet with the children in
Spain; ( 3) the trial court failed to make any written findings regarding the award of attorney fees
relating to James' motion to modify the parenting plan, and therefore the case must be remanded
for reconsideration of that issue and entry of written findings, if appropriate; ( 4) substantial
evidence supported most of the trial court' s findings of fact in the relocation order and the
unsupported findings do not warrant reversal of the trial court' s visitation order; and ( 5) the trial
court did not abuse its discretion when it limited James' s visitation with the children and
required that visits be supervised because the trial court' s findings amply support its conclusions
that James had abandoned the children and that he and the children did not have an emotional
bond.
ADDITIONAL FACTS
Dissolution
In September 2007, Alexandra obtained a default dissolution order, child support order,
and parenting plan. At that time, the children were four years old and 15 months old. The trial
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No. 42758 -3 -II, consolidated with No. 43518 -7 -II
court concluded that James' s visitation should be limited because he had a substance abuse
problem. The parenting plan gave custody to Alexandra and allowed James to have supervised
visitation for up to six hours per week or, if James moved out of state, one supervised visitation
per month at the children' s primary residence.
At the time the default orders were entered James had moved to Maine. In November
Jeffrey4
2007, James moved back to Washington and lived with Alexandra' s parents, Sherry and
Sneller. During that time, the parties did not follow the parenting plan. James regularly watched
the children at Alexandra' s house while she was at the gym or at school and at the Snellers'
house, sometimes unsupervised.
In May 2008, James moved back to Maine. At the time of the move, the children were
four and one -half and two years old. James did not see the children between May 2008 and
August 2009.
Alexandra' s Relocation to Spain
In August 2009, Alexandra moved to Spain with the children for a study abroad program.
Before the move Alexandra informed James and at first he did not oppose it For the next
several years, James had limited Internet contact with Alexandra and the children. Although
Alexandra offered to set up times for the children to speak with James via Skype while in Spain,
James did not contact Alexandra for the purpose of talking to the children. James also did not
come to Spain to visit the children. Alexandra and the children returned to the United States in
August and November of 2010, but she did not notify James of their return on either occasion.
4 Because the Snellers share the same last name, we refer to them by their first names for clarity.
We intend no disrespect.
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Alexandra' s parents disapproved of Alexandra' s decision to remain in Spain with the
children. Jeffrey sent e -mails to Alexandra and her fiance threatening legal action if they did not
comply with his demand that the children attend an international school in Spain or return to
Washington to live with the Snellers.
Objection to Relocation
In May 2011, the trial court granted Alexandra' s motion for an order permitting her to
permanently relocate to Spain and for an order waiving notice requirements for relocation. In
June 2011, James moved for reconsideration of the trial court' s order waiving notice
requirements, objected to the relocation, moved for a temporary restraining order preventing
relocation, and filed a motion for contempt against Alexandra for failing to comply with the
parenting plan' s notice requirements. He asked the trial court to order that Alexandra return the
children to Washington immediately and for Alexandra' s parents to take temporary custody of
the children pending an investigation by a GAL to investigate sexual abuse and medical neglect
allegations made by Alexandra' s parents and brother. He further proposed a parenting plan
giving custody to him or a third - arty custodian of his choosing, specifying Alexandra' s parents,
p
stating that the limitation on Alexandra' s residential time was justified by concerns for physical,
sexual, or emotional abuse of the children while living with her.
In declarations in support of James' s motions, James, Sherry, and Jeffrey all expressed
concerns regarding potential sexual contact between the children and Gonzalez and his children.
They also expressed concerns about the children' s health care. Sherry stated that the parties' son
suffers from a chronic skin condition that was not being properly treated and that their daughter
had had ring worm that Alexandra had refused to treat with appropriate medicine.
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Regarding the sexual abuse, Sherry stated that the parties' daughter told her that she had
been forced to expose herself to Alexandra' s boyfriend, and she was forced to take baths with his
two boys, that one of the boys had pulled her pants down in front of visiting guests. In her
response, Alexandra explained the allegations of sexual abuse, stating that the children were
playing at the beach one day and had taken a shower together, but that it had not happened since
that date. She further explained that her boyfriend' s sons were ages eight and five, almost the
exact same ages as her children.
James also stated that he was concerned about the children living outside the United
States because he did not have the means to travel outside the country to see them and because
he had been unable to see the children when they returned to the United States because
Alexandra failed to notify him when they returned. Alexandra responded that it was no more
onerous for James to visit the children in Spain than it would have been for him to travel from
Maine to visit them in Washington.
At the hearing on James' s motions, James waived notice of relocation. As to his
remaining claims the trial court ( 1) allowed Alexandra' s relocation to Spain pending trial, (2)
issued a temporary order stating that the children would remain with the mother pending trial and
that the original 2007 parenting plan would remain in full force and effect, ( 3) concluded that
James had no standing to request that custody of the children go to their grandparents under
chapters 26. 09 and 26. 10 RCW, found that the allegations of abuse were made in " hindsight ", (5)
found that all parties knew that Alexandra was in Spain with the children since 2009 and that
litigation began two years later when Alexandra' s parents wanted her to return to the United
States, and ( 6) denied James' s request for a GAL without prejudice. James did not seek
reconsideration of these rulings and does not challenge them on appeal.
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Petition for Modification
In September 2011, James petitioned for modification of the 2007 parenting plan. He
claimed that there was a substantial change in circumstances because of the children' s relocation
to Spain to live with Alexandra' s boyfriend and his children, James' s relocation to Maine,
Alexandra' s failure to address the children' s medical needs and allegations of sexual abuse,
James' s sobriety for the past two years, and Alexandra' s denial of contact with the children since
2008. He also argued that the parenting plan was subject to modification because it was entered
by default and therefore that a lesser showing of changed circumstances was required for
modification. In support of the motion, James submitted the same evidence that was before the
court for his previous motions objecting to the relocation.
James subsequently moved for an order finding adequate cause to proceed on his petition
for modifying the parenting plan. He again asked the trial court to appoint a GAL to investigate
and make recommendations for the new parenting plan and asked that the children be brought to
Washington for observation by the GAL. He also moved for an order clarifying the trial court' s
temporary order leaving the original parenting plan in full force and effect because that plan
required visits to be held in Washington when neither party lived there and because it did not set
up any conditions on or requirements for Skype calls.
Alexandra responded that James' s motion was duplicative of his motions three months
earlier and that he was requesting the same relief. Therefore, she requested attorney fees " for
having to go through this frivolous proceeding a second time." CP at 381. Alexandra also
informed the court that since its decision on James' s objection to relocation and entry of its
temporary order, her parents had attempted to have her and the children deported from Spain and
successfully persuaded the Spanish immigration authorities to deny their visas.
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The trial court ruled that there was no adequate cause for a major modification of the
parenting plan and that additional concerns regarding minor modifications would be addressed at
the relocation hearing. The trial court declined to clarify its prior order, denied the motion to
appoint a GAL, and granted Alexandra' s request for attorney fees. The trial court subsequently
set a trial date for the relocation trial.
Relocation Trial
At the time of the relocation trial in March 2012, James rescinded his objection to
relocation and instead proposed a modified parenting plan. The proposed parenting plan
provided that he would initially have six consecutive days of residential time with the children in
Spain. The time then would progressively increase over time, resulting in three one -week blocks
plus one six -
week block per year of residential time and one weekend per month of visitation by
2014.
The trial court rejected James' s parenting plan. The trial court' s final parenting plan gave
Alexandra full residential time with the children but permitted James to have supervised
Visitation in Spain for a minimum of one and one--halfhours per day over a period of six
consecutive days every three months. The trial court found that James' s residential time with the
children should be limited under RCW 26. 09. 191 because of "[w] illful abandonment that
continue[ d] for an extended period of time or substantial refusal to perform parenting functions"
and that James' s involvement with the children may have an adverse effect on the children' s best
interests because of "[ t] he absence or substantial impairment of emotional ties between the father
and children." CP at 709. The order allowed James to have e -mail contact with the children and
Skype or telephone contact with the children once per week.
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James appeals ( 1) the trial court' s October 2011 order denying James' s proposed
modification of the parenting plan, denying appointment of a GAL, and denying clarification of
its prior order; ( 2) the trial court' s order of attorney fees to Alexandra; and ( 3) the trial court' s
modified parenting plan.
ANALYSIS
A. No ADEQUATE CAUSE FOR MODIFICATION
James argues that the trial court abused its discretion when it found that there was not
adequate cause for a hearing on his motion for a major modification of the 2007 default
parenting plan. We disagree.
1. Statutory Process for Modification
The court' s primary concern in establishing parenting plans is the best interests of the
children. RCW 26. 09. 002; In re Marriage ofStern, 57 Wash. App. 707, 712, 789 P.2d 807 ( 1990).
The legislature has recognized that the child' s best interests are normally 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. Therefore, because changes in custody are
viewed as " highly disruptive for the children," there is a " strong presumption in favor of
custodial continuity and against modification." Stern, 57 Wash. App. at 712.
There is a two -step process for modifying a parenting plan. In re Marriage ofZigler, 154
Wn. App. 803, 809, 226 P.3d 202 ( 2016). First, RCW 26. 09.270 provides:
A party seeking a temporary custody order or a temporary parenting plan or
modification of a custody decree or parenting plan shall submit together with his
or her motion, an affidavit setting forth facts supporting the requested order or
modification and shall give notice, together with a copy of his or her affidavit, to
other parties to the proceedings, who may file opposing affidavits. The court
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shall deny the motion unless it finds that adequate cause for hearing the motion is
established by the affidavits, in which case it shall set a date for hearing on an
order to show cause why the requested order or modification should not be
granted.
Under this statute, the party moving to modify a parenting plan must submit an affidavit showing
adequate cause" for modification. Zigler, 154 Wash. App. at 809. The trial court will allow a
hearing on the motion only if the affidavit establishes adequate cause. RCW 26. 09.270; In re
Custody of T.L., 165 Wash. App. 268, 275, 268 P.3d 963 ( 2011).
The primary purpose of the threshold adequate cause requirement is to prevent movants
from harassing nonmovants by obtaining a useless hearing." In re Marriage ofAdler, 131 Wn.
App. 717, 724, 129 P.3d 293 ( 2006). Adequate cause requires more than prima facie allegations
that could support inferences that would establish grounds to modify the parenting plan. Grieco
v. Wilson, 144 Wn. App. 865, 875, 184 P.3d 668 ( 2008), aff'd sub nom. In re Custody of
E.A. T. W., 168 Wash. 2d 335, 227 P.3d 1284 ( 2010). At a minimum, adequate cause means
evidence sufficient to support a finding on each fact the moving party must prove to modify the
plan. In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 ( 2004). The
parenting
information supporting adequate cause should be something not considered in the original
parenting plan. Zigler, 154 Wash. App. at 809.
Second, if the moving party establishes adequate cause and the court holds a full hearing,
RCW 26. 09. 260( 1) provides:
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.
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Under this statute, the trial court may,modify the existing parenting plan only if it finds based on
new or previously unknown facts that there has been a substantial change in the circumstances of
the child or the nonmoving parry and that the modification is in the child' s best interest and
necessary to serve the best interests of the child. RCW 26. 09. 260( 1); Zigler, 154 Wash. App. at
809; George v. Helliar, 62 Wn. App. 378, 382 -83, 814 P.2d 238 ( 1991). The purpose of these
making it difficult to the status quo." In re
procedures is to " protect stability by more challenge
F.,
Parentage of C.M. Wn.2d 314 P.3d 1109, 1113 ( 2013).
Further, RCW 26. 09. 260( 2) provides that the trial court must retain the residential
schedule established in the original parenting plan except under four specific circumstances.
One of those circumstances is a finding that "[ t]he 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." RCW 26. 09. 260( 2)( c).
Failure by the trial court to make findings that reflect the application of each relevant factor is
error." Stern, 57 Wash. App. at 711.
2. Exception for Default Parenting Plans
An exception to the requirement that a moving party show a substantial change in
circumstances applies to parenting plans entered by default, for which no showing of changed
circumstances is required. In re Rankin, 76 Wash. 2d 533, 537, 458 P.2d 176 ( 1969). The court in
Rankin reasoned that a trial court entering a custody order by default has not had the chance to
observe opposing witnesses and the trial court is unable to properly exercise its discretion in
weighing competing evidence in the best interests of the child. 76 Wash. 2d at 536 -37. Therefore,
the court held that if a parenting plan is entered by default, the trial court may consider facts
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existing at the time the original dissolution decree was entered and the moving party need not
necessarily show changed circumstances. 5 Rankin, 76 Wash. 2d at 538.
Relying on Rankin, James argues that because the parenting plan was entered by default,
a lesser showing of a change of circumstances" should have been required to satisfy the first
step in the analysis for a parenting plan modification, adequate cause. Br. of Appellant at 18 -19.
James misreads Rankin. Rankin holds that in the context of default parenting plans, parties
seeking modification may show additional facts existing at the time the parenting plan was
entered to justify modification and are not limited to showing changed circumstances arising
only after the initial parenting plan was entered. 76 Wash. 2d at 537 -38; cf.In re Parentage of
Jannot, 110 Wn. App. 16, 25, 37 P.3d 1265 ( 2002) ( "[ T]he information considered in deciding
whether a hearing is warranted should be something that was not considered in the original
parenting plan. "), aff'd, 149 Wash. 2d 123, 65 P.3d 664 ( 2003). Therefore, when a court enters a
default parenting plan, the party seeking to modify the plan may do so based on a showing of
changed circumstances under RCW 26. 09.260( 1) or based on facts existing when the original
parenting plan. was entered that the trial court did not consider. Rankin, 76 Wash. 2d at 537 -38.
Here, James does not argue that the facts did not support entry of the original 2007
parenting plan. Rather, he bases his arguments entirely on changed circumstances. Accordingly,
Alexandra argues that when the legislature enacted RCW 26. 09. 260, it eliminated Rankin' s rule
for default orders because the statute includes no exception for default orders. She further notes
that there must be no exception to following the rules in the statute because it is an abuse of
discretion for the trial court to grant a motion to modify a parenting plan unless the motion
complies with the requirements of RCW 26. 09. 260. See In re Custody ofHalls, 126 Wash. App.
599, 606, 109 P.3d 15 ( 2005). However, "[ a] bsent an indication that the Legislature intended to
overrule the common law, new legislation will be presumed to be consistent with prior judicial
decisions."In re Marriage of Williams, 115 Wash. 2d 202, 208, 796 P.2d 421 ( 1990).
Accordingly, we interpret RCW 26.09. 260( 1) consistently with the rule in Rankin that no
showing of changed circumstances is required for default orders.
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he was required to present affidavits containing sufficient evidence to support a finding that there
has been a substantial change in circumstances and that modification is in the children' s best
interests. RCW 26. 09. 260( 1); Zigler, 154 Wash. App. at 809.
3. No Adequate Cause
The trial court ruled that no hearing was required on James' s petition to modify because
he did not show adequate cause. We review a trial court' s determination of adequate cause for a
proposed parenting plan modification for abuse of discretion. In re Parentage ofdannot, 149
Wash. 2d at 128. A trial court abuses its discretion when its decision is manifestly unreasonable,
based on untenable grounds, or made for untenable reasons. Littlefield, 133 Wash. 2d at 46- 47.
James argues that the following facts arising after entry of the default parenting plan
support modification for changed circumstances: ( 1) allegations regarding the children' s sexual
contact, ( 2) his relocation to Maine, ( 3) his sobriety, ( 4) his stable home life and employment, ( 5)
the need to change transportation provisions, ( 6) the need to address the location of visits, and ( 7)
the need to modify the supervision requirement. 6 We disagree.
First, the trial court noted that the case already was set for hearing on Alexandra' s
relocation and that this hearing could result in minor modifications to the parenting plan based
on the relocation. Therefore, there was no adequate cause to modify the parenting plan before
the relocation hearing based on the need to change transportation provisions or the need to
address the location of visits.
6
In his motion to modify the parenting plan, James also claimed that the following changed
circumstances supported modification: ( 1) Alexandra' s relocation to Spain, ( 2) Alexandra' s new
residence in the home of her boyfriend and his children, ( 3) Alexandra' s failure to attend to the
children' s medical needs, and ( 4) Alexandra' s interference with James' s attempts to contact the
children. However, because James does not raise these arguments on appeal, we do not address
them.
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Second, RCW 26. 09. 260( 1) expressly states that the only relevant changes of
circumstances are those involving the child or the nonmoving parent. Therefore, in addressing
adequate cause the trial court cannot consider the moving party' s changed circumstances.
George, 62 Wn. App. at 383. Accordingly, James' s relocation, sobriety and stable home life
were not factors supporting a substantial change in circumstances. And because James' s request
to modify the requirement that his visits be supervised was based primarily on changes in his
circumstances, there was no adequate cause to modify that requirement.
Finally, with regard to the sexual contact allegations, the trial court already had found in
its previous order that these allegations were made in " hindsight ". Report of Proceedings ( RP)
June 24, 2011) at 36. The court noted that it was only after the litigation started that
Alexandra' s family made the allegations even though they were aware of the circumstances far
earlier. And Alexandra stated in her declaration that the litigation began because she refused to
return to the United States, contrary to her parents' wishes. We presume that the trial court
weighed this evidence and found Alexandra' s explanation for the allegations more credible.
Snyder v. Haynes, 152 Wn. App. 774, 779, 217 P.3d 787 ( 2009). Accordingly, the trial could
have reasonably concluded that these allegations were merely unsubstantiated allegations of
abuse and were therefore insufficient to justify an evidentiary hearing. Grieco, 144 Wash. App. at
875.
James nevertheless argues that the trial court' s adequate cause decision should be
reversed because the trial court failed to make specific findings on the relevant criteria in RCW
26. 09. 260, relying on In re Marriage ofShryock, 76 Wash. App. 848, 852, 888 P.2d 750 ( 1995)
and Stern, 57 Wn. App. at 711. But although Shryock and Stern both state the requirement for
specific findings, both cases related to findings made after evidentiary hearings on modification,
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not to adequate cause determinations. And James has submitted no authority that specific
findings are required for an adequate cause determination.
We hold that the trial court did not abuse its discretion in finding no adequate cause to
hold a hearing on James' s petition to modify the parenting plan. Accordingly, we affirm the trial
court' s dismissal of James' s modification petition.
B. APPOINTMENT OF GAL
James argues that the trial court abused its discretion by denying his motion to appoint a
GAL. We disagree.
RCW 26. 09.220( 1) authorizes a court, in considering parenting arrangements, to order an
investigation and report or to appoint a GAL. The purpose of appointing a GAL is to ensure that
the children' s best interests are promoted through an independent investigation and
recommendation. In re Marriage of Waggener, 13 Wash. App. 911, 917, 538 P.2d 845 ( 1975).
We review the decision whether to appoint a GAL for abuse of discretion. Vo v. Pham, 81 Wn.
App. 781, 784, 916 P.2d 462 ( 1996).
James made requests at two different times in this litigation to have a GAL appointed. - -
First, he requested that the trial court appoint a GAL in his motion for reconsideration of the
order waiving notice requirements, motion to show cause for contempt, and motion for a
temporary order restraining relocation. The trial court denied the motion without prejudice,
stating that the matter could be reconsidered if James could " figure out some way to do it in
Spain." RP ( June 24, 2011) at 37. Second, James requested a GAL appointment in conjunction
with his motion for a finding of adequate cause and clarification of the trial court' s temporary
order. He asked the trial court for an order " requiring that the children be brought to Washington
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for the GAL to interview them and observe how they interact with both parents." CP at 362.
The trial court denied the motion.
James argues that the trial court should have granted his motions to have a GAL
appointed because the GAL could have provided information regarding the allegations of sexual
contact. But the trial court did not abuse its discretion in finding that the sexual contact
allegations were made only after Alexandra decided to remain in Spain contrary to her parents'
wishes. The trial court concluded that these allegations did not require the appointment of a
GAL, particularly when there was no practical way for the GAL to have face to face contact with
the children. Accordingly, we hold that the trial court did not abuse its discretion in declining to
appoint a GAL on this basis.
James also argues that the GAL could have investigated the children' s relationship with
him and Alexandra' s alleged interference with their communication. But Alexandra stated that
as a result of James' s absence from the children' s lives, they do not know who he is. After
James relocated to Maine, he did not see the children again for over four years. And as to their
ability to communicate with him, Alexandra presented evidence of Skype calls James claimed'
that he missed. James fails to show how the trial court abused its discretion in ruling that no
additional GAL investigation was warranted given this evidence.
Moreover, the trial court' s original denial of James' s motion for a GAL appointment
stated that he could renew the motion if he could find a way to have the GAL in Spain. His
renewed motion for appointment of a GAL requested that the children meet with a GAL in
Washington, contrary to the trial court' s direction. James stated that Alexandra' s parents had
agreed to fund the children' s visit to Washington to meet with the GAL and that doing so would
be more cost -effective than sending a GAL to Spain. However, the trial court reasonably could
22
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have concluded that given the minimal utility of the proposed GAL investigation and the
disruptiveness of returning the children to Washington, James' s request for a GAL investigation
requiring the children to fly to Washington was inappropriate. Accordingly, we hold that the
trial court did not abuse its discretion when it denied James' s second request for appointment of
a GAL.
C. ATTORNEY FEES FOR SUBSEQUENT MOTIONS
James argues that the trial court abused its discretion when it awarded attorney fees to
Alexandra for responding to James' s adequate cause motion, motion to clarify its temporary
order, and motion to appoint a GAL because the trial court failed to make written findings as
required by RCW 4. 84. 185. Because the trial court failed to enter any written findings or
otherwise provide a record for our review, we remand for reconsideration of the issue and entry
of findings, if appropriate.
We review a trial court' s decision to grant or deny a statutory attorney fee award for
abuse of discretion. In re Marriage of Coy, 160 Wash. App. 797, 807, 248 P.3d 1101 ( 2011).
T] rial courts must exercise their discretion on articulable grounds, making an adequate record
so the appellate court can review a fee award." Just Dirt, Inc. v. Knight Excavating, Inc., 138
Wn. App. 409, 415, 157 P.3d 431 ( 2007). Therefore, " the trial court must enter findings of fact
and conclusions of law to support an attorney fee award." Just Dirt, 138 Wash. App. at 415.
A] bsence of an adequate record upon which to review a fee award will result in a remand of
the award to the trial court to develop such a record." Mahler v. Szucs, 135 Wash. 2d 398, 435, 957
P.2d 632 ( 1998), overruled in part on other grounds by Matsyuk v. State Farm Fire & Cas. Co.,
173 Wash. 2d 643, 272 P.3d 802 ( 2012).
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Alexandra requested fees under RCW 4. 84. 185, which allows a court to award attorney
fees to the prevailing party in an action if the action as a whole was " frivolous and advanced
without reasonable cause." Bldg. Indus. Ass' n of Wash. v. McCarthy, 152 Wash. App. 720, 745 -46,
218 P.3d 196 ( 2009). RCW 4. 84. 185 expressly provides that in order to support an award under
the statute, the trial court must enter written findings that the action is frivolous. Haysy v. Flynn,
88 Wn. App. 514, 521, 945 P.2d 221 ( 1997). A lawsuit is frivolous when it cannot be supported
by any rational argument on the law or facts. Curhan v. Chelan County, 156 Wash. App. 30, 37,
230 P.3d 1083 ( 2010).
Here, the trial court failed to make any written findings supporting its fee award. Instead,
the trial court' s order awarding fees merely stated, " Attorney' s fees will be awarded to the
mother in an amount to be set at a future hearing or upon agreed order. The fee award is against
the father." CP at 524. In its oral ruling, the trial court stated, " I am going to order attorney fees
in this case. I don' t think this motion for modification was brought on grounds that present
issues of merit for the court to look at, and so I will grant an attorney fees award against
James] RP ( Nov. 7, 2011) at 22. The trial court' s summary conclusion in its oral ruling that
the petition for modification was meritless is insufficient for us to determine whether the trial
court abused its discretion in awarding attorney fees under RCW 4. 84. 185.
Moreover, in order for fees to be awarded under RCW 4. 84. 185, the action as a whole
must be frivolous. McCarthy, 152 Wash. App. at 745 -46. Here, even after examining the trial
court' s oral ruling, it is only clear that the trial court thought that the petition for modification
was frivolous. The record does not show whether the trial court also considered whether James' s
second request for a GAL and the motion to clarify the temporary order also were frivolous.
Therefore, we remand with directions to reconsider the basis for the award under RCW 4. 84. 185
No. 42758 -3 -II, consolidated with No. 43518 -7 -II
and to enter appropriate findings if the award is confirmed on that basis. Mahler, 135 Wash. 2d at
435.
D. TRIAL FINDINGS OF FACT
James challenges certain findings of fact the trial court entered after trial. He argues that
because these findings are erroneous, they cannot support the trial court' s modification of the
parenting plan ( discussed below). We hold that only two findings are erroneous and that those
findings do not warrant reversal of the court' s modification order.
We review challenges to the trial court' s factual findings for substantial evidence. In re
Marriage offahey, 164 Wn. App. 42, 55, 262 P.3d 128 ( 2011), review denied, 173 Wash. 2d 1019
2012). Substantial evidence exists if the record contains sufficient evidence to persuade a fair -
minded, rational person of the finding' s truth. Fahey, 164 Wn. App. at 55. The party
challenging a finding bears the burden of showing that it is not supported by the record.
Standing Rock Homeowners Assn v. Misich, 106 Wash. App. 231, 243, 23 P.3d 520 ( 2001).
Unchallenged findings are verities on appeal, and challenged findings are also binding on appeal
if they are supported by substantial evidence. Robel v. Roundup Corp., 148 Wash. 2d 35, 42, 59
P.3d 611 ( 2002); Standing Rock, 106 Wash. App. at 243.
Evidence may be substantial even if there are other reasonable interpretations of the
evidence. Sherrell v. Selfors, 73 Wash. App. 596, 600 - 01, 871 P.2d 168 ( 1994). " We defer to the
trial court' s determinations on the persuasiveness of the evidence, witness credibility, and
conflicting testimony." Snyder, 152 Wash. App. at 779. Therefore, we will not disturb a trial
court' s finding of fact if substantial, though conflicting, evidence supports the finding.
Merriman v. Cokeley, 168 Wash. 2d 627, 631, 230 P.3d 162 ( 2010).
25
No. 42758 -3 -II, consolidated with No. 43518 -7 -II
1. No Contact with Children Since 2008
James challenges the trial court' s findings regarding his contact with the children after he
returned to Maine after living with Alexandra' s parents in 2008.
mid - First, he challenges the
finding that " ``[ t] he father has not seen the children since May 2008.' " Br. of Appellant at 14
quoting CP at 719). But,James testified at trial that he had not had in- person contact with the
children since mid - 008, and Alexandra' s parents confirmed this. Accordingly, the finding is
2
supported by substantial evidence.
Second, James challenges the trial court' s finding that " ``[ James] has not been in the
children' s lives for almost four years.' " Br. of Appellant at 14 ( quoting CP at 728). In support
of his challenge, James notes that he testified that he had regular telephone contact with the
children after he left Washington in 2008 until the children left for Spain with Alexandra in
2009. He also says that Alexandra admitted this fact in her testimony. However, the portion of
her testimony James cites states that he missed calls with the children in 2009, not that there was
actual contact. And although according to his testimony, James may have had telephone contact
with the children between 2008 and 2009, the trial court could have. reasonably concluded that
James' s lack of in- person contact with the children and only limited telephone contact with them
amounted to James having " not been in the children' s lives." CP at 728. This is especially true
in light of the trial court' s unchallenged finding that in March 2010, "[ James] admits that [ his
daughter] does not remember him now and [ his son] does not know who he is." CP at 721. This
finding is supported by substantial evidence.
No. 42758 -3 - II, consolidated with No. 43518 -7 -II
2. Unsupervised Contact with Children
James challenges the trial court' s following findings relating to James' s minimal
unsupervised contact with the children:
The children have never spen[ t] unsupervised time with [ James] after September
2007, or if they have, it was very brief.
The father did not take the children for overnight trips or to do other things ... in
an unsupervised setting.
CP at 719.
He argues that there was " unrebutted evidence" that his contact with the children " was
not actually supervised." Br. of Appellant at 14. The record supports James' s contention that
some of his contact with the children while he was living at the Snellers' home in Washington
between November 2007 and May of 2008 was unsupervised.' He watched the children at
Alexandra' s house while she was at the gym or at school three days a week for approximately
one and one -half hours at a time and also at the Snellers' house, sometimes unsupervised. Four
and one -half hours of unsupervised time per week for six months was more than " very brief."
CP at 719. Accordingly, we hold that the finding is not supported by substantial evidence.
However, there is no evidence that James took the children " for overnight trips" or that they did
other things" in an unsupervised setting, and therefore substantial evidence supports this
finding.
3. Skype Calls
James assigns error to the trial court' s finding that in 2010 " there were two Skype visits
between James and the children] set up by [ Sherry], but no testimony as to how those went."
Br. of Appellant at 14 ( quoting CP at 723). In support of this challenge, he points to his own
27
No. 42758 -3 -II, consolidated with No. 43518 -7 -II
testimony and that of Sherry describing a 2010 Skype call with the children. Accordingly, this
finding was not supported by substantial evidence.
4. E -mails with James' s Daughter
James assigns error to the trial court' s finding that exhibit 35, which consisted of "e -mails
between [ his daughter] and James over a period of two days," showed that his daughter " was the
one that initiated the e- mails, and not the other way around." CP at 726. However, the e -mails
in exhibit 35 support the trial court' s finding. James nevertheless argues that the trial court
ignored several e -mails James sent in 2009 to which his daughter did not respond and that the
trial court ignored James' s testimony regarding the e- mails. But because exhibit 35 supports the
trial court' s finding and we do not evaluate conflicting evidence, we reject James' s argument.
Merriman, 168 Wash. 2d at 631; Snyder, 152 Wash. App. at 779.
5. Efforts To Contact Children
James challenges the trial court' s findings that "[ n] o attempts [ we] re made by [ James] to
contact [ Alexandra] to set up Skype or [ p] hone contact" and "[ f]rom March 2008 to March 2009
James] made] no attempt to contact the children by phone, card or other means. CP at 722. In
support of his challenge to these findings, James points to the following evidence: ( 1) e -mails he
sent to Sherry in 2010 and 2011, asking her to set up time with Alexandra for James to speak to
the children; ( 2) an e -mail he wrote to Sherry in 2010 saying that he had talked to the children;
and ( 3) an e -mail he sent to Alexandra in August 2009 stating that he had attempted to call her
the previous day.
The e -mails were all dated after March 2009. Therefore, they do not contradict the
finding that he made no attempt to contact the children between March 2008 and March 2009,
and that finding is supported by substantial evidence. And apart from James' s e -mail to
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No. 42758 -3 -II, consolidated with No. 43518 -7 -II
Alexandra, the evidence shows that James attempted to contact only Alexandra's family in order
to set up time to talk to the children, not Alexandra herself. Therefore, the trial court' s finding
that he made no attempts to contact Alexandra directly is supported by substantial evidence.7
6. Effect of Erroneous Findings
We hold that the trial court' s finding that James had no or very limited unsupervised time
with the children after September 2007 and the finding that there was no testimony regarding the
nature of two 2010 Skype calls are not supported by substantial evidence. However, even
without these two findings the findings of fact were more than sufficient to support the trial
court' s rulings. James' s unsupervised time with the children occurred between November 2007
and April or May of 2008, four years before the relocation trial. And James does not argue that
what was actually said in the in two Skype calls was significant to the trial court' s other
findings.
E. JAMES' S RESIDENTIAL TIME WITH CHILDREN
James argues that the trial court abused its discretion by imposing limitations on his
residential time with the children to a minimum of 36 hours per year in Spain and by requiring
that those visits be supervised. We disagree.
We first note that James rescinded his objection to relocation at trial and consequently
does not appeal the trial court' s decision permitting relocation. Rather, he challenges the
modified parenting plan resulting from the relocation order.
We review rulings concerning parenting plans for abuse of discretion. In re Marriage of
Christel, 101 Wn. App. 13, 20 -21, 1 P.3d 600 ( 2000). Such rulings will seldom be changed
James assigns error to a number of the trial court' s other findings, but does not provide
argument supporting these assignments of error in his brief. Accordingly, we decline to address
them. RAP 10. 3( a)( 6).
29
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upon appeal because the emotional and financial interests affected by such decisions are best
served by finality. See Jannot, 149 Wash. 2d at 127.
A trial court has authority to impose limitations on visitation in a parenting plan under
RCW 26. 09. 191( 2). Here, the trial court awarded Alexandra full residential time with the
children except that James was permitted to have supervised visitation with the children in Spain
for a minimum of one and one — hours per day over a period of six consecutive days every
half
three months. The trial court concluded that limitation on James' s visitation was proper under
RCW 26. 09. 191( 2)( a) for "[ w]illful abandonment that continues for an extended period of time
or substantial refusal to perform parenting functions." CP at 720.
In support of this conclusion, the court made the following findings:
In a March 17, 2010 email [ James] says he can ... go to Spain to see the children,
but there was absolutely no follow up to that or no plans made or no further
inquiries about what time [ Alexandra] might be [ o] n Bainbridge Island.
Marc[ h] 23, 2010 there is a series of [S] kype calls set up and in the email, [ James]
admits that [ his daughter] does not remember him now and [ his son] does not
know who he is....
T] he summer of 2010 goes by without further contact.
No attempts are made by [ James] to contact [ Alexandra] to set up Skype or
p] hone contact even though [ Alexandra] has offered as much....
From March 2008 to March 2009 [ James] makes no attempt to contact the
children by phone, card or other means, and there was a failure on his part to
maintain and build emotional ties where the children were involved....
James] was not maintaining contact with the children even though he had
avenues to do so, and then made it exclusively through [ Sherry]....
James]' s failure to maintain contact caused emotional harm to [ his daughter]... .
These are formative years for the children, particularly for [ the son], because ...
over half of his life he' s not seen his father, and it is significant that there were
opportunities ... for [James] and he did not follow through on them.
James] was not trying to further his emotional bonds to his children, and he did
nothing to nurture that relationship.
It is astounding that [ James] made no effort to see the children in Spain in
December 2011, or any attempt,to see the children in Spain during 2011 as trial
ffil
No. 42758 -3 -II, consolidated with No. 43518 -7 -II
was pending in this Court orders could have easily been fashioned and
case.
probably would have been agreed.
Jeffery testified that he would pay for [ James] to go to Spain, and [ Alexandra]
testified that she had made an offer to have [ James] see the children in Spain
during December 2011 but instead he came to Bainbridge Island to meet with his
attorney and likely prepare for litigation.
There has been willful abandonment by [ James] of his relationship with his
children ... that continued for an extended period of time, and there have been
minimal ... attempts by [ James] to maintain any type of relationship with his
children.
CP at 721 -24. These extensive findings clearly support the trial court' s conclusion that James
willfully abandoned his children and refused to perform parenting functions. Accordingly, we
hold that the trial court did not abuse its discretion when it imposed limitations on James' s
visitation for this reason.
The trial court also concluded that residential time should be limited under RCW
26. 09. 191( 2)( a) because of "[ t]he absence or substantial impairment of emotional ties between
the parent and the child." CP at 725 ( boldface omitted). In support of this conclusion, the trial
court made the following findings:
James] has not seen either child in person since his relocation to Maine in May
2008, nearly four years ago.
For nearly half of [the son' s] life he has not had physical contact with his father,
and has had no cards or pictures....
The daughter] has had one email session over two days with her father and that
is the only contact she has had.
It' s clear that [ James] hardly knows [ his son].
The contact between [ James] and [ his daughter] has been sporadic and has had no
real substance to it.
CP at 725 -28. Again, these findings amply support the trial court' s finding that James and the
children lacked any meaningful emotional ties and supported the limitations. on James' s
visitation.
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No. 42758 -3 -II, consolidated with No. 43518 -7 -II
James nevertheless argues that because the trial court' s order so significantly limits his
time with the children, it was " not adequate to satisfy the basic purpose of the parenting act —
fostering the relationship between parent and child." Br. of Appellant at 32. In support of his
contention; James quotes the following portion of RCW 26. 09. 002, " `` The state recognizes the
fundamental 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.' " Br. of Appellant at 32.
But fostering the parent -child relationship is not the only factor to be considered. RCW
26. 09. 002 further provides:
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 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.
Here, because the children did not have a relationship with their father at the time the parenting
plan was modified, the trial court found that they needed to be protected from James because his
behavior gave the children " little to believe that a trust relationship with their father could be put
into place at this time." CP at 728. And because James had had no in-person contact with the
children for four years, we hold that the trial court' s limitation on his in-person time with them
served the best interests of the children because it only minimally altered their existing pattern of
interaction.
Moreover, although the parenting plan limits James' s visitation, James did not exercise
his visitation rights under the original parenting plan for the four years preceding trial.
32
No. 42758 -3 -I1, consolidated with No. 43518 -7 -11
Accordingly, if James were to follow through with the visitation set forth in the new parenting
plan, he still would have more interaction with the children than before trial.
Finally, James argues that the trial court erred when it required that his visitation with the
children be supervised. His only claim is that the trial court failed to enter findings supporting
this ruling, citing Shryock, 76 Wn. App. at 852, and Stern, 57 Wn. App. at 711. But although
both Shryock and Stern require findings supporting modification, neither case specifically
discusses supervised visitation.
Further, the evidence supports the trial court' s ruling on supervision. The trial court' s
extensive findings regarding the absence of a relationship between James and the children and
his willful abandonment of them for four years supports the conclusion that it was not in the
children' s best interests to provide James with unsupervised visitation time.
We hold that the trial court did not abuse its discretion when it limited James' s visitation
time and required that the visitation be supervised.
We affirm on all issues except for the attorney fee award, for which we remand to the
trial court to reconsider that award and make findings supporting its decision to award fees, if
appropriate.
MAXA, J.
We concur: