Christine Cuhaciyan v. Ryan Riggins ( 2017 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Parentage of No. 75353-3-1
JACOB CUHACIYAN-RIGGINS, (Consolidated with No. 75650-8-1)
Child(ren).
CHRISTINE CUHACIYAN,
Appellant, UNPUBLISHED OPINION
and
RYAN RIGGINS,
Respondent. FILED: December 18, 2017
SCHINDLER, J. — Christine Cuhaciyan challenges the order modifying the
parenting plan and the order of child support. We remand to include a restriction under
RCW 26.09.191 to ensure the mother's boyfriend does not have unsupervised contact
with the child. We remand the amended child support order to allocate payment for
extraordinary expenses and to designate a residential custodial parent for purposes of
state and federal statutes. In all other respects, we affirm.
2013 Parenting Plan
Christine Cuhaciyan and Ryan Riggins met in 2001 while attending Bellevue
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Community College.' They started dating six months later. When Cuhaciyan was
admitted to Arizona State University, Riggins agreed to move to Arizona. While in
Arizona, Riggins attended school to obtain an electrician certificate and worked as an
electrician. After Cuhaciyan graduated with a degree in psychology in 2010, she
decided to return to Washington.
After moving back to Washington, Cuhaciyan and Riggins agreed to break up.
Six months later, the couple decided to resume their relationship and have a child
together.
Two weeks before the baby was born, Riggins bought a house in Shoreline.
Their son Jacob was born on April 15, 2012. On May 2, Riggins filed an
acknowledgement of paternity.
After the birth of their son, Cuhaciyan suffered from postpartum depression and
was "anxious and stressed out." While at the mall, Cuhaciyan accidentally locked the
four-week-old baby in the car. Cuhaciyan called Riggins. Riggins "got really angry,"
"yelled" at her,•and said she was a "horrible mother." Riggins told Cuhaciyan to call the
police or security. When Cuhaciyan returned home, Riggins apologized, but Cuhaciyan
was still "pretty upset." While Riggins was at work the next day, Cuhaciyan left with the
baby and moved in with her parents.
Riggins retained a lawyer to establish a parenting plan. On August 13,
Cuhaciyan filed an amended petition for a parenting plan and child support. The court
appointed a court-appointed special advocate(CASA)to make recommendations about
the parenting plan.
I Now known as Bellevue College.
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The CASA filed a report on April 29, 2013. The report states that "the primary
issue" is "the parents are not able to communicate because the mother is not
comfortable dealing with the father." The report states the CASA is "'not concerned
that Ryan poses a direct safety threat to Christine.'" "'The best thing for Jacob is to
have both parents communicating and cooperating.'" The CASA concluded there was
no evidence that Riggins' use of "medical marijuana would impair the father's ability to
parent." The CASA recommended Cuhaciyan attend counseling and follow treatment
recommendations. The CASA recommended Riggins obtain a mental health and
domestic violence evaluation.
Ryan Patterson, MA, LMHC, PLLC conducted an evaluation of Riggins and
issued a report on July 27, 2013. Patterson concluded Riggins did not have "a mental
health condition" or present any signs of domestic violence and did not recommend
treatment. The report addressed Riggins' response to Cuhaciyan accidentally locking
the baby in the car.
"There are concerns about the presence of domestic violence, specifically
in regard to the client's [sic] raising his voice at the partner when their son
was locked in a car. ... The client reported he did not use profanity, was
not personally insulting, or made any threats. If this is accurate, it's not
unreasonable to have heightened emotional response, including raising
one's voice or your voice, in an emergency situation. In this case, the
emergency situation was one where a one-month-old infant was locked in
a car. It was after this conversation that the partner took steps to get the
infant out of the car. The client did not present with any other signs or
history of aggressive behavior or domestic violence."
. . . "In my professional opinion, the client's response and actions
are not the result of any social deviance, abusive, or other personality
disorder patterns, all factors that contribute to the patient's control and
response, and include his own family history, where as a child he was
taken from his father and placed in a chaotic, dangerous environment. It
is reasonable the client would be triggered by a similar event and react
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with more emotional intensity than someone who does not have that in
their own history."
On November 12, 2013, the court entered an order establishing a parenting plan
and an order of child support. The parenting plan designates Cuhaciyan as the
residential parent and gives Riggins residential time on Tuesday and Thursday from
4:00 p.m. to 8:00 p.m. and every other weekend from Saturday morning until Sunday
evening. The parents alternate holidays with the child in odd and even years. The
parenting plan requires joint decision making on education decisions, nonemergency
health care, and extracurricular activities. The parenting plan states Riggins should
"undergo screening for power/control issues" and Cuhaciyan should attend "Domestic
Violence Survivors Orientation." But the parenting plan did not include any restrictions
under RCW 26.09.191.
The order of child support required Riggins to pay $400 a month and each parent
to pay 50 percent of educational and extracurricular expenses not covered by the
transfer payment.
The parents followed the parenting plan "without major incident" until the end of
November 2014. Cuhaciyan worked full time and her mother took care of Jacob.
Beginning in approximately September 2014, Jacob started attending preschool/day
care on Monday, Wednesday, and Friday.
November 2014 Iniury to Jacob
On Thanksgiving Day, November 27, Riggins picked up Jacob at about 9:00 a.m.
and went to his father and stepmother's house. Jacob "interacted with" Riggins'family
and friends with "a lot of hugs going around." During Thanksgiving dinner, two-and-a-
half-year-old Jacob sat on Riggins' lap most of the time. Jacob "mentioned" that "a boy
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named Wesley... had bit him" but he never said he was in pain. When Riggins
changed Jacob's diapers, he did not see any bruises.
Riggins returned Jacob to Cuhaciyan's mother at approximately 7:00 p.m.
Cuhaciyan then took Jacob to spend the night with her boyfriend Ryan Best and his
three-year-old son Wesley at Best's house in Lake Stevens.
Unbeknownst to Riggins, Cuhaciyan had been romantically involved with Best for
approximately five months. Cuhaciyan, Jacob, Best, and Wesley spent Thursday night
and all day Friday together. On Saturday, November 29, Cuhaciyan bathed Jacob at
approximately 7:15 a.m. Cuhaciyan said she did not see any bruises on Jacob but she
did see "a couple of red marks" on his back, a bump on his head, and a bite mark.
At 9:00 a.m., Riggins went to Third Place Books in Lake Forest Park to pick up
Jacob. Cuhaciyan, Best, Wesley, and Jacob were together. When Jacob saw Riggins,
he immediately ran over to give him a hug. Riggins said this was the "first time" he saw
Cuhaciyan's "friend." According to Riggins, it appeared there was "some tension going
on" between Cuhaciyan and her friend. When Best refused to shake his hand or
introduce himself, Riggins felt "awkward" and left.
After Riggins and Jacob left, they went to Ross to look at shoes and buy a toy.
Jacob asked Riggins to lift him up to get a box of shoes. Riggins said,"As soon as 1
went to lift him up, he complained of pain under his underarms." Jacob told Riggins that
he had "``owies'"and that "Wesley's daddy hurt him." Riggins asked Jacob to show
him. When Jacob pulled up his shirt, Riggins saw dark bruises. Riggins sent
Cuhaciyan a text message asking her what happened but she "didn't really want to
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address it."
A. At first I didn't think anything of it. And so I set[Jacob] down and
asked him,"Are you all right?" And he said, "Yes." And 1— he
says, "I got hurt. I got owies." And he lifted up his shirt and told me
that Wesley was biting him. And at that time I didn't see the bruises
on the back or the underarm, just the — just some red marks on the
belly. And then within seconds after that he starts telling me this
story of how Wesley's daddy hurt him and "I got owies here and I
got owies here, Daddy." And I was like, "Okay." Well, I didn't really
take him too serious because kids say things. So I asked him,
"Can you show me your owies, you know?" And then he pulled up
his shirt and I saw the bruises and, oh, man, it was — I was
immediately just — I just started crying because I knew something
bad had happened. I could sense something bad was going on
when I picked him up. There was — they were arguing about
something, and I didn't know what to do.
Q. So what did you do next?
A. You know, I didn't know what to do, so 1— the first thing I — I
wanted to do was find out what had really happened.
Q. Okay.
A. I didn't know who Wesley's daddy was, so I asked Christine to tell
me what had happened and that Jacob was reporting that he got
hurt by somebody named Wesley's daddy. And she didn't really
want to address it.
Riggins called his father and stepmother. His stepmother told him to contact the
police. Riggins sent Cuhaciyan a text message telling her he was going to contact the
police and he did not want her friend around Jacob anymore. In response, Cuhaciyan
said Jacob "didn't have any marks" when she dropped him off with Riggins.
Riggins contacted the police. When King County Sheriffs Deputy Steven
Lysathe arrived, Riggins showed him the bruises on Jacob. Deputy Lysathe saw
"bruising around his armpits and back, upper back."
Deputy Lysathe said Riggins was "completely calm, polite, and we actually had a
rather pleasant, I would say 30- to 40-minute conversation regarding the incident he
was reporting. We had a decent rapport." But when Deputy Lysathe told Riggins that
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he had to contact Child Protective Services(CPS),"his demeanor changed instantly."
Riggins began to "hyperventilate and looked a little bewildered and disoriented ... . As
though he were being threatened."
Riggins told Deputy Lysathe to leave the house. Riggins took Jacob, ran into the
kitchen, and began opening drawers or cabinets. Deputy Lysathe ordered Riggins to
come out of the kitchen with his hands up. When Riggins refused, Deputy Lysathe left
and called for backup. The police later convinced Riggins to come out of the house with
Jacob. Meanwhile, Riggins' father and stepmother arrived. Riggins' stepmother went
with Jacob in an ambulance to Seattle Children's Hospital. The police did not arrest
Riggins. Riggins and his father left to go to the hospital.
Dr. Ken Feldman examined Jacob. There were "no fractures or skeletal issues."
Medical staff photographed the bruises on Jacob's back and under his armpits. Dr.
Feldman concluded the "significant bruising" was "non-accidental and abusive in
nature."
When Riggins' stepmother Maria Riggins and hospital social worker Sharla
Semana went with Jacob to get the skeletal exam, Jacob spontaneously told Maria,
"Wesley's daddy hurt him and threw him on the couch." Maria asked Jacob whether it
was"'for fun or for hurt.'" Jacob responded,"'For hurt.'" The hospital released Jacob
to Riggins'father and stepmother.
Cuhaciyan agreed to meet with the police and CPS investigator Nicole Gorman.
Cuhaciyan asked if her parents and her boyfriend Ryan Best could also attend the
meeting. At the meeting, Cuhaciyan was adamant that other than a bite mark and a
small mark on his forehead, she did not see any bruising on Jacob before she brought
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him to the exchange Saturday morning. Cuhaciyan said Jacob bruises easily because
he is a vegetarian.
Christine said she was going to return Jacob to Riggins per their agreed
upon schedule and gave him a bath that morning. She said she did not
see any bruising or injury to Jacob other than a bite mark, which she said
was caused by Best's son, Wesley. Christine said there was also a small
mark on his forehead where he had bumped his head on a chair a few
days earlier. However, she did not see any bruising or marks on his body.
Christine said she and Jacob are vegetarians and as such he bruises
easily.
... Christine said Riggins was "clearly upset" that Best was at the
restaurant. A short time after they left, Christine started getting text
messages from Riggins stating that Jacob had bruises all over him and
told him that "Wesley's dad threw me on a couch." Christine said she had
no idea what he was talking about, but felt this was yet another attempt by
Riggins to force Best out of her life. Christine was adamant that Jacob
was not injured when she took him to meet Riggins and has been in her
care or the care of her parents the entire time.
Christine told the police and CPS that Riggins often throws Jacob in the air and
maybe Riggins caused the bruising.
Christine went on to state that Riggins often "throws Jacob up in the air"
and catches him, and maybe that is where the bruising he saw came from.
However, she again denied that there was any bruising or injury on Jacob
the morning he was returned to Riggins.
Best told the police and CPS that his son Wesley bit Jacob but denied causing
any bruising or injury to Jacob.
[Best] denied the allegations and said he had never handled Jacob in a
rough manner or even spanked him. 1 asked Best if it was possible that
Jacob was about to fall or get hurt in some way and perhaps he grabbed
Jacob a little more firmly to keep him from getting hurt. Best said there
has never been such an occasion and he again denied bruising or injuring
Jacob. 1 asked about the bite mark. Best said his son, Wesley(3 years
old) bit Jacob and was later scolded for the action. Best told me he had
never watched or cared for Jacob alone and that Christine has always
been there with him.
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After the meeting, the police spoke to Dr. Feldman about the injuries and whether
being a vegetarian or throwing the child in the air could cause the bruising. Dr. Feldman
said the bruising was not consistent with being a vegetarian or throwing Jacob in the air
and catching him. Dr. Feldman said the injuries were "consistent with being grabbed
under his armpits and squeezed very hard, most likely from the front." Dr. Feldman
reiterated the bruising was "non-accidental."
Dr. Feldman told me the bruising on Jacob was consistent with being
grabbed under his armpits and squeezed very hard, most likely from the
front. He further stated that the small bruising on Jacob's back may have
been caused by the fingers of whoever squeezed Jacob. 1 asked about
Jacob being vegetarian and if this would cause bruising of this nature or
would allow Jacob to bruise easier than a non-vegetarian. Dr. Feldman
told me that while it's possible for a vegetarian to bruise easily, he would
expect that there would be other bruising on "commonly bruised areas"
such as knees and elbows for a child that age. He went on to state that
the armpits are a fairly protected area and not usually susceptible to
bruising of this nature. He said the bruising appeared non-accidental. 1
also asked if it was possible that the child was thrown into the air and
caught as Christine suggested Ryan Riggins would do to Jacob. Again,
Dr. Feldman stated that the bruising did not appear consistent with that
type of action, but was consistent with the child being picked up and
squeezed very hard.
Dr. Feldman requested CPS establish a safety plan for Jacob. Dr. Feldman said
it was unlikely the father caused the bruising "'based on the time frame.'" On
December 2, 2014, CPS met with the mother, the father, and the grandparents.
Cuhaciyan denied that either she or Best abused the child. CPS decided Jacob should
remain with his paternal grandparents "until it could be determined how Jacob was
injured."
At a hearing on January 6, 2015, the court reinstated the November 12, 2013
parenting plan and entered a temporary protection order. The protection order states
Best "is not allowed near [the] child" and Cuhaciyan "is restrained from allowing Mr.
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Ryan Douglas Best within 100 feet of the minor child Jacob Cuhaciyan Riggins" until
further court order.
Petitions to Modify Parenting Plan
On January 26, 2015, Cuhaciyan filed a petition for a minor modification of the
November 12, 2013 parenting plan and a petition for a domestic violence protection
order(DVPO)against Riggins. Cuhaciyan alleged Riggins engaged in behavior
detrimental to Jacob and sought sole decision making because the parties were unable
to communicate. Cuhaciyan also sought an order requiring Riggins to obtain a mental
health and a domestic violence evaluation and "follow all recommendations, if any."
The court found adequate cause for the minor modification filed by Cuhaciyan
and appointed a CASA. The court denied Cuhaciyan's request for a DVPO. The order
states,"A preponderance of the evidence has not established that there is domestic
violence."
On February 3, 2015, CPS conducted a second safety plan assessment.
Because Cuhaciyan had "'ceased contact with her son and her ex-boyfriend, Ryan
Best,'"CPS decided Jacob could return to the mother's household. CPS closed the
case "with SDM, Structured Decision Management Risk Assessment'Moderate to High'
as to the mother's home, SDM as to 'Moderate' in the father's home."
On February 5, Riggins filed a petition for a major modification of the parenting
plan. Riggins sought sole custody of Jacob. Riggins alleged Cuhaciyan "is incapable of
caring for the child and keeping the child safe."
The mother's household poses a significant detriment to the child's
physical, emotional and mental well-being. It was recently discovered that
the child was physically abused while in the mother's care. Rather than
help determine the reason for the documented injuries, which were
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confirmed by healthcare providers at Seattle's Children's Hospital, the
mother engaged in acts of protecting her boyfriend whom is alleged as the
potential abuser of the child.
The court found adequate cause for the major modification filed by Riggins.
In August, Riggins filed a motion to find Cuhaciyan in contempt for failing to
comply with the residential schedule. Cuhaciyan and Best attended the show cause
hearing on August 19. The court found Cuhaciyan in contempt for intentionally violating
the parenting plan by failing "to bring the child to regularly scheduled visitation on
7.9.15, 7.11.15, and 7.23.15." The court ordered "make up time for the missed
visitation" and ordered Cuhaciyan to pay attorney fees and costs.
Riggins asked Cuhaciyan to bring Jacob's scooter to the exchange on August 20.
When Cuhaciyan and Best arrived at the exchange, the scooter was broken in half.
The CASA filed a report on September 15, 2015. The CASA recommended
pending trial, Cuhaciyan remain the residential parent and that she engage in domestic
violence counseling. The CASA recommended that Riggins spend residential time with
Jacob every Wednesday from 4:00 p.m. to 7:00 p.m., with pickup at day care and drop-
off at Third Place Books, and that he obtain a mental health evaluation and a domestic
violence assessment. The CASA report states that "the mother's boyfriend, Ryan Best,
should continue to be around the child only under the supervision of another adult." The
report states Cuhaciyan "should not permit Ryan Best to be present at exchanges." The
report notes the court found Cuhaciyan in contempt on August 19, 2015 for "failing to
bring the child to regularly scheduled visitation," and as of the date of the report, "the
mother has not provided the father with makeup [sic] time."
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A month before trial, the CASA filed an updated report. The March 4, 2016
report states Riggins complied with the requirement to obtain another mental health
evaluation. According to the updated report, Dr. Kenneth Asher met with Riggins
several times and conducted a thorough evaluation of him. Dr. Asher recommended
Riggins should "'play a more active role,' "including more residential time with his son.
Overall, Dr. Asher expressed that Mr. Riggins is devoted to his son, and
stressed that he wishes to maintain a respectful and constructive
relationship with the mother. The evaluation concluded that, "There is no
psychologically-based reason that he should not play a more active role in
raising his son Jacob. This would include more time in general, overnight
residential visits, and a holiday special day contact extending over two or
more days. It would also include substantial participation in important
decisions affecting Jacob."
The updated report states that Riggins completed a Family Court Services(FCS)
domestic violence risk assessment in December 2015. The reported concern was a
"power and control dynamic."
The concern of domestic violence between the mother and father is not
about physical violence but about the power and control dynamic the
father has engaged in. I am not worried about the physical safety of
Jacob while in the father's care, but the father's blatant lack of respect for
the mother and constant fixation on talking about and attempting to find
fault with her is concerning and could have a negative effect on Jacob.
The CASA recommended Cuhaciyan continue as the designated residential
parent with "sole decision-making authority due to the history of domestic violence and
high conflict." The CASA recommended a phased-in expansion of Riggins' residential
time with Jacob Wednesday after preschool to Thursday morning and every other
weekend.
Trial
The four-day trial on the petition for minor modification and the petition for major
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modification began on April 5, 2016. The FCS social worker and the CASA testified.
Cuhaciyan testified and called Deputy Lysathe and expert witness Nurse Practitioner
Mary Shelkey. Riggins testified and called his stepmother Maria Riggins, Patrick Carey,
and hospital social worker Sharla Semana. The court admitted into evidence over 40
exhibits, including the Seattle Children's Hospital photographs of Jacob's injuries, the
King County Sheriff report, the September 15, 2015 CASA report, the updated March 4,
2016 CASA report, the mental health evaluations of Patterson and Dr. Asher, and
photographs of the broken scooter.
FCS social worker Elly Khosravi testified that she conducted a domestic violence
risk assessment of Riggins. Khosravi testified her definition of "domestic violence" is a
"behavioral definition," not the statutory definition.
Khosravi said there was no verbal or physical violence in the relationship.
Riggins never "verbally threatened to physically harm" Cuhaciyan. Khosravi believed
Riggins showed a pattern of controlling behavior but there were "no other allegations or
information to suggest a pattern of assault."
Khosravi admitted her assessment was based on what Cuhaciyan told her and
the information was not "verified in any way." Khosravi said her "risk assessment didn't
incorporate specifically the impact on the child," she did not perform an assessment of
Cuhaciyan, and she "did not assess for abusive use of conflict." Khosravi also testified
that the incident between Riggins and Deputy Lysathe and ordering Riggins to come out
of the kitchen with his hands up "did not have a major, if any, impact on my
recommendations or my risk assessment, as it pertains to domestic violence."
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Khosravi testified the parties "have high conflict." But she had no knowledge of
any conflict between the parties after entry of the parenting plan "in November of 2013
until November of 2014 when allegations of abuse on behalf of the child were made."
Khosravi testified, "To the best of my knowledge," there were "12 months of conflict-free
interactions in that period of time."
CASA Lauren Melvin testified that both parents have a strong bond with Jacob.
Melvin recommended the parents to use e-mail and only communicate about the child.
Melvin recommended prohibiting both parents from speaking negatively about each
other.
Melvin testified about her review of the police and CPS records and her
conversation with the preschool administrator and CPS social worker Haley Johnston.
Melvin testified the recommendation to prohibit Ryan Best from spending
unsupervised time with Jacob was because there was "not evidence to rule him out."
Melvin explained that it was "beyond the scope of the role of a CASA" to determine
"who or how the bruises came to Jacob."
Our role is to look at records available to us, which in this case included
CPS records and police reports and a request for medical records which
were not obtained. Our role is not to seek experts. We just review
records. And we felt we had adequate records reviewed, and we came to
the same conclusion that the experts came to, which is it was not clear
who or how the bruises came to Jacob.[21
Melvin testified the preschool administrator "never had any previous concerns
about Jacob's health or safety" but described an experience with Best as "not
2 The updated CASA report states:
The interviews summarized below reflect what individuals told me during those interviews
and DO NOT reflect determinations on my part as to the veracity, relevance, or accuracy
of the information therein.
(Boldface and italics omitted.)
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good."
[The administrator] said she did meet[Best] one time and described it as
not good, that he was very upset over — it had something to do with
meals, she couldn't remember all the details, and that was the only —
that's the only time that she is [sic] talked to him, but he was a little
aggressive in that conversation.
Melvin said CPS social worker Johnston said that when she interviewed Jacob,
he"'reported positive things about both homes.'" But Jacob "'did clearly tell Ms.
Johnston that he did not like the mother's boyfriend.'" Jacob "'reported that the
mother's boyfriend "squeezes"'"him.
Cuhaciyan testified that she and Jacob spent the Wednesday night before
Thanksgiving with her boyfriend Ryan Best and his son Wesley. After Jacob spent
Thanksgiving Day with Riggins, Cuhaciyan went to her mother's house to get Jacob and
bring him to Best's house.3
Best, Wesley, Cuhaciyan, and Jacob were together all day Friday. Cuhaciyan
said she spent some time on the computer Friday morning trying to buy a car seat on
Craigslist. Cuhaciyan testified that while she was on the computer, Wesley and Jacob
were with Best in another room. Cuhaciyan testified that she "frequently" saw Best
"throw his son Wesley on the couch" and "throw[]Jacob on the couch," but the children
were "[g]iggling and laughing and playing." Cuhaciyan said Best never caused any
bruising to Jacob or Wesley.
Cuhaciyan testified that on the morning of Saturday, November 29, she gave
Jacob a bath at approximately 7:15 a.m. Cuhaciyan said, "I pick him up and put him in"
the bathtub and afterword, "I pick him up" and "take him out" of the bath and help Jacob
3 Cuhaciyan testified that it was possible Riggins "saw" Best for the first time at the Thanksgiving
exchange on the morning of November 27, 2013 but admitted Riggins "had never met" Best before the
exchange on November 29.
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"dry himself off." Cuhaciyan testified that she saw a "couple of red marks" on his back
but no bruising. Cuhaciyan testified that Jacob "never mentioned bruises" to her while
"going into the bath and being dried off' or while "getting undressed and getting
dressed."
According to Cuhaciyan, she and Best took a break from their relationship after
November 29, 2014 but resumed their relationship in spring 2015. Cuhaciyan said that
after they got back together, Best went with her to the transfers of Jacob to Riggins.
Cuhaciyan admitted Riggins told her he did not want Best at the transfers but she
continued to ask Best to come with her.
Cuhaciyan said that in September 2015, she enrolled at Northwest University in
Kirkland to obtain a master's degree in psychology. Cuhaciyan testified that one of the
reasons she left Riggins was "because 1 don't feel like I had my opinions heard or
valued." Cuhaciyan conceded she told the CASA that there was no physical violence
toward her or Jacob and that she was not concerned Riggins posed a threat to her.
Cuhaciyan testified that she and Riggins and their families love and care for Jacob.
Cuhaciyan agreed it was possible to coparent with Riggins.
Cuhaciyan called Nurse Practitioner Mary Shelkey as an expert witness. Nurse
Shelkey agreed with Dr. Feldman that the bruising under Jacob's armpits was "non-
accidental" and consistent with intentionally grabbing the child on both sides and
squeezing. Nurse Shelkey testified that on a more probable than not basis the bruising
in the photographs "are not accidental."
And again, based on the fact that [the bruises] are seemingly rather
symmetric on either side, but they involve not only the armpit but the
upper arm of the child.
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I will tell you that most of my opinion is based on the symmetry.
Accidental wounds do not occur in this particular type of fashion unless a
child is dropped by someone else.
But Nurse She!key testified that while Dr. Feldman's opinion "would explain the armpit
bruising," it did not explain the linear bruises on the upper arms and back.
According to Nurse She!key, there is "no way anymore anyone believes that you
can actually date a bruise." However, based on the photographs that showed
"yellowing" of the bruising, she was "80 to 90 percent" certain the bruising did not
happen within the 36 hours before Dr. Feldman examined Jacob.
Maria Riggins testified that when Riggins was eight-years-old, CPS placed him
with his father and her. Maria said that on Thanksgiving 2014, there were
approximately 20 people at the house and different family members picked up and
interacted with Jacob, but he never expressed any pain or discomfort.
Maria testified that while walking with Jacob and the hospital social worker to the
skeletal exam, Jacob said that "Wesley's daddy hurt him and threw him in the couch"
and it was"'[f]or hurt.'"
A. So when we went to the skeletal room, we were in there. And then,
when the social worker was walking us down the hall, we —
nobody was saying a word.
Q. Okay.
A. Okay. And then Jacob just started iterating, you know, how
Wesley's daddy hurt him and threw him in the couch. And I said,
"Oh, was that for fun or for hurt?" And he said,"For hurt."
Maria attended a number of the exchanges. Maria described Best as "[a] little
threatening and — and acting kind of pompous and — and flipping me off and different
things like that." Maria testified that Riggins was never hostile or intimidating at the
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exchanges.
The situation got increasingly agitated when Mr. Best was present at the
exchanges, and [Riggins] was fearful that things would escalate. So there
were several times that either myself or John [Riggins] would show up or
be there without somebody knowing to make sure that the exchange
happened, you know, appropriately and that there were no altercations.
Patrick Carey worked for Riggins. Carey attended at least half of the exchanges
with Riggins. Carey said he "didn't really see much extensive conflict until Mr. Best
came into the scene." Carey described Best's behavior as "verbal harassment and
attempts at intimidation . . . of Mr. Riggins." Carey said Riggins never attempted to
intimidate Best or Cuhaciyan. Carey described the "strong bond" between Riggins and
Jacob.
Seattle Children's Hospital social worker Sharla Semana testified that she
overheard Jacob tell Maria that Best threw him on the couch and "it hurt."
A. .. . I heard the patient saying to the grandmother,"Wesley's daddy
tossed me on the couch." And then the grandmother had wanted to
ask the — the patient if it was for fun or if it hurt and — to which I
did hear Jacob say it hurt. And that's all I heard.
Q. Okay. Did you hear Jacob express at any time that he missed his
daddy?
A. I did.
Q. And was that something that he said more than once?
A. Yes.
Riggins testified that when Cuhaciyan locked Jacob in the car, he was very
anxious about his son and later apologized to Cuhaciyan. Riggins testified he did not
know what Cuhaciyan told the CASA, but he never threatened or assaulted Cuhaciyan
in any way. Riggins said he has a medical marijuana prescription card and consumed
marijuana only at night for back pain.
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Riggins testified that when Deputy Lysathe told him the police had to contact
CPS, his own experiences with CPS as a child triggered an anxiety attack.
A. And the reason I was having anxiety is because I've had a brother
and a sister that when I was very young and — half-brother and
sister on my mother's side, I've lost both [of] them as a result of
CPS trying to do their job and place them other places. And
along —
Q. So let's just stop this for a moment.
A. Okay.
Q. So your brother, he was an older half-brother; is that correct?
A. Younger half-brother.
Q. Younger half-brother?
A. Yes.
Q. And there was CPS involvement in your biological mother's home;
is that right?
A. Correct.
Q. And that child was placed with a foster family; is that right?
A. Yes.
Q. And ultimately, through events that happened to him, he died; is
that correct?
A. That's correct.
Riggins testified that CPS placed him in a "shelter" when he was seven-years-old and
then with his father and his stepmother when he was eight-years-old.
Riggins testified that he was proposing a parenting plan with a week on and
week off residential schedule with the transfers on Wednesday at preschool.
At the conclusion of trial, the court reserved ruling but noted, "I think one of the
most striking features of the testimony in this case is how well this child does in the
homes of each parent."
On May 3, 2016, the court entered an order modifying the parenting plan under
RCW 26.09.260(1) and (2) and an order of child support. The order modifying the
parenting plan states, in pertinent part:
The parenting plan/residential schedule should be modified because a
substantial change has occurred in the circumstances of the child, or of
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the nonmoving party, and the modification is necessary to serve the best
interest of the child. This finding is based on the factors below:
The child's environment under the custody decree/parenting
plan/residential schedule is detrimental to the child's physical,
mental or emotional health and the harm likely to be caused by a
change in environment is outweighed by the advantage of a change
to the child.
The following facts, supporting the requested modification, have arisen
since the parenting plan or were unknown to the court at the time of the
parenting plan:
The Mother's household poses a significant detriment to the child's
physical, emotional and mental well-being. The Mother failed to
adequately safeguard the child, resulting in his injuries.
The Mother has engaged in extensive litigation and conflict with the Father
by bringing her boyfriend to exchanges and by interfering with the Father's
visitation with his son.
The court further incorporates here, as if fully set forth herein, the
supplemental findings entered this date.
The order identifies the substantial change in circumstances as follows:
The Mother's household poses a significant detriment to the child's
physical, emotional and mental well-being. It was discovered the child
was physically abused while in the mother's care.
The mother filed a Petition seeking an Order of Protection against the
father, alleging the father failed to safeguard the child and is violent
towards her and the child. All of the Father's residential time was
suspended pending a hearing with James Kahan on January
6, 2015, on the mother's Petition to Establish a Domestic Violence
Protection Order. The matter was continued, but not before
Commissioner Kahan reinstated the November 12, 2013, permanent
parenting plan immediately restoring the Father's residential time with the
child. Commissioner Kahan placed restrictions upon the mother,
prohibiting her from exposing the child to her boyfriend, Ryan Best, and
prohibiting Ryan Best from coming anywhere near the child. The mother
then voluntarily dismissed her Petition for Protection acknowledging there
was not a preponderance of evidence to support the Petition for
Protection.
As a result of the dismissal of the DVPO,the protections expired, leaving
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the child unprotected.
The child is placed at serious risk of harm by the Mother's boyfriend if the
Mother continues to fail to safeguard the child.
Mother is to ensure the boyfriend, Ryan Best, is not left alone with
the child without another adult(not a relative of Ryan Best) who has
been provided a copy of this order, and has read it, being present
with them.
The court incorporated "Supplemental Findings" as part of the order modifying
the parenting plan. The Supplemental Findings state, "The following supplemental facts
. support[]the requested modification":
On November 29, 2014, the Respondent(hereafter referred to as the
father, for purposes of clarity; the Petitioner will be referred to as the
mother. No disrespect is intended) received the child from the mother to
begin his residential time. When lifted by his father under the arms, the
child complained of pain. The father asked, but the mother had no answer
for the child's complaints of pain. (EX.I41 4)
Later that evening the father lifted the child's shirt and observed bruising
under both armpits. The father called the mother and asked about the
origin of the bruising, and she told him she bathed the child that morning
and there was no bruising at that time, or that she did not observe any
bruising.
The Supplemental Findings also state, "It is not disputed that the bruises were
'non-accidental traumatic injury' to the child, and that the bruising occurred prior to the
exchange between the mother and the father on November 29, 2014."
On examination at Seattle Children's Hospital later that evening, pictures
of the bruising were taken. It is not disputed that the bruises were "non-
accidental traumatic injury" to the child, and that the bruising occurred
prior to the exchange between the mother and the father on November 29,
2014.
4 Exhibit.
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The court found that "[d]uring all time relevant to the bruising incident, the mother
has had a relationship with Ryan Best, and she and the child were in the presence of
Ryan Best, hereafter (RB), in the days preceding the discovery of the bruising." The
court found the testimony at trial established that Best"'squeezed'" Jacob.
The testimony submitted at trial established that the child told the CPS
social worker that(RB)"squeezed me." (Testimony of Lauren Melvin and
CASA Lindsey Cameron). The hospital social worker, Sharala [sic]
Semana, testified that she observed the child when he was in the hospital
and heard him say that(RB)threw him on a couch, and "it hurt." Mother
corroborated that(RB)threw (or tossed) the child on a couch "in play."
The court concluded Jacob's bruising occurred while he was in Cuhaciyan's care
and she "knew, or should have known, of the bruising not later than the morning of
November 29, 2014 when the child was bathed by the mother."
The court found by a preponderance of the evidence that Jacob's bruising "was
intentional" and his injuries were done by Best "in anger and not in play." The court
concluded Jacob was "at serious risk of harm" by Best if Cuhaciyan "continues to fail to
safeguard the child."
The court also found by a preponderance of the evidence that Best "intentionally"
broke the scooter.
Mother brought(RB)to exchanges of custody of the child until it became
too disruptive. On one exchange the child's scooter had been carried to
the exchange in the bed of(RB's)truck, in which there was also electrical
equipment used by(RB)in his employment. The scooter was not broken
when it was last previously delivered to the mother, but it was broken
when it was returned to father. See EX. 222. Mother's explanation was
that it was broken sliding around in the bed of(RB's) pickup truck, and
possibly by colliding therein with electrical equipment.
The court did not impose any restrictions under RCW 26.09.191. The parenting
plan adopts a 50/50 alternating week residential schedule. The parenting plan states
22
No. 75353-3-1 (Consol. with No. 75650-8-1)/23
each parent shall make decisions about the daily care of Jacob while he is residing with
that parent. The order of child support required Cuhaciyan to pay $484.13 a month in
child support.
Motions to Reconsider
The court denied Cuhaciyan's motion to reconsider the order modifying the
parenting plan. The order states:
This matter came before the Court on Petitioner's Motion for
Reconsideration. The Court considered and weighed the testimony of all
witnesses at trial, including the Petitioner's expert witness, and the
recommendations of the CASA prior to issuing its decision. The Court
adheres to its previous ruling, and DENIES Petitioner's Motion for Partial
Reconsideration.
On June 8, 2016, Cuhaciyan filed a motion to reconsider the child support order.
Cuhaciyan requested a deviation based on relatively equal incomes and the 50/50
residential schedule. Cuhaciyan asked the court to address childcare expenses.
On June 9, Cuhaciyan filed a notice of appeal of the May 3, 2016 order modifying
the parenting plan, the supplemental findings, the parenting plan, and the order of child
support.
On June 21, the court granted Cuhaciyan's request for a deviation. The court
entered an amended order with $0.00 in child support to correct "what was obviously a
clerical error concerning the transfer payment order." The child support order
worksheets do not address allocation of expenses.
On July 7, the court entered a second amended order of child support. The order
deleted the requirement to exchange financial documents and allocate income tax
exemptions. Neither the child support order nor the worksheets address payment of
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expenses not included in the transfer payment. On August 5, Cuhaciyan filed a notice
of appeal of the July 7, 2016 amended order of child support.6
Order Modifying Parenting Plan
Cuhaciyan contends the court disregarded the strong presumption against
modification of a parenting plan and substantial evidence does not support the order
modifying the parenting plan. The record does not support her argument.
"Custodial changes are viewed as highly disruptive to children, and there is a
strong presumption in favor of custodial continuity and against modification." In re
Marriage of McDole, 122 Wash. 2d 604, 610, 859 P.2d 1239(1993). "Nonetheless, trial
courts are given broad discretion in matters dealing with the welfare of children."
McDole, 122 Wash. 2d at 610.
We review the decision to modify a parenting plan for abuse of discretion. In re
Marriage of Zigler, 154 Wash. App. 803, 808, 226 P.3d 202(2010). Trial courts are given
broad discretion in matters concerning children, and a reviewing court will not disturb a
trial court's disposition of a case involving the rights of custody and visitation unless the
trial court manifestly abused its discretion; that is, the decision is untenable or
unreasonable. McDole, 122 Wash. 2d at 610; Zigler, 154 Wash. App. at 808-09. A court's
decision is manifestly unreasonable or based on untenable grounds if it is outside the
range of acceptable choices given the facts and the applicable legal standard, or if the
factual findings are unsupported by the record. In re Marriage of Fiorito, 112 Wash. App.
657, 664, 50 P.3d 298(2002).
We will uphold the trial court's findings of fact if supported by substantial
evidence. McDole, 122 Wash. 2d at 610.6 Substantial evidence is sufficient evidence to
5 We consolidated the appeals.
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No. 75353-3-1 (Consol. with No. 75650-8-1)/25
persuade the fact finder that a particular finding is true. In re Marriage of Drlik, 121 Wn.
App. 269, 274-75, 87 P.3d 1192(2004). We review the evidence and reasonable
inferences therefrom in favor of the respondent. Zigler, 154 Wash. App. at 812.
"So long as substantial evidence supports the finding, it does not matter that
other evidence may contradict it." In re Marriage of Burrill, 113 Wash. App. 863, 868, 56
P.3d 993(2002). Unchallenged findings are also verities on appeal. In re Marriage of
Brewer, 137 Wash. 2d 756, 766, 976 P.2d 102(1999).
This court does not review the trial court's credibility determinations, nor can it
weigh conflicting evidence. In re Marriage of Meredith, 148 Wash. App. 887, 891 n.1, 201
P.3d 1056 (2009). Because of the unique opportunity to observe the parties, this court
is extremely reluctant to disturb the trial court's findings. In re Parentage of Schroeder,
106 Wash. App. 343, 349, 22 P.3d 1280(2001).
Modification of a parenting plan is prescribed by RCW 26.09.260 and compliance
with the statute is mandatory. In re Marriage of Tomsovic, 118 Wash. App. 96, 103, 74
P.3d 692(2003). A court may modify a parenting plan only if there is a substantial
change in the circumstances of the child and the modification is in the best interest and
necessary to serve the best interests of the child. RCW 26.09.260(1). These findings
must be based on "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." RCW 26.09.260(1).
Here, the court modified the parenting plan under RCW 26.09.260(1) and (2).
RCW 26.09.260 provides, in pertinent part:
(1) Except as otherwise provided in subsection (4), (5),(6),(8), and (10)
of this section, the court shall not modify a prior custody decree or a
6A trial court's findings of fact are verities on appeal if they are supported by substantial
evidence. In re Marriage of Chandola, 180 Wash. 2d 632, 642, 327 P.3d 644 (2014).
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No. 75353-3-1 (Consol. with No. 75650-8-1)/26
parenting plan unless it finds, upon the basis of facts that have arisen
since the prior decree or plan or that were unknown to the court at the
time of the prior decree or plan, that a substantial change has occurred in
the circumstances of the child or the nonmoving party and that the
modification is in the best interest of the child and is necessary to serve
the best interests of the child. .. .
(2) In applying these standards, the court shall retain the
residential schedule established by the decree or parenting plan unless:
(c) The child's present environment is detrimental to the child's
physical, mental, or emotional health and the harm likely to be caused by
a change of environment is outweighed by the advantage of a change to
the child.
Cuhaciyan concedes the evidence supports the finding that the bruising on Jacob
was intentional. Cuhaciyan argues substantial evidence does not support finding that
the bruising occurred while the child was in her care or that Ryan Best intentionally
injured Jacob in anger. Cuhaciyan asserts the court impermissibly relied on hearsay
and speculation. Cuhaciyan points to the hearsay evidence of the statements in the
police reports, the hearsay testimony of the CASA, and the hearsay statements of Dr.
Feldman. Riggins asserts Cuhaciyan waived her right to assert a hearsay objection for
the first time on appeal.
It is well settled that objections to evidence cannot be raised for the first time on
appeal. Sepich v. Dep't of Labor & Indus., 75 Wash. 2d 312, 319,450 P.2d 940(1969).
"'Error may not be predicated upon a ruling which admits. . . evidence unless ... a
timely objection or motion to strike is made, stating the specific ground of objection, if
the specific ground was not apparent from the context.'" Zigler, 154 Wash. App. at 8107
(quoting ER 103(a)(1)).
Here, Cuhaciyan introduced into evidence the police reports as exhibit 4.
Without objection, the court also admitted the CASA reports and the CASA testified
7 Alterations in original.
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No. 75353-3-1 (Consol. with No. 75650-8-1)/27
extensively about the contents of the reports, including CPS records and her
conversation with CPS social worker Haley Johnston.
During opening statement, Cuhaciyan's attorney objected to the statements of
Dr. Feldman as hearsay. But during the trial, Cuhaciyan did not object to testimony
about Dr. Feldman's statements or his opinion. Instead, Cuhaciyan specifically asked
her expert witness Nurse Shelkey about Dr. Feldman's opinion and whether Nurse
Shelkey agreed with his description of how the injuries to Jacob occurred. Cuhaciyan
also did not raise any objection to the testimony about what Jacob told CPS social
worker Johnston or the testimony of Maria Riggins or Seattle Children's Hospital social
worker Semana about what Jacob said at the hospital. We decline to exercise our
discretion to consider Cuhaciyan's objection raised for the first time on appeal to the
reports and testimony.
The record supports the finding that Cuhaciyan's household "poses a significant
detriment to the child's physical, emotional and mental well-being" because "the child
was physically abused while in the mother's care" and Best intentionally inflicted the
bruises on Jacob in anger. The testimony supports finding that the injuries to Jacob
occurred while he was with Cuhaciyan and Best. Jacob was with Cuhaciyan and Best
from approximately 7:00 p.m. Thursday to 9:00 a.m. Saturday, or 38 hours. Jacob told
Riggins that Best hurt him and complained of pain under his arms.
Riggins' stepmother Maria testified that while at the hospital, Jacob
spontaneously told her that "Wesley's daddy hurt him and threw him in the couch."
Hospital social worker Semana testified that she overheard Jacob tell Riggins'
stepmother that"'Wesley's daddy tossed me on the couch'"and "'it hurt.'" CPS social
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No. 75353-3-1 (Consol. with No. 75650-8-1)/28
worker Johnston reported that Jacob said he"'did not like the mother's boyfriend'"and
"'the mother's boyfriend "squeezes me."'" The evidence established that Dr. Feldman
concluded the bruising was "consistent with being grabbed under his armpits and
squeezed very hard." Cuhaciyan's expert witness Nurse Shelkey agreed with Dr.
Feldman that the bruising under Jacob's armpits was "not accidental" and was
consistent with intentionally grabbing the child on both sides and squeezing. The police
report states Jacob told Riggins that Wesley's father "picked him up, shook him and
threw him onto a couch."
Substantial evidence also supports the finding that Cuhaciyan knew or should
have known about the bruising the morning of November 29, 2014 when she gave
Jacob a bath. The photographs admitted into evidence show extensive bruising and
discoloration around and under Jacob's armpits. Cuhaciyan testified that she lifted
Jacob into and out of the bathtub. Cuhaciyan testified she did not see any bruising and
Jacob did not say he was hurt when she lifted him into and out of the bathtub. But
Riggins testified that later that morning when he lifted Jacob up under his arms, Jacob
was in pain. And when Jacob lifted his shirt, Riggins could see the extensive bruising
under his arms.
Cuhaciyan contends the court erred in concluding the mother's household is
detrimental to Jacob's physical, emotional, and mental well being. But the court
explicitly found the mother's household poses a significant risk of harm because "the
child was physically abused while in the mother's care" by her boyfriend. The court
further found a "serious risk of harm . . . if the Mother continues to fail to safeguard the
child." The evidence showed Cuhaciyan lived with her parents but she and Jacob spent
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No. 75353-3-1 (Consol. with No. 75650-8-1)/29
a lot of time with Best at his house. The record supports'finding Jacob was not at risk
while Cuhaciyan's mother took care of Jacob but while with Best, Cuhaciyan did not
safeguard the child.
Cuhaciyan also claims substantial evidence does not support finding that Best
intentionally broke Jacob's scooter. The Supplemental Findings state, "[T]he breaking
of the scooter(EX. 222) could not have been done by sliding in the bed of a pick-up
truck, but was done intentionally, by [Best]." There is no dispute the scooter was broken
when Cuhaciyan and Best delivered the scooter on August 20. Cuhaciyan testified the
scooter broke accidentally by sliding around in the back of the truck with the electrical
equipment. But the photographs of the scooter clearly show is was broken in half. The
undisputed evidence established Best attended the court hearing the day before when
Cuhaciyan was found in contempt of the parenting plan and the court ordered her to
make up the visitation time and pay attorney fees and costs. The evidence showed also
Best was intimidating and harassing at the exchanges. Substantial evidence supports
the finding that Best intentionally broke the scooter.
Cuhaciyan contends substantial evidence does not support finding that she
engaged in extensive litigation and conflict with Riggins. The court found the "Mother
has engaged in extensive litigation and conflict with the Father by bringing her boyfriend
to exchanges and by interfering with the Father's visitation with his son."
Substantial evidence supports finding Cuhaciyan engaged in extensive litigation
and conflict by insisting on bringing Best to exchanges and interfering with Riggins'
visitation. There is no dispute that the court found Cuhaciyan in contempt of the
parenting plan for failing to bring Jacob to regularly scheduled visits with Riggins. The
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evidence showed the exchanges of Jacob went smoothly until discovery of the bruising
on Jacob. Despite Riggins' request not to bring Best to the exchanges, Cuhaciyan
continued to do so throughout the spring and summer of 2015. Riggins' stepmother
testified that the exchanges in the spring and summer of 2015 "got increasingly agitated
when Mr. Best was present." And the CASA and CPS recommended Best should not
attend the exchanges.
Residential Plan
The court concluded a 50/50 residential plan was in the best interests of the
child. Cuhaciyan argues the decision was manifestly unreasonable because the court
ignored the CASA recommendation and "inexplicably" ordered a 50/50 parenting plan.
First, it is well established that a trial judge is not bound by the parenting plan
recommendation of the CASA. In re Custody of Brown, 153 Wash. 2d 646, 655-56, 105
P.3d 991 (2005). Second, the argument that "no one requested or recommended" a
50/50 parenting plan is without merit.
The record establishes that Riggins testified that he was requesting a 50/50
parenting plan. Without objection, Riggins introduced a proposed parenting plan that
gives each parent equal time with the child.
Q. (By [Riggins' attorney]) Mr. Riggins, you've proposed a parenting
plan that would be week on/week off with Ms. Cuhaciyan; is that
correct?
A. That's correct.
Citing In re'Marriage of Rossmiller, 112 Wash. App. 304, 309,48 P.3d 377(2002),
Cuhaciyan argues the court abused its discretion by adopting a 50/50 residential plan
and joint decision making because the court did not consider the statutory requirement
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No. 75353-3-1 (Consol. with No. 75650-8-1)/31
to find "[t]he parties have a satisfactory history of cooperation and shared performance
of parenting functions" under former RCW 26.09.187(3)(b)(ii)(B)(1989).
Cuhaciyan's reliance.on Rossmiller and former RCW 26.09.187(3)(b)(ii)(B) is
without merit. In 2007, the legislature deleted the provision in RCW 26.09.187(3) that
required courts to consider whether "[t]he parties have a satisfactory history of
cooperation and shared performance of parenting functions" in determining residential
provisions. LAWS OF 2007, ch. 496,§ 603.
RCW 26.09.187(3)(b) allows the court to order a child to frequently alternate his
residence between the parties' households if it is in the best interests of the child. RCW
26.09.187(3)(b) states:
Where the limitations of RCW 26.09.191 are not dispositive, the court may
order that a child frequently alternate his or her residence between the
households of the parents for brief and substantially equal intervals of time
if such provision is in the best interests of the child. In determining
whether such an arrangement is in the best interests of the child, the court
may consider the parties['] geographic proximity to the extent necessary to
ensure the ability to share performance of the parenting functions.
Here, the court found that it was in Jacob's best interests to spend alternating weeks
with Cuhaciyan and Riggins and the parties could make joint decisions about Jacob's
health and education. Dr. Asher recommended Riggins spend more time with Jacob.
The evidence shows that before the injuries to Jacob in late November 2014 and after
Best stopped attending the exchanges in September 2015, there was no conflict. We
conclude the court's decision to modify the parenting plan and adopt a 50/50 schedule
for residential time was not a manifest abuse of discretion.
The "Order Re Modification/Adjustment of the Parenting Plan" prohibits
Cuhaciyan from leaving Jacob alone with Best. But that prohibition is not in the
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"Parenting Plan Final Order." We remand to expressly include a RCW 26.09.191
restriction prohibiting Best from having any unsupervised contact with Jacob.
RCW 26.09.285 requires designation of a custodial residential parent for
purposes of state and federal law. RCW 26.09.285 states, in pertinent part:
Solely for the purposes of all other state and federal statutes which require
a designation or determination of custody, a parenting plan shall designate
the parent with whom the child is scheduled to reside a majority of the
time as the custodian of the child. However, this designation shall not
affect either parent's rights and responsibilities under the parenting plan.
On remand, the court shall designate one of the parties as the custodial parent for
purposes of state and federal law under RCW 26.09.285.
Child Support Order
Cuhaciyan contends the court abused its discretion by not allocating
extraordinary childcare expenses in the amended child support order dated June 21,
2016. RCW 26.19.080 requires that extraordinary expenses "shall be shared by the
parents in the same proportion as the basic child support obligation." Because the
amended child support worksheets do not include the amount each party must pay for
childcare and other expenses, we remand.
Cuhaciyan also contends the court erred by entering the July 7, 2016 "Amended
Order of Child Support Final Order" after we accepted review. As a general rule, a trial
court has the authority to hear and determine postjudgment motions on cases before an
appellate court. RAP 7.2(e). But if the determination changes a decision being
reviewed by an appellate court, then the trial court must obtain permission from the
appellate court before formally entering a decision. RAP 7.2(e); Metro. Park Dist. Of
Tacoma v. Griffith, 106 Wash. 2d 425, 439, 723 P.2d 1093(1986). Because the trial court
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did not obtain permission before entering the July 7, 2016 Amended Order of Child
Support and the record does not show why the court entered the July 7, 2016 order, we
address only the amended child support order entered in June 2016. Nonetheless, we
note that the July 7, 2016 child support worksheets also do not allocate extraordinary
child support expenses.
Conclusion
We affirm the decision to modify the parenting plan but remand to impose
restrictions under RCW 26.09.191 to prevent Ryan Best from having any unsupervised
contact with Jacob and to designate a custodial residential parent for purposes of state
and federal law under RCW 26.09.285. We remand the child support order to allocate
uninsured medical and extraordinary expenses.8
WE CONCUR:
8 We decline to award Riggins attorney fees on appeal. A party must devote a section of the brief
to the fee request and requires more than a bald request for attorney fees. RAP 18.1(b); Thweatt v.
Hommel,67 Wn. App. 135, 148, 834 P.2d 1058(1992).
33