In Re: M.l., Garrett Lail v. Kimberly Briggs ( 2013 )

TEED
COURT OF APPEALS
DIVISION 11
2013 SEP 10 Ail 8: 08
ST TON.
Y
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
IN RE M.L., No. 42698 -6 -II
GARRETT LAIL,
Respondent
v.
KIMBERLY BRIGGS, UNPUBLISHED OPINION
Appellant.
JOHANSON, A.C. J. — Kimberly Briggs appeals the superior court order denying her
petition to relocate her child from Hoquiam to Lacey and temporarily changing the child' s
primary residential parent from Briggs to the father, pending a hearing on the father' s petition for
modification. Briggs argues that the trial court failed to consider all of the relocation factors
required under RCW 26. 09. 520 and asks that we remand for further proceedings before a new
judge.' Because the trial court failed to address all of the required factors and the record reflects
that the trial court would have substantial difficulty overlooking its previously stated views and
1
Briggs also advances several additional arguments. Because we remand this case for a new
hearing before a new judge, we do not reach these issues, but we urge the trial court on remand
to carefully apply the law in considering how to apply the statutory presumption and to carefully
address every required statutory factor.
No. 42698 -6 -II
findings on remand, we reverse and remand this matter for further proceedings before a different
judge.
FACTS
On June 2, 2011, Briggs filed a notice of intent to relocate and a motion for a temporary
order permitting her to relocate ML from Hoquiam to the Lacey area for employment purposes
after her commuting expenses had substantially increased. 2 Briggs also proposed a modified
parenting schedule in which she alleged she had been the child' s de facto primary residential
parent based on the current arrangements the parties had made to accommodate Briggs' s work
and commuting schedule. The father, Garrett Lail, objected to the relocation and filed a petition
to modify the parenting plan. Lail requested that the trial court designate him as ML' s primary
residential parent and allow Briggs visitation.
Briggs and Lail were the only witnesses to testify at the June 22 hearing on their motions.
After hearing this testimony, the trial court orally ( 1) denied Briggs' s relocation request, ( 2)
temporarily" changed the primary residential parent to Lail, (3) ordered Briggs to pay Lail $50 a
month in child support, ( 4) advised the parties that it would reconsider the relocation issue in a
year, and ( 5) directed the parties to develop a " liberal" visitation schedule: Excerpt Verbatim
Report of Proceedings ( VRP) ( Court' s Ruling) ( June 22, 2011) at 3 - 6. The court stated that it
was going to ensure that "[ t]he winner is going to be the kid, because when his mother is fully
experiencing her intellectual abilities, she' s fully gained her full employment what she ought to
2
Briggs also expressed an interest in furthering her education; the court also questioned her
about her finances and she admitted to having " fairly extensive credit card debt." Verbatim
Report of Proceedings ( VRP) ( June 22, 2011) at 35.
2
No. 42698 -6 -II
be doing," she would not have the same financial concerns and both she and ML would " be a lot
happier." Excerpt VRP ( Court' s Ruling) ( June 22,. 2011) at 6.
Five days later, the parties appeared at a hearing and told the trial court that they had been
unable to agree on a new visitation schedule as ordered. Briggs asked for additional time to
retain a lawyer to help her negotiate the new schedule.
Although the trial court granted Briggs time to obtain counsel, it reiterated that ( 1) it had -
taken an " extraordinary step by issuing a temporary order," ( 2) it had done so specifically to give
Briggs an opportunity to improve her situation before making a final decision on a final
parenting plan, and ( 3) it did not intend to change its mind on the relocation issue. VRP ( June
27, 2011) at 2 -3. It also stated that if Briggs returned with a lawyer and was still unable to agree
3.
to a visitation, the court would enter a permanent parenting plan.
By the August 8 hearing, the parties had not yet agreed on visitation. Briggs was now
represented by counsel. The trial court expressed its disappointment only with Briggs,
emphasizing that it had originally wanted to give her an opportunity to " get her education" and
get her finances straight" while maintaining her relationship with ML because this would be in
3
The trial court set the next hearing for July 26, but it appears that this hearing was continued. It
also appears that the trial court held another hearing on August 1, at which it ordered the parties
to see if they could " come to a complete agreement as to all the terms of [the] parenting plan
based on the Court' s ruling at trial." VRP ( Aug. 8, 2011) at 2. The appellate record does not
contain a transcript from the August 1 hearing.
3
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4
both her and the child' s best interest. VRP (Aug. 8, 2011) at 8. The trial court then ruled:
I' m going to vacate all of my parts of the ruling with the exception of the fact that
the relocation is denied. I will go with the temporary placement of the father for
educational purposes. We' ll get a hearing and we' re going to go right back to
square one regarding —I' m also vacating the part about reviewing it in one year.
VRP (Aug. 8, 2011) at 11.
When Briggs' s counsel asked the trial court what the deadline was for the submission of
the agreed order, the trial court responded:
This kid is going to school in September and he' s going to school in the same
school he' s been in with his buddies. Now you figure it out. And there' s a court
administrator out there. If you people don' t like what I did, that' s fine. You just
go right ahead and appeal me because I want to tell a higher court right now what
is important is the best interest of this child. And my observations at this point in
time there' s one person in this courtroom who is a parent whose put the best
interest of the child forward and it' s the male member.
VRP ( Aug. 8, 2011) at 12 ( emphasis added).
That same day, the trial court filed a handwritten order ( 1) denying Briggs' s relocation
request " for reasons stated orally on the record," ( 2) temporarily designating Lail as the primary
residential parent pending a September 15 trial on Lail' s motion to modify the parenting plan, (3)
vacating all other orders from the June 22 hearing, and ( 4) establishing Briggs' s visitation.
Briggs moved to vacate the trial court' s August 8 order.
4
In a July 28 declaration, Briggs informed the trial court that she had filed bankruptcy " on her
credit card debt" because the court' s ruling changing ML' s primary parent to the father had ( 1)
increased her housing costs, ( 2) ended Lail' s child support payments to her, ( 3) required her to
pay $ 50 a month in support to Lail, and ( 4) increased her gas expenses. Clerk' s Papers ( CP) at
72.
4
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When the court reconvened on September 15, Briggs' s counsel asked the trial court to
reconsider its denial of Briggs' s relocation motion, asserting that the trial court had failed to
consider the statutory presumption in favor of allowing the relocation; Briggs' s counsel also
argued that the trial court should also deny Lail' s request for modification because Lail had
failed to show a substantial change in circumstances.
In a lengthy colloquy, in which it attempted to " clarify for the Court of Appeals" why the
parties were in court that day, the court stated:
Now, will I reconsider relocation? No. For the very reasons I' ve just
given you. It works to the extreme detriment economically of both of these
parties. It works of [sic] depriving this child of his peers in both school and his
education interruption, it interferes with his relationships with the family
members that he has incurred [ sic] living in this community at this point in time.
It places the child in a very tenuous situation with the mother' s employment as it
is which, again, goes to the daycare issue, and it also interferes with the mother' s
ability to obtain her education to better herself to better the child. So is a
modification proceeding appropriate? Yes, it is. Is the relocation denial
appropriate? Yes, it is.
VRP ( Sept. 15, 2011) at 8, 12 -13. The court then stated that it intended to proceed to a trial on
the modification issue.
The trial court entered a handwritten order finding " adequate cause" to hear Lail' s
request for major modification of the parenting plan and placing ML with Lail subject to
visitation by Briggs. Clerk' s Papers ( CP) at 98. The trial court also entered an " Order on
Objection to Relocation/ Modification of Custody Decree /Parenting Plan/ Residential Schedule,"
denying Briggs' s motion for reconsideration; it reserved its final decision on Lail' s modification
5
No. 42698 -6 -II
5
petition for later. CP at 102 -03. It then made written findings on the relocation issue. The
factors that it said " does not apply" are as follows:
2. 3. 4a The objecting party or parent is not subject to limitations under RCW
26. 09191.
Does not apply.
2. 3. 4b The following parents or persons entitled to residential time with the child
is subject to limitations under RCW 26. 09. 191
Does not apply.
2. 3. 7 The quality of life, resources, and opportunities available to the child and
to the relocating party in the current and proposed geographic locations.
Does not apply.
2. 3. 8 The availability of alternative arrangements to foster and continue the
child' s relationship with and access to the other parent.
Does not apply.
2. 3. 9 Alternatives to relocation and whether it is feasible and desirable for the
other party to relocate.
Does not apply.
CP 101 - 02 ( emphasis added). Briggs filed a timely notice of appeal of the September 15 order.
5
According to Lail, the trial court set a hearing on the modification petition for December 2011,
but it struck the hearing when Briggs filed her notice of appeal and the hearing has yet to occur.
6
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ANALYSIS
Briggs argues that the trial court failed to address the required statutory relocation factors
set out in RCW 26. 09. 520 and that this matter should be remanded to a different trial court
judge. 6 We agree.
I. ADEQUACY OF SEPTEMBER 15 ORDER
A. Standard of Review; Consideration of Statutory Factors Required
We review a trial court' s decision on a relocation issue for abuse of discretion. In re
Marriage of Horner, 151 Wn.2d 884, 893, 93 P. 3d 124 ( 2004). The trial court abuses its
discretion "`` when the trial court' s decision is manifestly unreasonable or based upon untenable
grounds. "' Horner, 151 Wn.2d at 893 ( quoting State v. Brown, 132 Wn.2d 529, 572, 940 P. 2d
543 ( 1997), cent denied, 523 U.S. 1007 ( 1998)).
6
As a preliminary matter, Briggs argues that the trial court' s June 22 oral ruling and the August
8 written order are inadequate because the trial court failed to address the statutory relocation
factors set out in RCW 26. 09. 520. She also argues that the trial court erred in entering the
September 15 order denying relocation because that order did not " reflect" the trial court' s June
22 oral ruling. Br. of Appellant 3. A trial court' s oral decision has no binding or final effect
unless it is formally incorporated into findings of fact, conclusions of law, and judgment. Little
v. King, 160 Wn.2d 696, 726, 161 P. 3d 345 ( 2007) ( citing Ferree v. Doric Co., 62 Wn.2d 561,
567, 383 P. 2d 900 ( 1963)). " Findings and conclusions are always subject to revision until they
are actually signed and entered." Little, 160 Wn.2d at 726 ( citing DGHI Enters. V. Pac. Cities,
Inc., 137 Wn.2d 933, 977 P. 2d 1231 ( 1999). Thus, whether the trial court expressly addressed
the eleven statutory factors in its June 22 oral ruling or whether this ruling is consistent with the
subsequent written order is irrelevant. Additionally, because the trial court' s more detailed
September 15 order on Briggs' s motion to reconsider superseded the August 8 ruling, the August
8 ruling is also irrelevant.
7
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When making a determination about a child' s relocation, the trial court must consider
every relevant statutory factor stated in RCW 26. 09. 520. Horner, 151 Wn.2d at 894. As to the
trial court' s findings:
When [ the reviewing] court considers whether a trial court abused its
discretion in failing to document its consideration of the child relocation factors,
we will ask two questions. Did the trial court enter specific findings of fact on
each [ statutory] factor? If not, was substantial evidence presented on each factor,
and do the trial court' s findings of fact and oral articulations reflect that it
considered each factor?Only with such written documentation or oral
articulations can we be certain that the trial court properly considered the interests
of the child and the relocating person within the context of the competing interests
and circumstances required by the [ Washington child relocation act].
Horner, 151 Wn.2d at 896 ( emphasis added). If the trial court fails to specifically address each
factor, the record does not support that substantial evidence was presented on each relocation
factor, and the trial court' s written findings and oral ruling do not reflect that it considered each
factor, " we cannot review the trial court decision because its basis is unclear," and we must
remand to the trial court for entry of specific findings of fact or oral articulations of the child
relocation factors." Horner, 151 Wn.2d at 897 ( citing In re Parentage of Jannot, 149 Wn.2d
123, 65 P. 3d 664 ( 2003)).
B. September 15 Order Fails to Address Each Statutory Factor
The trial court' s September 15 order addresses factors 1, 2, 3, 5, 6, and 10. 7 But, rather
than address factors 4, 7, 8, and 9, it states that these factors also " do[ ] not apply." CP at 101-
7 The order does not address factor 11, but that factor does not apply here because the trial court
was not issuing a temporary order. RCW 26. 09. 520( 11).
8
No. 42698 -6 -II
02. Lail asserts that the written findings did, in some way, address " each of the first ten statutory
relocation factors." Br. of Resp' t at 7. We disagree.
The trial court was required to consider all factors including factors 7, 8, and 98 but it
failed to do so stating that these factors " do[ ] not apply." CP at 101 - 02. This language could
mean any number of things: that the trial court did not think it had to address these factors, that
there was no evidence presented related to these factors, or that the trial court did not ultimately
give any weight to these factors. Accordingly, we must examine whether the parties presented
substantial evidence for factors 7, 8, and 9, 9 and whether the trial court' s oral articulations reflect
that it considered these factors.'°
Factor 7 required the trial court to consider "[ t]he quality of life, resources, and
opportunities available to the child and to the relocating party in the current and proposed
geographic locations." RCW 26. 09. 520( 7). Because other factors address financial issues
8 Factor 4 required the trial court to consider "[ w]hether either parent or a person entitled to
residential time with the child is subject to limitations under RCW 26. 09. 191," which restricts a
parent' s time based on conduct such as willful abandonment, abuse, or a history of domestic
violence, assault, or sexual assault. RCW 26. 09. 520( 4). In findings 2. 3. 4a and 2. 3. 4b, the trial
court stated that this factor does not apply. Because there were no RCW 26. 09. 191 limitations in
the original parenting plan, the trial court could have meant that this factor was neutral or that it
did not apply because no such restrictions existed, and it was reasonable for the trial court to use
the language it did in findings 2. 3. 4a and 2. 3. 4b.
9 Although Briggs does not challenge the finding related to factor 9, see Br. of Appellant at 25,
we address this factor to clarify that the trial court must consider it on remand.
1°
Although Lail concedes " that the trial judge did not, at any of the several hearings, walk
through a point by point discussion of the eleven statutory relocation factors," he argues that " the
record [ was not] so deficient as to justify either a finding of abuse of judicial discretion, or to
otherwise call for reversal of the trial court." Br. of Resp' t at 14. As discussed below, we
disagree because the record does not show any consideration of several of the factors.
9
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factor 10), the child' s family and social connections ( factor 1), and the child' s education ( factor
6), this factor requires the trial court to evaluate what other types of resources are available in
each location or how the child' s lifestyle would be different in each location, including things
like where the child would live, how much time the child would spend in daycare depending on
whether the relocation was granted, the child' s opportunities to be involved in extra -curricular
activities in either location, and other facts that contribute to a child' s lifestyle. Although there
was some evidence about the child care resources available in the Olympia area ( a YMCA after -
school program and summer camp), and in Cosmopolis ( Lail' s neighbor), there was very little
evidence presented about this factor. There was no testimony about the cultural, physical, or
social resources in each location; nor was there any testimony about the child' s potential living
situations. Furthermore, the trial court' s oral and written statements do not demonstrate that the
11
trial court considered this factor.
Factor 8 requires the trial court to consider "[ t]he availability of alternative arrangements
to foster and continue the child' s relationship with and access to the other parent." RCW
26. 09. 520( 8). There is nothing in the record about this factor, and the trial court at no time
appeared to consider this factor it its oral rulings.
Finally, factor 9 requires the trial court to consider "[ t]he alternatives to relocation and
whether it is feasible and desirable for the other party to relocate also." RCW 26. 09. 520( 9).
11
We acknowledge that the trial court considered the effect of ML residing in Olympia with his
mother on her days off, but we note that the trial court considered this after it denied relocation
and required that ML remain in his current school. The trial court did not articulate anything
suggesting that it considered what ML' s days would be like in Olympia if it had allowed the
relocation.
10
No. 42698 -6 -II
There is some evidence in the record relevant to this factor: ( 1) Briggs testified that she did not
believe she could find similar employment in Grays Harbor County, and ( 2) Lail was positioned
to take over the business in which he worked when his employer retired. This evidence could
show that Briggs' s alternatives to relocation were limited and that it might not be feasible or
desirable for Lail to also relocate. But the trial court' s oral and written rulings do not suggest
that the trial court considered this factor.
Thus, Briggs has shown that the trial court failed to address each of the required statutory
factors. 12 Accordingly, we must remand to the trial court for entry of specific findings of fact or
oral articulations of each of the relevant relocation factors. See Horner, 151 Wn.2d at 897 n. 11.
II. REQUEST FOR REMAND TO A DIFFERENT JUDGE
Briggs also argues that the trial court' s " words and conduct" throughout the proceedings
demonstrated bias or prejudice and justifies remand to a new judge. Br. of Appellant at 4 ( Issue
3). We hold that remand to a different trial court judge is appropriate here.
We first must determine whether the trial court has shown personal bias. Ellis v. U.S.
Dist. Court, 356 F. 3d 1198, . 1211 ( 9th Cir. 2004). If not, we consider whether unusual
circumstances support reassignment. Ellis, 356 F. 3d at 1211. We may find unusual
circumstances if it appears that the trial court would have substantial difficulty overlooking its
12
We note that the trial court repeatedly stated that it was basing its decision on the best interest
of the child. It is clear that the trial court was focused on ML' s best interests, but the trial court
was required to consider whether or not to allow the relocation " based on an overall
consideration of the RCW 26. 09. 520 factors and the child' s best interests." In re Marriage of
Wehr, 165 Wn. App. 610, 612, 267 P. 3d 1045 ( 2011). Thus, the court' s reliance on the child' s
best interest does not relieve the trial court of its responsibility to consider the statutory
relocation factors.
11
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previously stated views and findings or that reassignment would preserve the appearance of
justice. Ellis, 356 F. 3d at 1211. We also consider "`` whether reassignment would entail waste
and duplication out of proportion to any gain in preserving the appearance of fairness. ' Ellis,
356 F. 3d at 1211 ( quoting United Nat' l Ins. Co. v. R &D Latex Corp., 242 F. 3d 1102, 1118 -19
9th Cir. 2001)).
The record shows that the trial court was not pleased with Briggs when she and Lail were
unable to come to agreement on a reasonable visitation schedule after the trial court denied
relocation or when she moved to reconsider the trial court' s ruling on the relocation issue, 13 but
we cannot say that the trial court necessarily exhibited any particular bias. That said, the record
very strongly suggests that the trial court would have difficulty overlooking its previously stated
views and findings, so remanding this matter to a different judge would preserve the appearance
of justice in this case. Although remand to a different judge will require a new hearing on the
relocation matter, our remand would essentially require a new hearing anyway— particularly in
light of the fact that nearly two years have passed since the trial court denied Briggs' s relocation;
thus, the reassignment would not entail a disproportional amount of additional resources.
Accordingly, .we vacate the trial court' s September 15 order denying relocation and
remand the relocation issue to a new trial court judge. Because the trial court' s handwritten
September 15 order temporary placing ML with Lail as primary residential parent prejudicially
affects the other September 15 order that we now vacate, we also reverse that order, placing the
parties in the same position as they were when Briggs filed her relocation notice. RAP 2.4(b)( 1).
13 The record also shows that, at times, the trial court was not pleased with Lail.
12
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Additionally, because resolution of Lail' s petition to modify the parenting plan is dependent on
the final resolution of the relocation issue, we also remand that petition for consideration by the
new judge.
Accordingly, we reverse the trial court' s order and remand for further proceedings
consistent with this opinion. Because Briggs is appearing pro se, we also deny Briggs' s request
for attorney fees. See Price v. Price, 174 Wn. App. 894, 301 P. 3d 486 ( 2013).
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
13