Stefanie Bennett v. John Xitco ( 2013 )

F I L. .
L
OU'YIT OF APPEALS
MVISIOM 11
2013 JUL -2 AM 9-05
IN THE COURT OF APPEALS OF THE STATE GIAMCSOMSK&
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By
DIVISION II PITY
STEFANIE JEAN BENNETT, fk/
/a No. 42275 1 II
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STEFANIE XITCO,
Appellant,
V.
JOHN MICHAEL XITCO, UNPUBLISHED OPINION
WORSWICK, C. . —
J Stefanie Bennett appeals the trial court's parenting plan modification
reducing her residential time with her children and increasing the residential time given to the
children's father, John Xitco,and designating Xitco as the children's primary residential parent.
Bennett argues that the trial court erred because (1) trial court's findings that the children's
the
environment was detrimental was an abuse of discretion, and (2) trial court's findings do not
the
support its conclusion that the benefits of modification outweighed the harm to the children. We
affirm.
FACTS
A. Procedural Facts
Bennett and Xitco have two children: NX,age 12, and CX, age 10 at the time of trial.
The parties divorced in 2002, and a court entered a parenting plan.
The parenting plan was modified in 2008, providing that the children would normally
reside with Xitco from Sunday through Tuesday or Wednesday and with Bennett for the rest of
the week. The 2008 plan called for the parents to jointly decide issues of non emergency
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No. 42275 1 II
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medical care, with disagreements being resolved by Dr.Larry Larson. Issues of religious
upbringing were also to be decided jointly. The plan also called for the children to remain
enrolled at St. Patrick's School unless the parents mutually agreed otherwise.
Xitco filed a petition to modify the parenting plan in 2010. The case proceeded to a
bench trial. The primary issues developed at trial were:
Bennett's unfounded domestic violence petitions and her calling the police on Xitco
without good cause;
Bennett unilaterally pulling the children from Thursday morning mass at St. Patrick's;
The children's excessive tardiness and absence from school during Bennett's residential
time; and
Bennett's unilateral medical decisions for the children.
Clerk's Papers (CP)at 104. The facts adduced at trial relevant to each of these issues are set
forth below.
B. Substantive Facts
1. Bennett's Domestic Violence Petitions and Calling the Police
Bennett filed two petitions for domestic violence protection orders against Xitco. The
only evidence regarding these petitions was the testimony of witnesses; documentary evidence
was not submitted. Bennett filed for the first order in December 2009. Bennett claimed that
Xitco "
refused to give the children back and then [she] basically was fed up with being
constantly threatened and [she]had had enough. And [she] felt like it was within [ er]rights and
h
in [ er] best interest to stand up and say, you know, she needed] protection from this person."4
h [
Report of Proceedings (RP)at 492. Bennett's petition for a protection order was denied, and
Xitco was never served in connection with this petition.
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No. 42275 1 II
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Bennett petitioned for the second domestic violence protection order in February 2010.
According to Bennett, she filed for the order after an incident where Xitco screamed at her in
front of the children at her house. In that same petition, Bennett also described a different
incident outside on her porch where Bennett thought Xitco was going to hit her. Bennett
admitted that she had hit Xitco in the stomach during this incident,but she claimed that it was
only because he frightened her by coming close with an upraised hand. Bennett obtained a
temporary protection order, but the court denied her petition for a final order.
According to Xitco, Bennett had charged at him and punched him in the abdomen during .
the incident, leaving a bruise, after he mentioned her decision to unilaterally pull the children
from mass at St. Patrick's.James Cathcart, the guardian ad litem who interviewed the parties,
was unable to conclude that Xitco committed domestic violence.
Bennett also called the police on one occasion for a " ell child check."4 RP at 504 05.
w -
On that occasion, NX was having a birthday party at Xitco's house. NX drove his dirt bike up a
one lane private road that he had been forbidden to ride on. Xitco confronted NX,and took
NX'" dirt bike away as punishment. NX threw a "fit" called his dad an " sshole"and started
s and a
to run away, but Xitco grabbed NX's wrist and told him not to talk to adults that way. 1 RP at
107. NX then ran away down the beach. Xitco immediately e-
mailed Bennett to explain what
had happened.
NX then called Bennett, and he hysterically told her that Xitco had called him an
asshole," that Xitco had twisted his arm behind his back and hurt his shoulder. Bennett
and
called the police. Bennett did not read Xitco's e mail until later. The police, on arriving at
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Xitco's house, found nothing amiss.
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2. Unilateral Withdrawal from Mass
NX and CX attended St. Patrick's,Catholic school, in accordance with the 2008
a
parenting plan. St. Patrick's held weekly mass on Thursday mornings. According to the
school's principal, Frances Jordan, the Thursday mass was part of St. Patrick's curriculum.
Jordan testified that mass provided benefits for the children; the children had a chance to lead
prayers, which improved their public speaking, the children heard bible readings and a homily
and had the opportunity to reflect on the readings, and the children learned to stay quiet during
the services. About 20 percent of St. Patrick's students were not Catholic, but they were still
expected to attend mass to learn " bout respecting the Catholic faith, and]being tolerant of
a [
other religions."2 RP at 196. Students were graded for mass attendance.
Bennett was unhappy with NX and CX attending St. Patrick's. 2010, Bennett sent
In
Jordan a letter informing her that NX and CX would no longer attend Thursday mass. Bennett
stated in the letter that her lawyer advised her that the school could not force the children to
attend. Jordan testified that in her ten years at St. Patrick's, other parents had formally pulled
no
their children mass as Bennett had done. At Bennettclaimed that her reasons for
pulling the children from mass were, we're all covered by the First Amendment," that she
" and
did not think the children should be taking a Catholic communion. 3 RP at 459 60. Bennett
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admitted that she did not follow the parenting plan when unilaterally pulling the children from
mass. Bennett testified that she was not aware of the children being ridiculed for not attending
mass.
Xitco,in contrast, testified that the children's failure to attend mass affected their grades
and affected them socially. " hey get teased by the other kids for not going to [m]ss,"
T a he
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No. 42275 1 II
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stated. 1 RP at 78. Xitco believed it was important for the children to attend mass because they
should follow the same curriculum as the rest of the school.
Cathcart, the guardian ad litem, testified, I never got a sense that [Bennett] had cancelled
"
the [in] attendance for any reason other than she could."2 RP at 240. Cathcart believed that
ass
Bennett's decision to pull the children from mass "sounded like competition rather than one that
was based on the interests of the children."2 RP at 240.
3. Tardiness and Absences
Although the parties and multiple witnesses testified about the children's tardiness and
absences from school while living with Bennett, Cathcart presented the most complete analysis.
Cathcart testified that in the 2009 10 school year, and in the first half of 2011,the children were
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absent one day for every three they attended when Bennett was responsible for delivering them
to school. Although Bennett attempted to justify these absences based on medical problems NX
was purportedly having, she could not explain why CX was usually absent on the same days as
NX.
Based on his review of attendance records, Cathcart calculated that NX missed 3.
3
percent of school days and that CX missed slightly less when Xitco was responsible for taking
them to school. But Cathcart calculated that NX missed 37 percent of school days and CX
slightly less when Bennett was responsible for taking them to school. Bennett disputed these
numbers during her testimony, claiming that she wrote down the correct attendance figures in a
notebook. But Bennett did not have her notebook at trial. Bennett submitted no documentary
evidence to dispute Cathcart's assessment.
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No. 42275 1 II
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Xitco submitted a summary of the children's attendance records from 2008 to 2010 that
he had prepared based on school attendance sheets, which he also submitted. Xitco calculated
that CX was absent 30 times in the 2008 09 school year and tardy 15 times. Xitco calculated
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that NX was absent 31 times that year and tardy 14 times. For the 2009 10 school year, Xitco
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calculated that CX was absent 20 times and tardy 22 times. Xitco calculated that NX was absent
26 times and tardy 32 times.
The children's 2009 10 and 2010 11 report cards were also submitted, which reported
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their total days absent and tardy. NX's 2009 10 report card reported that he was absent 25 times
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and tardy 30 times. CX's 2009 10 report card reported that she was absent 17 times and tardy 20
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times. This report card bore a notation that CX was not counted tardy for missing Thursday
mass;NX's report card did not have such a notation. The 2010 11 report cards reflected the first
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two trimesters of that school year. NX's report card for that year listed 6 absences and 14 days
tardy. CX's report card listed 17 absences and 17 days tardy.
4. Health Decisions
According to Bennett,NX had been complaining of chronic stomach pain the past
two years. Bennett acknowledged that Dr. Larson, the designated physician to resolve medical
care disputes in the 2008 parenting plan, found NX to be perfectly healthy. In approximately
2009, Bennett then took NX to a naturopath without consulting Xitco. Bennett testified that she
simply chose not to follow the, parenting plan when she decided to consult the naturopath.
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No. 42275 1 II
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Later,Dr.Larson referred NX to Dr. Pickens, who found that NX had a bacterial
overgrowth and stool impaction. NX's symptoms improved with vitamin D and probiotic
I
supplements.
Xitco testified that he believed NX was healthy but that NX carried a lot of stress. And
aside from the infection that Dr.Pickens found, Xitco agreed with Dr.Larson that there was
nothing physically wrong with NX.
According to Cathcart, NX's stomach problems were primarily stress related. He
reported that both Dr.Larson and NX's psychologist agreed that Bennett was projecting her own
symptoms onto NX. Bennett had a severe condition called dysautonomia. Cathcart also
believed the symptoms NX reported were reflective of his mother's condition rather than any
condition of his own.
Moreover, Cathcart testified that although Bennett believed that Xitco was sending NX to
school when he was sick,the school did not report seeing NX show any symptoms of illness. In
fact, according to Maory Lou Xitco,NX's grandmother, on one occasion when NX asked to go
home sick and she told him he would have to lay in bed and rest without television,NX went
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back to class rather than go home.
Furthermore, Cathcart reported that Bennett subjected both NX and CX to " n awesome
a
list"of diagnostic medical tests, both invasive and noninvasive."2 RP at 254. There was no
"
evidence that CX had ever displayed symptoms of any medical problem that would justify
1
Medical records from Dr.Pickens were not admitted and the record does not show when,
precisely,NX visited him.
2
Bennett testified that dysautonomia is an autonomic dysfunction. ' - ysautonomia"is defined
D
as the "[
a] functioning of the autonomic nervous system."STEDMAN'S MEDICAL
bnormal
DICTIONARY 530 (26th ed.995).
1
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No. 42275 1 II
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medical testing. Cathcart reported that Dr. Larson believed that the volume of tests was placing
an " motional or physical"burden on the children. 2 RP at 254.
e
C. The Trial Court's.
Decision
The trial court granted Xitco's petition to modify the parenting plan. The trial court
issued a letter ruling,the substance of which was set forth in a subsequent order on modification.
The trial court further issued a modified parenting plan.
In its order on modification, the trial court concluded:
The children's environment under the custody decree parenting plan/
/ residential
schedule is detrimental to the children'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 children.
CP at 104. The trial court supported this conclusion with narrative findings and conclusions:
Petitioner Father has met his burden to show that based upon facts that have risen
sic] since the 2008 modification, that a substantial change has occurred in the
circumstances of the children and that the modification is in the best interest of
the children and is necessary to serve their best interest.
The limited psychological information about Ms. Bennett is troubling. She has
refused to provide the full report to the court, but the Guardian ad litem summary
shows a troubled profile on any of the tests given She has used conflict in a
manner that is likely to cause [ long term] harm
- to.the children. She has
unilaterally prohibited the children from attending a part of their school
curriculum, namely Thursday morning mass. She has .allowed them to miss an
excessive number of days from school, which I believe is her " ilent"protest over
s
the children attending the parochial school which she originally agreed that they
would attend. She has filed unfounded domestic violence petitions and called the
police for well child checks for no good reason. Her unilateral decision to [take
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NX]" a non -emergency doctor visit for a second opinion without notice to the
for
Father is the other abuse.
This passive-
aggressive behavior has damaged the children and their relationship
with the father. These two children are the only two at St. Pat's not attending
mass. They are "out of the norm"and for developing children being "out of the
norm" can have [ long term]
- negativeconsequences. Ms. Bennett knows how
strongly Mr. Xitco feels about school attendance and she has deliberately allowed
No. 42275 1 II
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this issue to become a weekly source of contention, in large part I see as her way
to get back at him for his perceived slights towards her.
The emotional gamesmanship needs to end. These children are already using the
parental fight to gain an advantage over their parents. The beach motorcycle
incident is a prime example.
CP at 104 05.
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The trial court accordingly issued a new parenting plan that placed the children with
Bennett from Friday through Monday during school, and with Xitco for the rest of the week
during school. The parenting plan further decreed that Bennett's residential time would be
adjusted to end on Sunday if the children displayed a pattern of missing school on Mondays.
The plan designated Xitco as the primary residential parent.
The trial court made several more significant findings in the parenting plan. The trial
court found:
Bennett's]
involvement or conduct may have an adverse effect on the children's
best interests because of the existence of the factors which follow:
The abusive use of conflict by the parent which creates the danger of serious
damage to the children's psychological development, particularly, but not limited
to filing frivolous petitions for protective orders against Father and calling police
against Father for " ell child checks."
w -
Other: Failure to ensure children are to school on time: consistent
pattern of getting children to school late, numerous
absences, and failure to support the school objectives and
mission, particularly withholding the children from school
m] ss which is part of th [sic] curriculum which in turn is
a
detrimentally affecting the children in the school setting.
CP at 122. The trial court also found:
The evidence has shown that should the father be primary caretaker the conflict
issue will subside, and if the father's parenting plan is adopted he would be
responsible for the school week transportation alleviating the absences and tardies
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No. 42275 1 II
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that have historically occurred on days mother has visitation, and further
alleviating the social academic problems at school for the children.
CP at 126. Bennett appeals.
ANALYSIS
1. STANDARD OF REVIEW
We review a trial court's decision to modify a parenting plan for abuse of discretion. In
re Marriage ofZigler, 154 Wash. App. 803, 808, 226 P. d 202 (2010).A court abuses its
3
discretion if it relies on unsupported facts, if it applies the wrong legal standard, or if its decision
is manifestly unreasonable. Zigler, 154 Wn.App. at 808 09. We review a trial court's findings
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of fact regarding modification for substantial evidence, defined as a quantum of evidence
sufficient to persuade a rational fair -minded person the premise is true. In re Marriage ofChua,
149 Wash. App. 147, 154, 202 P. d 367 (2009); re Marriage ofAkon, 160 Wash. App. 48, 57, 248
3 In
P. d 94 (2011).We further review whether the findings of fact support the conclusions of law.
3
In re Marriage ofRockwell, 141 Wash. App. 235, 242, 70 P. d 572 (2007).We review questions
1 3
of law de novo. Chua, 149 Wn.App. at 154. We defer to the fact finder on issues of conflicting
testimony, witness credibility, and the persuasiveness of the evidence. In re Parentage ofJ. .,
H
112 Wash. App. 486, 93 n. , P. d 154 (2002).
4 l 49 3
Because changes in residence are highly disruptive to children, we employ a strong
presumption against modification of a parenting plan. In re Custody ofHalls, 126 Wash. App.
599, 607, 109 P. d 15 (2005).The moving party bears the burden to show that a modification is
3
appropriate under RCW 26. 9. Under that statute,
260.
0
T]e court shall not modify a prior custody decree or a parenting plan unless it
h
finds, upon the basis of facts that have arisen since the prior decree or plan,that a
substantial change has occurred in the circumstances of the child or the
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No. 42275 1 II
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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.
In applying this standard, the trial court " hall maintain the residential schedule established by
s
the decree or parenting plan"unless one of four factors is met. RCW 26. 9.The factor
260(
2
0 ).
pertinent to this case is: 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.", 26. 9.
RCW 260(
c).2)(
0
H. DETRIMENTAL ENVIRONMENT
Bennett argues that the trial court abused its discretion by concluding that the children's
environment was detrimental because (1) detrimental environment the trial court relied on no
the
longer existed, 2) modification did not address the changed circumstances that justified
( the
modification, and (3) detrimental environment the court found was insufficient to support
the
modification. We disagree on all points.
A. Detrimental Environment Still Existed
Bennett first contends that the trial court erred by concluding that the children's
environment was detrimental because the detrimental conditions no longer existed at the time of
trial. Bennett claims that ( ) unilateral withdrawal from mass was no longer an issue, and (2)
1 the
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No. 42275 1 II
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the children's attendance problems were no longer an issue. Bennett's arguments on these
points are premised on rearguing the facts, but substantial evidence supports the trial court's
findings on these issues and Bennett's arguments fail..
As Bennett points out, RCW 26. 9.
c) the child's present
260(
2)( that
0 requires
environment be detrimental to support modification. This court has recognized that although
evidence regarding the children's prior environment with a parent is relevant under RCW
260,
26. 9.the circumstances at the time of trial are "also probative."In re Marriage of
0
Ambrose, 67 Wash. App. 103, 108, 834 P. d 101 (1992).And a trial court errs by not considering
2
any and all relevant evidence,"
including the circumstances at the time of trial. Ambrose, 67
Wn. App. at 108 09. But here, even focusing only on the children's environment at the time of
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trial,which is a more restrictive standard than required, substantial evidence supported the trial
court's findings of fact regarding their removal from mass and their attendance at school.
1. Unilateral Withdrawalfrom Mass Was Still an Issue
Bennett claims that the issue of mass attendance was " rguably"not an issue at the time
a
of trial 4 Br. of Appellant at 20, 22. But rather.than supporting claim that the issue
.
3
Bennett also argues in her reply brief that the trial court erred by finding that " he children's
t
environment," opposed to the children's present environment, was detrimental. Reply Br. of
as
Appellant at 14. But this technical omission does not show an abuse of discretion. As set forth
below,the trial court's findings of fact adequately addressed the children's present environment;
the record does not show that the trial court applied the wrong legal standard.
4 Bennett also argues that whether her unilateral withdrawal of the children from mass.
constituted a detriment is " eally a matter of law for the court to decide on appeal," she cites
r but
no law on this point. Br. of Appellant at 20 22. We do not address arguments unsupported by
-
legal authority. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wash. App. 183, 190 n. ,69
4
P. d 895 (2003).
3
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No. 42275 1 II
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had been resolved at the time of trial, Bennett simply argues that it was never a problem in the
first place. We disagree.
Bennett argues that her unilateral withdrawal of the children from mass was not
detrimental to the children because it caused them no harm. But there was substantial evidence
to the contrary. Xitco testified that the children were teased. Principal Jordan testified that mass
attendance was an important part of the curriculum and had important benefits for students. She
also testified that no other parents had unilaterally withdrawn their children from mass as
Bennett had done.
The trial court found that failure to attend mass made NX and CX "``
out of the norm, "'
which could lead to negative consequences. CP at 104. Substantial evidence supports this
finding. Bennett's argument on this point fails.
2. AbsenceTardiness Issue Still Existed
/
Bennett also argues that by the time of trial in 2011,the children's school attendance had
improved and thus no longer constituted a detriment. We disagree.
Bennett argues that the attendance issues were resolved at the time of trial because NX's
health had improved. But there was strong evidence that NX's health issues were not the true
cause of the attendance problems. And Bennett could not explain why CX's absences generally
overlapped with NX's.This evidence permits the inference that health issues were not the true
reason for the children's attendance problems.
Rather, substantial evidence supports the trial court's finding that the true cause of the
attendance problems was Bennett's silent' protest"over the children attending St. Patrick's.
"``
CP at 104. The evidence showed that Bennett's dislike of St. Patrick's existed at the time of
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No. 42275 1 II
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trial. Thus there was evidence that the true reason for the children's attendance problems was
not resolved. The trial court properly found that the attendance problems were still part of the
children's environment at the time of trial. Bennett's argument to the contrary fails.
B. Modification Addressed Change in Circumstances
Bennett next argues that, because the attendance issues were resolved by the time of trial,
the modified parenting plan was not relevant to the changed circumstances justifying the
modification. We disagree.
A parenting plan may not be modified under RCW 26. 9.unless (1)
260
0 there has been a
substantial change in circumstances, and (2) modification is in the best interest of the child
the
and is necessary to serve the best.nterest of the child. The basis for Bennett's argument is that
i
there were no grounds for modification because the attendance issues had been resolved. But
substantial evidence shows the attendance issues had not been resolved and Bennett's argument
on this point fails.
C. Detrimental Environment Was Sufficient To Support Modification
Bennett additionally argues that the findings of detriment to the children are insufficient
to support modification of the parenting plan. Although she cites legal authority, she makes no
reasoned argument that the trial court's findings of fact are insufficient to support modification.
Rather, once again, she relies on rearguing the facts. Because substantial evidence supported the
trial court's findings of fact, Bennett's argument on this point fails.
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No. 42275 1 II
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1. Bennett Failed To Object to Psychological Information
Bennett challenges the trial court's finding that "[ he limited psychological information
t]
about Ms. Bennett is troubling."Br. of Appellant at 28. But because Bennett failed to challenge
the evidence supporting this finding below,we do not consider her argument on this point.
Cathcart reported the limited information at issue, which included a psychologist's
opinion:
There was a significat elevation for compulsive personality style [in Bennett] ....
There were indications that [Bennett] may have limited ability to comfortably
manage interpersonal relationships, and]may have little interest or expectation of
[
engaging in collaborative relationships with others . . . . [ Bennett] made
considerable effort to present a self favorable image, and] failed to offer a fully
- [
open or candid approach to the testing process.
2 RP at 259 60. As Bennett points out, the psychologist's report was not admitted, and Cathcart
-
was not a psychologist: Bennett thus seems to argue that the psychological opinion, admitted
through Cathcart, was inadmissible. But Bennett did not object to this evidence at trial. She
cannot raise the admissibility of Cathcart's testimony on this point for the first time on appeal.
RAP 2. (
a).
5 Nor does Bennett cite authority related to the evidence's admissibility as required.
Escude v. King County Pub. Hosp. Dist. No. 2,' 17 Wash. App. 183, 190 n. ,69 P. d 895 (2003).
l 4 3
Thus, we do not consider Bennett's argument on this point.
2. Bennett's Abusive Use of Conflict
Bennett next argues that substantial evidence does not support the trial court's findings
regarding her abusive use of conflict. We disagree.
A court may preclude or limit any provisions of the parenting plan if there is an abusive
use of conflict by the parent that creates the danger of serious damage to the child's
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No. 42275 1 II
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psychological development. RCW 26. 9.
e).
191(
3 This standard applies in parenting plan
0 )(
modification cases. In re Marriage of Watson, 132 Wash. App. 222, 232, 130 P. d 915 (2006).
3
a. Withdrawal from Mass
Bennett claims that her withdrawal of the children from mass was not abusive use of
conflict. But rather than make any legal argument on this point, she reargues her earlier claim
that failure to attend mass did not harm the children. Bennett thus appears to be arguing that,
because her actions were not detrimental, they could not constitute abusive use of conflict that
was harmful to the children. This argument fails.
As we analyzed above, there was substantial evidence that the unilateral withdrawal from
mass was detrimental to the children's environment. Bennett's attempt to reargue the facts on
this point is unavailing.
b. Attendance Issues
Bennett next claims that the children's attendance problems were not abusive use of
conflict because they were not detrimental to the children. But there was substantial evidence to
support the trial court's findings to the contrary.
The trial court found that the children's poor school attendance caused them academic
and social problems. The trial court also found that the school attendance was a source of
conflict between the parents because of Xitco's strong feelings about school attendance, and
found that this conflict posed a danger of serious psychological damage to the children. The trial
court out of the norm, "'which could
also found that the children's attendance issues put them "``
lead to long term,negative consequences. CP at 104.
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No. 42275 1 II
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Xitco testified that tardiness harmed the children's values by failing to instill in them the
value of timeliness and that it affected their grades. Principal Jordan testified that attendance
was important because instructional time at school was the most important aspect of the
curriculum and could not be replaced with homework. According to her,tardiness was a
problem because the mornings are the best time for children to learn. Tardiness could also make
a child the " dd man out,"
o often leading to social problems. 2 RP at 200.
Bennett argues that, to the contrary, both children were doing well academically. But
Jordan testified that NX's attendance and dedication to study outside of school"had affected his
"
grades. 2 RP at 223. She also testified that after CX's attendance in school had improved,there
was a " ositive effect."2 RP at 224.
p
There was substantial evidence to support the trial court's findings that the attendance
problems were detrimental academically and socially, as well as psychologically, because of the
parental conflict that resulted. Bennett's.
argument on this point fails.
c. Domestic Violence Petitions
Bennett further claims that her petitions for violence protective orders do not - -
show abusive use of conflict. We disagree.
Bennett argues that her first petition could not constitute abusive use of conflict because
she never served it on Xitco and,thus, it never led to any conflict. This argument is unavailing.
Bennett failed to serve the first petition not because she wished to avoid creating conflict with
Xitco,but because she was denied a temporary protective order. At trial, Bennett could provide
only very vague reasons for having filed the petition, strongly supporting the trial court's finding
that it was frivolous. Bennett cites no law and makes no reasonable argument that her filing a
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No. 42275 1 II
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frivolous petition fails to show abusive use of conflict simply because the petition was denied
and she did not serve it. Although such a petition might not show abusive use of conflict in and
of itself, it is certainly relevant.
Bennett further argues that the second petition, related to the porch incident, does not
show abusive use of conflict because the petition was justified under her version of the facts.
But Xitco gave a different version of the incident,wherein the only domestic violence was
committed by Bennett. Cathcart was unable to conclude based on the parties' conflicting stories
that any domestic violence had occurred. We defer to the trial court on conflicting evidence and
questions of witness credibility, and the trial court had ample evidence from which to find that
Bennett's second petition was unfounded. When viewed with the other findings, this finding.
properly supported the trial court's conclusion that Bennett engaged in an abusive use of conflict.
d. Well Child Check
Bennett next challenges the trial court's finding of fact that she called the police for well
child checks " or no good reason."CP at 104; Br. of Appellant at 31. But the record shows that
f
Bennett called the police based only " n account of what had happened. She did not -
o
attempt to contact Xitco about what had happened. There was substantial evidence that Bennett
called the police for " o good reason"under these facts.
n
5
After arguing that the above facts did not support modification, Bennett claims that there was
no evidence to support the trial court's finding that her passive aggressive behavior damaged the
children and their relationship with their father. But Bennett's only argument on this point is to
repeat the factual claims that we addressed above. Because substantial evidence supported the
trial court's findings of fact, Bennett's argument on this point fails.
18
No. 42275 1 II
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III. ADVANTAGES OUTWEIGHED HARM
Bennett next argues that the trial court's findings of fact do not support its conclusion that
the benefits of modification outweighed the harm to the children. Bennett argues that the trial
court failed to find that ( ) children wanted more time with Xitco or less time with Bennett,
1 the
2) home was unfit or that she was an unfit parent, 3) modification " as to the advantage
her ( the w
of the children," ( the children were more attached to Xitco than to Bennett or that they would
4)
better " hrive"at Xitco's residence, or ( ) specific emotional harm might befall the children
t 5 any
being taken from their mother's home. "
in " Br. of Appellant at 36. Bennett's arguments on this
point are without merit and her claim fails.
A. Desires of the Children
Bennett argues that modification was not warranted because neither of the children
wanted additional time with Xitco or less time with her. But Bennett cites no law that the trial
court here was required to issue findings regarding the children's wishes. We do not consider
Bennett's argument on this point. Escude, 117 Wn. App. at.190 n. .
4
B. Unfitness ofBennett's Home and Parenting
Bennett further argues that there was no evidence that her home was unfit or that she was
an unfit parent. Again, Bennett fails to cite any law that this finding was required. Moreover,
her argument is contrary to case law.
6
Bennett also argues in passing that the evidence showed altercations between NX and Xitco.
Bennett does not explain the relevance of this point within the context of her argument; she
simply mentions the issue as if argument were unnecessary. We do not address issues raised
with only passing treatment and without reasoned argument and do not address Bennett's
argument on this point. Stiles v. Kearney, 168 Wash. App. 250, 266,277 P. d 9 (2012),
3 review
denied, 175 Wash. d 1016 (2012).
2
2
No. 42275 1 II
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We have held a finding that a parent is unfit is not required to modify a parenting plan
under RCW 26. 9.In re Marriage of Velickoff, 95 Wash. App. 346, 353, 968 P. d 20 ( 998).
260.
0 2 1
There is no rule that the trial court here was required to mention " itness"in order to modify the
f
parenting plan. The trial court's conclusion, that the children's environment was detrimental and
that advantages of a change outweighed the harm, was sufficient.
C. Advantage to the Children
Bennett also argues that the trial failed to make any findings as to why the modified
residential schedule was "to the advantage of the children."Br. of Appellant at 36. Although
Bennett does not cite authority on this point, she appears to be arguing that the trial court failed
to make part of the finding required under RCW 26. 9. " he harm likely to be
c),
260(
2)(
0 that t
7
caused by a change of environment is outweighed by the advantage of a change to the child. ,
But Bennett is incorrect; the trial court found that a change of environment would be to the
advantage of the children.
The trial court found in the modification order that Bennett permitted excessive absence
and tardiness on the children's part and that she did so as part of her abusive use of conflict,
which was likely to cause long term harm to the children. And in the new parenting plan, the
-
trial court found that the basis for restricting Bennett's residential time included " busive use of
a
conflict...
which creates the danger of serious damage to the children's psychological
7
Bennett cites In re Marriage ofMangiola, 46 Wash. App. 574, 578 79,732 P. d 163 (1987),
- 2 for
the proposition that modification'is inappropriate when the moving party alleges no facts
tending to show the advantages of a change in custody outweigh the harmful effects of a change
of custody."Br. of Appellant at 35. But Mangiola addressed a preliminary question not at issue
here: whether a petitioner for a parenting plan modification had shown adequate cause for a
hearing under RCW 26. 9. The trial court granted Xitco a hearing on modification and
270. 0
Bennett does not assign error to that decision. Mangiola does not support Bennett's argument.
20
No. 42275 1 II
- -
development."CP at 122. Also,the trial court found that under the new parenting plan, the
childrens' attendance and tardiness problem would be alleviated because Xitco would now be
mostly responsible for school transportation.
Thus, the trial court found that removing school attendance from Bennett's control would
reduce conflict between the parties, alleviating the affects of the conflict on the children, as well
as alleviating the -effects of the children's absences and tardiness. Bennett is incorrect that the
trial court failed to find that the new residential schedule was to the children's advantage.
D. Attachment
Bennett additionally argues that the trial court failed to make any findings that the
children were more attached to Xitco or that they would better " hrive"at Xitco's residence. Br.
t
of Appellant at 36. Again, Bennett fails to cite authority that such findings were mandatory.
Bennett's argument on this point fails.
E. Emotional Harm ofRelocation
Finally, Bennett argues that the trial court made no findings as to the emotional harm that
might befall the children " n
i being taken from their mother's home. " Br. of Appellant at 36.
Bennett cites no law that such findings were required, but she appears to be arguing that the trial
court failed to make another part of the finding required under RCW 26. 9. "[ he
c),
260(
2)(
0 that t]
child's present environment is detrimental to the child's physical, mental, or emotional health."
Bennett is incorrect.
8
Bennett misrepresents the trial court's order on this point. The children were not " aken"from
t
her home; they were already residing part time with each parent. The modification order simply
adjusted the residential schedule to give Bennett less residential time during the school year.
21
No. 42275 1 II
- -
The trial court made several findings regarding the children's emotional health. The trial
court found that Bennett's behavior has damaged the children's relationship with their father. It
found that her pulling them from mass made them " ut of the norm."CP at 104. It also found
o
that her abusive use of conflict created the danger of serious damage to the children's
"
psychological development."CP at 122. Bennett's argument on this point is simply contrary to
the record.
Finally, Bennett argues for the first time in her reply brief that the trial court erred by
ordering modification as punishment for her violating the previous parenting plan. We do not
consider issues raised for the first time in a reply brief and therefore do not address this issue. In
re Marriage ofBernard, 165 Wash. d 895, 908, 204 P. d 907 (2009).
2 3
We hold that the trial court's findings supported its conclusion that the advantages of
modification outweighed the harm of a residential change. We accordingly affirm.
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
22