Michelle Conley, Resp/x-app v. Christopher Rugh, App/x-resp ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Parentage of ) No. 79195-8-I
Adele Conley Rugh, )
)
MICHELLE CONLEY, )
)
Respondent/Cross Appellant, )
)
and )
)
CHRISTOPHER RUGH, ) UNPUBLISHED OPINION
)
Appellant/Cross Respondent. )
)
VERELLEN, J. — Christopher Rugh appeals the trial court’s findings of fact
and order establishing a final parenting plan. He contends that, in the absence of
RCW 26.09.191 restrictions, RCW 26.16.125 requires a court to grant each parent
equal residential time and decision-making authority. Michelle Conley cross
appeals, contending the trial court erred when it found Rugh did not engage in
abusive use of conflict and allowed Rugh to petition for a future modification of the
plan without a finding of adequate cause. Conley also claims the trial court’s award
of attorney fees to her was inadequate.
We affirm the trial court’s order in all respects.
No. 79195-8-I/2
FACTS
Rugh and Conley had a brief dating relationship in 2014. After they broke
up, they continued to occasionally see each other. Conley became pregnant, and
they moved in together. Their child was born in May 2015. Approximately six
months later, Conley and Rugh permanently ended their intimate relationship
following an overseas trip in which each alleged the other assaulted them.
On March 2, 2016, after a lengthy mediation, the parties entered a
“memorandum of agreement” under CR 2A addressing residential time and
decision-making authority. On June 10, 2016, the parties filed an agreed
parenting plan consistent with the CR 2A agreement. The plan granted both
parents joint decision-making authority. It provided that the child would live with
Conley, and Rugh would have residential time during the day on Sundays,
Tuesdays and Thursdays, totaling 24 hours per week, or approximately 14 percent
of total residential time. The plan provided Rugh’s residential time would increase
in August 2016 to approximately 32 hours per week, or 19 percent of total
residential time, by adding one overnight weekend visit per week.
The plan did not make provisions for a residential schedule once the child
became school-aged, nor provisions for summer or holiday schedules. These
sections were all designated “reserved.” Instead, the plan contained a statement
that “[i]t is the intention of both parents that the father’s residential time will expand
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as the child gets older.”1 The plan specified that Conley and Rugh would agree to
review the residential schedule in May 2017 when the child turned two years old.
The review would occur “without the necessity of establishing a substantial change
in circumstances, or having a threshold hearing” and that any disputes would be
resolved through mediation and arbitration.2
The parties did not review the parenting plan in this manner. Instead, on
February 21, 2017, Conley filed a notice of intent to relocate to Everett. Conley
also filed a proposal to modify the parenting plan. As proposed by Conley, until
the child turned three years old, Rugh would have residential time from Tuesday
morning to Wednesday morning and every other weekend from Saturday morning
to Sunday at noon, averaging 37.5 hours per week, or 22 percent of total
residential time. Once the child enrolled in preschool, the length of the weekend
visit would increase, resulting in residential time averaging 46 hours per week, or
27 percent of total residential time. Conley also requested sole decision-making
authority. She argued Rugh’s residential time and decision-making authority
should be limited under RCW 26.09.191 due to his abusive use of conflict.
Rugh objected to the relocation and to Conley’s proposed parenting plan.
He filed his own modification petition, in which he requested Conley’s contact with
the child be limited under RCW 26.09.191, alleging Conley had a history of
1 Clerk’s Papers (CP) at 6.
2 Id.
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No. 79195-8-I/4
domestic violence and assault, emotional problems, substance abuse, and
abusive use of conflict. Rugh requested that his residential time be increased to
every week from Tuesday morning until Thursday night and every other weekend
from Saturday morning to Monday morning, giving both parents equal residential
time. He requested to maintain joint decision-making authority.
On April 18, 2017, the court entered a temporary order allowing Conley to
relocate to Everett pending trial. The court amended the existing parenting plan to
give Rugh residential time from Tuesday morning to Wednesday afternoon and
from Saturday evening to Sunday evening every other weekend. Under the
court’s temporary order, Rugh’s residential time averaged 38.5 hours per week, or
23 percent of total residential time. The court provided that in all other respects,
the existing parenting plan would remain in effect. The court consolidated
Conley’s petition for relocation and Rugh’s modification petition for trial.
Prior to trial, Rugh petitioned twice more to modify the parenting plan. On
October 17, 2017, a superior court commissioner pro tempore imposed a
temporary residential schedule giving Rugh residential time from Tuesday morning
to Wednesday evening and every other weekend from Friday morning to Sunday
evening. Under this schedule, Rugh’s residential time averaged 61.5 hours per
week, or approximately 37 percent of residential time. Both parties sought to
revise the commissioner’s order.
On December 22, 2017, the superior court granted Rugh’s motion in part
and further increased Rugh’s residential time to Wednesday morning to Friday
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morning every other week, and Wednesday morning to Sunday night on
alternating weeks, averaging 76 hours per week, or 45 percent of total residential
time.
The superior court appointed a guardian ad litem (GAL), who conducted an
investigation and issued a report. The GAL concluded that Conley and Rugh
could not share residential time equally “due to the level of conflict and the likelihood
of it continuing unless the father gets his way.”3 She recommended that during the
school year, the child reside with Rugh every other weekend from Thursday
morning to Tuesday evening and, in alternating weeks, from Tuesday morning to
Wednesday evening, averaging 79 hours per week, or 47 percent of total
residential time. In summer, the child would live with Rugh on alternating weeks
from Thursday morning to Tuesday morning, averaging 60 hours per week, or 36
percent of total residential time. The GAL recommended the trial court make
findings that Rugh had engaged in abusive use of conflict and assign sole
decision-making authority to Conley.
Trial on the modification and relocation petitions took place in July 2018.
The child was then three years old. After reviewing 161 exhibits and hearing
testimony from 12 witnesses over five days, the trial court entered findings of fact
and conclusions of law and a parenting plan. The trial court declined to impose
restrictions on either parent pursuant to RCW 26.09.191. It carefully evaluated the
3 CP at 1037.
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factors in RCW 26.09.187 and concluded they were “essentially neutral in terms of
favoring one parent over the other with regard to residential time.”4 It concluded
that the distance between the parents’ homes was the “deciding factor.”5 The trial
court reasoned that “[a] child of this age simply cannot be shuttled back and forth
for up to 90 minutes each direction multiple times a week.”6 The trial court also
found that as the child got older, “it will not work to have the child in school 90
minutes away from the other parent with split residential time; the amount of
driving to drop her off and pick her up each day during a party’s residential time
would be prohibitive.”7 Accordingly, the parenting plan provided that during the
school year, the child would reside with Rugh on Wednesday afternoons and
every other weekend from Friday afternoon to Tuesday morning, averaging 47
hours per week, or 28 percent of total residential time. In summer, the child would
live with Rugh from Friday morning to Tuesday morning every other week and
from Tuesday morning to Friday morning on alternating weeks, averaging 84
hours per week, or 50 percent of total residential time. The trial court ordered that
if either parent moved to within 10 miles of the other, the parenting plan could be
modified without a finding of adequate cause.
4 CP at 1227.
5 Id.
6 Id.
7 Id.
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The trial court found that sole decision-making authority was necessary
because of “the history of each parent’s participation in decision making,” “the
parents’ inability to cooperate with each other in decision making” and “the
distance between the parents’ homes makes it hard to make timely decisions
together.”8 Accordingly, the trial court granted sole decision-making authority
regarding health and educational decisions to Conley but joint authority for all
other decisions. The court awarded Conley attorney fees in the amount of
$20,650 based on Rugh’s intransigence.9
Both Conley and Rugh moved for reconsideration. On October 22, 2018,
the trial court amended the parenting plan, changing the school-year schedule so
the child would reside with Rugh every other Wednesday after school until Sunday
evening and, in alternate weeks, from Wednesday after school until Friday
morning, averaging approximately 71 hours per week, or 42 percent of total
residential time. In all other major respects, including the 50-50 residential
schedule during the summer, the parenting plan remained the same.
Both Rugh and Conley appeal.
8 CP at 1235.
9
The court also awarded Conley $4,350 based on a prior finding of
contempt against Rugh.
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STANDARD OF REVIEW
We review a trial court’s parenting plan for abuse of discretion.10 We defer
to the trial court because of its unique opportunity to observe the parties,
determine their credibility, and sort out conflicting evidence.11 A trial court abuses
its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.12
Reviewing a trial court’s findings of fact and conclusions of law is a two-step
process.13 First, we review the sufficiency of the evidence to determine whether
the trial court’s findings of fact are supported by substantial evidence in the record.
“‘Substantial evidence exists if the record contains evidence of sufficient quantity
to persuade a fair-minded, rational person of the truth of the declared premise.’”14
We then determine whether those findings of fact support the trial court’s
conclusions of law.15 Credibility determinations are for the trier of fact and are not
subject to review.16
10 In re Marriage of Katare, 175 Wash. 2d 23, 35, 283 P.3d 546 (2012).
11 In re Marriage of Woffinden, 33 Wash. App. 326, 330, 654 P.2d 1219
(1982).
12 Katare, 175 Wash. 2d at 35.
13 Landmark Dev., Inc. v. City of Roy, 138 Wash. 2d 561, 573, 980 P.2d 1234
(1999).
14In re Marriage of Griswold, 112 Wash. App. 333, 339, 48 P.3d 1018 (2002)
(quoting Bering v. SHARE, 106 Wash. 2d 212, 220, 721 P.2d 918 (1986)).
15 Landmark Dev., Inc., 138 Wash. 2d at 573.
16 In re Marriage of Greene, 97 Wash. App. 708, 714, 986 P.2d 144 (1999).
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RUGH’S APPEAL
Rugh’s sole contention is that RCW 26.16.125 creates a statutory
presumption that a parenting plan will grant each parent equal residential time and
decision-making authority. He contends a trial court may deviate from this
presumption only if it finds one parent’s contact must be restricted pursuant to
RCW 26.09.191. The trial court rejected this argument, as do we.
We review the meaning of a statute de novo.17 We look first to the
legislation’s plain language, “considering the text of the provision in question, the
context of the statute in which the provision is found, related provisions, and the
statutory scheme as a whole.”18 Statutory provisions and rules should be
harmonized whenever possible.19 Only if the statute is ambiguous do we apply
traditional techniques of statutory construction.20 “A statute is ambiguous when it
is ‘susceptible to two or more reasonable interpretations,’ but ‘a statute is not
ambiguous merely because different interpretations are conceivable.’”21
The Parenting Act of 1987, chapter 26.09 RCW (Act), “fundamentally
changed the legal procedures and framework addressing the parent-child
17 Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash. 2d 1, 9, 43 P.3d 4
(2002).
18 State v. Evans, 177 Wash. 2d 186, 192, 298 P.3d 724 (2013).
19 Emwright v. King County, 96 Wash. 2d 538, 543, 637 P.2d 656 (1981).
20 Christensen v. Ellsworth, 162 Wash. 2d 365, 373, 173 P.3d 228 (2007).
21State v. Gonzalez, 168 Wash. 2d 256, 263, 226 P.3d 131 (2010) (internal
quotation marks omitted) (quoting Estate of Haselwood v. Bremerton Ice Arena,
166 Wash. 2d 489, 498, 210 P.3d 308 (2009)).
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relationship in Washington.”22 The Act replaced the concepts of “visitation” and
“custody”—which tended to “treat children as a prize awarded to one parent and
denied the other”—with the more functional terms “parenting plan” and “residential
schedule.”23
The Act contains several guiding principles. RCW 26.09.002, the Act’s
overarching policy statement, provides that any proceeding under chapter 26.09
RCW must be controlled, first and foremost, by the child’s best interests:
In any proceeding between parents under this chapter, the best
interests of the child shall be the standard by which the court
determines and allocates the parties’ parental responsibilities. The
state recognizes the fundamental importance of the parent-child
relationship to the welfare of the child, and that the relationship
between the child and each parent should be fostered unless
inconsistent with the child’s best interests. The best interests of the
child are served by a parenting arrangement that best maintains a
child’s emotional growth, health and stability, and physical care.
Further, the best interest of the child is ordinarily served when the
existing pattern of interaction between a parent and child is altered
only to the extent necessitated by the changed relationship of the
parents or as required to protect the child from physical, mental, or
emotional harm.
RCW 26.09.184(1) identifies the seven objectives of a parenting plan as:
(a) Provide for the child’s physical care;
(b) Maintain the child’s emotional stability;
(c) Provide for the child’s changing needs as the child grows and
matures, in a way that minimizes the need for future modifications to
the permanent parenting plan;
22 State v. Veliz, 176 Wash. 2d 849, 855, 298 P.3d 75 (2013).
23 Id.
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(d) Set forth the authority and responsibilities of each parent with
respect to the child, consistent with the criteria in RCW 26.09.187
and 26.09.191;
(e) Minimize the child’s exposure to harmful parental conflict;
(f) Encourage the parents, where appropriate under RCW 26.09.187
and 26.09.191, to meet their responsibilities to their minor children
through agreements in the permanent parenting plan, rather than by
relying on judicial intervention; and
(g) To otherwise protect the best interests of the child consistent with
RCW 26.09.002.
A parenting plan must contain a residential schedule and provisions for decision-
making authority.24 RCW 26.09.187(3) outlines the process by which a court shall
establish a residential schedule.
First, the court must determine if RCW 26.09.191 restrictions apply.
RCW 26.09.191(1) and (2) are mandatory provisions that require a court to restrict
a parent’s conduct or involvement under circumstances including abandonment,
abuse, or domestic violence. RCW 26.09.191(3) is a discretionary provision that
permits a trial court to restrict a parent’s actions if any of the following factors exist:
(a) A parent’s neglect or substantial nonperformance of parenting
functions;
(b) A long-term emotional or physical impairment which interferes
with the parent’s performance of parenting functions as
defined in RCW 26.09.004;
(c) A long-term impairment resulting from drug, alcohol, or other
substance abuse that interferes with the performance of
parenting functions;
24 RCW 26.09.184(5), (6)
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No. 79195-8-I/12
(d) The absence or substantial impairment of emotional ties
between the parent and the child;
(e) The abusive use of conflict by the parent which creates the
danger of serious damage to the child’s psychological
development;
(f) A parent has withheld from the other parent access to the
child for a protracted period without good cause; or
(g) Such other factors or conduct as the court expressly finds
adverse to the best interests of the child.
Where RCW 26.09.191 limitations are not dispositive of the residential
schedule, a trial court considers the factors in RCW 26.09.187(3)(a):
(i) The relative strength, nature, and stability of the child’s
relationship with each parent;
(ii) The agreements of the parties, provided they were entered
into knowingly and voluntarily;
(iii) Each parent’s past and potential for future performance of
parenting functions as defined in RCW 26.09.004(3), including
whether a parent has taken greater responsibility for
performing parenting functions relating to the daily needs of
the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant
adults, as well as the child’s involvement with his or her
physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is
sufficiently mature to express reasoned and independent
preferences as to his or her residential schedule; and
(vii) Each parent’s employment schedule, and shall make
accommodations consistent with those schedules.
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No. 79195-8-I/13
The first factor, the relative strength, nature, and stability of the child’s
relationship with each parent, is the most important. A court may order that a child
frequently alternate between residences “for brief and substantially equal intervals
of time” if such a provision is in the child’s best interests.25 “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.”26
RCW 26.09.187(2) outlines the criteria for decision-making. In considering
whether to grant joint decision-making authority, the court considers (1) the
existence of RCW 26.09.191 restrictions on a parent’s involvement, (2) the history
of each parent’s participation in decision making, (3) whether the parents have a
“demonstrated ability and desire to cooperate with one another,” and (4) the
parents’ geographic proximity to one another “to the extent that it affects their
ability to make timely mutual decisions.”27 A court must grant sole decision-
making authority to one parent when it finds (1) there are grounds for
RCW 26.09.191 restrictions on the other parent’s involvement, (2) both parents
are opposed to mutual decision making, or (3) one parent is opposed to mutual
decision making and the opposition is “reasonable.”28
25 RCW 26.09.187(3)(b)
26 RCW 26.09.187(3)(b).
27 RCW 26.09.187(2)(c).
28 RCW 26.09.187(2)(b).
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No. 79195-8-I/14
As he did below, Rugh argues that RCW 26.16.125 creates a statutory
presumption in favor of a 50-50 residential schedule. RCW 26.16.125 provides:
Henceforth the rights and responsibilities of the parents in the
absence of misconduct shall be equal, and one parent shall be as
fully entitled to the custody, control and earnings of the children as
the other parent, and in case of one parent’s death, the other parent
shall come into full and complete control of the children and their
estate.
RCW 26.16.125 has remained functionally unchanged since its enactment in
1879.29 Rugh argues that “in the absence of misconduct” means that, unless the
court imposes RCW 26.09.191 restrictions, the court must order “substantially
equal residential provisions and decision making.”30
Relying on an unpublished Division Two case, In the Matter of E.L.C.,31 the
trial court rejected Rugh’s argument:
RCW 26.16.125 does not trump RCW 26.09. There is no statutory
right to equal custody of a child that takes priority over the best
interests of the child. A court order controls over RCW 26.16.125.
The statute does not mandate equal time for visitation, nor does it
create a presumption that visitation shall be equal.[32]
The court in E.L.C. relied on the Washington Supreme Court’s opinion in
State v. LaCaze, which held that the equal right to custody guaranteed by
29 In 2008, the legislature amended the statute to substitute the word “one
parent” or “other parent” for “mother” and “father.”
30 Appellant’s Br. at 1.
31 In the Matter of E.L.C., No. 49112-5-IIl (Wash. Ct. App. Mar. 20, 2018)
(unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2049112-5-
II%20Unpublished%20Opinion.pdf.
32 CP at 1230.
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RCW 26.16.125 means that “in the absence of a court order, both [parents] share
the right to custody even if the parents are living apart.”33 The court in E.L.C. also
cited to its own opinion in Weber v. Weber,34 which noted while RCW 26.16.125
gives both parents an equal “right” to custody, a trial court maintains the discretion
to make residential placement decisions based on the child’s best interests.
We agree with Division Two’s analysis distinguishing “equal rights to
custody” from “equal residential time.” As chapter 26.09 RCW repeatedly makes
clear, a trial court has broad discretion to develop a parenting plan, which may or
may not grant each parent equal residential time. RCW 26.09.002 provides that
the parenting plan must be guided, first and foremost, by the “best interests of the
child.” And it requires a trial court to fashion a parenting plan that best replicates
the existing parenting arrangement unless changes are necessary to protect the
child from harm, or due to “the changed relationship of the parents.”35
RCW 26.09.187(3) requires a trial court to incorporate multiple considerations into
a residential schedule, particularly the child’s relationship with each parent. The
statute thus clearly vests the trial court with discretion to award unequal residential
time even in the absence of RCW 26.09.191 restrictions.
Rugh provides no Washington authority to support his argument that
RCW 26.16.125 takes priority over the best interests of the child and the criteria
33 95 Wash. 2d 760, 763, 630 P.2d 436 (1981) (emphasis added).
34 6 Wash. App. 722, 725-26, 496 P.2d 576 (1972).
35 RCW 26.09.002.
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set forth in RCW 26.09.187(3).36 We thus reject Rugh’s claim that
RCW 26.16.125’s reference to equal rights to a child compels a court to award
each parent equal time with that child. Such an interpretation would render
superfluous the provisions allowing a trial court to tailor a residential schedule to
reflect each family’s unique circumstances. For the same reason, RCW 26.16.125
does not require a trial court to grant joint decision making in the absence of
RCW 26.09.191 restrictions. The plain language of the statute does not support
Rugh’s interpretation.37
CONLEY’S CROSS APPEAL
1. Abusive Use of Conflict
Conley argues that the trial court erred by finding Rugh had not engaged in
an abusive use of conflict. Conley is incorrect.
RCW 26.09.191(3) provides that a court may preclude or limit any provision
of the parenting plan if the parent’s involvement or conduct has “an adverse effect
on the child’s best interests.” The statute provides a nonexclusive list of factors
36
Only a small number of cases address RCW 26.16.125 at all, most of
which date to the first half of the last century.
37 Even if RCW 26.16.125 could be read to conflict with chapter 26.09
RCW, and that conflict could not be resolved by the plain statutory language, the
provisions in chapter 26.09 RCW governing parenting plans would control
because a specific statute controls over a general statute. See In re Est. of Kerr,
134 Wash. 2d 328, 343, 949 P.2d 810 (1998) (“‘A more specific statute supersedes a
general statute only if the two statutes pertain to the same subject matter and
conflict to such an extent that they cannot be harmonized.’”) (quoting Omega Nat’l
Ins. Co. v. Marquardt, 115 Wash. 2d 416, 425, 799 P.2d 235 (1990)).
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No. 79195-8-I/17
that may constitute an adverse effect on the child’s best interests, including “[t]he
abusive use of conflict by the parent which creates the danger of serious damage
to the child’s psychological development.”38
The trial court found, “There is insufficient evidence of an effect on the child
to find [a]busive [u]se of [c]onflict by either party.”39 Conley contends the trial court
relied on the wrong legal standard in making this finding. She contends the trial
court required her to prove Rugh’s actions had an “effect on the child,” but that she
was only required to prove Rugh’s actions created the “danger of serious damage”
to the child.40
A trial court abuses its discretion when it applies an incorrect legal
standard.41 The statute clearly requires that RCW 26.09.191(3) restrictions may
be imposed only if the parent’s involvement or conduct has “an adverse effect on
the child’s best interests.” One way this can manifest is an abusive use of conflict
if that conflict “creates the danger of serious damage to the child’s psychological
development.”42 Thus, to impose RCW 26.09.191(3) restrictions for abusive use
of conflict, the court must find both that the conflict has an adverse effect on the
38 RCW 26.09.191(3)(e).
39 CP at 1230.
40 Respondent/Cross Appellant’s Br. at 23.
41 In re Marriage of Rostrom, 184 Wash. App. 744, 750, 339 P.3d 185 (2014).
42 RCW 26.09.191(3)(e).
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child’s best interests and that the conflict creates a danger of serious
psychological damage to the child.
The trial court did not err in considering the effect on the child. Conley fails
to establish that the trial court’s refusal to find abusive use of conflict was error.
Conley argues that Rugh “made derogatory statements about the mother in
front of the child” and “made derogatory statements about her home and her
neighborhood.”43 The only such statements Conley cites in her brief are an incident
in February 2017 when the child was approximately 21 months old, where Rugh
and Conley got into an argument, Conley kicked a screw at Rugh, and Rugh threw
it at her car. Rugh told the child to “tell Mommy that you don’t want to live in white
trash Everett.”44 She also noted an incident sometime after April 2017, around the
time of Conley’s move to Everett, when Rugh attempted to drop off the child early,
Conley was still asleep, and Rugh, in front of the child, said “her mommy wasn’t
there for her, so she’s upset.”45
The trial court made detailed findings about the parents’ animosity towards
each other:
More than anything, this litigation appears to be the result of a power
struggle. The parties are frequently intractable in their positions
regarding the child and the particulars of visitation. There is no
compromise. When minor parenting plan violations occur, the
violating parent will not back down. The other parent then responds
43 Respondent/Cross Appellant’s Br. at 23.
44 Id. at 5 (citing Report of Proceedings (RP) (July 25, 2018) at 523).
45 Id. (citing RP (July 26, 2018) at 730).
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with what can only be described as revenge, using the child’s
schedule as a weapon.[46]
The court found that Rugh “on at least two occasions has made statements in front
of the child, with [Conley] present, that are critical of [Conley’s] parenting.”47 The
court also found that Rugh “feels like [Conley] is holding the child ‘hostage’ from
him, that she tries to ‘trick’ him out of money, that the motion to relocate was a
disguised ‘hostile takeover,’ and that he should not have had to respond to
discovery demands such as three years of financial records because it was
‘unreasonable’ and ‘harassment.’”48
However, the court also found that Conley was equally responsible for the
disputes:
For her part, petitioner cannot seem to converse with respondent in
person, by email, or by text without escalating their arguments. She
has denied the respondent guaranteed Skype time with the child
when it “didn’t meet our schedule” and yelled at him in front of the
child. She ignored a parenting plan provision for joint decision
making when she visited several potential preschools without
involving respondent. Petitioner has consistently refused respondent
additional visitation time, even of short periods, or to trade visitation
time, apart from what is in the parenting plan. That is her right, but it
highlights the inflexibility that is completely the opposite of
respondent’s expectations. . . . She can be argumentative, escalate
tension, and insult petitioner in writing and texts.[49]
46 CP at 1225.
47 Id.
48 Id.
49 CP at 1223, 1227.
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Conley does not challenge these findings, and they are verities on appeal.50
Given the circumstances of this case, Conley fails to establish that the trial
court applied an incorrect legal standard or otherwise abused its discretion.
2. Future Modifications of the Parenting Plan
Conley contends the trial court erred when it allowed parties to seek a
future modification of the parenting plan without a finding of adequate cause.
Again, Conley fails to demonstrate error.
At trial, Rugh testified if the trial court granted the relocation petition, he
would move to Everett as well. After outlining the residential schedule, the
parenting plan provided: “Should either party move to within 10 miles of the other,
a motion for adjustment or modification may be filed without a finding of adequate
cause.”51
Conley argues the trial court’s ruling “violated the provisions of
RCW 26.09.260 by reducing the father’s burden of proof for a parenting plan
modification.”52 RCW 26.09.260 requires that a court may not modify a parenting
plan unless it finds 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
50 Conley devotes only a few sentences to this finding in her brief, stating
that her decision to investigate possible daycares and her refusal to give the father
residential time beyond that in the temporary parenting plan were not “cause for
criticism.” Appellant’s Br. at 23. But even if Conley had adequately challenged the
trial court’s findings on this issue, the record supports the findings.
51 CP at 1236.
52 Respondent/Cross Appellant’s Br. at 20.
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the child. RCW 26.09.270 requires that a party seeking to modify a parenting plan
must first establish adequate cause for a hearing on the modification. “When a
parent petitions for modification of an existing parenting plan, RCW 26.09.270
requires the trial court to first determine, based on affidavits submitted by the
parties, whether adequate cause exists to justify a full modification hearing.”53
“The primary purpose of the threshold adequate cause requirement is to prevent
movants from harassing nonmovants by obtaining a useless hearing.” 54
Here, the trial court did not relieve Rugh of his burden under
RCW 26.09.260 to establish a substantial change in circumstances and that a
modification would be in the child’s best interests. The trial court waived only the
need for a separate hearing and a finding of adequate cause. This is a finding
required under RCW 26.09.270, which Conley does not address. Nothing in the
court’s language indicates any intention to relieve either party of the substantive
requirements of RCW 26.09.260. Conley fails to establish error.55
53 In re Parentage of Jannot, 149 Wash. 2d 123, 124, 65 P.3d 664 (2003).
54 In re Marriage of Adler, 131 Wash. App. 717, 724, 129 P.3d 293 (2006).
55Conley also assigns error to the portion of the parenting plan governing
the summer and holiday schedule, contending that it was “confusing and
inconsistent.” Respondent/Cross Appellant’s Br. at 1, 2. However, Conley does
not address these assignments of error in her brief’s argument section, therefore,
we consider any argument waived. Cowiche Canyon Conservancy v. Bosley, 118
Wash. 2d 801, 809, 828 P.2d 549 (1992).
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3. Attorney Fees at Trial
Conley challenges the amount of the attorney fees awarded her at trial.
She contends it was inadequate to compensate her for the extent of Rugh’s
intransigence or to deter future intransigent conduct.
The trial court made findings of fact as follows regarding Rugh’s
intransigence:
With regard to respondent’s intransigence: Respondent asked for
modification of the “final” agreed parenting plan 16 times in 1-1/2
years. Once petitioner filed a motion to relocate and respondent filed
a motion to modify, respondent ignored discovery requirements. He
left all but one income section (liquid assets) of his initial financial
disclosure blank. He twice failed to comply with discovery orders by
the court, both times refusing to provide financial records regarding
his companies and investments. He moved for a protective order
and was denied. He later again moved for a protective order and
again was denied. When he did partially comply with the discovery
requests, far past the deadline, his answers were largely evasive and
incomplete, for example, refusing to provide the name of a financial
institution or answering by telling petitioner to look at other
documents. Most of the “answers” appear actually to be refusals to
answer or in the nature of game-playing. He was found in contempt.
He asked for enforcement of the cohabitation agreement with
petitioner after living apart from petitioner for years. That motion was
denied. He filed a myriad of motions over the course of the litigation
where, if he lost, he asked for revision, then, if he lost, asked for
reconsideration. He took one ruling up for discretionary review
before the Court of Appeals and was denied. All of these motions
required responses by petitioner. Respondent did not answer the
GAL’s questions when he did not consider them relevant to her
investigation. On petitioner’s abilities as a mother, he said if he had
an opinion, “I wouldn’t tell you.” He filed 239 interrogatories in this
case. There is no dispute that the attorney fees for this litigation –
over a parenting plan, essentially – exceed $300,000. The court has
little doubt they will continue to increase. There is a line between
aggressive litigation and intransigence, and respondent crossed it.[56]
56 CP at 1398-99.
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No. 79195-8-I/23
Intransigence is behavior that makes litigation unduly difficult and
unnecessarily expensive.57 It includes litigiousness, pursuing meritless appeals for
the purpose of delay and expense, “foot-dragging, obstructing, filing unnecessary
or frivolous motions, refusing to cooperate with the opposing party, noncompliance
with discovery requests, and any other conduct that makes the proceeding unduly
difficult or costly.”58 A continual pattern of obstruction can include refusing to
cooperate with the GAL,59 or resisting discovery and providing only incremental
disclosure of income.60 Rugh engaged in intransigence.
As a result of Rugh’s intransigence, the trial court awarded Conley $20,650
in attorney fees.
A court may enter an award of fees when one party’s intransigence causes
the other party to incur additional legal costs.61 We review the amount and
reasonableness of an attorney fee award for an abuse of discretion.62
Here, Conley cites to no portion of the record detailing the attorney fees she
expended specifically responding to Rugh’s intransigence. Without such a record,
57 In re Marriage of Wixom, 190 Wash. App. 719, 725, 360 P.3d 960 (2015).
58 Id.
59 In re Marriage of Crosetto, 82 Wash. App. 545, 564 n.5, 918 P.2d 954
(1996)
60 In re Marriage of Mattson, 95 Wash. App. 592, 605-06, 976 P.2d 157
(1999).
61 In re Marriage of Foley, 84 Wash. App. 839, 846, 930 P.2d 929 (1997).
62
Taliesen Corp. v. Razore Land Co., 135 Wash. App. 106, 141, 144 P.3d
1185 (2006).
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No. 79195-8-I/24
we cannot determine that the amount awarded was unreasonable. Conley’s
speculation that the amount was too low to discourage Rugh from continued
intransigence is equally unsupported by the record. Conley fails to demonstrate
that the amount of the fee award was an abuse of discretion.
ATTORNEY FEES ON APPEAL
Conley requests attorney fees on appeal pursuant to RAP 18.1 and
RCW 26.09.140. Under RAP 18.1, we may award attorney fees if authorized by
applicable law. RCW 26.09.140 provides for attorney fees on appeal, considering
the arguable merit of the issues on appeal and the parties’ financial resources.
We exercise our discretion and decline to award fees in this case.
We affirm the court’s order in all respects.
WE CONCUR:
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