Tanya Goodman, Appellant/cross v. David Parson, Respondent/cross-appellant ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parenting and
Support of No. 80839-7-I
A.P. DIVISION ONE
DAVID PARSONS, UNPUBLISHED OPINION
Respondent/Cross Appellant,
and
TANYA GOODMAN,
Appellant/Cross Respondent.
APPELWICK, J. — Tanya Goodman and David Parsons, the parents of A.P.,
have been involved in protracted conflict since shortly after his birth. The trial
court adopted a final parenting plan for A.P. when he was two years old,
following a trial. Three years later, after another trial, the court modified the
parenting plan. Finding that the mother had engaged in abusive use of conflict,
the court allocated sole decision-making authority to the father as to education
and non-emergency healthcare and altered transportation provisions. The court
declined to modify the residential schedule and denied the father’s request for
attorney fees. Both parties appeal.
Substantial evidence supports the court’s findings. The trial court did not
misapply the law or abuse its discretion with respect to the imposition of RCW
26.09.191 restrictions, transportation provisions, or the residential schedule. We
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affirm the trial court’s order and findings on the modification petition and the final
parenting plan.
FACTS
In 2015, Parsons filed a parentage action, seeking the adoption of a
parenting plan for A.P. In November 2016, the court entered the final parenting
plan following a trial. That plan provided for joint decision-making and a
residential schedule that gradually increased A.P.’s residential time with Parsons.
When A.P. reached the age of five, the plan set forth a 50/50 residential
schedule. Due to the high level of conflict between the parties, the parenting
plan included an alternative dispute resolution process and required use of a
parenting coordinator to facilitate the parties’ communication.1
When it adopted the 2016 parenting plan, the court found that Goodman
had not always acted in A.P.’s best interests and her conduct had potential to
“undermine” A.P.’s relationship with his father. Specifically, the court found that
Goodman had disparaged Parsons, secretly submitted A.P. to a child abuse
examination, and instigated an abuse investigation of Parsons without concrete
evidence. The court warned Goodman to refrain from communicating a
“pathologized impression” of Parsons. The court stated that the parenting plan
should be modified if Goodman continued to act in a manner that created a
likelihood of “alienating the child from a parent or of pushing an adult’s anxieties
onto the child.” Goodman appealed and this court affirmed the parenting plan.
1 The parenting plan provided for mediation, but the court later amended
the provision to require arbitration and to allow the parenting coordinator to
resolve “minor” disputes with the right to seek review by the arbitrator.
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See In re the Parenting & Support of A.P., noted at 6 Wn. App. 2d 1044, 2018
WL 6787917 (unpublished).
The conclusion of the trial and entry of a final permanent parenting plan
did not put an end to, or in any way diminish, the conflict between the parents.
A.P.’s diagnosis of autism spectrum disorder shortly after the trial and issues
related to the appropriate treatment following that diagnosis and other health
care issues became major sources of conflict. Other disputes involved the
residential provisions, vacations, telephonic and “Facetime” access, and
appropriate preschool programs. Two parenting coordinators worked intensively
with the parties. The parties submitted approximately 20 issues to arbitration.
The court found the mother to be in contempt in 2017 and again in 2018 for
violating residential provisions of the parenting plan.2 The mother also filed an
anti-harassment petition against Parsons’ spouse, Monica Parsons.3 The trial
court dismissed that petition and imposed sanctions.
The first parenting coordinator withdrew from the case after working with
the parties for approximately a year. Her final status report stated, in part:
Joint decision making is unworkable for this family, fuels conflict and
results in delays that are not in [A.P.’s] best interests. In most cases, it
2 Contrary to the mother’s claim, this court did not overturn either finding of
contempt based on Goodman’s violation of parenting plan provisions. Instead,
the court concluded that the finding of contempt based on nine violations of the
arbitrator’s ruling on telephone access could not be a basis for contempt because
the ruling had not been confirmed by the court. See In re the Parenting &
Support of A.P., noted at 9 Wn. App. 2d 1089, 2019 WL 3546870, *5
(unpublished). The court held that Goodman was nonetheless subject to
sanctions for violating the ruling under RCW 26.09.184(4). Id. at *8.
3 Because Parsons and his spouse share the same last name, we refer to
his spouse as Monica to avoid confusion.
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would be fairly easy to reallocate decision to one or the other parent. In
this case, assigning a sole decision maker is complicated by the parents’
radically different perceptions of [A.P.] and their polarization regarding his
developmental and medical needs.
The parenting coordinator also noted longstanding concerns about the mother’s
“persistent negative orientation” toward the father and her “habit of interviewing
the child with an eye to allegations of abuse or neglect.” The parenting
coordinator recommended that the mother undergo a psychological evaluation
and recommended a reevaluation of the question of decision making.
The father filed a petition to modify the parenting plan.4 A.P. was five
years old at the time of trial on the modification petition in October 2019. The
court appointed experts to conduct a psychological evaluation and a parenting
evaluation. Clinical and forensic psychologist, Dr. Gary Wieder, conducted the
parenting evaluation and submitted a 104 page report. Dr. Wieder
recommended allocating sole decision-making authority to the father.
After reviewing more than 150 exhibits and hearing testimony from 12
witnesses over 6 days, the trial court entered a final parenting plan and an order
and findings on the petition to modify. The court later granted the mother’s
motion for reconsideration, in part, and entered an amended parenting plan and
final order and findings.
The court found a substantial change of circumstances and that
nonresidential changes to the parenting plan were in the child’s best interest.
See RCW 26.09.260(10). The court determined that the mother had engaged in
the abusive use of conflict. The court found that the father’s request for sole
4 The record on appeal does not include Parsons’ petition.
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No. 80839-7-I/5
decision-making authority was reasonable on that basis and in view of the history
of each parent’s participation in decision making. The plan provides for the
father to have sole decision-making authority as to educational and non-
emergency health care issues, with input from the mother. The court also found
that the mother had “increased the conflict” during exchanges at the father’s
home. To address this, the court adjusted the transportation provisions to
require the mother to arrange for third-party transportation at her expense when
exchanges must occur at Parsons’ home.
The court declined to reduce the mother’s residential time with A.P., as
requested by the father. Despite Goodman’s conduct, the court found that the
attachment between A.P. and Parsons remained intact, and retained the 50/50
residential schedule. The court denied the father’s motion for attorney fees.5
Both Goodman and Parsons appeal.
DISCUSSION
I. Standard of Review
We review a trial court’s decisions related to the welfare of children for an
abuse of discretion. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124(2004). Relevant here, a court has authority to modify a parenting plan and
impose restrictions under RCW 26.09.191, to the same extent it has the authority
to do so at the time of entry of the parenting plan. In re Marriage of Watson, 132
Wn. App. 222, 232, 130 P.3d 915 (2006). We review modifications to a parenting
5
The court did not require the use of a parenting coordinator in the 2019
parenting plan, but required the parties to continue to submit disputes to the
same arbitrator, based on his extensive familiarity with the case.
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plan for an abuse of discretion. In re Marriage of Hansen, 81 Wn. App. 494, 498,
914 P.2d 799 (1996). A trial court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or reasons. In re
Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012).
We uphold a trial court’s findings if supported by substantial evidence. In
re Marriage of Raskob, 183 Wn. App. 503, 510, 334 P.3d 30 (2014). Substantial
evidence exists if the record contains evidence of a sufficient quantity to
persuade a fair-minded person of the truth of the declared premise. Katare, 175
Wn.2d at 35. “Our role or function is not to substitute our judgment for that of the
trial court or to weigh the evidence or credibility of witnesses.” In re Marriage of
Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996). The person challenging the
findings of fact bears the burden of demonstrating that substantial evidence does
not exist. In re Marriage of Grigsby, 112 Wn. App. 1, 9, 57 P.3d 1166 (2002).
We review de novo whether the trial court’s findings of fact support its
conclusions of law. Raskob, 183 Wn. App. at 510.
II. Goodman’s Appeal
A. Abusive Use of Conflict
Goodman claims the court did not apply the same standard to both parties
when it found that she, and not Parsons, engaged in the abusive use of conflict.
She argues that the court found abusive use of conflict even though none of her
behavior created a “danger of serious damage to the child’s psychological
development,” as required by RCW 26.09.191(3)(e). On the other hand, she
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claims the court “excused” Parsons’ “high conflict behavior that directly involved
the child.”
A court may preclude or limit any provision of the parenting plan if a
parent’s involvement or conduct has “an adverse effect on the child’s best
interests.” RCW 26.09.191(3). That statute provides a nonexclusive list of
factors that may have 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.” RCW 26.09.191(3)(e). A
finding of abusive use of conflict does not require actual damage. In re Marriage
of Burrill, 113 Wn. App. 863, 872, 56 P.3d 993 (2002). “[T]he required showing is
that a danger of psychological damage exists.” Id.Here, the court found, in relevant part,
1. The Court finds the mother has engaged in abusive use of
conflict. The mother was found in contempt of court on July 28,
2017 and on July 12, 2018 for intentionally withholding the child
from the father in violation of the final Parenting Plan. The mother
has been sanctioned pursuant to CR 11 for seeking an anti-
harassment order against the stepmother in bad faith. The mother
filed a motion for contempt against the father which she later
withdrew, but only after the father filed a response and incurred
attorney fees. The court finds credible the testimony of the
stepmother Monica Parsons that: (a) at the child’s occupational
therapy appointment, the mother blocked her view of the child and
then taunted her, and (b) at the child’s medical appointment at
Seattle Children’s Hospital, the mother prevented her from
attending the appointment and removed the child from her arms.
The court finds credible the testimony of the father that: (a) the
mother improperly interfered with the child receiving a flu shot and
a vaccination for Hepatitis A, (b) the mother violated the November
of 2016 final Parenting Plan by taking pictures from the father’s
“Baby Cam” located in his house that was ordered to be
discontinued, (c) the mother changed the father’s answers on
medical intake forms for the child, and (d) the mother’s
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No. 80839-7-I/8
inappropriate conduct caused an autism specialist to decline
evaluating the child and thus unnecessarily delayed his autism
reevaluation.
...
3. The court finds that the father has caused unnecessary conflict
with the mother, but that his conduct falls short of abusive use of
conflict. For example, the father adds food coloring to the child’s
food even though it appears to serve no purpose other than to
cause the mother distress. The mother testified credibly that the
father can see the school from his home and that he spies on the
mother when she drops the child off at school. The mother testified
credibly that during a difficult child exchange at the father’s house,
the father stood behind the front door and surreptitiously audio
recorded her rather than assisting with the transfer. The mother
testified credibly that during the child’s first day of kindergarten, the
father stood-by video-recording her the entire time.
Substantial evidence in the record supports the court’s finding that all of
the identified incidents occurred. We do not agree that the court must have
applied the legal standard unequally in order to reach different conclusions about
whether the parents’ conduct amounted to abusive use of conflict. The court
found that Goodman engaged in both different and more extensive conduct than
Parsons. The court concluded that Parsons’ actions—using food coloring,
watching the mother from his home when she dropped A.P. at school, audio
recording the mother from behind a door, and video recording her with A.P. on
the first day of kindergarten—caused unnecessary conflict. But, those actions
did not involve the child in the parties’ conflict and the court correctly did not find
that those acts created a danger of serious damage to A.P.’s psychological
development. And, contrary to Goodman’s argument, the court expressly found
that Parsons’ conduct was inappropriate. The court addressed the misconduct
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by ordering the parties not to record each other without consent and directing the
father “not to spy” on Goodman at A.P.’s school.
Goodman points out that her acts were not egregious in comparison with
abusive use of conflict that has occurred in other cases. For example, Goodman
cites Burrill, in which the mother engaged in abusive use of conflict by, among
other things, raising unfounded allegations of sexual abuse that resulted in the
father’s arrest and a significant disruption of the parent-child relationship. Burrill,
113 Wn. App. at 867-68. But, the conduct in Burrill was the basis for more
severe restrictions than the court imposed here. Id. at 868. And, more
importantly, the fact that a court relied on more serious misconduct to find
abusive use of conflict in another case does not establish that the mother’s
actions were insufficient to support restrictions under RCW 26.09.191(3).
Goodman claims that A.P. was not involved in or aware of some of her
actions, such as her legal actions against Monica and Parsons and her
confrontation of Monica during A.P.’s therapy session. So, even if these actions
fueled conflict between the parties, she asserts that they posed no danger of
serious damage to A.P.’s psychological development.
But, Goodman concedes that a child may be psychologically harmed by
parental conduct of which the child is unaware. Generally, courts find abusive
use of conflict where one parent inserts a child into a parental conflict. See
Burrill, 113 Wn. App. at 868. And, here, in addition to acts that A.P. was
presumably unaware of, the court relied on other acts that directly involved him in
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No. 80839-7-I/10
conflict and created a risk of alienating him from Parsons or eroding his parental
trust.
Dr. Wieder concluded that Goodman engaged in the abusive use of
conflict. He cited as examples the mother’s actions of obstructing A.P.’s flu shot,
her delay of A.P.’s autism reevaluation by accusing the designated provider of
extortion, and the incident at Seattle Children’s Hospital when Goodman took
A.P. from Monica’s arms which caused him significant distress.
Dr. Wieder explained that Goodman’s overt hostility toward Monica sent
harmful “messages” to A.P. and the mother’s attempts to sabotage Monica’s
caretaking were potentially “detrimental” to him. Dr. Wieder determined that the
mother exposed A.P. to “unnecessary conflict” and her actions showed “the
mother’s needs overriding those of her son and creating the potential detriment”
to him. Dr. Wieder also testified that “frivolous litigation is a basis for abusive use
of conflict,” and that Goodman’s actions toward Monica showed a willingness to
go to “great lengths” in protest of her involvement in ways that are “harmful, and
distorted, and overreactive.” Dr. Wieder expressed concerns that the mother’s
pervasive negative views of the father and his spouse were not susceptible to
change:
So my concern is that the distorted views that I believe she has
about the father and Stepmother could lead her, and likely will lead
her, to both provocatively controlling behaviors and potentially
overinvolvement behaviors with her child.
The trial court found that Dr. Weider’s testimony was credible.
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The evidence in the record is sufficient to persuade a fair-minded person
that Goodman involved the child in the parties’ conflict creating a danger of
serious damage to his psychological development. Therefore, the court acted
within its discretion by restricting the mother’s decision-making authority under
RCW 26.09.191(3).
B. Transportation Provisions
Goodman challenges the provision that requires her to arrange for a third-
party to transport A.P. to Parsons’ home. The court adopted the measure to
address conflict during exchanges at the father’s home:
6. The court finds credible the father’s testimony that the mother’s
conduct at his home during child exchanges has increased the
conflict. She unnecessarily prolongs the exchanges at his home,
causing the child distress. She interferes with the child entering the
father’s house if the stepmother answers the door. She called the
police to the father’s house to help her with a child exchange even
though there was no reason to seek help from law enforcement.
Goodman claims the court’s finding is based on speculation that she is the
cause of A.P.’s resistance to transitions. But, the testimony of Parsons, Monica,
and Dr. Wieder, and video evidence support the court’s finding. There was
evidence that Goodman prolonged transitions, indulged A.P.’s requests, failed to
encourage him to enter the house when Monica was present, and encouraged
A.P. to demand Parsons’ assistance. And, as recounted by the court, on one
occasion, the mother sat in her vehicle with A.P. for more than an hour and then,
unnecessarily, summoned police to assist her.
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No. 80839-7-I/12
The court made no “implicit finding” about the availability of a third-party to
transport A.P. on Goodman’s behalf. We are not persuaded by Goodman’s
speculation that she might be unable to comply with the court’s order.
C. Other Issues
Goodman challenges the requirement that A.P. attend school in the district
where Parson lives. She claims this decision failed to take into account the
traumatic brain injury she suffered in January 2018 which impacts her ability to
transport A.P. during her residential time. However, the choice of school issue
was not before the court in 2019. Several months earlier, the arbitrator resolved
the issue after considering input from the parents and the parenting coordinator.6
The issue of school choice is not properly before us in this appeal of the 2019
parenting plan and order and findings on modification.
Goodman also challenges the court’s finding that “Dr. Weider testified
credibly that the mother and father are incredibly polarized in their beliefs about
what is best for the child, and that the father’s views are more aligned with the
views of the child’s healthcare providers and educators.” Contrary to Goodman’s
argument, substantial evidence in the record supports this finding. Dr. Weider
testified consistently with other evidence in the record, that many of the mother’s
opinions are “out of sync” with A.P.’s health care providers. There was evidence
demonstrating that although A.P. had seen as many as 30 doctors since the
entry of the parenting plan and had been subjected to a wide array of medial and
6 In his brief Parsons asserts that the mother sought review of the
arbitrator’s decision in superior court but did not appeal.
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No. 80839-7-I/13
developmental exams for someone his age, there was little evidence to
substantiate most of the mother’s medical concerns. And, there was evidence
that the mother continued to insist that A.P. suffered from ailments and injuries in
the face of contrary medical evidence.
In its findings and order on modification, the court ordered the father to
arrange for an autism reevaluation within six months. The mother claims the
court erred by entering the parenting plan because, without the results of that
evaluation, it was not possible to know what provisions are in A.P.’s best interest.
We disagree. In adopting the parenting plan, the court took into account all of
the evidence about A.P.’s needs and development, including his pending
reevaluation. Goodman fails to establish error.
III. Parsons’ Cross Appeal
A. Residential Schedule
Parsons claims that, based on the finding of abusive use of conflict, the
court should have adopted his proposed residential schedule and significantly
reduced Goodman’s residential time with A.P. Parsons argues that reducing the
mother’s residential time was warranted because the evidence showed that her
alienating behaviors had already affected A.P.7
As explained, the court had discretion to place limitations on Goodman’s
involvement, including her residential time, based on its finding under RCW
7 Parsons claims that A.P. has made spontaneous statements that suggest
coaching by Goodman. However, he cites an exhibit that was not designated as
a part of the record on appeal. To the extent that Parsons raised the issue in the
parenting evaluation, the evaluator concluded the allegations could not be
verified.
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26.09.191(3)(e). But, the court was not required to do so. And, in addition to the
evidence Parsons cites, the court considered other evidence that A.P. was
attached to both parents and both have strengths. The court also considered Dr.
Wieder’s opinion that notwithstanding the abusive use of conflict, the court
should not disturb the residential schedule and doing so would not necessarily
reduce the potential impact of alienating behavior. The court did not abuse its
discretion.
B. Attorney Fees
The court’s initial order provided that Parsons could request attorney fees
in a posttrial motion. Parsons apparently filed such a motion, seeking over
$35,000 in fees, and the trial court denied it. The court later denied his motion to
reconsider that ruling.
Parsons claims he was entitled to fees because Goodman’s “undying
intransigence” necessitated the modification. However, Parsons failed to
designate his motion for attorney fees, the trial court’s decision on the motion, or
his motion for reconsideration and neither those pleadings nor the court’s order
are included in the record on review. A determination of intransigence is
necessarily factual. In re Marriage of Wixom, 190 Wn. App. 719, 725, 360 P.3d
960 (2015). Without a record of the arguments raised below and the basis for
the court’s ruling, we are unable to review Parsons’ claim that the court abused
its discretion in denying his request for attorney fees. See In re Marriage of
Bobbitt, 135 Wn. App. 8, 29-30, 144 P.3d 306 (2006) (this court reviews a motion
for attorney fees based on intransigence for an abuse of discretion).
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IV. Attorney Fees on Appeal
Parsons seeks an award of attorney fees on appeal, arguing that
Goodman’s appeal is frivolous. But, he cites CR 11 and RCW 4.84.185 and
neither provides a basis to recover his fees on appeal. We deny the request. 8
Affirmed.
WE CONCUR:
8 A commissioner of this court previously denied Goodman’s motion to
strike and request for sanctions related to Parsons’ reply brief. To the extent that
Parsons’ brief is improperly directed at the issues Goodman raised in her
opening brief and not limited to a reply to Goodman’s response to the issues he
raised in his cross appeal, we disregard the improper arguments. See RAP
10.3(c) (reply brief must be “limited to a response to the issues in the brief to
which the reply brief is directed.”).
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