Melissa Newman v. Michael Martinek ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MELISSA NEWMAN, nka MELISSA ) No. 81055-3-I
POSTYENI, )
) DIVISION ONE
Respondent, )
) UNPUBLISHED OPINION
v. )
)
MICHAEL MARTINEK, )
)
Appellant. )
)
HAZELRIGG, J. — Michael Martinek appeals the trial court’s denial of his
motion to revise a commissioner’s order. The commissioner confirmed the
arbitrator’s decision entering a long-distance parenting plan after Martinek moved
to Texas with the parties’ daughter. He contends that the superior court erred by
concluding that the arbitrator did not exceed her authority under the parties’
agreement when she entered the long distance parenting plan. We affirm the
superior court’s order and deny the mother’s request for attorney fees on appeal.
FACTS
Michael Martinek and Melissa Postyeni (formerly known as Melissa
Newman) are the parents of a 13-year old daughter. In 2010, the court signed a
divorce decree and entered a parenting plan. In 2013, the parties agreed that
Martinek would be the primary residential parent. On July 29, 2017, Martinek
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served Postyeni with a notice of intended relocation with their daughter from
Seattle to Texas. Postyeni successfully moved for a temporary order denying the
move pending trial. The parties subsequently filed a notice of settlement striking
the trial date.
On July 19, 2018, the superior court entered an agreed order granting
relocation to Texas and an agreed parenting plan. The parenting plan designated
Martinek as the custodial parent, established joint decision making authority for
both parents, and includes a finding that Martinek has a limiting factor under RCW
26.09.191 for abusive use of conflict. The parenting plan granted Postyeni
residential time every Thursday after school until Friday morning, every other
weekend from Thursday after school until the following Tuesday morning, half the
summer, and certain holidays. The parenting plan further provided that if Postyeni
did not move to the same area of Texas before August 31, 2018, “the parties will
engage in mediation/arbitration to determine a long distance Parenting Plan.”
Postyeni obtained an apartment in Texas and traveled there to exercise her
residential time pursuant to the parenting plan while maintaining her residence in
Washington. On August 22, 2018, the parties entered into an agreement to
continue their mediation until November 2, 2018. Postyeni expressed “serious
reservations” about moving to Texas and wanted more time to determine whether
to commit to the move. On November 2, 2018, the parties again continued
mediation until December 6, 2018. Postyeni eventually chose not to relocate to
Texas. Thus, at the December 6, 2019 mediation, Postyeni proposed changes to
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the current residential schedule that would facilitate her ability to live in Seattle and
travel to Texas to exercise her residential time. Martinek rejected her proposal.
On February 1, 2019, Postyeni initiated arbitration of a long-distance
parenting plan. On May 17, 2019, Martinek filed a motion and declaration to
decline jurisdiction in Washington pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), chapter 26.27 RCW. Martinek
argued that Postyeni had relocated to Texas during autumn 2018 and that he had
already served her with registration of the parenting plan at her Texas address.
He also requested a stay of the arbitration proceeding pending the court’s decision
regarding jurisdiction. Postyeni responded with a motion to stay proceedings in
Texas pending the Washington court’s decision regarding jurisdiction, which the
Texas court granted on May 23, 2019.
On July 29, 2019, the superior court in Washington denied Martinek’s
motion and ruled that Washington has continuing exclusive jurisdiction over the
matter. Of particular note, the court found:
The Petitioner has resided in Washington during the pendency of the
action and presently resides in the state of Washington and has an
apartment in Texas to exercise her residential time pursuant to the
parenting plan. The Petitioner did not leave Washington to live
elsewhere.
Martinek did not appeal the order.
Following entry of the jurisdictional order, Postyeni resubmitted her request
for arbitration of a long distance parenting plan. In response, Martinek proposed
his own long distance parenting plan.
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On November 1, 2019, the arbitrator issued her decision. Martinek was
dissatisfied with the arbitration outcome, and on November 5, 2019 he moved for
reconsideration. On November 12, 2019, the arbitrator issued her decision on
reconsideration, which confirmed and clarified her original decision and included a
parenting plan based on that decision.
On November 21, 2019, Martinek filed a motion for de novo review of the
arbitration decision in superior court. He asserted that the court should vacate the
entire arbitration decision because, among other reasons, the new parenting plan
was not in the child’s best interest and the arbitrator exceeded her authority by
modifying the terms of the July 2018 parenting plan. On December 6, 2019, a
superior court commissioner ruled that the arbitrator did not exceed her authority
to enter a long distance parenting plan and denied Martinek’s motion to vacate the
arbitration decision. The commissioner also ruled that Martinek had not acted in
bad faith and denied Postyeni’s request for attorney fees.
Martinek then moved to revise and vacate the commissioner’s ruling
regarding the parenting plan, and Postyeni moved to revise the commissioner’s
ruling regarding attorney fees. On January 10, 2020, after conducting a de novo
review of all documents submitted to the arbitrator, the superior court affirmed the
commissioner’s order. In its oral ruling, which was incorporated into the order, the
court stated:
The parties agreed to the arbitration provision. The parties’ actions
indicate there was no strict horizon on the arbitration provision, and
I’m finding that [the arbitrator] did not exceed her authority in her
decision given that she was—given that she needed to decide a long
distance parenting plan and that that necessarily involves new
elements to manage the long distance between the parties.
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This court also does a de novo review, which I have done here. I’m
finding that her parenting plan was not in error and that it was—it is
reasonable under the circumstances of this case.
The court also stated that Martinek “was certainly in his right to come to court on
this issue” and accordingly denied Postyeni’s request for attorney’s fees. The court
entered the final parenting plan based on the arbitrator’s decision. Martinek
appealed.
ANALYSIS
I. Arbitration Provision
Martinek argues that the trial court erred by denying his motion to revise the
commissioner’s ruling confirming the arbitration decision. “Generally, a trial court’s
rulings dealing with the provisions of a parenting plan are reviewed for abuse of
discretion.” In re Marriage of Christel and Blanchard, 101 Wn. App. 13, 21-22, 1
P.3d 600 (2000). We also review a trial court’s denial of a motion for revision of a
commissioner’s order for abuse of discretion. River House Dev., Inc. v. Integrus
Architecture, P.S., 167 Wn. App. 221, 231, 272 P.3d 289 (2012). A trial court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d
39, 46-47, 940 P.2d 1362 (1997). “On appeal, this court reviews the superior
court’s ruling, not the commissioner’s.” Maldonaldo v. Maldonaldo, 197 Wn. App.
779, 789, 391 P.3d 546 (2017). The trial court’s interpretation of the arbitration
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statute and the parenting plan are questions of law reviewed de novo. In re Smith-
Bartlett, 95 Wn. App. 633, 636, 976 P.2d 173 (1999).1
Here, the parties’ final parenting plan and RCW 26.09.184(4) govern the
dispute resolution process. That statute provides:
(4) DISPUTE RESOLUTION. A process for resolving disputes, other
than court action, shall be provided unless precluded or limited by
RCW 26.09.187 or 26.09.191. A dispute resolution process may
include counseling, mediation, or arbitration by a specified individual
or agency, or court action. In the dispute resolution process:
(a) Preference shall be given to carrying out the parenting plan;
(b) The parents shall use the designated process to resolve disputes
relating to implementation of the plan, except those related to
financial support, unless an emergency exists;
(c) A written record shall be prepared of any agreement reached in
counseling or mediation and of each arbitration award and shall
be provided to each party;
(d) If the court finds that a parent has used or frustrated the dispute
resolution process without good reason, the court shall award
attorney’s fees and sanctions to the prevailing parent;
(e) The parties have the right of review from the dispute resolution
process to the superior court; and
(f) The provisions of (a) through (e) of this subsection shall be set
forth in the decree.
The parenting plan provided the following dispute resolution
provision:
Agreed Relocation of Both Parties to Dallas Area. The parties agree
that if the father moves to Waxahachie or Midlothian, Texas, during
the summer of 2018 . . . the mother will not object to relocation of the
child. The mother plans to move to the same area . . . . If the mother
does not move to the same area before August 31, 2018, the parties
will engage in mediation/arbitration to determine a long distance
Parenting Plan. Both sides will accomplish this before the end of
Summer 2018.
1
Our decision is the same under either standard of review.
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The parenting plan defines “mediation/arbitration” as “mediation followed by
arbitration by the mediator if the parties cannot reach agreement within a
reasonable amount of time.”
Martinek contends that the arbitrator exceeded her authority by entering the
long distance parenting plan. He contends that the arbitrator’s decision constituted
an improper modification of the parenting plan. We disagree.
“A permanent parenting plan may be changed by an agreement, by petition
to modify, and by temporary order.” In re Marriage of Watson, 132 Wn. App. 222,
235, 130 P.3d 915 (2006). A modification occurs when the effect of the court’s
ruling causes a party’s rights to be “either extended beyond or reduced from those
originally intended in the decree” and requires a statutory modification procedure
to be followed. Christel, 101 Wn. App at 22. Because a trial court cannot delegate
its authority to modify a parenting plan, “[a]ny modification, no matter how slight,
requires an independent inquiry by the trial court.” In re Marriage of Coy, 160 Wn.
App. 797, 804, 248 P.3d 1101 (2011). “In contrast, a trial court can delegate its
responsibility of interpreting the parenting plan, as long as the parties retain a right
of review by the trial court.” Id. at 804 n. 5 (emphasis omitted) (citing In re
Parentage of Schroeder, 106 Wn. App. 343, 353 n. 8, 22 P.3d 1280 (2001); Smith-
Bartlett, 95 Wn. App. at 640).
Martinek, relying primarily on In re Marriage of Christel and Blanchard,
argues that the long distance parenting plan amounted to an impermissible
modification of the existing parenting plan. 101 Wn. App. 13. His reliance on
Christel is misplaced. There, the parenting plan contained a dispute resolution
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provision stating that requiring the parties to go mediation and, if that failed, to
family law court “[i]f [they] are unable to agree on a Major Decision.” Id. at 21-22.
The trial court entered an order that included new provisions for dispute resolution,
even though neither party had sought to change or clarify the dispute resolution
process. Id. at 23. This court held that the order improperly modified the parenting
plan because it went beyond explaining the provisions of the existing plan and
imposed new limits on the rights of the parents. Id. at 23-24. Here, in contrast,
the agreed parenting plan expressly and unambiguously provided for arbitration of
a long distance parenting plan in the event that Postyeni did not move to Texas.
In so doing, the arbitrator properly implemented the agreed parenting plan.
Martinek asserts that the arbitration provision expired at the end of summer
2018 because Postyeni failed to initiate arbitration of a long-distance parenting
plan prior to the end of summer 2018, even though she moved to Texas. He
asserts that the long distance parenting plan was unnecessary because Postyeni
proved herself capable of following the existing parenting plan from July 2018
through November 2019. But the UCCJEA order, which Martinek did not appeal,
expressly found that Postyeni never moved to Texas. Rather, she followed the
existing parenting plan while maintaining a residence in Washington while she was
deciding whether she was able to commit to moving to Texas. The parties entered
several agreements to continue arbitration to a later date in order to allow Postyeni
time to make this important decision. We agree with the trial court that these
actions indicate the parties agreed not to enforce a strict deadline for implementing
the arbitration provision.
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Martinek also appears to argue that the arbitration provision in the existing
parenting plan amounts to an unenforceable delegation of the court’s modification
authority to the arbitrator. But the agreed parenting plan did not purport to prevent
the trial court from conducting an independent de novo review of the arbitration
decision pursuant to RCW 26.09.184(4)(e). The trial court did so. The fact that
Martinek dislikes the result does not render the arbitrator’s decision improper.
II. Attorney Fees
Postyeni requests an award of attorney fees and costs incurred on appeal
under RAP 18.1(a), which authorizes such an award if provided by other applicable
law. Postyeni cites CR 11 as legal authority supporting such an award. Under CR
11, a trial court may sanction a party or representative for filing a pleading, motion,
or memorandum that is frivolous or interposed for an improper purpose. “An
appeal is frivolous if, considering the whole record, this court is convinced there
are no debatable issues on which reasonable minds may differ and it is totally
devoid of merit.” In re Recall of Boldt, 187 Wn.2d 542, 556, 386 P.3d 1104 (2017).
Martinek’s appeal was not frivolous. We decline to award fees to Postyeni on this
basis.
Affirmed.
WE CONCUR:
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