In re the Marriage of Pape

Madsen, J.

(dissenting) — The majority’s opinion loses sight of the policy of the Parenting Act, chapter 26.09 RCW, which “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.” RCW 26.09.002 (emphasis added). I would affirm the unanimous Court of Appeals’ decision in this case. Accordingly, I respectfully dissent.

I would start by honoring the language of the parenting plan agreed upon between these two parties. It required that the parents “discuss together any major decisions which have to be made about or for the children” and further provided that “major decisions concerning the children’s welfare shall be made by both parties.”¹⁰ Clerk’s Papers (CP) at 61. “Major decisions” were defined to include the following: “Change of school not mandated by authorities” and “[mjoving the children or daycare outside of an area including all of Pierce County and a ten-mile driving radius outside of the borders of Pierce County.” Id. Although Johnson-Pape quite unilaterally moved the children well outside of a 150-mile driving radius of Pierce County, the majority avoids giving effect to the language forbidding her from doing so without Pape agreeing to, or even discussing with her, that major decision. Instead it writes that “we deem it unnecessary to give separate consideration to the father’s argument that the decision-making provisions of the plan were modified or that they should be enforced as written.” Majority at 705-06. In its indifference to the substantive nature of parenting plans, the majority heedlessly sweeps aside the mandate of RCW 26.09.260(1), which provides that

the court shall not modify a . . . parenting plan unless is finds, upon the basis of facts that have arisen since the . . . plan or that were unknown to the court at the time of the . . . plan, 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 the child and is necessary to serve the best interests of the child.

(Emphasis added.)

The majority agrees with Johnson-Pape that this case involved nothing more than a “minor modification” to a parenting plan and, accordingly, finds that it falls within an exception to RCW 26.09.260(1). However, this contention, on its face, defies credulity — not to mention the plain letter of the exception:

The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child ... if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of time and:

(b) Is based on a change of residence or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow ....

RCW 26.09.260(5) (emphasis added). Although RCW 26.09.260(5) is an exception to the rigid standard for modification enunciated in RCW 26.09.260(1), it hardly seems applicable here. After all, it must be fairly conceded that this case involves a bit more than a “minor modification in the residential schedule[.]” RCW 26.09.260(5) (emphasis added). Prior to the change, “[t]he children’s residential time with Pape was specifically tailored to accommodate monthly YMCA Indian Princesses father-daughter weeknight and weekend activities.” In re Marriage of Pape, 93 Wn. App. 96, 98, 968 P.2d 417 (1998). As the Court of Appeals noted:

Here, the trial court’s modification: (1) altered the children’s residential schedule to accommodate Johnson-Pape’s move to Clark County; (2) nullified the agreed geographic restriction on the children’s residence; (3) changed the children’s daycare; (4) changed the children’s schooling; and (5) eliminated Pape’s participation in the children’s after-school midweek activities, midweek residence with him, and Indian Princesses, all without Pape’s consent, contrary to the express provisions of the plan.

Pape, 93 Wn. App. at 106.

While the first of the five effects that the Court of Appeals identifies could arguably pass muster under RCW 26.09.260(5), the other four would appear to exceed the statute’s scope of permissible “minor modification” to a parenting plan’s “residential schedule” alone — unless the words “residential schedule” are but a Trojan Horse in which a great many concepts are hidden. Moreover, Johnson-Pape’s move to Camas preceded her motion to modify the residential schedule to accommodate an effect of her move. In essence, she first moved and then sought permission to move. Yet, even given the language of RCW 26.09.260(5), it would appear that Johnson-Pape could not have invoked the “change of residence” basis for modification under RCW 26.09.260(5)(b) until she was first, under the terms of a parenting plan that she had voluntarily entered into, given permission by Pape to change residence outside of the agreed geographical boundaries. Certainly, upon her being given permission, the court could then modify, under RCW 26.09.260(5), the residential schedule — if nothing else. This was in keeping with the deal that she had struck with her ex-husband:

In exchange for a plan that balances parenting responsibilities, a parent may decide to forgo seeking primary designation. Here, rather than litigating which parent would provide the children’s residence a majority of the time, Pape yielded the children’s primary residence to Johnson-Pape. In exchange, Johnson-Pape agreed that she would not move the children 10 miles from Pierce County without his consent, thus ensuring Pape’s frequent and substantial interaction with their children, including midweek.

Pape, 93 Wn. App. at 104 (footnote omitted).

This quid pro quo was hardly a contract of adhesion whose enforcement would work to Johnson-Pape’s disadvantage. Instead, the initial parenting plan between Johnson-Pape and Pape was in accordance with the purposes of the Parenting Act of 1987, which “represents a unique legislative attempt to reduce the conflict between parents who are in the throes of a marriage dissolution by focusing on continued ‘parenting’ responsibilities, rather than on winning custody/visitation battles.” In re Marriage of Kovacs, 121 Wn.2d 795, 800, 854 P.2d 629 (1993). The act thus “attempts to encourage amicable settlements of disputes connected with separation and marriage dissolution.” In re Marriage of Littlefield, 133 Wn.2d 39, 58, 940 P.2d 1362 (1997) (citing RCW 26.09.070). Here, however, the majority is punishing Pape for the very amicability the act is designed to foster. In exchange for ensuring “frequent and substantial interaction” with his children, Pape, 93 Wn. App. at 104, who were to be located in close proximity to his home, Pape ceded the primary residential parent role to his ex-wife. He could not have foreseen, in light of the majority’s position today, the penalties in so acting.

The majority, sua sponte, evidences in dicta its disregard for a nonprimary residential parent’s role in parenting his or her children. See, e.g., Majority at 708-10. In so doing, it risks conveying the message that the law and facts of this case do not matter because any involvement by Pape in the lives of his children is simply irrelevant.¹¹ After this case, I cannot imagine why any nonprimary residential parent would have faith in the Parenting Act, or want to engage in the apparently empty exercise of negotiating a parenting plan.

The majority relies heavily on In re Marriage of Littlefield, and its apparent progeny in two other divisions of the Court of Appeals. However, Littlefield is distinguishable, and not only because it did not implicate the statutory provision at issue here. It is worth noting, though, that where Littlefield once mentions RCW 26.09.260 in passing, it writes that “a trial court is encouraged to require, as part of the parenting plan, that either parent notify the other of significant changes, such as an anticipated change of residence, sufficiently in advance of the change to facilitate a modification in the residential schedule of the child.” Littlefield, 133 Wn.2d at 56 (emphasis added). That notice, and much more, was required by the parenting plan in this case, so this guidance from Littlefield is now rendered as hollow as that guidance of the Parenting Act itself relating to parenting plans.

In addition to the fact that Littlefield is not based upon RCW 26.09.260, see majority at 712-13, it is inapposite for other reasons as well. In Littlefield, the parents did not voluntarily enter into any parenting plan. See Littlefield, 133 Wn.2d at 44. There the trial court itself created the parenting plan, ordering in that initial plan that the primary residential parent move from California to the Seattle area. See Littlefield, 133 Wn.2d at 45. It also ordered that the child have frequent visits with the nonprimary residential parent, despite the fact that, unlike the plan at issue here, “[t]he parties did not knowingly and voluntarily agree to the frequent, weekly changes of their daughter’s residence, and the parties had no history of cooperation and shared performance of parenting functions.” Littlefield, 133 Wn.2d at 54 (emphasis added). We held these actions to be outside of the trial court’s authority. In the Division One case of Bower v. Reich, 89 Wn. App. 9, 964 P.2d 359 (1997), the parents had no agreed geographical restriction in their parenting plan, although the nonprimary residential parent sought to obtain one in preventing the primary residential parent from moving out-of-state, and Division Two is correct in this case in noting that “[ujnlike Littlefield and Bower, Pape has not sought to restrict where Johnson-Pape lives or works; rather, he seeks to enforce the parenting plan requirement that the children reside in or within 10 miles of Pierce county unless both parents consent to their moving away.”¹² Pape, 93 Wn. App. at 107. After all, the “Parenting Act does not prevent parents from agreeing to geographic restrictions on their children’s residence or schooling. Rather, . . . the Parenting Act strongly encourages parents to reach agreement concerning postdissolution parenting agreements that serve the children’s best interests and that foster both parents’ continuing relationships with their children.” Pape, 93 Wn. App. at 108 (citing RCW 26.09.002, RCW 26.09.184(1)(f).

The Court of Appeals was correct when it stated that “parents should generally be able to enforce such agreed restrictions, so long as such enforcement is in the best interests of the children.” Pape, 93 Wn. App. at 108-09. Therefore, I cannot agree with the majority of this court when it holds that after residential placement is determined a court’s role in parenting decisions ends — regardless of the terms of a parenting plan in a particular case — “unless the child’s well-being is seriously threatened by parenting decisions” — a threat that “[a] change in the location of the child’s place of residence, with the primary residential parent, generally does not pose . . . .” Majority op. at 716 (emphasis added). This standard flies in the face of the Legislature’s intent when it adopted the Parenting Act. I would, therefore, uphold the unanimous Court of Appeals’ decision in this case and remand to the trial court to determine whether “modification is in the best interest of the child and is necessary to serve the best interests of the child.” RCW 26.09.260(1). Accordingly, I dissent.

Alexander and Sanders, JJ., concur with Madsen, J.

10 More generally, the plan even stipulated that neither parent would “make plans and arrangements that would impinge upon the other parent’s authority or time with the children without the express agreement of the other parent.” Clerk’s Papers at 62 (emphasis added).

11 Indeed, the majority’s opinion is heavy on broad social commentary and light on the law. The majority primarily relies upon, and quotes at great length, eight “authorities” that are either treatises, law review articles or reports. While these materials may make for interesting reading, they are certainly not law. As a result, the majority relies heavily on ER 201 but fails to take notice of what is truly at issue here: the facts involving these two specific parties.

12 Even the majority frankly concedes that it is unclear what the second Court of Appeals case that it cites, In re Marriage of Flynn, 94 Wn. App. 185, 972 P.2d 500 (1999), stands for. See Majority at 715 n.9. Flynn, ostensibly predicated upon Bower and our holding in Littlefield, erroneously asserts that Littlefield is a case “interpreting the minor modification provisions” of former RCW 26.09-.260(4)(b)(iii) (renumbered as RCW 26.09.260(5)). Flynn, 94 Wn. App. at 187. Thus, its legal foundation is shaky. Furthermore, the facts make it apparent that there was no geographic restriction in the parenting plan involved in Flynn.