Jannot v. Jannot

Sanders, J.

(dissenting) — The majority claims deference should be given to the trial court’s decision to deny an evidentiary hearing on a party’s motion to modify a parenting plan because trial courts have greater experience evaluating domestic relation situations. Majority at 126-27. But RCW 26.09.270 does not permit a trial court to weigh facts or consider facts not set forth in the affidavits. It requires the trial court to determine whether “adequate cause for hearing the motion is established by the affidavits.” RCW 26.09.270.

Because the trial court makes this threshold “adequate cause” determination on affidavits alone, the appellate court stands in the same position as the trial court and decides that issue as a matter of law. In re Marriage of Mangiola, 46 Wn. App. 574, 577, 732 P.2d 163 (1987). Moreover, the detachment of the appellate court from the parties involved may put it in a better position to make the threshold determination. “Such detachment should help ensure fairness . . . .” State v. Creekmore, 55 Wn. App. 852, 878, 783 P.2d 1068 (1989). However, under the highly deferential abuse of discretion standard adopted by today’s majority, a trial court’s denial of a motion to set a hearing will be disturbed only if its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). This standard is inconsistent with the requirements of RCW 26.09.270.

Therefore I dissent.