In Re The Parenting & Support Of Aubrey Vaneta Johnson

Filed
Washington State
Court of Appeals
Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Matter of the Parentage and Support of No. 48414-5-II
AUBREY VANETA JOHNSON,
Child,
JENNIFER CHRISTINE JOHNSON,
Respondent,
v.
TIMOTHY WAYNE JOHNSON, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Timothy Johnson appeals from a parenting plan concerning his child,
Aubrey Johnson, that allotted the majority of her residential time and nonemergency health care
and education decision-making authority to the mother, Jennifer Johnson. Timothy1 argues that
the trial court abused its discretion when it (1) allocated the majority of Aubrey’s residential time
to Jennifer under RCW 26.09.187(3), (2) granted health care and decision-making authority to
Jennifer under RCW 26.09.187(2), and (3) declined to limit the parenting plan based upon
Jennifer’s (a) alleged abusive use of conflict and (b) fiancé’s posting pornographic content on his
1
We use the first names of the parents and the child for clarity.
No. 48414-5-II
social media. Because the trial court did not abuse its discretion, we reject these arguments.
Accordingly, we affirm.
FACTS
I. BACKGROUND
In December 2010, Aubrey was born to Timothy and Jennifer, who separated in 2014.
After the separation, Jennifer petitioned to establish Aubrey’s residential schedule. Each parent
ultimately requested that Aubrey reside with him or her for the majority of the time, with Timothy
seeking additional restrictions that would prevent Aubrey’s proximity to Jennifer’s fiancé, Jeromy
Maxwell. Pretrial, the trial court ordered a shared, equal residential schedule.
II. TRIAL TESTIMONY
A. JENNIFER’S EVIDENCE
1. GUARDIAN AD LITEM’S TESTIMONY
Sheri Nakashima, Aubrey’s guardian ad litem (GAL), recommended continuing the equal
residential schedule with some changes to avoid contact between Jennifer and Timothy. Once
Aubrey began elementary school, Nakashima recommended Jennifer’s designation as “the primary
caretaker” because of Jennifer’s greater availability, but that Timothy be allocated “a very
generous schedule.” 1 Report of Proceedings (RP) at 32.
Nakashima testified that Timothy had been a contributing factor to at least one conflict. In
September 2015, Jennifer had learned that Timothy did not have a valid driver’s license when
Timothy sought to transport Aubrey. Timothy had refused to show his license to Jennifer in order
to resolve the conflict. Nakashima believed that Jennifer’s concerns were reasonable, although
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Nakashima acknowledged that it would have been better for Jennifer to resolve the driver’s license
issue with Timothy beforehand.
Shortly before trial, Timothy alerted Nakashima to pornographic content posted on
Maxwell’s social media. The content, which consisted of explicit videos and photographs
intermingled with photographs of Maxwell’s children and was open to public view, was
concerning to Nakashima. Nakashima conducted an unannounced visit to Jennifer and Maxwell’s
home, where Nakashima did not find any “pornographic tapes or anything of that nature.” 1 RP
at 55. Based upon her concerns, Nakashima recommended that Maxwell not have any contact
with Aubrey “until the Court has a better idea or I have a better idea [of] what’s going on.” 2 RP
at 128.
Nakashima testified that both parents were “very engaged” and “did really well with
Aubrey” and that Timothy “really loves his child.” 2 RP at 134. Nakashima noted Timothy’s use
of a parenting coach and that Timothy had continued to attend these sessions not because he had
deficient parenting skills but because he sought to improve his existing parenting skills. Jennifer
and Timothy had conflicting accounts of who had “done . . . the housework” during their
relationship and whether Jennifer and Timothy had agreed that Timothy would be “a stay-at-home
dad.” 1 RP at 49.
2. JENNIFER’S TESTIMONY
Jennifer testified that she had been the family’s “sole provider” and had worked
continuously from when Aubrey was a few weeks old. 3 RP at 221. For a few weeks in early
2012, when the family moved to Port Angeles, Jennifer brought Aubrey with her to work every
day. Otherwise, while in Port Angeles, Timothy would watch Aubrey except on days that Timothy
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No. 48414-5-II
had outpatient “rehab” when Aubrey would be placed in day care or on days when Timothy’s
family would watch Aubrey. On Jennifer’s days off, Jennifer, Timothy, and Aubrey did family
activities together.
Around March 2013, Jennifer transferred to work in Bellingham; during the following year,
Timothy did not work and was entirely responsible for watching Aubrey. Jennifer indicated that
in Bellingham, Timothy had stayed at home with Aubrey not by agreement but because Timothy
had been unable to find other employment. Jennifer explained that Timothy had not taken over
any household responsibilities while Jennifer had worked and that Jennifer had brought home
dinner, bathed and put Aubrey to bed, and cleaned the home. Jennifer stated that she and Timothy
“had a rocky relationship” and that she wished to leave Timothy but that she feared Timothy would
take Aubrey away from her. 3 RP at 220. Jennifer testified that Timothy had threatened that if
she ever left him, Jennifer would “never see Aubrey again,” a threat that Jennifer feared Timothy
would carry out when, after Jennifer and Timothy took a “break” from their relationship, Timothy
left the home and took Aubrey with him. 3 RP at 220. Jennifer admitted that she had withheld
Aubrey from Timothy for approximately nine days after Jennifer filed her petition.
Jennifer also testified about the parties’ communication difficulties. She explained that
Timothy had once denied having a conversation with her, so that afterward, Jennifer
communicated with Timothy only by text message. Timothy would “communicat[e]” with her to
change the exchange location or “if there’s something going on with him,” but Timothy had
“never” told Jennifer that he moved to Kent. 3 RP at 218, 217. Timothy and Jennifer could not
agree on a preschool, and Timothy refused without explanation to allow Aubrey to attend
counseling.
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No. 48414-5-II
In July 2014, Jennifer ceased working due to a workplace injury; she did not plan to return
to work, and at the time of trial, she lived with Maxwell and his children, including her son with
Maxwell. Jennifer detailed her post-separation time with Aubrey, including her routine of making
meals with Aubrey, teaching Aubrey her alphabet and numbers, having playtime together with
Aubrey, and reading bedtime stories to Aubrey. Aubrey enjoyed playing with Maxwell’s children
and helping to care for her half-sibling.
On cross-examination, Jennifer acknowledged that she had been charged with assaulting a
prior boyfriend, although the case had been dismissed, and that when she was 12 years old, her
father had left her at Child Protective Services after something “sexual” happened. 3 RP at 259.
Although she agreed that the pornographic photographs on Maxwell’s website were inappropriate,
she had never witnessed Maxwell viewing pornography.
3. MAXWELL’S TESTIMONY
Maxwell admitted that he had taken pornographic photographs of himself but claimed that
he had not posted those photographs and that they had “auto synched” from his cellphone and been
“auto categorize[d]” into certain groups based on their pornographic content. 2 RP at 170. He
was “shocked” to find out that pornographic content “was open or available to be viewed by
anyone” on his websites and was in the process of removing all the content. 2 RP at 158.
B. TIMOTHY’S EVIDENCE
Timothy claimed that it was a “joint idea” for him to be a “stay-at-home dad” and that
within a few months of Aubrey’s birth, Timothy took over Aubrey’s primary care. 2 3 RP at 305.
2
Timothy also disputed Jennifer’s testimony about how often Jennifer had brought Aubrey to work
immediately after the family moved to Port Angeles in 2012.
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No. 48414-5-II
However, Timothy worked for a few months in late 2011 and worked full time and had outpatient
“rehab” treatment3 between 2012 and 2013; when Timothy was in treatment, Aubrey would be in
day care. During the period that the family lived in Port Angeles, Timothy’s family assisted in
caring for Aubrey, but when the family moved to Bellingham in 2013, Timothy exclusively cared
for Aubrey. Timothy disputed Jennifer’s claim that Jennifer brought the family food “all the time”
during this period. 4 RP at 402.
After the separation, Timothy held various jobs from May to December 2014. Beginning
in April 2015, Timothy shared an apartment in Kent with his brother and sister and worked from
7:00 AM to 3:30 PM on weekdays; on workdays, Timothy left Aubrey with a babysitter. On
weekends, Timothy brought Aubrey to visit his parents in Port Angeles, where she had at least one
playmate. Timothy explained that Aubrey engaged “pretty well” “with everybody” in Timothy’s
environment. 4 RP at 401.
Timothy testified that he did not know that his driver’s license was invalid until Jennifer
told him in September 2015. He had e-mailed Jennifer in August with a proposed preschool for
Aubrey, but Jennifer had not responded; Timothy could not recall the last time that he and Jennifer
had spoken to each other. Timothy claimed that Jennifer had not asked Timothy about counseling
for Aubrey but that he would have objected to such a request.
Timothy’s parenting coach and his sister also testified. The parenting coach had met with
Timothy 30 times, had provided suggestions including how to make exchanges easier, and opined
3
This treatment was related to a 2008 driving while under the influence (DUI) conviction; Timothy
admitted that he had not taken his 2008 DUI and reckless driving charges seriously at first but
stated that he had eventually completed a year-long treatment program in 2013 and no longer
consumed alcohol.
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No. 48414-5-II
that Timothy and Aubrey had a “deep trusting attached relationship.” 4 RP at 434. The parenting
coach noted that Port Angeles, where Timothy’s parents lived, was a “place of community” for
Aubrey. 4 RP at 451. Timothy’s sister, Trisha Johnson, described the driver’s license incident at
a September 2015 exchange and the living situation in Kent, including that she shared a bedroom
with Aubrey when Aubrey resided with Timothy. According to Timothy’s sister, she and Aubrey
were “‘[b]est friends.’” 5 RP at 510.
III. TRIAL COURT’S RULING
Following trial, the trial court examined each of the seven factors from RCW
26.09.187(3)(a) on the record. After weighing the factors, the trial court concluded that Jennifer
would have sole education and nonemergency health care decision-making authority and that once
Aubrey began kindergarten, Jennifer would be allocated the majority of time with Aubrey.
The trial court subsequently entered written findings, including that the parties “do not
have the current ability to communicate, except by text” and that the inability to communicate
except by text was “harmful parental conduct.” Clerk’s Papers (CP) at 7. The trial court found
that “[t]he parties have a history of co-parenting while together and parallel parenting afterwards.
[Timothy] did not take greater responsibility for care of the child and relied upon others to assist.”
CP at 7. Finally, Timothy worked, utilized a babysitter during the week, and had a “history of
consistent employment,” while Jennifer “is not working, does not intend to return to work[,] . . .
and has more flexibility.”4 CP at 7.
Timothy appeals the trial court’s parenting plan order.
4
The trial court also denied Timothy’s reconsideration motion.
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No. 48414-5-II
ANALYSIS
I. LEGAL PRINCIPLES
We review a trial court’s parenting plan for an abuse of discretion; the trial court’s
discretion in this area is “broad.” In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546(2012). A trial court abuses its discretion where its decision is manifestly unreasonable or based
upon untenable grounds or reasons. Katare, 175 Wn.2d at 35.
Unchallenged findings of fact are verities on appeal, and we uphold challenged findings of
fact so long as they are supported by substantial evidence. In re Marriage of Fiorito, 112 Wn.
App. 657, 665, 50 P.3d 298 (2002); Katare, 175 Wn.2d at 35. Substantial evidence is “that which
is sufficient to persuade a fair-minded person of the truth of the matter asserted.” Katare, 175
Wn.2d at 35. So long as substantial evidence supports a finding, it is immaterial that other evidence
may contradict the finding. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
When a trial court fashions a parenting plan, its discretion must be guided by the following
statutes: RCW 26.09.187(3)(a), which enumerates factors to be considered; RCW 26.09.184,
which sets forth the objectives of the permanent parenting plan and the required provisions; RCW
26.09.002, which declares the Parenting Act of 1987’s policy; and RCW 26.09.191, which sets
forth factors that require or permit limitations upon a parent’s involvement with the child. Katare,
175 Wn.2d at 35-36. An appellate court is extremely reluctant to disturb child placement decisions
because of the trial court’s unique opportunity to observe the parties. In re Parentage of Schroeder,
106 Wn. App. 343, 349, 22 P.3d 1280 (2001).
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No. 48414-5-II
II. RCW 26.09.187(3)(a) BALANCING
Timothy raises several challenges to the trial court’s findings of fact underlying its
balancing of RCW 26.09.187(3)(a)’s factors and argues that the trial court abused its discretion
when it weighed the factors and designated Jennifer as the “primary residential parent.” Br. of
Appellant at 3. Because substantial evidence supports the challenged findings of fact and because
the findings support the trial court’s legal conclusion, we hold that the trial court did not abuse its
discretion.
RCW 26.09.187(3)(a) provides that “[t]he court shall make residential provisions for each
child which encourage each parent to maintain a loving, stable, and nurturing relationship with the
child, consistent with the child’s developmental level and the family’s social and economic
circumstances.” Where the limitations in RCW 26.09.191 are not dispositive, the trial court must
consider seven factors provided in RCW 26.09.187(3)(a)(i)-(vii).
A. FACTOR (i)
The first factor, to “be given the greatest weight,” is “[t]he relative strength, nature, and
stability of the child’s relationship with each parent.” RCW 26.09.187(3)(a)(i).
Timothy argues that the trial court’s finding under factor (i) disregarded his bond with
Aubrey and that there was no evidence to support a finding that Jennifer had a strong relationship
with Aubrey. We disagree.
Under the first factor, the trial court found that “both [Jennifer and Timothy] love Aubrey
very much and . . . she loves you, and both of you are equally bonded with her and have stable and
loving relationships with Aubrey. . . . [Y]ou have . . . a different relationship with Aubrey because
each of you is a different parent.” RP (Nov. 2, 2015) at 3 (emphasis added). Thus, the trial court
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No. 48414-5-II
did not discount Timothy’s bond with Aubrey but noted that both parents had equally strong bonds
with her.
At trial, the GAL testified that Timothy “really love[d]” Aubrey and that both Timothy and
Jennifer were very engaged with and had done “really well with Aubrey.” 2 RP at 134. Jennifer
testified in detail regarding the quality of her time with Aubrey. Thus, there was sufficient
evidence for a fair-minded person to conclude that Jennifer, like Timothy, had a strong bond with
Aubrey. See Katare, 175 Wn.2d at 35. We hold that substantial evidence supports the trial court’s
finding under factor (i).
B. FACTOR (ii)
The second factor is “[t]he agreements of the parties, provided they were entered into
knowingly and voluntarily.” RCW 26.09.187(3)(a)(ii).
Timothy argues that the trial court should have determined that factor (ii) weighed in
Timothy’s favor because the trial court should have inferred an agreed arrangement from evidence
that Timothy was a stay-at-home parent beginning when Aubrey was three months old and that
she lived with Timothy immediately after Timothy and Jennifer’s separation. We disagree.
Regarding this factor, the trial court found that there was “no agreement regarding the
permanent residential placement or residential schedule.” RP (Nov. 2, 2015) at 3-4.
First, Timothy’s argument fails because Jennifer’s testimony suggested that she did not
agree to an arrangement in which Timothy cared for Aubrey and did not work. Jennifer stated that
she and Timothy “had a rocky relationship” and that she wished to leave Timothy but that she
feared Timothy would take Aubrey away from her. 3 RP at 220. Jennifer also indicated that
Timothy was at home all the time with Aubrey in Bellingham not by agreement but because
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No. 48414-5-II
Timothy had been unable to find other employment. Although Timothy testified that the parties
jointly agreed for Timothy to stay at home with Aubrey, we may disregard contradictory evidence
so long as substantial evidence supports a finding. Burrill, 113 Wn. App. at 868.
Second, even if Timothy were correct that the parties had agreed for Timothy to stay at
home and care for Aubrey, Timothy does not point to any evidence of an agreement regarding
whom Aubrey would primarily reside with when the parties separated. See RCW
26.09.187(3)(a)(ii). Rather, Timothy and Jennifer expressly disagreed over Aubrey’s residential
placement. We hold that substantial evidence supports the trial court’s finding under factor (ii).
C. FACTOR (iii)
The third factor is “[e]ach parent’s past and potential for future performance of parenting
functions as defined in *RCW 26.09.004(3),[5] including whether a parent has taken greater
responsibility for performing parenting functions relating to the daily needs of the child.” RCW
26.09.187(3)(a)(iii).
Timothy challenges the trial court’s finding that Jennifer and Timothy co-parented during
their relationship. Timothy further challenges the trial court’s finding that this factor favored
Jennifer due to Jennifer’s schedule; Timothy claims that the trial evidence does not support
Jennifer’s using her greater free time for Aubrey’s betterment. We reject these arguments.
RCW 26.09.004(2) defines “‘[p]arenting functions’” as “those aspects of the parent-child
relationship in which the parent makes decisions and performs functions necessary for the care
and growth of the child.” Such functions include “[m]aintaining a loving, stable, consistent, and
5
The reviser’s note for this provision explains that following the reorganization of RCW
26.09.004, this citation should be to RCW 26.09.004(2).
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No. 48414-5-II
nurturing relationship with the child,” “[a]ttending to the daily needs of the child, such as feeding,
clothing, physical care and grooming, supervision, health care, and day care, and engaging in other
activities which are appropriate to the developmental level of the child and that are within the
social and economic circumstances of the particular family,” and “[p]roviding for the financial
support of the child.” RCW 26.09.004(2)(a), (b), and (f).
The trial court’s findings under factor (iii) were as follows:
With regard to the past, the testimony confirms a history of co-parenting . . . during
the relationship. . . .
. . . When [Jennifer] returned to work approximately five to six weeks post-
delivery there were occasions where Aubrey went to work with [Jennifer].
It is undisputed that at various times but primarily when you lived in
Bellingham that [Timothy] took care of Aubrey during the day when he was not
working. It is also undisputed that at other times when you were living in Port
Angeles both parents were working. [Timothy] was in rehab. Aubrey was either
at daycare or with [Timothy’s] mother or sister.
The employment decisions also reveal that at one point in time [Timothy]
was working a night swing shift when [Jennifer] was working days. It is not
credible nor supported by the evidence[,] the work schedules[,] and the exhibits of
earnings that [Timothy] took a greater responsibility in the parenting . . . for any
extended period of time.
....
With regard to the future . . . [t]he testimony reveals and is undisputed that
[Timothy] relies on and uses many people to help him with Aubrey when she is
with him.
RP (Nov. 2, 2015) at 5-7 (emphasis added).
First, Timothy challenges the trial court’s findings that Timothy and Jennifer co-parented
and that Timothy did not bear a greater portion of the parenting responsibilities. However,
Timothy overlooks Jennifer’s testimony that even if Timothy was at home more than Jennifer,
Timothy did not undertake greater responsibilities in caring for Aubrey. In particular, Jennifer
testified that it was she who bathed Aubrey, put her to bed, cleaned the home, and provided meals.
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No. 48414-5-II
Thus, there is substantial evidence to support the trial court discounting Timothy’s actual time
spent caring for Aubrey when Timothy was at home with Aubrey.
Timothy’s argument also overlooks Jennifer’s evidence that she primarily financially
supported the family and evidence that although Jennifer worked, she also maintained her
relationship with Aubrey, for instance by participating in movie and game nights with Timothy
and Aubrey on Jennifer’s days off. Attending to Aubrey’s daily needs, maintaining a relationship
with her, and financially supporting her are all parenting functions under factor (iii). See RCW
26.09.187(3)(a)(iii); RCW 26.09.004(2).
Second, Timothy challenges the trial court’s finding that Timothy’s mother or sister cared
for Aubrey. Again, this finding is supported by substantial evidence, namely Jennifer’s testimony
that Timothy’s mother or sister sometimes watched Aubrey when Jennifer worked. Neither was
Jennifer’s testimony on this point inconsistent: Jennifer testified that she took Aubrey to work
with her for only “a couple weeks.” 3 RP at 248. It was after this couple-week period that
Timothy—or day care or Timothy’s family—would watch Aubrey.
Third, Timothy argues that the evidence does not support a finding that Timothy’s work
and time in treatment substantially reduced Timothy’s time caring for Aubrey. But the trial court’s
findings related to Timothy’s previous work history and treatment are supported by the record.
Jennifer testified that Aubrey went to day care on days that Timothy went to “rehab,” and Timothy
himself testified that he worked “full time” between November 2012 and February 2013, while
the family lived in Port Angeles, and night shifts shortly after Aubrey was born. 4 RP at 381. The
trial court did not say that Timothy worked as much as or more than Jennifer; rather, the trial court
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No. 48414-5-II
simply pointed out that Timothy’s work history was another factor to show that Timothy had not
taken a greater share of parental responsibilities for any extended period of time.
Fourth, related to future performance of parenting functions, Timothy argues that the trial
court erred when it found that this factor favored Jennifer because she no longer worked and
disregarded Timothy’s testimony about how he utilized his time with Aubrey. However,
substantial evidence supports the trial court’s findings: in particular, Jennifer’s testimony that she
did not work at the time of trial and did not “have a plan to go back to work.” 3 RP at 235.
Timothy’s arguments that the trial court’s findings under factor (iii) were not supported by
substantial evidence all fail. We hold that substantial evidence supports the trial court’s findings
that there was a history of co-parenting, that Timothy did not undertake a “greater responsibility”
in the parenting “for any extended period of time,” and that Jennifer was better situated to
undertake future parental responsibilities. RP (Nov. 2, 2015) at 5-6.
D. FACTOR (iv)
The fourth factor is “[t]he emotional needs and developmental level of the child.” RCW
26.09.187(3)(a)(iv).
Timothy argues that the trial court erred when it did not find that factor (iv) favored
Timothy because Timothy claims that the evidence showed that Timothy recognized Aubrey’s
emotional and developmental needs and that Jennifer did not. Again, we disagree.
The trial court found that Aubrey was “at a developmental age where she needs to continue
to have both [Timothy and Jennifer] involved in her life” and that the parenting plan needed to
provide for Aubrey’s needs in an “environment that minimizes her exposure to harmful parental
conduct.” RP (Nov. 2, 2015) at 8. The trial court focused on Timothy and Jennifer’s continued
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No. 48414-5-II
inability to communicate meaningfully, which negatively affected Aubrey given her age. Thus,
the trial court found that this factor weighed in favor of placement with one parent but did not
weigh particularly in favor of either Jennifer or Timothy.
Timothy argues that the trial court erred because the evidence should have led the trial
court to determine that this factor favored him and disfavored Jennifer. But there is substantial
evidence to support the trial court’s finding of inability to communicate, which underlies the trial
court’s determination that this factor did not favor one parent over the other. In particular, Jennifer
testified that after Timothy had refused to acknowledge a conversation, Jennifer would only
communicate by text, that Timothy had “never” told Jennifer that he moved, that she and Timothy
could not agree on a preschool, and that Timothy had refused without explanation to agree to
counseling for Aubrey. Timothy’s testimony also supported a conclusion that the parents could
not meaningfully communicate; in fact, Timothy could not recall the last time the parties had
spoken. Thus, we hold that substantial evidence supports the trial court’s finding that factor (iv)
favored neither parent, although it favored placement with one parent rather than both parents.
E. FACTOR (V)
The fifth factor is “[t]he child’s relationship with siblings and with other significant adults,
as well as the child’s involvement with [her] physical surroundings, school, or other significant
activities.” RCW 26.09.187(3)(a)(v).
Timothy argues that the trial court erred when it did not find that factor (v) favored Timothy
because the trial court disregarded Timothy’s efforts to build Aubrey’s relationships with family
members and her friends and connections. Timothy’s argument lacks merit.
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No. 48414-5-II
Related to factor (v), the trial court found that Aubrey had relationships with Maxwell’s
children as well as Timothy’s siblings, who are Aubrey’s aunt and uncle, and Timothy’s parents,
who are Aubrey’s grandparents. The trial court also found that Aubrey had “good relationships”
with other people in the environments that she spent time in while she resided with Timothy. RP
(Nov. 2, 2015) at 10. Thus, the trial court found that this factor favored both parents.
Jennifer testified that she lived with Maxwell and his children, including Aubrey’s half-
sibling, and that Aubrey enjoyed playing with the other children and taking care of her half-sibling.
Timothy testified that he lived with Aubrey’s aunt and uncle and that Aubrey “pretty well engaged
with everybody” in Timothy’s environment. 4 RP at 401. Timothy’s sister similarly testified that
she and Aubrey were “‘[b]est friends.’” 5 RP at 510. Timothy also explained that he brought
Aubrey to visit his parents in Port Angeles on the weekends and that she had at least one playmate
in that area. Further, Timothy’s parenting coach opined that Port Angeles, where Timothy’s
parents lived, was a “place of community” for Aubrey. 4 RP at 451. We hold that this is substantial
evidence to support the trial court’s finding under factor (v).6
F. FACTOR (vii)
Factor (vii) is “[e]ach parent’s employment schedule”; the trial court “shall make
accommodations consistent with those schedules.” RCW 26.09.187(3)(a)(vii).
6
The omitted factor is (vi), “[t]he wishes of the parents and the wishes of a child who is sufficiently
mature to express reasoned and independent preferences as to [her] residential schedule.” RCW
26.09.187(3)(a)(vi). The trial court found that the parents’ wishes were contradictory under factor
(vi). Timothy does not challenge the trial court’s findings under factor (vi), so that the trial court’s
finding under this factor is a verity on appeal. Fiorito, 112 Wn. App. at 665.
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No. 48414-5-II
Timothy briefly argues that the trial court erred when it found that Timothy worked
“consistently” throughout the relationship under factor (vii). This argument fails.
The trial court found that this factor weighed in favor of Jennifer, whose schedule had “the
most flexibility” at the time of trial. RP (Nov. 2, 2015) at 13. In doing so, the trial court noted
that Timothy had a “consistent history of employment” during and after the relationship at “various
jobs,” although Timothy did not earn as much as Jennifer. RP (Nov. 2, 2015) at 13.
Timothy testified at trial that he worked during the relationship for the first few months of
Aubrey’s life, for a few months in late 2011, and full time between 2012 and 2013. After the
separation, Timothy testified that he held various jobs from May to December 2014 and that he
worked full time beginning in April 2015. Thus, there is substantial evidence to support Timothy
having a “consistent history of employment” at “various jobs” during and after the relationship,
and we affirm the trial court’s findings under factor (vii). RP (Nov. 2, 2015) at 13.
G. WEIGHING THE RCW 26.09.187(3)(a) FACTORS
Timothy assigns error to the trial court’s weighing of the RCW 26.09.187(3)(a) factors.
Timothy also argues that the trial court discounted Aubrey’s relationships with Timothy’s family
and community under factor (v) when the trial court determined that Aubrey would spend the
majority of residential time with Jennifer. We disagree.
When the trial court weighed the RCW 26.09.187(3)(a) factors, it determined that the most
important factor, factor (i), favored both parents equally and that the remaining factors either
favored Jennifer or did not favor either parent. RCW 26.09.187(3)(a). The trial court concluded
that in light of the factors, the appropriate parenting plan would be to maintain equal residential
schedules until Aubrey started kindergarten and for her to then reside primarily with Jennifer, but
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No. 48414-5-II
spend most of her weekends with Timothy. In reaching its decision, the trial court gave particular
weight to Jennifer’s more flexible schedule and the parties’ inability to meaningfully
communicate, which made midweek transfers infeasible.
As discussed, substantial evidence supports the trial court’s challenged findings. Further,
the trial court properly weighed the RCW 26.09.187(3)(a) factors and endeavored to “encourage
each parent to maintain a loving, stable, and nurturing relationship with” Aubrey, as RCW
26.09.187(3)(a) directs. In doing so, the trial court did not discount Aubrey’s relationships with
Timothy’s family and community; the trial court recognized these relationships and noted that the
parenting plan would serve to increase Aubrey’s actual time with Timothy. We hold that the trial
court did not abuse its discretion when it implemented the final parenting plan and designated
Jennifer as the “primary residential parent.” RP (Nov. 2, 2015) at 15.
III. EDUCATION AND HEALTH CARE DECISION-MAKING AUTHORITY PROVISION
Timothy argues that the trial court erred when it granted education and health care decision-
making authority to Jennifer based upon the trial court’s finding of lack of communication.
Timothy argues that the evidence shows that Jennifer, not Timothy, was responsible for the
inability to communicate.7 We disagree.
A permanent parenting plan must allocate decision-making authority regarding education,
health care, and religious upbringing. RCW 26.09.184(5)(a). In doing so, the trial court shall
7
Timothy asks this court to consider his counsel’s motion for reconsideration arguments on this
issue in addition to Timothy’s pro se argument on appeal. We decline to do so because appellate
arguments that incorporate trial court briefing by reference are improper and must be disregarded.
Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). Similarly, we also
disregard Timothy’s argument incorporating his trial briefing that the trial court wrongly
considered the “pornography issues.”
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order “sole decision-making” if it finds that RCW 26.09.191 mandates a limitation on one parent’s
decision-making,8 that “[b]oth parents are opposed to mutual decision making,” or that “[o]ne
parent is opposed to mutual decision making, and such opposition is reasonable based on” mutual
decision-making criteria. RCW 26.09.187(2)(b)(ii), (iii).
At trial, each parent requested sole decision-making authority for Aubrey. Because of the
parties’ contrary positions, RCW 26.09.187(2)(b)(ii) required that the trial court order sole
decision-making.
Timothy argues that the trial court should have allocated decision-making authority to him,
not to Jennifer. This argument fails insofar as Timothy restates his challenge to the trial court’s
finding that both parents were to blame for the inability to meaningfully communicate. Further,
because the trial court found that Timothy and Jennifer were unable to meaningfully communicate
and determined that Aubrey should reside primarily with Jennifer, the trial court had tenable
grounds and reasons to also decide that Jennifer should have sole education and health care
decision-making authority, as the parent who primarily resided with Aubrey. See Katare, 175
Wn.2d at 35. We hold that the trial court did not abuse its discretion when it allocated education
and health care decision-making authority to Jennifer.
8
Under RCW 26.09.191(3)(e), (g), the trial court may preclude or limit parenting plan provisions
if there has been “abusive use of conflict by the parent which creates the danger of serious damage
to the child’s psychological development” or “[s]uch other factors or conduct as the court expressly
finds adverse to the best interests of the child.” Jennifer argues that we should affirm the trial
court’s allocation of decision-making under this provision; however, Jennifer’s argument
overlooks that the trial court found that RCW 26.09.191 did not apply.
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No. 48414-5-II
IV. FAILURE TO LIMIT JENNIFER’S RESIDENTIAL TIME FOR CREATING CONFLICT
Timothy argues that the trial court should have limited Jennifer’s residential time “under
RCW 26.09.191(2)(a)(iii).” Br. of Appellant at 26. In doing so, Timothy challenges the trial
court’s failure to allocate blame for abusive use of conflict to Jennifer in light of her past and the
trial court’s equal apportionment of blame between the parties in light of the September 2015
driver’s license incident. We reject Timothy’s arguments.
A trial court has discretion to determine whether the admitted evidence meets the
requirements of RCW 26.09.191. In re Parentage & Support of L.H., 198 Wn. App. 190, 194, 391
P.3d 490 (2016). RCW 26.09.191(2)(a)(iii) requires a trial court to limit a parent’s residential time
if the trial court finds that the parent engaged in “a history of acts of domestic violence as defined
in *RCW 26.50.010(1)[9] or an assault or sexual assault which causes grievous bodily harm or the
fear of such harm.” RCW 26.09.191(3) also allows a trial court to “preclude or limit any provisions
of the parenting plan” if the trial court finds “[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).
The trial court did not find that either party engaged in the abusive use of conflict; rather,
the trial court found that Jennifer and Timothy did not have mutual cooperation, communication,
or respect and that their current conduct, including their inability to meaningfully communicate,
9
The reviser’s note for this provision explains that following the reorganization of RCW
26.50.010, this citation should be to RCW 26.50.010(3). RCW 26.50.010(3) defines “‘[d]omestic
violence’” as “(a) [p]hysical harm, bodily injury, assault, or the infliction of fear of imminent
physical harm, bodily injury or assault, between family or household members; (b) sexual assault
of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of
one family or household member by another family or household member.”
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No. 48414-5-II
resulted in a “huge” risk of “actual or potential harm” to Aubrey if it continued. RP (Nov. 2, 2015)
at 14. The trial court expressly declined to impose limitations under RCW 26.09.191.
Timothy argues that the trial court’s refusal to impose limitations was an abuse of
discretion because the trial court overlooked Jennifer’s prior domestic violence charge. We
disagree: the sole domestic violence incident referenced at trial was Jennifer’s admission that she
had been charged with assaulting a prior boyfriend. Jennifer testified that the charges against her
had been dismissed and that she had not actually assaulted her boyfriend. Thus, the trial court was
within its discretion to conclude that this testimony did not amount to a history of domestic
violence or an assault under RCW 26.09.191(2)(a)(iii).
Timothy also appears to argue that the trial court erred when it did not find that Jennifer
had engaged in the abusive use of conflict under RCW 26.09.191(3)(e). But at trial, the evidence
showed that both parents caused conflict: for instance, Jennifer testified that Timothy had
threatened to take Aubrey away from her and also admitted that she had withheld Aubrey. Jennifer
also testified that Timothy had refused to enroll Aubrey in counseling without explanation. And
the GAL testified that Timothy created conflict on more than one occasion but acknowledged that
Jennifer was also partially to blame. Accordingly, there was substantial evidence to support a
conclusion that both parents contributed to causing conflict.
Substantial evidence supports the trial court’s findings allocating blame to both parties for
detrimental conduct. Notably, the trial court’s parenting plan addressed this issue by limiting
unnecessary contact between the parents. In light of this limitation and the lack of evidence of
domestic violence under RCW 26.09.191(2)(a)(iii), we hold that the trial court acted within its
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No. 48414-5-II
discretion when it declined to impose limitations on Jennifer’s residential time under RCW
26.09.191.
V. FAILURE TO LIMIT JENNIFER’S RESIDENTIAL TIME DUE TO PORNOGRAPHY ISSUE
Without citation to legal authority,10 Timothy argues that the trial court erred when it found
that Maxwell’s pornographic postings had not impacted or been accessible to Aubrey. We
disagree.
Related to Maxwell’s pornographic postings, the trial court found that “[t]here is no
evidence to suggest that Aubrey had access or that she had any impact as a result of those postings
by Mr. Maxwell.” RP (Nov. 2, 2015) at 18. The trial court rested this finding on the GAL’s
testimony that her unannounced visit to Maxwell and Jennifer’s home revealed nothing of concern
and Maxwell’s testimony that the pornographic materials were removed; the trial court also found,
without evidentiary support, that “child blocks have been established.” RP (Nov. 2, 2015) at 19.
Timothy is correct that the portion of the trial court’s finding pertaining to child blocks
lacks evidentiary support; however, the record supports the remainder of the trial court’s findings.
Accordingly, we hold that substantial evidence supports the trial court’s finding that the
pornography posted on Maxwell’s social media did not impact Aubrey and that the trial court
properly declined to limit the parenting plan on this basis.
10
The applicable legal authority for limitation of residential time is RCW 26.09.191(3)(g). That
statute notes that a “parent’s involvement or conduct may have an adverse effect on the child’s
best interests” and vests the trial court with authority to “preclude or limit any provisions of the
parenting plan, if any of the following factors exist: [including] [s]uch other factors or conduct as
the court expressly finds adverse to the best interests of the child.” RCW 26.09.191(3)(g).
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No. 48414-5-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
JOHANSON, J.
We concur:
MAXA, A.C.J.
LEE, J.
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