In re the Marriage of Walter N. Clark, III and Tiffany A. Clark

FILED
Sept. 1, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of ) No. 33717-1-111
)
WALTER N. CLARK III, )
)
Respondent, )
) UNPUBLISHED OPINION
and )
)
TIFFANY A. CLARK, )
)
Appellant. )
PENNELL, J. -Tiffany Clark (n/k/a Tiffany Zaphia) appeals the trial court's
parenting plan modification reducing residential time with her son W.C. and designating
W.C.'s father, Walter Clark, as the primary residential parent. Tiffany argues the trial
court erred because substantial evidence showed Walter's care was detrimental to W.C.
and the court violated several of her constitutional rights. Because the trial court did not
abuse its discretion in modifying the parenting plan and because Tiffany failed to
sufficiently argue her constitutional claims, we affirm the modification and deny her
requests for expenses and sanctions.
No. 33717-1-III
In re Marriage of Clark
FACTS 1
Walter and Tiffany2 married in 2005. Walter filed for dissolution of the marriage
in April 2012 and requested full custody of the couple's five-year-old son, W.C. In
September 2012, the court entered a temporary parenting plan naming both parents as
joint custodians and Tiffany the primary residential parent. The court also ordered a
guardian ad litem (GAL) appointed to "further investigate both [parents'] concerns" over
parenting issues. Clerks Papers (CP) at 12. While the temporary parenting plan was in
place, W.C. was diagnosed with and successfully treated for kidney cancer. He has had
no issues with cancer throughout the events described below.
In October 2013, the court entered a decree of dissolution and a final parenting
plan, increasing the amount ohime W.C. spent with Walter, resulting in near equal
residential time between Walter and Tiffany. The final parenting plan also noted Tiffany
suffered from an untreatable delusional disorder that could be a precursor to
schizophrenia; to ensure this disorder did not affect Tiffany's ability to parent, the court
required her to have annual evaluations and to provide Walter with a summary of them.
1
Neither party recites any facts in the briefing. These facts are recited as best as
possible from the limited record available.
2
The parties' first names are used for clarity and readability. No disrespect is
intended by doing so.
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The court also ordered Walter to pay child support.
In June 2014, Tiffany moved for an order finding Walter in contempt. Tiffany's
motion was premised on allegations of Walter not paying child support, not complying
with the parenting plan, and willfully neglecting W.C. In part, Tiffany alleged that when
W.C. was with Walter, W.C. had to live in a tent and was forced to bathe outside in cold
water, his allergies to pets went uncontrolled, and W.C. was not appropriately dressed for
weather conditions. Tiffany subsequently filed a petition for modification in July 2014,
claiming W.C.'s current environment was "detrimental to [his] physical, mental or
emotional health." CP at 64. The same alleged facts supporting Tiffany's motion for
contempt supported her petition for modification. Walter generally denied the
allegations.
At the hearing, the court found Walter in contempt for failing to pay child support.
While the court found Walter had been complying with the parenting plan, it did restrict
W.C.'s overnight visits with Walter because Walter's living situation exacerbated W.C.'s
allergies. Walter was living in an army tent while his trailer was under construction; the
tent's inhabitants had access to a bathroom with running water and a kitchen, they slept
on beds, the floor was insulated, and the tent had power. However, the court allowed
Walter to have overnight visits with W.C. if a suitable residence was used. The court
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refused to address modification of the parenting plan until Walter had proper notice.
In May 2015, Tiffany again filed a petition to modify the parenting plan, alleging
Walter refused to perform parenting functions and emotionally abused W.C. Walter
denied the allegations and claimed Tiffany's actions were creating a detrimental
environment for W.C. Noting W.C. continued to have allergies and displayed behavioral
issues at school, the court reappointed the GAL. Specifically, the court wanted the GAL
to investigate and recommend which household was more suitable for primary placement
in light of W.C.'s need for a structured environment with clear boundaries due to his
attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder.
The GAL recommended primary placement be with Tiffany. He qualified this
conclusion as "a difficult recommendation" because Tiffany ( 1) had not been getting
annual mental health evaluations as required in the parenting plan, (2) had inappropriately
shown W.C. court papers, (3) may have made false allegations as to sexual behavior by
Walter's current wife, (4) created issues with recent exchanges, and (5) did not take
responsibility for W.C.'s failure to complete homework. CP at 144. However, because
Walter was still living in a tent and also failed to take responsibility for W.C.'s
homework, the GAL thought Tiffany could provide a more stable environment.
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The court found modification of the parenting plan was in W.C.'s best interests as
his current environment was detrimental to his physical and emotional health. Noting the
current situation was failing, the court granted primary placement to Walter. The court
found:
[W.C.] has been diagnosed to have ADHD and oppositional defiance
disorder. His behavior at school is disruptive and he has endangered other
students and adults. The mother is unwilling to use pharmaceutical
medications, instead has treated his ADHD with fish oil, which has been
ineffective. The child only returned one homework assignment during the
entire school year. He is performing below standard in reading and writing
even though he has an above average IQ [intelligent quotient]. The mother
is unwilling to acknowledge that the child even has a problem with his
homework. The child has been suspended from school for behavioral
issues.
CP at 168. While the court had concerns about Walter's living situation, it found Walter
could provide consistency to W.C. and W.C. would spend most nights with his paternal
grandmother-one ofW.C.'s stability factors-until Walter's home was completed.
Tiffany appeals.
ANALYSIS
Modification of Parenting Plan
Tiffany contends the trial court abused its discretion by modifying the parenting
plan in favor ofW.C.'s father. Because changes in residence are highly disruptive to
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children, this court employs a strong presumption against modification of a parenting
plan. In re Marriage ofStern, 57 Wash. App. 707, 712, 789 P.2d 807 (1990). Courts must
follow the statutorily prescribed procedures before modifying a parenting plan. See id. at
711. In relevant part, a trial court can modify a parenting plan under RCW 26.09.260 if
(1) there is a substantial change in the circumstances of the child or the nonmoving party,
(2) the present environment is detrimental to the child's well-being, (3) the harm caused
by the parenting plan is outweighed by the advantage of a change in the plan, and (4) the
child's best interests will be served by modification. RCW 26.09.260(1), (2)(c). In the
context of joint custody, the inquiry under RCW 26.09.260 is in part whether there has
been a change in the circumstance of the ''joint custodians as established by the decree."
In re Marriage of Murphy, 48 Wash. App. 196, 198-99, 737 P.2d 1319 (1987).
We uphold a trial court's findings of fact in a modification proceeding if supported
by substantial evidence, defined as a quantum of evidence sufficient to persuade a rational
fair-minded person the premise is true. In re Marriage of Chua, 149 Wash. App. 147, 154,
202 P.3d 367 (2009); In re Marriage ofAkon, 160 Wash. App. 48, 57, 248 P.3d 94 (2011).
We will not reverse a trial court's decision to modify a parenting plan under RCW
26.09.260 unless the trial court exercised its discretion in an untenable or manifestly
unreasonable way. In re Marriage of Zigler, 154 Wash. App. 803, 808, 226 P.3d 202
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(2010). We defer to the fact finder on issues of conflicting testimony, witness credibility,
and the persuasiveness of the evidence. In re Parentage ofJH, 112 Wash. App. 486, 493
n.1, 49 P.3d 154 (2002).
Tiffany seemingly contends (1) W.C.'s environment when with her was not
detrimental, (2) there is no evidence that harm from the residential schedule change was
outweighed by advantage to W.C., and (3) modification was not in W.C.'s best interests.
In a joint custody situation, "a finding of detriment to the child in his or her present
environment need not be based upon the parenting of either party, but may arise from a
change in the joint custodial environment." Stern, 57 Wash. App. at 715. As such, in the
context of modification of a parenting plan that provides for shared residential placement,
the changed circumstances alone can justify a trial court's conclusion that the present
environment is detrimental to a child's well-being. Based on changed circumstances in
the joint custodial environment, Tiffany herself petitioned for modification. She alleged
the environment provided by Walter was emotionally and physically detrimental to W.C.
However, it was the decaying relationship between the parties that created a detrimental
environment for W.C. Tiffany showed W.C. the court file and discussed the case with
him. She created issues at exchanges. Tiffany failed to effectively treat W.C.'s ADHD.
Neither Tiffany nor Walter took responsibility for W.C.'s homework, but Tiffany blamed
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the school. The friction in Tiffany and Walter's relationship manifested itself in W.C.'s
behavioral problems and academic progress.
To show Walter's care was detrimental to W.C., Tiffany points to the exacerbation
of W.C.'s allergies, her allegations of willful neglect, and her allegations that Walter
emotionally manipulated W.C. However, Tiffany is merely rearguing facts-some of
which the GAL disputed and some of which the court found not credible-and introduces
facts not in the record. To the extent Tiffany argues the court improperly based its
modification on her mental health, the court's findings do not support that contention as
they are devoid of any mention of her mental health condition affecting her ability to
parent. Tiffany does not challenge any of the court's findings of fact, which are
supported by substantial evidence.
As noted by the trial court, W.C. 's current situation was failing and something
needed to change. While the court did not agree with the GAL's recommendation, judges
in a bench trial "understand that the GAL presents one source of information among
many, that credibility is the province of the judge, and can without difficulty separate and
differentiate the evidence they hear." In re Guardianship ofStamm, 121 Wash. App. 830,
841, 91 P.3d 126 (2004). The court thought Walter would be a better choice for primary
residential placement. While Walter's living situation was not ideal, Walter told the court
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he could provide W.C. with consistency. The court believed Walter. The court also
thought placing W.C. with Walter and allowing W.C. to temporarily spend the nights with
his paternal grandmother would provide W.C. with stability as W.C. told the GAL he
liked the normalcy of his grandmother's home and wanted to spend more time there. It
was the court's hope that primary residential placement with Walter-where W.C. would
be surrounded by stability factors-would help W.C. succeed in school both academically
and socially. It is clear this in tum supports the trial court's determination that
modification was in W.C. 's best interests. The trial court did not abuse its discretion in
modifying the parenting plan.
Constitutional Claims
Tiffany next contends the trial court violated her due process rights by (1) not
conducting a full testimonial hearing on the merits, (2) failing to properly docket
hearings, (3) not creating verbatim reports of proceeding or correct clerk's minutes, and
(4) denying her a contempt filing. Tiffany also argues the trial court violated her right to
care for her child, her freedom of movement, and her freedom against social stigma.
We decline to review Tiffany's constitutional claims for two reasons. First,
Tiffany's analysis on all the issues is scant, and she cites to no case law addressing any of
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her claims. 3 RAP I0.3(a)(6) directs each party to supply, in their brief, "argument in
support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record." This court does not consider conclusory
arguments unsupported by citation to authority. Joy v. Dep 't ofLabor & Indus., 170 Wn.
App. 614,629,285 P.3d 187 (2012). '" [P]assing treatment of an issue or lack of
reasoned argument is insufficient to merit judicial consideration.'" West v. Thurston
County, 168 Wash. App. 162, 187,275 P.3d 1200 (2012) (quoting Holland v. City of
Tacoma, 90 Wash. App. 533, 538, 954 P.2d 290 (1998)).
Second, should we look past the deficiencies in Tiffany's briefing, it does not
appear Tiffany objected in the trial court on these constitutional grounds. Her failure to
3
Tiffany cites to In re Marriage ofRideout, 150 Wash. 2d 337, 77 P.3d 1174 (2003),
for her contention that her due process rights were violated by not conducting a full
hearing on the merits. Rideout determined the standard of review for a contempt hearing
and discussed when a parent could be held in contempt under RCW 26.09 .160. Tiffany
cites to In re Marriage of Mansour, 126 Wash. App. 1, 106 P.3d 768 (2004), for her
contention that she was held responsible for the effects of her mental illness on W.C.
Mansour involved statutorily-required limitations in a parenting plan for a parent who
abused their child. Tiffany next cites to In re Marriage ofEklund, 143 Wash. App. 207,
177 P.3d 189 (2008), for her contention that the court based its rulings on hearsay and
libel. Eklund involved a contempt proceeding where the trial court consolidated separate
violations of a parenting plan into a single finding of contempt and declined to order
statutorily-required remedies. Lastly, Tiffany cites to Title 4 RCW for her procedural due
process argument. While Title 4 does discuss civil procedure, Tiffany only makes a
general conclusory argument.
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object precludes her ability to raise the issue now on appeal unless she can demonstrate
there was a manifest constitutional error. RAP 2.5(a)(3); State v. O'Hara, 167 Wash. 2d 91,
97-99, 217 P.3d 756 (2009). Tiffany bears the burden of proving (1) a manifest
constitutional error actually occurred and (2) the error resulted in actual prejudice.
RAP 2.5(a)(3); O'Hara, 167 Wash. 2d at 98. To demonstrate actual prejudice, Tiffany must
plausibly show the asserted error had practicable and identifiable consequences in the
trial. O'Hara, 167 Wash. 2d at 99. "In determining whether the error was identifiable, the
trial record must be sufficient to determine the merits of the claim. 'If the facts necessary
to adjudicate the claimed error are not in the record, no actual prejudice is shown and the
error is not manifest.'" Id. (quoting State v. McFarland, 127 Wash. 2d 322, 333, 899 P.2d
1251 (1995)). Tiffany has failed to meet her burden of proof. No facts from the trial
court record show the court violated her procedural due process rights, did not allow her
to testify at the modification hearing, held her mental illness against her, or denied her the
right to raise her child. The error she asserts is not manifest. We decline to review.
Appellate Expenses and Sanctions
Tiffany requests appellate expenses under RAP 18.1. She included one sentence
requesting expenses, without citing any authority for her request, and thus did not comply
with the mandatory requirements of RAP 18.l(b). See Stiles v. Kearney, 168 Wash. App.
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250,267,277 P.3d 9 (2012) (RAP 18.l(b) requires more than a bald request for attorney
fees). Moreover, she does not prevail on appeal.
Tiffany also appears to request this court sanction Walter for a misuse of the
appellate rules under RAP 18.9. She asserts Walter misused the rules when he filed his
response brief late, thus increasing the length of time before her appeal was heard.
Because Tiffany requested an extension for filing her opening brief, Walter's late filing of
his brief did not prejudice her, and the clerk's office chose not to impose sanctions when
he filed his brief one day late. We deny her request for sanctions.
Based on the foregoing, we affirm the trial court's order modifying the parenting
plan.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Pennell, J.
WE CONCUR:
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