Christy M. Mckinley v. Benjamin S. Porter

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of: )
P.J.M., ) No. 79102-8-I
) (consolidated with 79500-7-I)
Child.
) DIVISION ONE
BENJAMIN S. PORTER, )
Respondent, )
v. ) UNPUBLISHED OPINION
CHRISTY M. MCKINLEY, ) FILED: September 23, 2019
)
Appellant.
SMITH, J. — The child relocation act (CRA), RCW 26.09.405-.560,
establishes a clear presumption that the parent with whom a child resides a
majority of the time will be allowed to relocate with the child.1 To rebut this
presumption, the objecting parent must establish that the detrimental effect of the
relocation outweighs the benefit of the change to the child and the relocating
parent. The court considers a number of mandatory factors to determine the
detrimental effect but must apply the statutory presumption in favor of relocation
to resolve competing claims about relocation. Here, it is undisputed that Christy
McKinley was the parent with whom her son P.J.M. resided a majority of the
1 The CRA was amended in 2019, after the trial court’s decision in this
case, such that the presumption no longer applies when the person proposing
relocation of the child has substantially equal residential time. ~ LAWS OF
2019, ch. 79, § 1, codified as RCW 26.09.525. That amendment does not affect
the outcome in this case.
No. 79102-8-1/2
time, both when she requested relocation and through trial. Nevertheless, the
trial court failed to properly apply the presumption in this case. The record also
establishes that the trial court failed to consider one of the statutory relocation
factors and that it resolved the parents’ competing claims about relocation based
on what it believed would be in P.J.M.’s best interests, without properly
considering the interests and circumstances of the relocating parent, McKinley.
We hold that the trial court abused its discretion by failing to give effect to
the statutory presumption, failing to consider one of the relocation factors, and
using an incorrect standard to resolve the parents’ competing claims about
relocation. We hold further that if the trial court had properly applied the
presumption and considered the presumed benefits of relocation to both P.J.M.
and McKinley, relocation should have been granted. Therefore, we reverse the
trial court’s order restraining relocation and the trial court’s modifications to the
parenting plan and remand to the trial court with instructions to enter an order
allowing P.J.M. to relocate with Mckinley. We affirm the trial court’s other
challenged rulings as further discussed in this opinion. On remand, we direct the
trial court to assign the case to a different judge for the limited purpose of
determining what modifications to the parties’ 2016 parenting plan are necessary
as a result of P.J.M.’s relocation.
BACKGROUND
Christy McKinley and Benjamin Porter had a brief relationship in 2013
after they met on a dating website. Although Porter was married and had three
children at the time, he initially was “not forthcoming” on the dating website about
2
No. 79102-8-1/3
his marital status. Porter worked for Microsoft, and McKinley was a law student.
McKinley had a son, B.R., from a previous relationship with Bradley Rasmussen.
McKinley and Porter dated for a few months and near the end of that time, they
conceived P.J.M.
Porter, whose family was part of a conservative religious community, did
not handle the news of the pregnancy well. He was consumed with anxiety
about destroying his family. According to his own testimony, he “just started
spiraling.” As the trial court later wrote,
[f]or a brief time it is safe to say that [Porter] fell apart. [McKinley]
struggled to engage with him during this period; [Porter] actually
sought an anti-harassment order against her because he was afraid
she would share news of the pregnancy with his wife before he had
the opportunity to do so. These circumstances set in motion very
strained communication between the parties that continue to this
day.
Porter dismissed his antiharassment petition after the parties mutually agreed to
an order prohibiting contact. Porter also disclosed his affair to his wife, Erin, and
tried to repair his relationship with her.2 Porter and Erin ultimately separated in
late summer of 2014 and divorced in May 2015. They are raising their three
children according to a 50-50 parenting plan.
Meanwhile, McKinley graduated from law school in December 2013. Her
first job out of law school was a contract position at Microsoft that paid very well
but was not a law-related position.
P.J.M. was born on June 25, 2014, and a friend of McKinley’s notified
2 Because Porter and his former wife share a last name, we refer to Erin
by her first name.
3
No. 79102-8-1/4
Porter of P.J.M.’s birth. Porter again requested an antiharassment order, arguing
among other things that this outreach, together with McKinley’s presence on the
Microsoft campus, were violations of the agreed order prohibiting contact. A King
County District Court judge denied the petition.
In September 2015, when P.J.M. was a year and three months old, Porter
petitioned to establish paternity. Porter first met P.J.M. in October 2015 when
P.J.M. was 16 months old.
The court in the parentage action appointed Dr. Jennifer Wheeler as the
parenting evaluator pursuant to the parties’ agreement. Dr. Wheeler described
P.J.M. as “a cheerful, outgoing, resilient, -~20 month old boy, who appears to be
developing within normal limits in all spheres.” She attributed his resilient
temperament to “the fact that he was born to two loving and highly skilled
parents—both of whom already have significant parenting experience.” She
noted, however, that “[u]nfortunately for [P.J.M.], the majority of his parents’ first
hand experiences with one another occurred under extreme and emotionally-
charged circumstances.” Dr. Wheeler wrote that, as a result, “Ms. McKinley
appears to have developed a strong, persistent negative bias regarding Mr.
Porter” and that “Mr. Porter’s reaction to [McKinley’s pregnancy] appears to have
triggered significant anger and disdain from Ms. McKinley, who has assumed a
persistently adversarial and/or suspicious orientation towards him.” That said,
Dr. Wheeler acknowledged that “[t]his is not to say that Mr. Porter does not have
a negative orientation towards Ms. McKinley; indeed, each of these parents has
engaged in behaviors that-has [sic] resulted in the other assuming a
4
No. 79102-8-1/5
defensive/mistrusting orientation towards the other.” In a 33-page report issued
in February 2016, Dr. Wheeler recommended a phased-in 50-50 parenting plan
under which Porter’s time with P.J.M. would increase until P.J.M. turned five
years old, at which time P.J.M. would begin living with Porter and McKinley on an
equal 50-50 basis.
A parentage trial began in July 2016. Meanwhile, in late June of 2016,
McKinley learned that she would be laid off from Microsoft pursuant to a policy
that placed a time limit on contract positions. At the time, McKinley was renting a
large home in Bellevue. “She tried her best to stay there as she struggled to find
a lawyer job in the Seattle/Bellevue area” but was unsuccessful.
The parentage trial concluded at the beginning of August2016. In
November 2016, the trial court entered a parenting plan that tracked Dr.
Wheeler’s recommendations, including the phased-in 50-50 residential schedule
that would begin in June 2019 when P.J.M. turned five. The trial court did not
include any findings in its order.
On May 9, 2017, McKinley gave Porter notice of her intent to relocate to
the Olympia area. She had been offered a position as a hearing examiner at the
Office of the Insurance Commissioner in Olympia, which “was very fortunate, as
at about the same time her landlord [in Bellevue] served her with a three day pay
or vacate notice.” On June 25, 2017, McKinley moved into an apartment in
University Place. A couple of months after relocating to University Place,
McKinley was terminated from her hearing examiner position. But she was soon
thereafter hired as a contract attorney for the Pierce County Department of
5
No. 79102-8-116
Assigned Counsel to represent foster children, a job that “[s]he has come to
enjoy.”
Porter objected to relocation and sought a modification to the parenting
plan. He requested, among other things, that the court “change the person the
child lives with most of the time,” from McKinley to Porter. He also requested to
have Dr. Wheeler reappointed as a parenting evaluator. The trial court
reappointed Dr. Wheeler over McKinley’s objection and ordered that Dr.
Wheeler’s fee be paid 50-50 by the parties.
Dr. Wheeler issued her report on April 19, 2018. In her conclusions and
recommendations, she wrote, “It remains my opinion that [P.J.M.]’s best interest
would be most effectively served by continuing to have frequent, meaningful
access to both of his parents—such as the residential schedule that was
provided by the Final Parenting Plan, that was issued by the court in November
2016.” She recommended that “until/unless mother returns to the Bellevue area,”
the parenting plan be modified such that Porter would be the primary residential
parent and McKinley would have P.J.M. every other weekend and visitation each
Tuesday.
A relocation trial was held in June 2018 before a different judge than the
judge that presided over the parentage trial. In the meantime, McKinley and her
partner, Lars Sommer, whom McKinley had been dating since April 2017,
conceived a child due in September 2018. During trial, they also closed on a
house in University Place that they purchased together.
Dr. Wheeler, McKinley, Porter, Sommer, and Kelsea Laegreid, Porter’s
6
No. 791 02-8-1/7
new wife, testified at trial. The court also heard testimony from Dr. Christopher
Tobey, McKinley’s expert, and Hayley Jacobson, Porter’s education expert.
Toward the conclusion of trial, the court made several comments on the record
stating its intent to try to honor the originally contemplated 50-50 parenting plan.
The trial court ultimately denied relocation and entered a modified
parenting plan. In its findings, the trial court stated that “[un this case, the Court
will apply the rebuttable presumption set forth in RCW 26.09.520, but weigh it
somewhat less heavily than the Court would in another case without a 50-50 plan
having been ordered.”
At the time of trial, McKinley was the primary residential parent and would
be until P.J.M. turned five in June 2019. Indeed, under the parenting plan then in
effect, P.J.M., who had met Porter for the first time less than three years earlier,
spent less than 20 percent of his time with Porter.3 Nevertheless, the trial court
ordered that a 50-50 week-on/week-off residential schedule begin immediately—
almost a year earlier than originally contemplated—until P.J.M. started
kindergarten. It also ordered two alternative residential schedules for after P.J.M.
started kindergarten: “Schedule A,” which would go into effect if McKinley did not
permanently relocate back within a 60-minute drive of Porter’s house before the
2019-2020 school year; and “Schedule B,” which would go into effect if McKinley
did move back before the 201 9-2020 school year. Under Schedule A, Porter
would be P.J.M.’s primary residential parent except that he would spend every
~ The 2016 parenting plan provides that from age three to five, P.J.M.
would spend, over each two-week period, a total of 64 hours with Porter.
7
No. 79102-8-1/8
other weekend with Mckinley, plus a weekly Tuesday night overnight. Schedule
B was the same 50-50 residential schedule that would have begun when P.J.M.
turned five under the 2016 parenting plan. The trial court also designated Porter
as the sole decision-maker for education and nonemergency healthcare-related
decisions about P.J.M. (whereas, under the 2016 parenting plan, the parents had
joint decision-making authority). Mckinley appeals, challenging the trial court’s
denial of relocation and various other related decisions.
ANALYSIS
DENIAL OF RELOCATION
Mckinley argues that the trial court abused its discretion by denying her
request to relocate with P.J.M. We agree.
The CRA sets forth notice requirements and standards for changing the
primary residence of a child who is subject to a court order regarding residential
time. In re Marriage of McNaught, 189 Wash. App. 545, 553, 359 P.3d 811(2015).
“If a person entitled to residential time or visitation objects to a child’s relocation,
the person seeking to move the child may not relocate the child without court
approval.” McNaught, 189 Wash. App. at 553. “Upon a proper objection, a trial
court must conduct a fact-finding hearing on the proposed move.” McNaught,
189 Wash. App. at 553. To that end, RCW 26.09.520 “creates a rebuttable
presumption that relocation will be permitted.” In re Marriage of Homer, 151
Wash. 2d 884, 887, 93 P.3d 124 (2004). To rebut this presumption, the objecting
party must demonstrate “that the detrimental effect of the relocation outweighs
the benefit of the change to the child and the relocating person.”
8
No. 791 02-8-1/9
RCW 26.09.520.~ The court considers the following factors to determine whether
the objecting party has rebutted the presumption in favor of relocation:
(1) The relative strength, nature, quality, extent of
involvement, and stability of the child’s relationship with each
parent, siblings, and other significant persons in the child’s life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the
person with whom the child resides a majority of the time would be
more detrimental to the child than disrupting contact between the
child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential
time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the
relocation and the good faith of each of the parties in requesting or
opposing the relocation;
(6) The age, developmental stage, and needs of the child,
and the likely impact the relocation or its prevention will have on the
child’s physical, educational, and emotional development, taking
into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available
to the child and to the relocating party in the current and proposed
geographic locations;
(8) The availability of alternative arrangements to foster and
continue the child’s relationship with and access to the other
pa rent;
(9) The alternatives to relocation and whether it is feasible
and desirable for the other party to relocate also;
(10) The financial impact and logistics of the relocation or its
prevention; and
(11) For a temporary order, the amount of time before a final
decision can be made at trial.
RCW 26.09.520. The factors are neither weighted nor listed in any particular
order. RCW 26.09.520. Consideration of the factors “is logical because they
serve as a balancing test between many important and competing interests and
~ Because RCW 26.09.520(3) was amended in 2019, we cite to former
RCW 26.09.520(3) (2000) for that subsection. The remainder of RCW 26.09.520
is unchanged; thus, we cite to the current statute for all other references to the
statute, including its preamble and other subsections.
9
No. 79102-8-1/10
circumstances involved in relocation matters.” Homer, 151 Wash. 2d at 894.
“Particularly important in this regard are the interests and circumstances of the
relocating person.” Homer, 151 Wash. 2d at 894. To that end, by establishing a
rebuttable presumption that relocation will be allowed, the CRA “both
incorporates and gives substantial weight to the traditional presumption that a fit
parent will act in the best interests of her child.” In re Custody of Osborne, 119
Wash. App. 133, 144, 79 P.3d 465 (2003).
We review a trial court’s decision to deny relocation for an abuse of
discretion. Homer, 151 Wash. 2d at 893. “Abuse of discretion occurs ‘when the trial
court’s decision is manifestly unreasonable or based upon untenable grounds or
reasons.” Homer, 151 Wash. 2d at 893 (quoting State v. Brown, 132 Wash. 2d 529,
572, 940 P.2d 546 (1997)). “A court’s decision is manifestly unreasonable if it is
outside the range of acceptable choices, given the facts and the applicable legal
standard.” In re Marriage of Littlefield, 133 Wash. 2d 39, 47, 940 P.2d 1362 (1997).
“[lilt is based on untenable grounds if the factual findings are unsupported by the
record.” Littlefield, 133 Wash. 2d at 47. And “it is based on untenable reasons if it
is based on an incorrect standard or the facts do not meet the requirements of
the correct standard.” Littlefield, 133 Wash. 2d at 47. Where the trial court has
weighed the evidence, “[wje do ndt review credibility determinations or reweigh
the evidence to determine if we should reach a different conclusion.” McNaught,
189 Wash. App. at 561. Rather, “[w]e will reverse a trial court’s factual findings only
if they are unsupported by substantial evidence,” i.e., “evidence of sufficient
quantity to persuade a fair-minded, rational person of the truth of the declared
10
No. 791 02-8-1/11
premise.” In re Marriage of Raskob, 183 Wash. App. 503, 510 & n.7, 334 P.3d 30
(2014) (quoting Bering v. SHARE, 106 Wash. 2d 212, 220, 721 P.2d 918 (1986),
cert. dismissed, 479 US. 1050 (1987)). To that end, we are not bound by the trial
court’s findings if the trial court “rejects uncontroverted credible evidence, or
capriciously disbelieves uncontradicted evidence.” Smith v. Pac. Pools, Inc., 12
Wash. App. 578, 582, 530 P.2d 658 (1975).
Here, reversal is required because the trial court’s decision to deny
relocation was an abuse of discretion. Specifically, the court failed to apply the
statutory presumption in favor of relocation and improperly engaged in a best-
interests-of-the-child analysis instead of weighing the detriment of relocation
against the presumed benefits to P.J.M. and McKinley. Additionally, the trial
court’s errors pervade its findings regarding the individual relocation factors such
that if the trial court had applied the correct legal standards, relocation should
have been permitted. Each of these issues is discussed in turn below.
Application of Incorrect Standards
As discussed, the CRA establishes a presumption that a child will be
permitted to relocate with the parent with whom the child resides a majority of the
time. Former RCW 26.09.430 (2000); RCW 26.09.520. Additionally, the CRA
requires the court to consider the relocation factors with a view toward
determining whether “the decision of a presumptively fit parent to relocate with
the child . . . will in fact be so harmfulto a child as to outweigh the presumed
benefits of relocation to the child and relocating parent.” In re Parentage of
R.F.R., 122 Wash. App. 324, 332-33, 93 P.3d 951 (2004) (emphasis added). Thus,
11
No. 791 02-8-1/12
“the standard for relocation decisions is not only the best interests of the child.”
Homer, 151 Wash. 2d at 894. Indeed, it is error for a trial court not to consider the
benefit of the change to the child and the relocating parent. Homer, 151 Wash. 2d
at 894; RCW 26.09.520.
Here, it is undisputed that at the time of trial, McKinley was the person
with whom P.J.M. resided a majority of the time: Under the parenting plan then in
effect, P.J.M. spent time with Porter only on weekends and one weeknight.
Nevertheless, the court failed to apply the presumption, stating, “In this case, the
Court will apply the rebuttable presumption set forth in RCW 26.09.520, but
weigh it somewhat less heavily than the Court would in another case without a
50-50 plan having been ordered.” (Emphasis added.) The court reasoned that
“[t]here is no case law on how to weigh [the] presumption when a 50-50
parenting plan is ordered to be implemented in the future” and that “[t]he
incentive for gamesmanship in this setting is considerable.” But the plain
language of the CRA requires the court to apply the presumption in favor of
relocation to “a person with whom the child resides a majority of the time.” ~
In re Marriage of Snider, 6 Wash. App. 2d 310, 317, 430 P.3d 726 (2018) (holding
that in a 50-50 residential schedule, neither parent is entitled to the presumption
because neither parent is “a person with whom the child resides a majority of the
time” (quoting former RCW 26.09.430)). By weighing the presumption
“somewhat less heavily” than it would in other cases where the primary
residential parent seeks to relocate, the court applied a legal standard contrary to
12
No. 79102-8-1/13
the one mandated by the CRA. This was reversible error.
Porter argues that it was within the trial court’s discretion to weigh the
presumption less heavily to address “[tjhe incentive to game the system and
relocate just to avoid the 50/50 plan.” But because a trial court does not have
discretion to apply an incorrect legal standard, this argument fails. •~ Kreidler
v. Cascade Nat’l Ins. Co., 179 Wash. App. 851, 866, 321 P.3d 281 (2014) (trial
court necessarily abuses its discretion by applying an incorrect legal standard).
Moreover, one of the relocation factors already directs the court to consider “[t]he
reasons of each person for seeking or opposing the relocation and the good faith
of each of the parties in requesting or opposing the relocation.”
RCW 26.09.520(5). And as discussed, the relocation factors are expressly “not
weighted.” RCW 26.09.520. In other words, the legislature already addressed
the risk of gamesmanship in one of the relocation factors and decided that it
should not be permitted to “trump” any of the other factors. But by weighing the
presumption “somewhat less heavily” to address potential gamesmanship, the
trial court allowed it to do just that. Porter’s argument is not persuasive.
The trial court also abused its discretion by conducting its relocation
analysis with the goal of honoring the originally contemplated, but not yet in
effect, 50-50 parenting plan. Specifically, the trial court’s own statements toward
the conclusion of trial reveal that its subjective intent was to honor the originally
contemplated 50-50 parenting plan. For example, the court stated:
Right, I mean, the way I’m thinking about this. is—is there a way
. .
that / can honor the 50/50 plan? Is there a solution / can come up
with that would allow 50/50 to happen? As it is currently set up, I
can’t imagine that we could do 50/50, but is there something else?
13
No. 79102-8-1/14
So, that’s kind of what I’m pondering.
(Emphasis added.)
The court also stated:
I’m pondering all kinds of creative things and what I’m
struggling with is how few options I have been left. And, that / am
concerned that it’s very difficult to honor the goal of a 50/50
Parenting Plan, given how few options I have. And I’m thinking
about spending some time generating some new options.
(Emphasis added.)
Shortly thereafter, the court stated:
I feel like I ought to have a little bit more authority over the
whereabouts of Ms. Mckinley and re-looking at that where [a] 50/50
plan was so contemplated by the Court than / would in a normal
relocation case. So, that’s kind of the legal basis I’m thinking
about.
(Emphasis added.)
The court also stated:
I think you can tell from my questions that I’m trying to come up
with a way of doing this that might not just be a yes or no to
relocation. And the reason I’m thinking about that is the intention of
moving to a 50/50 plan.
I feel like there’s got to be some way to try to honor that
50/50 plan. If we were talking about, you know, moving across the
country that’s just not—I mean, that’s just a yes or a no. But, here
we have a little bit more wiggle room.
(Emphasis added.)
Additionally, when reciting its oral findings, the court stated, ‘Okay. So I
really want you guys to be able to parent this child 50/50 if we can make it
happen. Okay?” And in its written findings, the trial court wrote that “[t]his Court
believes every effort should be made to make a 50-50 plan work.” To that end,
the trial judge even engaged in her own independent efforts to force a 50-50 plan
14
No. 79102-8-1/15
into fruition by reaching out to her contacts at the King County Department of
Public Defense (DPD) about job openings and suggesting that McKinley follow
up with DPD. Finally, after considering the relocation factors, the trial court
concluded that ‘the Court believes it would be in the child’s best interests for the
mother to return to King County and for the parties to share residential time with
him 50-50.” (Emphasis added.) In short, it is beyond dispute that the trial court’s
paramount consideration was to honor the originally contemplated prospective
50-50 plan.
But while the standard by which a trial court establishes a parenting plan
is the best interests of the child, In re Marriage of Possinger, 105 Wash. App. 326,
335, 19 P.3d 1109 (2001), that is not the correct standard for a relocation
analysis. Homer, 151 Wash. 2d at 894. By deciding relocation with the goal of
“getting to 50-50,” the court improperly placed its primary focus on P.J.M.’s best
interests.
Analysis of Relocation Factors
As discussed, the trial court erred by failing to apply the presumption and
by conducting its analysis through a best-interest-of-the-child lens rather than by
requiring Porter to prove that McKinley’s decision to relocate with P.J.M. “will in
fact be so harmful to [P.J.M.J as to outweigh the presumed benefits of relocation”
to P.J.M. and McKinley. R.F.R., 122 Wash. App. at 332-33. As further discussed
below on a factor-by-factor basis,5 the trial court’s errors pervade its findings with
~ We do not address factors 2 or 4 because Porter does not provide
argument with regard to those factors, and we do not address factor 11 because
it applies only to temporary orders.
15
No. 79102-8-1116
regard to the relocation factors. Specifically, the record reveals that the trial court
at various times ignored evidence, improperly shifted the burden of proof to
McKinley, mischaracterized Sommer’s testimony, improperly considered
McKinley’s reproductive choices, and failed to consider the “[p]articularly
important. . . interests and circumstances of the relocating person.” Homer, 151
Wash. 2d at 894. Therefore, reversal is required.
Relocation ‘Factor I
Under the first relocation factor, the trial court was required to consider
“[t]he relative strength, nature, quality, extent of involvement, and stability of the
child’s relationship with each parent, siblings, and other significant persons in the
child’s life.” RCW26.09.520(1).
With regard to this factor, the trial court found that P.J.M. “has strong,
stable relationships with both parents” and “has siblings in both households who
love him.” It then found that this factor “weighs equally for both parents.”
McKinley argues that had the court properly applied the presumption, this factor
would have favored relocation. We agree for two reasons.
First, the trial court’s finding that the first factor weighs equally for both
Porter and McKinley ignores the undisputed evidence that Porter was absent
from P.J.M.’s life from the time he was born until he was 16 months old. It also
ignores the undisputed fact that although Porter’s involvement with P.J.M. would
gradually increase, at the time of trial P.J.M. spent less than 20 percent of his
time with Porter. In other words, substantial evidence does not support a finding
that the first relocation factor, which requires the court to consider the relative
16
No. 79102-8-1/17
strength, nature, quality, extent of involvement, and stability of the child’s
relationship with each parent, weighs equally for both parents.
Second, in the relocation context, the burden of production and the burden
of persuasion are on the party opposing relocation—here, Porter. McNauqht,
189 Wash. App. at 556. And again, the first relocation factor requires the court to
consider the relative strength of the child’s relationship with each parent, siblings,
and other significant persons in the child’s life. That the trial court found that
P.J.M. has strong relationships with both parents and siblings in both households
necessarily means that this factor does nothing to rebut the presumption in favor
of relocation. Put another way, the court’s finding that the first relocation factor
weighs “equally” for both parents—despite the fact that P.J.M. has strong
relationships in both households—confirms that the court failed to take into
consideration the presumption that allows McKinley to relocate with P.J.M.
Porter argues that because McKinley did not challenge the trial court’s
findings with regard to the first relocation factor, they are verities on appeal. But
we have the discretion to “review findings to which the appellant fails to properly
assign error as long as the appellant has identified those findings and the nature
of his challenges to them elsewhere in the brief.” Bircumshaw v. State, 194 Wn.
App. 176, 199, 380 P.3d 524 (2016). And here, McKinley fully advises the court
that she takes issue with the court’s findings with regard to the first relocation
factor, and the reasons why. Therefore, we are not persuaded by Porter’s
argument.
Porter next argues that there was sufficient evidence to support the trial
17
No. 79102-8-1/18
court’s finding that P.J.M. had a strong and stable relationship with Porter and his
family. But as discussed, in considering this factor, the trial court failed to
consider the relative strength and stability of P.J.M.’s relationships in each
household. The cited evidence regarding P.J.M.’s relationships in Porter’s
household does not persuade us that the trial court properly considered this
factor.
Porter also argues, as a general matter, that the presumption “does not
require initially weighing each individual statutory factor in favor of the relocating
party” and that “[c]onsideration of the factors is distinguished from the
presumption.” He cites McNauqht in support of his arguments, pointing out that
in McNauciht, this court stated that the presumption “provides the standard the
trial court uses at the conclusion of trialto resolve competing claims about
relocation.” McNauqht, 189 Wash. App. at 556 (emphasis added). But Porter’s
argument ignores the CRA’s express language stating that the party objecting to
relocation “may rebut the presumption by demonstrating that the detrimental
effect of the relocation outweighs the benefit of the change to the child and the
relocating person, based upon the [relocation] factors.” RCW 26.09.520
(emphasis added). This means that if a particular relocation factor is neutral (as
the trial court found that the first factor was), it necessarily does nothing to rebut
the presumption and thus favors relocation. Furthermore, the cited statement
from McNau~ht was made in the context of rejecting an argument that the CRA’s
presumption disappears when the party objecting to relocation produces
evidence. McNauciht, 189 Wash. App. at 555-56. McNauqht does not directly
18
No. 79102-8-1/19
address how the presumption should be applied when considering individual
relocation factors and does not support Porter’s argument.
Moreover, even if we were to agree with Porter that the presumption is
applied not while but only after considering the relocation factors, the trial court
here failed to do even that. Specifically, in the “Conclusion” section of its findings
of fact and conclusions of law, the trial court wrote:
The Court finds that it would be more detrimental for the
child’s relationship with his father to be disrupted than for his
relationship with his mother to be disrupted as long as the child has
frequent, meaningful contact with the mother. However, the Court
believes it would be in the child’s best interests for the mother to
return to King County and for the parties to share residential time
with him 50-50.
In other words, the trial court did not, as the CRA requires it to do, resolve the
parties’ competing claims about relocation by applying the presumption in favor
of relocation. Rather, it resolved the parties’ competing claims based on what it
“believe[d]” to be in P.J.M.’s best interests and by reemphasizing its finding
regarding just one of the relocation factors.6 Porter’s argument is unpersuasive.
Porter next argues, relying on expresslo unius est exclusio alter/us,7 that
because two of the relocation factors already encompass a presumption in favor
6 .~ former RCW 26.09.520(3) (requiring the court to consider “[w]hether
disrupting the contact between the child and the person with whom the child
resides a majority of the time would be more detrimental to the child than
disrupting contact between the child and the person objecting to the relocation”).
~ Expressio un/us est exclusio alter/us is a maxim of statutory construction,
stating that when “a statute specifically designates the things or classes of things
upon which it operates, an inference arises in law that all things or classes of
things omitted from it were intentionally omitted by the legislature.” State v.
Swanson, 116 Wash. App. 67, 75, 65 P.3d 343 (2003) (quoting Wash. Natural Gas
Co. v. Pub. Util. Dist. No. 1, 77 Wash. 2d 94, 98, 459 P.2d 633 (1969)).
19
No. 79102-8-1/20
of the relocating parent, the legislature intended the other factors—including the
first—not to encompass such a presumption. He points out, for example, that the
third factor directs the court to consider whether disrupting the child’s contact
with the relocating parent would be more detrimental than disrupting the child’s
contact with the nonrelocating parent. But in Homer, our Supreme Court
observed that the consideration of all of the relocation factors “is logical because
they serve as a balancing test between many important and competing interests
and circumstances involved in relocation matters.” Homer, 151 Wash. 2d at 894
(emphasis added). The court went on to emphasize: “Particularly important in
this regard are the interests and circumstances of the relocating person.”
Homer, 151 Wash. 2d at 894 (emphasis added). The court thus held that
consideration of each relocation factor is required to “ensure that trial courts
consider the interests of the child and the relocating person within the context of
the competing interests and circumstances required by the CRA.” Homer, 151
Wash. 2d at 895 (emphasis added). It follows, from the central role that the
relocation factors play in ensuring that the court considers the “[p]articularly
important” interests and circumstances of the relocating person, Homer, 151
Wash. 2d at 894, that the factors must be viewed with the presumption in mind.
Therefore, Porter’s argument is not persuasive.
Relocation Factor 3
Under the third relocation factor, the court must consider “[w]hether
disrupting the contact between the child and the person with whom the child
resides a majority of the time would be more detrimental to the child than
20
No. 79102-8-1/21
disrupting contact between the child and the person objecting to the relocation.”
Former RCW 26.09.520(3) (2000). As further discussed below, the trial court’s
analysis of this factor—and the weight that it placed on it—confirms that the trial
court failed to apply the presumption and based its relocation decision on the
best interests of the child.
The court began its analysis of the third relocation factor with the
observation that “[ut is clearly not feasible to implement a 50-50 parenting plan
between Bellevue and University Place once [P.J.M.] starts
school... . Therefore, the Court has to consider whether it would be better for
[P.J.M.] to spend less time with his mother and more time with his father, or vice
versa.” (Emphasis added.) But by basing its analysis on what would happen
when P.J.M. started school, the trial court ignored the fact that at the time of trial,
P.J.M. resided primarily with McKinley, except a weekly Thursday overnight and
an alternating Saturday overnight or Sunday visit with Porter. It also ignored the
fact that McKinley was not proposing to relocate P.J.M. out of or across the state,
where P.J.M.’s contact with Porter would necessarily and immediately be
disrupted by relocation. Rather, under the residential schedule in force at the
time of trial, any disruption to P.J.M.’s contact with his parents would simply
consist of more time being spent in the car traveling between Bellevue and
University Place. And even the trial court itself recognized that “I think the point
that kids do actually talk to you in the car is really important to consider.” In
short, the court’s analysis of the third relocation factor began in the wrong place,
i.e., by making “every effort. . . to make a 50-50 plan work.” As a result, the trial
21
No. 79102-8-1/22
court ignored the evidence by analyzing the third relocation factor solely through
the lens of an anticipated future 50-50 plan rather than the family’s actual
circumstances.
To that end, and as Porter acknowledges, the trial court relied in part on
Dr. Wheeler’s assessment in analyzing this relocation factor. Dr. Wheeler
testified that her assessment of this factor focused not on the circumstances as
they existed at the time of trial, but on the anticipated future 50-50 plan that she
had previously recommended during the parentage proceeding. Specifically, in
describing her analysis, Dr. Wheeler began by explaining:
So the plan as it was entered in the court, with the court, was for
P.J.[M.J to be moving towards a 50/50 schedule with both of his
parents. And in my opinion that was going to be in his best
interests given that he has two very skilled, very competent, very
loving parents, and a strong relationship with both of them.
So had mother not relocated, that would have been
P.J.[M.]’s future. So no matter what, that 50/50 arrangement is
going to be disrupted because that’s not going to make sense for
him moving forward with parents living as far apart as Tacoma and
Bellevue. So I provided an analysis of my thoughts on—or my
opinions about disrupting contact with mother, as well as an
analysis about my opinion about disrupting contact with father.
In other words, Dr. Wheeler analyzed this factor through the incorrect lens, i.e.,
based on the anticipated 50-50 plan. To the extent that the trial court relied on
Dr. Wheeler’s analysis, it repeated this error.
Furthermore, the trial court’s emphasis on the third relocation factor
confirms that its ultimate decision on relocation focused on “getting to 50-50” and
thus, by extension, on what it believed would be in P.J.M.’s best interests.
Specifically, in its oral ruling, the trial court stated that the third relocation factor
“is really where the rubber meets the road.” And after conducting its analysis of
22
No. 79102-8-1/23
each factor in its written findings, the trial court expressly discussed the third
factor in its conclusion, stating, “The Court finds that it would be more detrimental
for the child’s relationship with his father to be disrupted than for his relationship
with his mother to be disrupted as long as the child has frequent, meaningful
contact with the mother.” Put another way, the trial court’s emphasis on the third
relocation factor confirms that it failed to apply the presumption in favor of
relocation or give due consideration to the interests of the relocating party,
McKinley.
Porter argues that because McKinley did not challenge the trial court’s
finding that a 50-50 parenting plan is not feasible between Bellevue and
University Place or its finding that “every effort should be made to make a 50-50
plan work,” these findings are verities on appeal. But this argument is
unpersuasive because it fails to acknowledge, as discussed above, that the
anticipated future 50-50 plan was not the proper focus of the trial court’s analysis.
Porter next points out that the trial court made a finding thaL”[i]t would be
a terrible loss for [P.J.M.] not to have the opportunity to grow up at least half the
time with a highly skilled, experienced parent” and argues that sufficient evidence
supports this finding. But this argument is unpersuasive for a number of reasons.
First, it again fails to acknowledge that the trial court improperly focused its
analysis on a future 50-50 plan. Second, it fails to address the fact that the trial
court placed substantial weight on the third relocation factor, thus confirming that
the trial court’s relocation decision was based on what it believed would be in
P.J.M.’s best interests. Third, Porter’s argument ignores that arguably nearly
23
No. 79102-8-1/24
every relocation results in a disruption to the child’s contact with one of the
parents. Therefore, that the relocation will result in a disruption to the child’s
contact with a skilled parent does not alone support a finding that the third
relocation factor weighs against relocation.
Finally, the trial court relied on inadmissible hearsay when making its
finding. Specifically, the trial court referred at length to comments that
Rasmussen made to Dr. Wheeler regarding “the lack of structure in [McKinley’s]
home.” Under ER 703, an expert may base her opinion on facts that are not
otherwise admissible if they are “of a type reasonably relied on by experts in the
particular field.” In re Det. of Leck, 180 Wash. App. 492, 513, 334 P.3d 1109
(2014). But the rule does not permit the fact finder, here the trial court, to
consider those inadmissible facts for the truth of the matter asserted. Porter
argues that the trial court properly admitted Rasmussen’s claims under ER 703
and that the court did not recite the hearsay evidence as a fact or a finding but
only to recognize the information that Dr. Wheeler properly considered in forming
her opinion. But this argument is unconvincing where the trial court’s hearsay-
based description of the conditions in McKinley’s home was immediately followed
by a finding that Porter’s home “is a stark contrast.” To that end, the trial court’s
characterization of Porter’s home as a “stark contrast” also is not supported by
substantial evidence: Dr. Wheeler, the only witness who testified to spending
time in both homes, wrote in her report that ‘[b]oth homes were clean and well
organized, and child friendly” and that “[nb significant environmental concerns
were apparent in either home.” In short, the trial court’s finding with regard to the
24
No. 791 02-8-1/25
relative state of both homes is not supported by substantial evidence.
Porter also points out that ‘there was testimony that called into question
the stability of Ms. McKinley’s relationships and living situation, as well as
testimony that called into question her decision-making abilities.” Specifically,
Porter points to Dr. Wheeler’s testimony that McKinley has “had a number of jobs
just since the last evaluation, a number of residences since the last evaluation.”
But to the extent that the trial court relied on this testimony to conclude that
McKinley is unstable, it ignored its own finding that Dr. Wheeler failed to
appreciate either “the reasons a law student/new lawyer and single mother of two
might move frequently or struggle to find work” or “the nature of contract lawyer
work.” Put another way, the fact that McKinley changed residences and
employment in reaction to past life circumstances does not support a finding of
future instability.
Additionally, the trial court’s concerns regarding Mckinley’s stability and
decision-making abilities were based in part on being “taken aback” by Mr.
Sommer’s testimony that he and Mckinley conceived a baby when they “just
decided to throw caution to the wind.” But the trial court’s characterization of
Sommer’s testimony is not supported by the record: Sommer testified that he
wanted Mckinley to get pregnant if it happened spontaneously, and McKinley
testified that she “thought that it was a good idea to have a baby with a man who
has been consistent and stable and involved and who . . . loves me.” This
testimony does not support the trial court’s characterization that the couple
“thr[e]w caution to the wind.” In any event, Mckinley and Sommer’s reproductive
25
No. 79102-8-1/26
choice simply is not a relevant consideration with regard to McKinley’s ‘stability,
maturity, or. . . long term thinking,” much less whether relocation should be
permitted.
Porter attempts to justify the trial court’s finding in his answer to amicus
Legal Voice’s brief.8 He argues that
[a}s an example of Ms. McKinley’s instability, the court noted that
as a single mother with two young sons who was struggling
financially, Ms. McKinley’s decision to “throw caution to the wind,”
was not a sign of stability, maturity, or good long term thinking—
some of the contested issues in this case.
But as discussed, the record does not support a finding that McKinley “thr[e]w
caution to the wind,” and McKinley’s and Sommer’s decision to have a baby
together is not a relevant consideration with regard to McKinley’s stability,
maturity, or long-term thinking. Porter’s argument is unpersuasive.
In short, the trial court’s findings regarding the third relocation factor
improperly focused on what it perceived to be in P.J.M.’s best interests, and the
court’s emphasis on this factor confirms that its relocation decision was based on
the child’s best interests.
Relocation Factor 5
The fifth relocation factor directs the court to consider “[tjhe reasons of
each person for seeking or opposing the relocation and the good faith of each of
8 We do not consider Porter’s remaining arguments in his answer to Legal
Voice’s amicus brief because those arguments are not addressed to new matters
raised in Legal Voice’s brief. Instead, they address arguments raised in
McKinley’s opening brief, to which Porter already had an opportunity to respond.
See RAP I 0.3(f) (“The brief in answer to a brief of amicus curiae should be
limited solely to the new matters raised in the brief of amicus curiae.”).
26
No. 79102-8-1/27
the parties in requesting or opposing the relocation.” RCW 26.09.520(5).
The trial court found that Mckinley’s initial move to University Place was
not made in bad faith because she “had to move, immediately, and she needed
to find a less expensive place to live.” But it also found that Mckinley’s “decision
to buy a home with her boyfriend before this trial had reached its conclusion” was
in bad faith. Specifically, the court observed that “[tjhis was unnecessary and a
slap in the face to the process and the father’s role in [P.J.M.]’s life.” It found that
Mckinley “could have rented month to month, or sough[t} a leasehold shorter
than one year, to learn the outcome of this proceeding.”
But this finding ignores the evidence. Specifically, Mckinley testified that
she and Sommer had intended to move in together for a while, explaining, “we
are a family and right now we’re having to be a split family.” Mckinley also
testified that she would not qualify for state medical insurance for much longer,
and the only way to get on Sommer’s insurance before their baby was born in
September was to live together. This left Mckinley and Sommer with the choice
either to move into another temporary living situation or to find a more permanent
place to live. To this end, Sommer testified, with regard to the decision to buy a
house, that Mckinley’s apartment lease had expired in June, and although she
could have gone month-to-month, “it was a ridiculous rate.” He also explained
that with McKinley due in September, he and Mckinley did not want to hold off
any longer on their plans to buy a house: “I’d rather get into a house, get it set up
the way [want it so that when my kid arrives it’s nice and comfy.” Sommer
testified that he and Mckinley “Iook[ed} around a lot” for houses, and that the one
27
No. 79102-8-1/28
they ultimately bought was “kind of a . . . diamond in the rough.” Even the court
observed that “[t]he testimony portrayed this house as very special and ideal for
three children.” In short, substantial evidence does not support the trial court’s
finding that McKinley’s decision to buy a house with her partner was in bad faith.
~ Smith, 12 Wash. App. at 582 (appellate court not bound by findings if trial court
capriciously disbelieves uncontradicted evidence).
Porter argues that the court reasonably found that McKinley’s decision to
buy a house was in bad faith. He points out that although Sommer worked in
Seattle, he and McKinley did not look for homes to purchase or rent in King
County. He also points out that the trial court observed that Sommer “admitted
that [he and McKinley] had not really discussed P.J.M.’s parenting plan when
they talked about buying a house”:
When the Court outlined how much driving would need to be done
during the work day, [Sommer’s] face revealed to the Court that he
had absolutely no idea what it would take to implement the
parenting plan. This illustrates that the mother did not treat the trial
court’s parenting plan as a document she needed to follow both to
the letter and in the spirit of co-parenting her son.
But the trial court’s questioning of Sommer in this regard focused on whether or
not he and McKinley had sufficiently considered how a 50-50 plan would work
once P.J.M. began school. One portion of the court’s dialog with Sommer is
particularly revealing: When the court commented that it sounded like the
“specifics” of the future 50-50 plan weren’t “really part of the discussion[,]”
Sommer explained, “I mean it can’t be. If you have to find a place to live, you
have to find a place to live, so . . . .“ The court responded, “Right. But if you
have to move to a 50/50 Parenting Plan, you have to move for a 50/50 Parenting
28
No. 791 02-8-1/29
Plan that is reasonable.” This colloquy reveals that the court expected McKinley
to elevate P.J.M.’s anticipated 50-50 plan above the considerations of her partner
and their growing family. But this is not what the CRA requires. See Homer, 151
Wash. 2d at 894 (“Particularly important” with regard to the consideration of the
relocation factors “are the interests and circumstances of the relocating person.”).
To this end, Sommer explained that he and McKinley did not consider rentals
because he and McKinley considered buying a home a “wise financial decision,”
and although Sommer would have liked to purchase closer to Seattle, “it kind of
made sense for us to move where we could afford to live comfortably.”
In short, to the extent that the trial court was concerned about
gamesmanship—i.e., that McKinley purchased a home in University Place to
avoid a future 50-50 plan—that concern is not supported by the record. Rather,
the record reflects that the trial court based its finding not on actual evidence of
gamesmanship, but on a concern about potential gamesmanship. The trial court
found that McKinley had to move to the Tacoma area, immediately. It found that
McKinley “needed to find a less expensive place to live” and that “[s]he had been
offered a good job in Olympia and it made sense to find a home equidistant
between Bellevue and Olympia.” But despite the trial court’s findings regarding
McKinley’s reasons for moving and McKinley’s and Porter’s testimony regarding
their reasons for purchasing a home together, the trial court found that the fifth
relocation factor weighed in Porter’s favor, citing alternatives that McKinley “could
have” chosen but did not. By basing its finding of bad faith on alternatives to
homeownership that McKinley “could have” pursued and ignoring McKinley’s and
29
No. 79102-8-1130
Sommer’s compelling reasons for choosing homeownership, the trial court
essentially placed the burden on McKinley to prove that she did not act in bad
faith. But Porter bears the burden of production and the burden of persuasion in
the relocation context. Therefore, the trial court erred. Indeed, this error was
further compounded by the fact that potential gamesmanship was a weighty
concern to the trial court, which specifically cited the “incentive for
gamesmanship” as a reason to weigh the presumption “somewhat less heavily”
in this case.
Moreover, the trial court’s reasoning that McKinley could have, or should
have, put her homeownership plans on hold to learn the outcome of the
relocation trial violates RCW 26.09.530, which prohibits the court from
considering “evidence on the issue of whether the person seeking to relocate the
child will forego his or her own relocation if the child’s relocation is not permitted.”
Indeed, the court essentially assumed that McKinley would move back—or would
at least consider moving back—if P.J.M.’s relocation was not permitted. But this
is exactly the type of consideration that RCW 26.09.530 prohibits.
Porter contends that McKinley’s argument that the trial court improperly
considered evidence prohibited by RCW 26.09.530 is “strained.” He argues that
the court “simply observed that she purchased a permanent and costly home
with flagrant disregard to the outcome of the proceedings when she could have
waited and made a more informed decision regarding where she wanted to live—
be it in University Place or King County.” But Porter’s argument merely
underscores that the trial court improperly considered “the issue of whether the
30
No. 791 02-8-1/31
person seeking to relocate the child will forego his or her own relocation if the
child’s relocation is not permitted.” RCW 26.09.530.
In considering the fifth relocation factor, the court ignored evidence,
considered issues in violation of RCW 26.09.530, applied a best-interests-of-the-
child lens by centering its focus on the anticipated 50-50 plan, and improperly
shifted the burden to McKinley to prove that she did not act in bad faith.
Relocation Factor 6
Under the sixth relocation factor, the court considers “[tjhe age,
developmental stage, and needs of the child, and the likely impact the relocation
or its prevention will have on the child’s physical, educational, and emotional
development, taking into consideration any special needs of the child.”
RCW 26.09.520(6). Here, again, the trial court’s findings reveal that it ignored
evidence and based its findings on what it believed was in P.J.M.’s best interests.
Specifically, the trial court found that P.J.M. “is reaching the end of the
window of time where he needs to have a consistent relationship with a primary
caregiver.” It also found that “at the moment both parents are equally able to
manage [P.J.M.J’s developmental stage.” And Dr. Wheeler concluded that this
factor weighed equally between the parents. Nevertheless, the trial court
disagreed with Dr. Wheeler and found that this factor weighed “modestly in favor
of the father,” reasoning: “This Court looks ahead one year, to Kindergarten, and
questions whether the mother’s parenting style (as described by [B.R.J’s father
and step-mother) will be as well adapted to [P.J.M.j’s developmental needs as
the father’s.” (Emphasis added.) But in light of the CRA’s “apparent purpose of
31
No. 79102-8-1/32
generally favoring relocation,” McNauqht, 189 Wash. App. at 556, the trial court’s
hearsay-based speculation is not alone sufficient to find that this factor weighs
against relocation.
Furthermore, the trial court’s analysis did not directly address the focus of
this relocation factor—i.e., the impact of the relocation, Instead, the court
engaged in something akin to a parenting plan modification analysis, asking
which parent P.J.M. should live with. But the court must first decide whether to
permit or restrain location, applying the CRA’s statutory presumption in favor of
relocation, before determining what, if any, modifications should be made to the
parenting plan as a result of the decision on relocation. RCW 26.09.260(6).
Here, the trial court “put the cart before the horse” by going directly to the
modification analysis.
Porter argues that the portion of the trial court’s finding stating that “[t]his
factor weighs modestly in favor of the father” is unchallenged and therefore a
verity on appeal. But McKinley’s brief fully advises the court that she takes issue
with the court’s finding that the sixth relocation factor weighed in Porter’s favor,
and the reasons why. Therefore, Porter’s argument is unpersuasive.
Porter next argues that McKinley “misconstrues the court’s finding and
analysis and ignores that the plain language of the factor necessarily requires a
consideration of the impact relocation would have on the child’s future.” But this
argument fails to recognize that the trial court’s findings regarding the impact of
the relocation were based on speculation. Porter’s argument is unpersuasive.
32
No. 79102-8-1/33
Relocation Factor 7
The seventh relocation factor directs the court to consider “[t]he quality of
life, resources, and opportunities available to the child and to the relocating party
in the current and proposed geographic locations.” RCW 26.09.520(7).
McKinley argues that the trial court misapplied this factor by turning it into a
contest between Porter’s household and McKinley’s household rather than
considering the quality of life, resources, and opportunities available to P.J.M.
and Mckinley in the Bellevue area versus the Tacoma area. We agree.
Specifically, the trial court began by observing that Porter’s home “offers a
very high quality of life and more resources than the mother’s,” but also that “[t}he
mother’s new home sounds lovely, and it is quite possible that materially [P.J.M.J
might be equally or close to equally well off in either home.” The court also
observed that at Porter’s home, P.J.M. “has three older siblings who adore him”
and that at Mckinley’s home, “he has a brother he has known his whole life and
will soon have a baby brother or sister.” The trial court nonetheless found that
this factor weighed in Porter’s favor, observing that “[ut is just not clear what will
happen in the mother’s relationship with the boyfriend, without whom she could
not live in the house” and that “[B.R.] has already begun to exhibit some
learning/behavioral issues” and “[t]here will be a big adjustment when the baby
arrives.” But none of these countervailing observations has anything to do with
the relevant focus under this factor, i.e., the current versus proposed geographic
locations. RCW26.09.520(7); ct In re Marriac~e of Griqsby, ll2Wn. App. 1, 12-
13, 57 P.3d 1166 (2002) (holding that trial court properly analyzed seventh
33
No. 79102-8-1/34
relocation factor by considering activities available on Whidbey Island with “what
Dallas had to offer”).
Porter argues that because McKinley did not specifically challenge the trial
court’s finding that the seventh relocation factor weighs in Porter’s favor, that
finding is a verity on appeal. But again, this court has the discretion to “review
findings to which the appellant fails to properly assign error as long as the
appellant has identified those findings and the nature of his challenges to them
elsewhere in the brief.” Bircumshaw, 194 Wash. App. at 199. Porter’s argument is
unpersuasive.
Porter next argues that the trial court’s finding that the seventh factor
weighs in his favor is supported by substantial evidence because the trial court
“noted that the opportunities and quality of life improvements for Ms. McKinley
were potentially not permanent.” But the trial court’s observation about
permanence reached beyond the scope of the inquiry for this relocation factor
because it does not negate the benefits that the “proposed geographic location”
(the Tacoma area) offers. Furthermore, the trial court’s observations about
permanence were based not on evidence in the record, but on pessimistic
speculation about the future of McKinley’s relationship with “the boyfriend.”
Indeed, Porter points to no evidence in the record that supports a finding that
McKinley’s relationship with Sommers was unstable or any more likely to end
than any other relationship. Therefore, Porter’s argument is unpersuasive.
Relocation Factor 8
The eighth relocation factor directs the court to consider “[t]he availability
34
No. 79102-8-1/35
of alternative arrangements to foster and continue the child’s relationship with
and access to the other parent.” RCW 26.09.520(8). With regard to this factor,
the trial court found:
Tacoma may be too far for a 50-50 parenting plan, but it is close
enough that he could have frequent, meaningful access to his
father.
At the moment, it is not possible for the father and [P.J.M.] to talk
on the phone or to Skype given the mother’s refusal to share
contact information, Of course, [P.J.M.] could call his father as long
as his mother would assist.
Given the mother’s attitude about sharing phone information with
the father and her consistent efforts to marginalize him, the Court is
not convinced that the mother would implement consistently
alternative arrangements for [P.J.M.} to communicate with his
father.
In other words, while the court found that alternative arrangements were in fact
available, it was unconvinced that Mckinley would actually utilize them. For the
following reasons, the trial court’s findings again reflect that it failed to apply the
presumption in favor of relocation.
First, the trial court focused solely on access to technological solutions
despite the fact that this is not a case of a parent relocating across or out of
state, where technological solutions may be necessary to foster a relationship.
Put another way, the trial court inexplicably ignored the fact that alternative
arrangements, such as residential schedule modifications, can be made to
ensure that P.J.M. continues to have meaningful access to Porter.
Second, to the extent that the court weighed the eighth factor against
relocation, it impliedly found that despite the fact that alternative arrangements
are available, Mckinley will not utilize them. That finding, however, is speculative
and not supported by substantial evidence. Porter asserts that there “was
35
No. 791 02-8-1/36
testimony that Ms. McKinley did not allow [P.J.M.J to call Mr. Porter,” but the
portion of the record to which Porter cites to support this assertion consists of Dr.
Wheeler relaying an “assumption” voiced by Laegreid that “maybe” P.J.M. was
asking to call Porter while at McKinley’s house and not being allowed to.
Furthermore, the trial court’s implicit finding ignores evidence that McKinley is in
fact willing to implement alternative arrangements. Specifically, McKinley
testified that she proposed that P.J.M. be given a “gizmo” device that could be
used to call Porter. Indeed, by expressing that it was “not convinced” that
McKinley would implement available alternative arrangements for P.J.M. to
communicate with Porter, the court improperly shifted the burden of persuasion
onto McKinley to prove that she will in fact implement available alternative
arrangements to foster P.J.M.’s relationship with Porter. This, too, was error. Cl~
McNauqht, 189 Wash. App. 554 (rejecting argument that once nonrelocating parent
produces sufficient evidence to overcome the presumption by a preponderance
of the evidence, the presumption disappears and the court weighs the evidence
without regard to the presumption).
Porter argues that the trial court’s findings regarding the eighth relocation
factor are supported by evidence that McKinley avoided communicating with
Porter and devalued Porter as a parent. But the fact that McKinley herself
avoided communicating with Porter does not support a finding that McKinley
would prevent P.J.M. from calling Porter or vice versa. Therefore, Porter’s
argument is not persuasive.
36
No. 79102-8-1/37
Relocation Factor 9
Under the ninth relocation factor, the court considers “[t]he alternatives to
relocation and whether it is feasible and desirable for the other party to relocate
also.” With regard to this factor, the trial court found:
The father has three older children who attend school in Bellevue.
He shares a 50-50 residential schedule with their mother. He
works at Microsoft and his parenting routine depends on getting
home early enough to manage homework. It is not feasible for him
to relocate.
The mother is doing contract public defense work. She could do
this work or something similar in King County or Snohomish
County. She and Mr. Sommer are apparently able to swing a
$2800/month mortgage. This would cover rent in Bellevue. The
Court understands that under the circumstances, and with a baby
arriving in September, it is not possible for the mother to relocate
back to the Seattle-Bellevue area immediately. However, over the
course of the next year she could find a job or a contract position
and housing.
The Court’s orders will allow a year for this transition.
McKinley argues that “[tjhe court glaringly failed to apply the presumption
to the alternatives to relocation,” and we agree. Specifically, the court was
extremely deferential to Porter’s status quo, summarily finding that it was not
feasible for Porter to relocate based on his 50-50 parenting arrangement with
Erin, his current job, and his “parenting routine.” But the court just as summarily
concluded that alternatives to relocation would be feasible for McKinley despite
her job in Pierce County and her growing family, and without any consideration
for McKinley’s parenting arrangement with Rasmussen. Again, the court’s own
order reveals why it gave less deference to McKinley’s status quo than to
Porter’s: “[TJhe Court believes it would be in the child’s best interests for the
mother to return to King County and for the parties to share residential time with
37
No. 79102-8-1/38
him 50-50.” But as discussed, by prioritizing a future 50-50 arrangement over the
presumed benefits of relocation, the trial court improperly focused its analysis on
P.J.M.’s best interests rather than the presumed benefits of relocation to P.J.M.
and Mckinley.
Moreover, the court’s finding that “over the course of the next year
[McKinley] could find a job or a contract position and housing” in King County is
entirely speculative. Indeed, even Porter cites to no support in the record for this
proposition. The court’s finding is also at odds with its earlier acknowledgment
that McKinley “tried her best to stay [in her home in Bellevue] as she struggled to
find a lawyer job in the Seattle/Bellevue area” and that “[ut is not surprising to this
Court that a new lawyer without connections in the legal field would have
difficulty finding a job.” In other words, the court’s apparent finding that McKinley
had alternatives to relocation not only ignored the statutory presumption but
contradicted its other findings.
Porter argues that the trial court’s finding on this factor was supported by
substantial evidence. He points to the trial court’s finding that McKinley could do
contract public defense work in King County and that the $2,800 that Sommer
and McKinley were spending on their mortgage payment would be sufficient to
afford rent in King County. But again, the court’s finding about McKinley’s ability
to find work in King County—and thus its finding that she and Sommer could
afford $2,800 per month in rent—is speculative. Porter’s argument fails.
Relocation Factor 10
The tenth relocation factor directs the court to consider “[t]he financial
38
No. 79102-8-1/39
impact and logistics of the relocation or its prevention.” RCW 26.09.520(10).
The record establishes that the trial court, which did not document its
consideration of this factor, failed to consider it.
‘When this court considers whether a trial court abused its discretion in
failing to document its consideration of the child relocation factors, [it] will ask two
questions.” Homer, 151 Wash. 2d at 896. First, ‘[d]id the trial court enter specific
findings of fact on each factor? If not, was substantial evidence presented on
each factor, and do the trial court’s findings of fact and oral articulations reflect
that it considered each factor?” Homer, 151 Wash. 2d at 896. “Only with such
written documentation or oral articulations can we be certain that the trial court
properly considered the interests of the child and the relocating person within the
context of the competing interests and circumstances required by the CRA.”
Homer, 151 Wash. 2d at 896 (emphasis added).
Here, although the trial court entered enumerated findings for each of the
other relocation factors, the court’s written order omits any finding specific to the
tenth relocation factor. The court made the same omission when it orally recited
its findings, making specific findings regarding every single factor except the
tenth. The only reasonable conclusion from these omissions is that the trial court
failed to consider the tenth factor.
Porter argues that the trial court’s findings indicate that it considered the
tenth relocation factor. He points to the trial court’s finding that McKinley faced
economic challenges that were not appreciated by Dr. Wheeler and that
necessitated McKinley’s initial move to University Place. He also points to the
39
No. 79102-8-1140
trial court’s acknowledgment of the struggles of a recent law school graduate
looking for work. And he argues that substantial evidence supports the trial
court’s finding that McKinley and Sommer pay approximately $2,800 per month
on their mortgage and that this amount would be sufficient to pay for rent in King
County. But these findings are not persuasive for two reasons.
First, as discussed, the fact that the trial court enumerated its findings with
regard to each factor except the tenth indicates that the trial court failed to give
due consideration to the tenth factor regardless of the findings cited by Porter.
Second, even the findings that Porter cites do not constitute full
consideration of the tenth relocation factor. Although the trial court made findings
as to the financial reasons for McKinley’s relocation, it did not properly consider
the financial impacts of preventing relocation. Indeed, as already discussed with
regard to the ninth relocation factor, the trial court’s finding that McKinley and
Sommer could afford $2,800 per month for rent in King County is based on
speculation that McKinley could secure a job in King County. It is also based on
speculation that McKinley would continue to benefit from Sommer’s income if she
were to return to King County, which we note conflicts with the trial court’s (also
speculative) finding that “it isn’t clear that [Sommer] will remain in Ms. McKinley’s
life long term.”
Porter next argues that the trial court properly considered the logistics of
the relocation, contending that “the logistics of the relocation—how a 50/50
parenting plan would work for a school-aged child with parents living in Bellevue
and University Place—was the clear focus of the court’s analysis, and the center
40
No. 79102-8-1/41
of the court’s reasoning.” But the proper focus of the tenth relocation factor is the
logistics of the relocation itself, not the impact that the relocation would have on
an anticipated future residential schedule. Indeed, the trial court’s focus on “how
a 50/50 parenting plan would work” only confirms that the court’s analysis was
based on what it perceived was in P.J.M.’s best interests.
Conclusion
The trial court erred by failing to apply the statutory presumption in favor of
relocation, instead weighing the presumption “somewhat less heavily” than it
would have in other cases. And the trial court’s own findings and comments on
the record establish that it conducted its relocation analysis with the subjective
intent of honoring the originally contemplated 50-50 plan. As a result, the trial
court necessarily and erroneously focused its analysis on what it perceived was
in the best interests of the child, rather than by requiring Porter to prove that
McKinley’s decision to relocate with P.J.M. “will in fact be so harmful to [P.J.M.]
as to outweigh the presumed benefits of relocation” to P.J.M. and McKinley.
R.F.R., 122 Wash. App. at 332-33. These errors are borne out in the court’s
findings regarding the relocation factors, which reveal that the trial court at
various times ignored evidence, relied on inadmissible hearsay, improperly
shifted the burden of proof to McKinley, mischaracterized Sommer’s testimony,
improperly considered McKinley’s reproductive choices, and failed to consider
the “[p}articularly important. . . interests and circumstances of the relocating
person.” Homer, 151 Wash. 2d at 894. As supported by the factor-by-factor
analysis above, if the trial court had applied the correct standards, relocation
41
No. 791 02-8-1/42
should have been permitted. Therefore, reversal is required.
SOLE DECISION-MAKING
McKinley argues that the trial court erred by allocating sole decision-
making to Porter. We agree.
If, as here, one parent is opposed to mutual decision-making and that
opposition is reasonable, the court must order sole decision-making.
RCW 26.09.1 87(2)(b). Under RCW 26.09.187, in considering whether opposition
to mutual decision-making is reasonable, the court “shall consider the following
criteria”:
(i) The existence of a limitation under RCW 26.09.191;
(ii) The history of participation of each parent in decision
making in each of the areas in RCW26.09.184(5)(a);
(iii) Whether the parents have a demonstrated ability and
desire to cooperate with one another in decision making in each of
the areas in RCW26.09.184(5)(a); and
(iv) The parents’ geographic proximity to one another, to the
extent that it affects their ability to make timely mutual decisions.
RCW 26.09.187(2)(b)(iii), (C). This court reviews a trial court’s decision regarding
parental decision-making for an abuse of discretion. In re Marriage of Jensen-
Branch, 78 Wash. App. 482, 490, 899 P.2d 803 (1995).
Here, the trial court stated that Porter’s opposition to mutual decision-
making was reasonable “because of the parents’ lack of ability to cooperate with
each other in decision-making as noted by the parenting evaluator in the parties’
prior and current proceedings.” In other words, the trial court only considered
one of the factors in RCW26.09.187(2)(c), i.e., “[w]hether the parents have a
demonstrated ability and desire to cooperate with one another in decision
making.” RCW 26.09.187(2)(c)(iii). But the trial court “must consider” each of
42
No. 79102-8-1/43
the four factors set forth in that statute. Jensen-Branch, 78 Wash. App. at 489. By
failing to do so, the trial court abused its discretion.
Porter argues that the trial court’s order included the requisite findings.
But as discussed, it does not. And Porter does not point to anything in the record
indicating that the trial court actually considered the other three factors in
allocating decision-making. ~ RAP 10.3(a)(6) (arguments must be
accompanied by references to relevant parts of the record). Therefore, Porter’s
argument fails.
ATTORNEY FEES FOR MCKINLEY’S MOTION TO COMPEL
McKinley argues that the trial court erred by declining to impose sanctions
against Porter in connection with McKinley’s motion to compel the production of
communications between Porter and Rasmussen’s wife, Lindsay.9 We consider
this argument waived because McKinley raises it for the first time on appeal.
Specifically, at trial, McKinley’s attorney cross-examined Porter as to why
he did not produce a text message that he sent to Lindsay in response to
McKinley’s requests for production. Porter explained that he did not consider the
text a “communication” because he was simply forwarding a message from
B.R.’s dentist that apparently was sent to Porter by mistake. The court corrected
Porter, explaining, “The forwarding of it, was communication between you and
Lindsay.” McKinley did not request sanctions at this point, nor does she point to
anything in the record indicating that she ever asked for sanctions after it became
~ Because Rasmussen and his wife share a common last name, we refer
to Lindsay by her first name.
43
No. 79102-8-1144
clear that Porter failed to produce the text message. Therefore, she waived this
argument on appeal. RAP 2.5(a); see Rapid Settlements, Ltd. v. Symetra
Life Ins. Co., 166 Wash. App. 683, 695, 271 P.3d 925 (2012) (reason that appellate
court generally will not entertain issues raised for first time on appeal “is to afford
the trial court an opportunity to correct errors”).
McKinley argues that CR 37 makes sanctions mandatory when a party
fails to respond to discovery. But she points to no authority to support the
proposition that the trial court is required to impose sanctions on a sua sponte
basis without any request from a party. Therefore, her argument is
unpersuasive.
ATTORNEY FEES FOR MCKINLEY’S FAILURE TO FILE KING COUNTY
LOCAL FAMILY LAW RULE 10 DOCUMENTS
McKinley argues that the trial court erred by awarding attorney fees to
Porter as a sanction for McKinley’s failure to timely file her LFLR 10 financial
documents. We disagree.
A trial court’s management of a trial, including its decision to impose
sanctions for a party’s failure to follow a pretrial scheduling order, is reviewed for
abuse of discretion. Peluso v. Barton Auto Dealerships, Inc., 138 Wash. App. 65,
69, 155 P.3d 978 (2007).
Here, the trial court entered a pretrial order directing each party to file a
financial declaration, along with all supporting documents required by LFLR 10,
no later than three weeks before trial. Although McKinley provided the LFLR 10
documents to her attorney, her attorney failed to file them. The trial court did not
find credible McKinley’s attorney’s explanation that the failure to file was a
44
No. 79102-8-1/45
mistake. Accordingly, the court asked Porter’s counsel to prepare an attorney
fee declaration, indicating that it planned to order McKinley’s attorney to
reimburse Porter for his reasonable attorney fees. Although Porter’s attorney
requested $3,982.50 in attorney fees, the trial court ordered sanctions of only
$2,000.00.
The trial court’s determination that McKinley’s attorney was not credible
cannot be disturbed on appeal. Morse v. Antonellis, 149 Wash. 2d 572, 574, 70
P.3d 125 (2003). Furthermore, in determining the amount of sanctions, the trial
court considered the circumstances as a whole, including the fact that McKinley’s
attorney provides low-cost services on a sliding-scale basis. For these reasons,
the trial court did not abuse its discretion.
McKinley argues that there was no evidence to support the court’s finding
that McKinley’s failure to file the LFLR 10 documents was strategic. But as
discussed, this finding was based on a credibility determination and cannot be
disturbed on appeal. Furthermore, McKinley cites no authority for the proposition
that willfulness is a prerequisite to an imposition of monetary sanctions. CI~
Mayer v. Sto Indus., Inc., 156 Wash. 2d 677, 690, 132 P.3d 115 (2006) (Burnet1°
analysis, including consideration of willfulness, not applicable to monetary
compensatory sanctions). McKinley’s argument fails.
McKinley next asserts that her LFLR 10 documents were provided to
Porter through counsel. But the part of the record that she cites establishes only
that it was “not clear that all of the[] documents were presented to [Porter’s
10 Burnet v. Srokane Ambulance, 131 Wash. 2d 484, 933 P.2d 1036 (1997).
45
No. 791 02-8-1/46
attorney].” Therefore, this assertion is not persuasive.
Finally, McKinley argues that “the court compounded its error by
assessing the amount of fees based [on] the fact that [McKinley] appealed the
trial court’s order and pursuant to a Response and Affidavit for Fees that are not
part of the record.” But Porter’s attorney fee affidavit was made a part of the
record, and the trial court considered it. And although the trial court did observe
that McKinley had filed an appeal, the trial court made that observation while
explaining why it was awarding only $2,000.00, rather than the entire $3,982.50
requested by Porter’s attorney. We reject McKinley’s arguments.
ALLOCATION OF DR. WHEELER’S FEES
McKinley argues that the trial court erred by ordering her to pay 33.4
percent of Dr. Wheeler’s fees, rather than allocating Dr. Wheeler’s fees on a pro
rata basis according to the parties’ relative income as reflected in the court’s child
support order. We disagree.
Under RCW 26.09.140, a court may “from time to time after considering
the financial resources of both parties. . . order a party to pay a reasonable
amount for the cost to the other party of maintaining or defending any proceeding
under this chapter and for reasonable attorneys’ fees or other professional fees
in connection therewith.” RCW 26.09.140. “The decision to award fees is within
the trial court’s discretion.” In re Marriage of Knight, 75 Wash. App. 721, 729, 880
P.2d 71(1994). “The party challenging the award bears the burden of proving
that the trial court exercised this discretion in a way that was clearly untenable or
manifestly unreasonable.” Knight, 75 Wash. App. at 729.
46
No. 79102-8-1/47
Here, McKinley fails to satisfy that burden. She argues that the court’s
allocation of Dr. Wheeler’s fees conflicts with its oral ruling, pointing to the trial
court’s statement that ‘if we do proportionally [sic] sharing, we’ve got to use her
real income.” She also argues that the court’s allocation “contravenes . . . the
statute that requires the trial court to consider the financial circumstances of the
parties.”
But a trial court’s oral ruling “has no final or binding effect, unless formally
incorporated into the findings, conclusions, and judgment.” In re Det. of B.M., 7
Wash. App. 2d 70, 84, 432 P.3d 459 (internal quotation marks omitted) (quoting In
re De Facto Parentac~e & Custody of M.J.M., 173 Wash. App. 227, 242 n.13, 294
P.3d 746 (2013)), review denied, 193 Wash. 2d 1017 (2019). And even though the
trial court originally ordered the parties to split Dr. Wheeler’s fees evenly when it
appointed her as parenting evaluator, it ultimately ordered McKinley to reimburse
Porter for only 33.4 percent of Dr. Wheeler’s fees. This reduction in McKinley’s
proportionate share indicates that the court did consider the parties’ financial
circumstances. McKinley’s arguments fail.
MOTION FOR RECONSIDERATION
Mckinley argues that the trial court erred by denying her motion for
reconsideration, in which she asked the court to reconsider (1) its order denying
relocation and (2) its allocation of Dr. Wheeler’s fees. “Motions for
reconsideration are addressed to the sound discretion of the trial court and a
reviewing court will not reverse a trial court’s ruling absent a showing of manifest
abuse of discretion.” Wilcoxv. Lexington Eye Inst., l3OWn. App. 234, 241, 122
47
No. 79102-8-1/48
P.3d 729 (2005).
Here, for reasons already discussed, the trial court did not abuse its
discretion by denying reconsideration as to its allocation of Dr. Wheeler’s fees.
And because we reverse the trial court’s decision on relocation, we do not
consider whether the trial court erred by declining to reconsider that decision.
See Wash. State Farm Bureau Fed’n v. Greqoire, 162 Wash. 2d 284, 307, 174 P.3d
1142 (2007) (“[l]f resolution of an issue effectively disposes of a case, we should
resolve the case on that basis without reaching any other issues that might be
presented.” (internal quotation marks omitted) (quoting Hayden v. Mut. of
Enumclaw Ins. Co., 141 Wash. 2d 55, 68, 1 P.3d 1167 (2000))).
FEES ON APPEAL
Both parties request fees on appeal. We grant McKinley’s request and
deny Porter’s request.
Under RAP 18.1, we may award attorney fees if authorized by applicable
law. To that end, RCW 26.09.140 provides: “Upon any appeal, the appellate
court may, in its discretion, order a party to pay for the cost to the other party of
maintaining the appeal and attorneys’ fees in addition to statutory costs.” In
exercising our discretion under this statute, we consider “the issues’ arguable
merit on appeal and the parties’ financial resources, balancing the financial need
of the requesting party against the other party’s ability to pay.” In re Marriage of
.~Irn, 179 Wash. App. 232, 256, 317 P.3d 555 (2014).
Here, the issues that McKinley raises on appeal have considerable merit.
Furthermore, McKinley has established financial need. Specifically, McKinley
48
No. 79102-8-1/49
declares that her monthly gross income is $3,728.00. Meanwhile, her portion of
monthly household expenses—which she splits equally with Sommer—totals
approximately $4,171.00. In other words, McKinley’s share of expenses exceeds
even her gross monthly income by $443.00 per month. McKinley also declares
that even after child support payments are taken into account, her monthly
income “barely covers” her share of monthly expenses. To this end, the record
reflects that McKinley is entitled to child support payments from Porter in the
amount of $1,190.62 per month and from Rasmussen in the amount of $312.00
per month. But she represents that Rasmussen is “chronically behind” on
paying—a fact that the trial court took into account when denying Porter any
downward deviation until September 1, 2019. And in any event, McKinley would
be left with little surplus even assuming that she receives the full $1 502.62 in
monthly child support that she is owed from Rasmussen and Porter.
Meanwhile, according to Porter’s financial declaration, his total gross
monthly income is $22,890, and Laegreid’s gross monthly income is $10,833, for
a total gross monthly household income of more than $33,000. Porter states that
his monthly net income after taxes is only $16,525 and that his total monthly
expenses are $15,425 (not including legal fees). But this still leaves a monthly
household surplus of $1,100, before Laegreid’s income is taken into account.
Thus, Porter has not established financial need—rather, his financial declaration
establishes that his ability to pay exceeds McKinley’s. For these reasons, we
grant McKinley’s request for attorney fees and deny Porter’s request.
Porter argues, in an objection to Mckinley’s financial affidavit, that we
49
No. 791 02-8-1/50
should decline to consider McKinley’s affidavit because it was not timely. But he
is incorrect: McKinley filed her affidavit within the time period specified by
RAP 18.1(c) and RAP 18.6(a).11 Furthermore, it is Porter’s objection, which was
not filed within seven days after McKinley served her financial affidavit, that is
untimely. ~ RAP 18.1(c) (“Any answer to an affidavit of financial need must be
filed and served within 7 days after service of the affidavit.”). Therefore, we
decline to consider his substantive objections.
Porter also asserts that he should be awarded fees as the prevailing party.
But under RAP 18.1, an award of fees is appropriate only if authorized by
applicable law. RAP 18.1(a). Because Porter cites to no applicable law granting
prevailing party fees, his argument fails.
CONCLUSION
We reverse the trial court’s order restraining relocation and the trial court’s
modifications to the parenting plan and remand to the trial court with instructions
to enter an order allowing P.J.M. to relocate with McKinley. We affirm with
regard to the trial court’s challenged sanctions rulings and its allocation of Dr.
Wheeler’s fees. On remand, we order the trial court to assign the case to a
different judge for the limited purpose of determining what modifications to the
~ RAP 18.6(a) provides that if the last day of a period of time computed
under the rules falls on a Saturday, Sunday, or legal holiday, the period “extends
to the end of the next day which is not a Saturday, Sunday, or legal holiday.”
50
No. 79102-8-1/51
parties’ 2016 parenting plan are necessary as a result of P.J.M.’s relocation.
WE CONCUR:
p. 44%f49.
51