In Re: E.g.s., John Patrick Osman, Resp v. Tina Annelise Schmidt, App

F IL
COURT OF
STATE OFAPPEALS DIY 1
WASHINGTON
20I1NOV 13 AM 9:5k
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage and Support
of No. 76260-5-1
ELLA GRACE SCHMIDT DIVISION ONE
JOHN PATRICK OSMAN, UNPUBLISHED OPINION
Respondent,
and
TINA ANNELIESE SCHMIDT,
FILED: November 13, 2017
Appellant.
APPELWICK, J. — Tina Schmidt challenges the trial court's modification of
the decision-making provision of the parenting plan for her daughter. She also
challenges the removal of a provision providing extended family members' access
to the child. We affirm.
FACTS
Tina Schmidt and John Osman have a daughter, Ella Schmidt, born on June
17, 2011. On March 25, 2014, a final parenting plan was entered by agreement in
Atlanta, Georgia. Ella resided a majority of the time with Tina. The order required
the parents to confer and consult in good faith on major decisions about the child's
religious upbringing, education, nonemergency health care, and extracurricular
activities. If the parties were unable to agree upon a major decision, the order
required that one parent send an e-mail describing the disputed issue, and gave
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the other parent 48 hours to respond. If the parents could not agree on a decision
after the required conferral, Tina had final decision-making authority. The final
consent order permitted Tina to relocate to Seattle with Ella. In anticipation of the
move, the parenting plan included two residential schedules: one before Tina
relocated and one after she relocated. The parenting plan also contained two
provisions concerning extended family:
In the event that the Father's family is in the Mother's city of
residence, the Mother shall accommodate the Father's family so that
they can see the Child so long as the Child is in town.
In the event that the Mother's family is in the Father's city of
residence or in Chicago with the minor child, the Father shall
accommodate the Mother's family so that they can see the Child so
long as the Child is in town.
In May 2014, Tina moved from Georgia to Federal Way,Washington. John
decided to relocate to Washington,to be closer to Ella. Without giving the required
notice under the Georgia order, John moved to Washington in November 2015.1
Tina purchased a house in Port Orchard, Washington in July 2015. In December
2015, Tina notified John via counsel that she intended to move by the end of the
following month. Tina moved to Port Orchard in May 2016.
In Seattle, John filed a petition for modification of the parenting plan. He
petitioned the court to modify the residential schedule. He also sought to modify
the provisions on dispute resolution and decision-making authority on education
and medical decisions. The parties stipulated that there was adequate cause to
1 In November 2015, before Tina learned that John had relocated to
Washington, she filed to modify the parenting plan in Georgia. She incurred
$8,000 in attorney fees, which the trial court awarded to her in this proceeding.
This is not an issue on appeal.
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proceed with modifying the parenting plan. During the proceedings, Psychologist
Dr. Wendy Hutchins-Cook completed a parenting evaluation of the parties.
Hutchins-Cook made recommendations for a final parenting plan. She
recommended that John and Tina have joint decision-making, and that final
decision-making should be made via arbitration, instead of by Tina.
For its final order, the trial court considered the petition to modify the
Georgia parenting plan, the child's best interest, the agreed order of adequate
cause to change the parenting plan, and the other evidence before it at the
November 2016 tria1.2 The court found that it was in the best interest of the child
for the parents to have joint decision-making for nonemergency health care and
education. The trial court eliminated the provision that each parent should make
Ella available to the other parent's family when visiting the city where the extended
family resides. Tina seeks review of the trial court's modification of decision-
making authority over health care and education and the removal of the family visit
provision.
DISCUSSION
Tina challenges the trial court's modification of the parenting plan. First,
she argues the trial court erred in finding a substantial change of circumstances
material to Tina's sole decision-making authority. Second, she argues the trial
court erred in finding that the best interests of the child required that John have
joint decision-making authority over health care and education decisions. Third,
2 The residential schedule adopted by the trial court is not an issue on
appeal.
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she argues the trial court erred in removing the travel and family visitation provision
of the Georgia parenting plan. Fourth, she argues that the trial court erred in failing
to enter conclusions of law.
We review a trial court's decision to modify a parenting plan for abuse of
discretion. In re Marriage of Zigler, 154 Wn. App. 803, 808, 226 P.3d 202(2010).
A trial court abuses its discretion only when its decision is manifestly unreasonable
or based on untenable grounds. In re Marriage of Fiorito, 112 Wn. App. 657,663-
64, 50 P.3d 298 (2002). We uphold the trial court's findings of fact if they are
supported by substantial evidence. In re Marriage of McDole, 122 Wn.2d 604,
610, 859 P.2d 1239 (1993). We review conclusions of law to determine whether
factual findings that are supported by substantial evidence in turn support the
conclusions. In re Marriage of Myers, 123 Wn. App. 889,893,99 P.3d 398(2004).
I. Substantial Change of Circumstances
Tina argues that the court erred in modifying the two nonresidential
provisions, because it did not find that a substantial change of circumstances
material to those provisions had occurred.
Modifications of parenting plans are governed by RCW 26.09.260 and RCW
26.09.270. In re Marriage of Adler, 131 Wn. App. 717, 723, 129 P.3d 293(2006).
The party seeking modification must establish adequate cause to alter the existing
plan—typically that requires evidence of a significant change in circumstances
unknown at the time of the original plan. In re Marriage of McDevitt, 181 Wn. App.
765,769,326 P.3d 865(2014). To modify the nonresidential provisions, the parent
must show a substantial change of circumstances of either parent or child, and the
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adjustment is in the best interest of the child. RCW 26.09.260(10). A substantial
change in circumstances justifying modification must be a change occurring after
entry of original decree or a fact unknown to the trial court at that time. In re
Marriage of Hansen, 81 Wn. App. 494, 500, 914 P.2d 799 (1996).
The parties here agreed to the threshold requirement of RCW 26.09.260—
adequate cause to modify the parenting plan. In doing so, they stipulated that the
Georgia parenting plan needed to be modified. The trial court may rely upon
stipulations of the parties and does not err in failing to independently evaluate
whether modification was appropriate. See In re Marriage of Naval, 43 Wn. App.
839, 844-45, 719 P.2d 1349(1986)(holding that a party's stipulation to change in
circumstances satisfies the statutory requirement).
The modification statute does not require a particularized finding that a
change of circumstance must be found as to any individual provision of a parenting
plan which a parent wishes to have modified. RCW 26.09.260(1), (10). Not
surprisingly, neither does any case law. Once the necessary threshold
determination is made, the entire order is before the court for modification. The
trial court committed no error by addressing any provision of the parenting plan
without making a change of circumstances finding particular to that provision.
II. Evidence of Best Interest of the Child
Tina next argues that there was no evidence that joint decision-making
authority is in the child's best interest. She argues that the court failed to specify
any finding of fact on which it concluded that joint decision-making was in the
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child's best interest. She also asserts that the court did not adopt Hutchins-Cook's
reasons for recommending joint decision-making.
The trial court found that, due to John's move to Washington,joint decision-
making was now in the best interest of the child. The final order stated in pertinent
part:
The Court finds the father's relocation to Washington is a substantial
change of circumstances and it is in the best interests of the child for
the parties to have joint decision[-making. The court finds the
decision[-]making provisions in the Georgia order have not been
followed by the mother with respect to her duty to consider and
engage in meaningful discussion with the father. In fairness, the
father acquiesced to much such decision[-]making, but has stepped
up to request more involvement since his move to Washington.
The court essentially adopts the parenting evaluator's suggestions
for a method of dispute resolution where the parties are unable to
agree, and that is reflected in the parenting plan entered this date.
The parties themselves are amenable to the use of a parenting
coach, and arbitration for unresolved disputes, which bodes well for
its effectiveness.
The trial court relied on Dr. Hutchins-Cook evaluation and recommendations.
Regarding decision-making, the evaluation states:
Counselors for both Tina and John report that their clients are making
improvements in the areas of refraining from focusing on the other
parent or their anger and disappointment with the other parent. This
benefits their communication. Better communication between the
parents is supportive of Ella.
The information I have gathered leads me to the conclusion that Ella
would benefit from a change in the joint decision-making provision of
the Georgia Parenting Plan. A review of the e[-]mail threads
provided earlier in this report demonstrates non-compliance by Tina.
It is not unusual for the parent having more time with the child to be
the one initiating the decision-making process. Tina typically come
forward with a declaration of what she is going to do; sometimes with
a good description of logistics. John is to respond within 48 hours or
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her decision holds. When John was in Atlanta, he typically did not
respond, and Tina rightfully moved ahead.
John has been in Washington since November 2015, approximately
10 months. His perspective, which is fairly accurate, is that Tina
bypasses the discussion part of the decision-making, or when he
objects or makes a suggestion or proposal that is different than what
she wants, her response is that she is not in agreement. The
Georgia Plan specifies joint decision-making with Tina making the
final decision when there is disagreement. Tina does in fact, in my
opinion, bypass the first important step in the decision-making
process as it is presented.
Ella has two loving parents, both of whom want to be involved in her
life. This involvement includes participation in decision-making
about her life. This is not happening. This report includes
recommendations to address this problem area.
In addition to the evaluation, the trial court also heard testimony from
Hutchins-Cook that Tina was not following the decision-making process from the
Georgia parenting plan. Further, it heard John testify that he relocated from Atlanta
to Washington to be closer to Ella. And, it heard that John believed Tina attempted
to reduce his involvement in their child's life, partly through minimizing his decision-
making.
In her evaluation, Hutchins-Cook stated that Ella "would benefit from a
change in the joint decision-making provision of the Georgia Parenting
Plan .. .[because][i]t is not being implemented as described." When asked why
she thought joint decision-making was in the child's best interested, she testified,
Both parents want to be involved in this child's life. Both are active,
intelligent, interested parents. Communication between them.
Communication about what Ella may or may not be participating in
the future. Important for Ella to the degree she'll recognize that her
father's involved in the process or not.
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The trial court had ample evidence from the testimony and recommendation
of the evaluator to determine that the change of decision-making was in the child's
best interest. It stated it adopted the parenting evaluator's suggestions for a
method of dispute resolution when the parents are unable to agree. This
establishes the factual basis for the change just as if the trial court had stated
explicitly that it found the testimony of the evaluator persuasive. The record leaves
no doubt as to the source of the facts on which the trial court concluded that it was
in the best interest of the child for the parents to have joint decision-making.
III. Chicago Travel Provision
John's proposed parenting plan asked the court to remove the provision that
either parent make Ella available to the other parent's family. Tina argues the trial
court erred in removing the provision. At trial, Tina testified that she wanted the
provision to remain. She contends that the trial court made no findings regarding
the provision, as required under CR 52.
Requiring both parents to make Ella available to the other parent's family
when traveling was a provision providing residential time with nonparents. In light
of Troxel v. Granville, 530 U.S. 57, 72, 120 S. Ct. 2054, 147 L. Ed. 2d 49(2000)
(recognizing the fundamental rights of parents to decide their children's visitation
with third parties) requiring either parent to provide access to other family members
was inappropriate. The trial court rightly removed this reciprocal provision. No
finding of fact was required for the trial court to make such a change. The trial
court did not abuse its discretion.
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IV. Findings and Conclusions of Law
Tina argues that the trial court erred in failing to enter conclusions of law as
required by CR 52(a)(1) and CR 52(a)(2)(B) on the mandatory form. She contends
that the trial court erred because under the section entitled "findings and
conclusions" on the mandatory form the trial court did not specifically delineate any
conclusions of law. On the final order of findings the court states,
[1]t is in the best interests of the child for the parties to have joint
decision[-]making for non-emergency health care and education.
The court finds that the father's relocation to Washington is a
substantial change of circumstances and it is in the best interests of
the child for the parties to have joint decision[-]making.
These are conclusions of law required to modify the nonresidential provisions of
the parenting plan: that there was a substantial change and that is in the best
interest of the child. RCW 26.09.260(10). That they are mislabeled or not
separately set forth is not grounds for reversal. See City of Tacoma v. William
Rogers Co., 148 Wn.2d 169, 181, 60 P.3d 79 (2002)(affirming that a conclusion
of law erroneously labeled as a finding of fact is nevertheless reviewed as a
conclusion of law).
V. Attorney Fees
Tina requests attorney fees as well as sanctions. She relies on opposing
counsel's intransigence in her request for fees. She argues that opposing
counsel's brief had numerous misstatements and frivolous arguments. We do not
find her assertion of intransigence credible. Tina also requests an award of
sanctions for opposing counsel's failure to cite to the record in his response brief.
Imposing sanctions is discretionary. RAP10.7; Ventenbergs v. City of Seattle, 163
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Wn.2d 92, 109, 178 P.3d 960 (2008). We decline to award fees or impose
sanctions.
We affirm.
WE CONCUR:
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