IN RE THE MARRIAGE OF LINDERMAN No. 28333-0-III, Consolidated with No. 29106-5-III.

In re the Marriage of: LANCE ALTON LINDERMAN, Respondent, and HEIDY DAWN LINDERMAN, Appellant.

Court of Appeals of Washington, Division Three.
Filed: October 27, 2011.
Barbara J. Black, Attorney at Law, Po Box 1118, Moses Lake, WA, 98837-0169, Counsel for Respondent(s).

UNPUBLISHED OPINION

KULIK, C.J.

This parenting plan appeal is a procedurally convoluted matter because of the mother's objection to the father's relocation and her two petitions for modification of the parenting plan. We review the trial court's decisions for a manifest abuse of discretion; that is, whether there are tenable grounds for the court's determination. Such is the case here. Accordingly, we affirm the trial court's orders. We refer the parties' request for attorney fees to our commissioners for review.

FACTS

In 2003, Lance Linderman and Heidy (Linderman) McWain entered into a parenting plan following the dissolution of their marriage. Mr. Linderman was designated as the custodial parent of the couple's daughter, who was then five years old. The daughter was to primarily reside with Mr. Linderman in Othello, Washington. Ms. McWain, who lived in Visalia, California, had extended residential time with her daughter during winter and summer vacations from school, as well as every other winter vacation, birthday, and Thanksgiving.

In November 2008, Mr. Linderman notified the court of his intent to move to Cottonwood, Idaho. Ms. McWain filed an objection to relocation/petition for modification of the parenting plan. She objected to the relocation and asked to be designated as the custodial parent.

Petitions for Modification.

On December 11, 2008, Ms. McWain filed another petition for modification of the parenting plan. In her proposed parenting plan, she asked to be designated as the custodial parent. Ms. McWain also filed several declarations explaining why it would be in their daughter's best interest to live with her mother in California. On February 26, 2009, Ms. McWain filed another proposed parenting plan. She again asked to be the custodial parent. In April, a commissioner concluded that Ms. McWain would be allowed to proceed under only one petition. On June 5, a commissioner denied Ms. McWain's petition, concluding that adequate cause had not been established for hearing the petition.

Ms. McWain filed a motion to revise the commissioner's decision. At the hearing, Ms. McWain explained that she was not seeking primary custody but, rather, minor modifications to the 2003 parenting plan. Specifically, Ms. McWain requested: more residential time with her daughter in the summer and spring, equal sharing of transportation costs, and changes in the dispute resolution process.

According to Ms. McWain, the following facts constituted a substantial change in circumstances: Ms. McWain was remarried and was now a stay-at-home mom, Mr. Linderman was living with his new girl friend in Idaho, Mr. Linderman was no longer employed, and their daughter had repeatedly voiced her desire to spend more time with Ms. McWain.

The motion to revise the commissioner's decision was denied on the basis that Ms. McWain failed to present anything beyond allegations of a change in circumstances. She appealed this decision.

Objection to Relocation.

Meanwhile, Ms. McWain's motion for temporary restraint of relocation was denied by the commissioner and again on revision. The court appointed a guardian ad litem (GAL). Ms. McWain moved for permission to file an amended objection to relocation and a petition to modify the parenting plan, without setting the petition to modify for an adequate cause hearing. These documents acknowledged Ms. McWain's move to Rochester, Washington. The trial court denied the motion to amend.

Mr. Linderman moved to remove the GAL from her duties because she was inexperienced and had never written a GAL report under chapter 26.09 RCW. The court agreed that the GAL's recommendations were not appropriate under the applicable statutory scheme.

Ms. McWain's motion for revision was denied on July 10, 2009. The three-day trial on the objection to relocation took place in March 2010. The court allowed the relocation and made findings on each of the relocation factors set forth in RCW 26.09.520.

The court found no basis for modifying the parenting plan pursuant to Mr. Linderman's relocation. The court explained that it did not consider an objection to relocation as a modification action. The court stated that no modifications were needed to effect the relocation. In other words, the court found that this was a relocation case, not a modification case, and applied the factors set forth under RCW 26.09.520.

Finally, the court noted that no changes to the parenting plan were required. However, the court did allow several changes Ms. McWain sought that were agreed to by Mr. Linderman. These changes allowed visitation with Ms. McWain every other three-day weekend and every other spring break, with pick up and exchange point in Othello, Washington.

ANALYSIS

A trial court's decision regarding the modification of a parenting plan will not be reversed absent an abuse of discretion. In re Marriage of Hansen, 81 Wn.App. 494, 498, 914 P.2d 799 (1996). Likewise, we review a trial court's decision allowing the relocation of children for an abuse of discretion. Bay v. Jensen, 147 Wn.App. 641, 651, 196 P.3d 753 (2008). Discretion is abused if the court's decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). In addition, we must determine if the findings of fact are supported by substantial evidence and whether the court made an error of law. Brandli v. Talley, 98 Wn.App. 521, 523, 991 P.2d 94 (1999).

Finding of No Adequate Cause.

"[W]hen the superior court denies a motion for revision, it adopts the commissioner's findings, conclusions, and rulings as its own." State ex rel. J.V.G. v. Van Guilder, 137 Wn.App. 417, 423, 154 P.3d 243 (2007). A trial court's adequate cause determination under RCW 26.09.270 is reviewed for an abuse of discretion. In re Marriage of Parker, 135 Wn.App. 465, 471, 145 P.3d 383 (2006). "[A]t the very minimum, adequate cause under RCW 26.09.270 means a showing `sufficient to support a finding on each fact that the movant must prove in order to modify; otherwise, a movant could harass a nonmovant by obtaining a useless hearing.'" In re Custody of E.A.T.W., 168 Wn.2d 335, 347, 227 P.3d 1284 (2010) (quoting In re Marriage of Lemke, 120 Wn.App. 536, 540, 85 P.3d 966 (2004)).

RCW 26.09.260(1) and (2) set out the factors a court must consider when evaluating a major modification to a parenting plan. RCW 26.09.260(1) reads, in part:

Except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.

(Emphasis added.)

Under RCW 26.09.260(2), the court shall retain the residential schedule established by the parenting plan unless:

(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

When a party seeks a minor modification to the residential aspects of a parenting plan, RCW 26.09.260(5) governs. RCW 26.09.260(5) reads, in part:

The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in subsection (2) of this section, if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and: (a) Does not exceed twenty-four full days in a calendar year; or (b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow; or (c) Does not result in a schedule that exceeds ninety overnights per year in total.

(Emphasis added.)

Both major and minor modifications require a substantial change in circumstances. The change in circumstances must be to the circumstances of the nonmoving party for a major modification and to either parent, or the child, for a minor modification. In re Marriage of Tomsovic, 118 Wn.App. 96, 106, 74 P.3d 692 (2003). A minor modification does not change the residential schedule of where the child resides the majority of the time, it does not exceed 24 full days in a year, and it does not result in a schedule that exceeds 90 overnights per year in total. RCW 26.09.260(5).

The petition for modification and both proposed parenting plans submitted by Ms. McWain indicate that she was initially seeking both major and minor modifications in the parenting plan. Later, Ms. McWain informed the court that she was seeking only minor modifications. Regardless of whether Ms. McWain was seeking major or minor modifications, she had to show there was a substantial change in circumstances. See RCW 26.09.260(1), (5), (10). This required an adequate cause hearing. RCW 26.09.270.

Ms. McWain asserts the following changes of circumstances have occurred since 2003: she has remarried and is in a good home environment, she no longer works and is a stay-at-home mother, she quit smoking, Mr. Linderman has a new live-in domestic partner, Mr. Linderman is now unemployed, Mr. Linderman's domestic partner has added to the conflict between the parties, Mr. Linderman has moved to Cottonwood, Idaho, and Mr. Linderman monitors his daughter's telephone calls.

Ms. McWain relies on this court's holding in In re Marriage of Hoseth, 115 Wn.App. 563, 63 P.3d 164 (2003) to support her contention that a substantial change in circumstances occurred in this case. In Hoseth, this court identified three changes which, taken together, constituted a substantial change in circumstances: the father's relocation, the father's involvement with a new domestic partner, and the child's participation in extracurricular activities. Id. at 572-73. However, this court has also held that: "While a new residence or domestic situation may constitute a change in circumstances, it is in the trial court's broad discretion to determine whether that change should be characterized as substantial." Tomsovic, 118 Wn. App. at 106.

Significantly, the trial court found Ms. McWain's assertions to be merely allegations of substantial change. This was not an abuse of discretion. While the record shows that Mr. Linderman did move to Idaho and did have a new domestic partner, there is no documentation supporting the other allegations. More importantly, Ms. McWain has failed to show how these changes would have any effect on the parenting plan currently in place. Consequently, while the changes Ms. McWain has described may have occurred, the record supports the trial court's conclusion that the changes were not substantial. See id.

The court did not abuse its discretion by concluding there was no adequate cause for a hearing. Ms. McWain has failed to establish anything more than mere allegations of a substantial change in circumstances. See In re Marriage of Roorda, 25 Wn.App. 849, 852, 611 P.2d 794 (1980), overruled on other grounds by In re Parentage of Jannot, 110 Wn.App. 16, 22-24, 37 P.3d 1265 (2002).

Relocation.

Ms. McWain filed her petition for modification and her petition for modification/objection on the same day. The petition for modification, which required a finding on adequate cause, was treated separately. The petition for modification and the motion for revision were denied in July 2009. Ms. McWain's objection to the relocation did not need a separate finding of adequate cause. As a result, her objection to relocation took a different path than her petitions for modification. The trial on the objection to relocation took place in March 2010.

Applying the factors set forth in RCW 26.09.520, the court denied Ms. McWain's objection to relocation. The court explained that this was a relocation proceeding, not a modification proceeding.

Ms. McWain contends the court failed to consider the factors set forth in RCW 26.09.260, which apply to actions to modify a parenting plan, or RCW 26.09.187, which apply when initially establishing a parenting plan. In effect, Ms. McWain seeks to insert the best interest of the child standard as an additional factor under RCW 26.09.520.

Ms. McWain's argument is not persuasive. The petition for modification had been dismissed. The trial court did not abuse its discretion by considering the relocation factors contained in RCW 26.09.187. The court made specific findings on each of the relocation factors. Additionally, the court did not err by making the agreed upon changes to the residential provisions of the parenting plan.

The court did not abuse its discretion by denying Ms. McWain's objection to relocation.

Attorney Fees.

Mr. Linderman seeks an award of attorney fees on appeal under RCW 4.84.185. He asserts that Ms. McWain's appeal was frivolous. Mr. Linderman also seeks an award of fees based on Ms. McWain's intransigence.

Under RAP 18.1(a), a party may seek the recovery of attorney fees and expenses on appeal if applicable law grants them the right to do so. Under RCW 26.09.140, the appellate court has discretion to order a party to pay attorney fees and costs to the other party. In deciding whether to award attorney fees and costs, the court should consider the financial resources of each party and the merits of the issues raised on appeal. In re Marriage of Leslie, 90 Wn.App. 796, 807, 954 P.2d 330 (1998). This court also may award costs to the substantially prevailing party. RAP 14.2.

"As an independent ground we may award attorney fees and costs based on intransigence of a party, demonstrated by litigious behavior, bringing excessive motions, or discovery abuses." In re Marriage of Wallace, 111 Wn.App. 697, 710, 45 P.3d 1131 (2002). If intransigence is established, the court need not consider the parties' resources. Id. A party's intransigence also authorizes an award of attorney fees on appeal. In re Marriage of Mattson, 95 Wn.App. 592, 606, 976 P.2d 157 (1999).

Mr. Linderman first contends he is entitled to attorney fees under RCW 4.84.185, but this provision concerns fee awards for frivolous issues at trial. Mr. Linderman has not filed an affidavit of need. Finally, Mr. Linderman argues that he should be awarded fees for Ms. McWain's intransigence in filing numerous motions and petitions. While Ms. McWain filed two similar petitions with the trial court, this is not so extreme as to demonstrate intransigent behavior. See Wallace, 111 Wn. App. at 710.

Ms. McWain seeks attorney fees on appeal in the event that the economic condition of Mr. Linderman improves, and he has the ability to pay. We refer this issue to our commissioners for review if the appropriate affidavits have been filed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

BROWN and SIDDOWAY, JJ., concurs.


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