Opinion
No. 27437-3-III.
May 5, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-3-01342-7, Salvatore F. Cozza, J., entered August 20, 2008.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Korsmo, J.
UNPUBLISHED OPINION
Sheila Emch, formerly known as Sheila Stevens and mother of S.T., appeals the trial court's visitation order secured by S.T.'s paternal grandparents, John and Mary Thames, S.T.'s custodial parents. In an unpublished opinion, after affirming the trial court's custody decision favoring the Thameses, we remanded for a visitation hearing. In re Custody of S.T.T., 2007 WL 1219969 ( S.T.T. I). We find no abuse of discretion under RCW 26.10.160(2)(a) in the trial court's decision to shape its reasonable-visitation order. Accordingly, we affirm.
FACTS
The factual summary is drawn from S.T.T. I. S.T. was born on November 3, 1995 and is the son of Steve Thames and Ms. Emch. His parents married a few months after he was born and S.T. lived with them until they separated in October 1997. After the separation, S.T. lived with Ms. Emch except for short periods when he lived with Mr. Thames.
In April 1998, Mr. Thames and Ms. Emch divorced. Over the next three years, S.T. resided with his mother, his maternal grandmother, his father, and his paternal aunt and uncle. S.T. exhibited numerous behavioral problems. In October 2001, S.T. moved in with his paternal grandparents. Ms. Emch and her current husband moved to Rochester, Minnesota in late 2003. Prior to that, she had little contact with S.T.
In 2004, Ms. Emch petitioned to modify the divorce decree to obtain custody of S.T. The Thames petitioned for custody of S.T. At trial, S.T.'s doctor, Dr. Tammy Ellingsen, explained that earlier there had been suspicions that S.T. had a reactive attachment disorder. Dr. Ellingsen testified that S.T. had encopresis and enuresis, and that both of these conditions have psychological meaning. Dr. Ellingsen also had prescribed Ritalin based on the recommendation of a psychologist. Two psychologists identified oppositional defiant disorder as being present, but neither psychologist made an actual diagnosis. The Guardian ad Litem (GAL) testified that S.T. regressed after he began to see his mother. The GAL believed S.T. would be psychologically adversely affected if placed with his mother, because her life had been unstable for the last few years. S.T. is a special needs child.
The court granted custody of S.T. to his grandparents. The court did not make a finding that Ms. Emch was unfit, but, instead found evidence establishing actual detriment to the child as the result of contact with the mother. The trial court entered a restraining order limiting S.T.'s contact with Ms. Emch. Ms. Emch appealed. We reversed the court's order restraining visitation, holding "the trial court did not make the findings required under RCW 26.10.160." S.T.T. I, 2007 WL 1219969 at *6.
On remand, after making brief findings, the court concluded Ms. Emch was entitled to "'reasonable visitation rights.'" Clerks' Papers (CP) at 44. The court ordered Ms. Emch to have seven days of supervised, daytime only visitation in August 2008, four days over Christmas break and spring break in Minnesota (if Ms. Emch educates herself regarding S.T.'s mental condition) and "hopeful, but does not order at this time, that [S.T.] spend a number of weeks in Minnesota in the summer of 2009." CP at 45. Visitation would be "subject to review by the Court." Id. Ms. Emch appeals.
ANALYSIS
A. Remand Visitation Order
The issue is whether the trial court erred by abusing its discretion in setting the visitation schedule when ordering reasonable visitation under RCW 26.10.160(2)(a).
The trial court's review of a matter concerning visitation rights will not be disturbed absent an abuse of discretion. In re Marriage of Luckey, 73 Wn. App. 201, 208, 868 P.2d 189 (1994). Discretion is abused if the court's decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Id.
Initially, Ms. Emch contends the court erred in making findings of fact in its visitation order. She, however, fails to cite legal authority to support her argument. An error is waived when a party fails to support argument with legal authority. RAP 10.3(a)(6); Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986). Nevertheless, the majority of facts set forth in the court's order are based on the court's facts in S.T.T. I and concern S.T.'s, agreed upon, special needs. Since we remanded with instruction to consider reasonable visitation, fact-finding was required to make the necessary order. Given all, we conclude the trial court did not err in making findings.
A parent that is not granted custody is entitled to reasonable visitation. RCW 26.10.160(1). However, the court may limit visitation if it finds the parent engaged in the following conduct, "(i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense." RCW 26.10.160(2)(a).
Ms. Emch argues the court did not make appropriate findings as required to limit her visitation. RCW 26.10.160(2)(m) requires the court to enter findings setting forth the reasons why visits are limited. But the court did not limit her visitation under RCW 26.10.160(2); rather it ordered reasonable visitation given the geographical location of S.T.'s home (Washington) and Ms. Emch's home (Minnesota) and S.T.'s special needs. Considering all, we cannot say the trial court abused its discretion in shaping reasonable visitation.
Whether a visitation condition is reasonable is within the trial court's discretion. Robertson v. Robertson, 19 Wn. App. 425, 428, 575 P.2d 1092 (1978). A judge in a family court proceeding can order remedial services, evaluations, treatment, and supervised visitation, as a condition to custody or visitation. In re Interest of Mahaney, 146 Wn.2d 878, 887, 51 P.3d 776 (2002).
The order conditioning Ms. Emch's visitation rights upon Ms. Emch educating herself regarding S.T.'s mental condition and subject to review by the court was reasonable in light of S.T.'s special needs. Because tenable grounds existed for the court's visitation order, the trial court did not err.
In her reply brief, Ms. Emch contends the court failed to enter a final visitation order. We decline to consider arguments made for the first time in a reply brief. RAP 10.3(c); King v. Rice, 146 Wn. App. 662, 673, 191 P.3d 946 (2008).
B. Attorney Fees
Ms. Emch requests attorney fees on appeal under RCW 26.10.180. But RCW 26.10.180 applies when a child is taken, enticed or concealed and does not apply here.
The Thames request attorney fees, arguing Ms. Emch's continued request for fees under RCW 26.10.180 amounts to intransigence. A court may award attorney fees under RCW 4.84.185 if the requesting party can prove the other party's intransigence, "made trial more difficult and increased legal costs, like repeatedly filing unnecessary motions or forcing court hearings for matters that should have been handled without litigation." In re Marriage of Pennamen, 135 Wn. App. 790, 807, 146 P.3d 466 (2006). After reviewing the record, we cannot say Ms. Emch was intransigent. Therefore, we deny the Thames request for attorney fees under RCW 26.10.180.
Affirmed.
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.
SCHULTHEIS, C.J. and KORSMO, J. concur.