Opinion
No. 59472-9-I.
June 9, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 02-5-00100-2, John M. Meyer, J., entered December 28, 2006.
Affirmed by unpublished per curiam opinion.
In 2003, Joshua Johnson and Nicole Johnson agreed on a residential schedule for their two year old daughter. The agreement deferred setting a school schedule until the child entered kindergarten. In 2006, when their daughter entered kindergarten, the parents could not agree on the school schedule. The trial court resolved the parents' disputes and entered an adjusted residential schedule. We agree with the trial court that the adjustment of the residential schedule was not subject to the requirements for a modification under RCW 26.09.260 and reject Joshua Johnson's remaining contentions on appeal. We therefore affirm the trial court's decision.
FACTS
Joshua Johnson and Nicole Johnson are the parents of R.J., who was born on June 20, 2001. During the course of this parentage action, which Joshua filed in May 2002, the court entered temporary residential schedules providing that R.J. reside a majority of the time with Joshua and with Nicole every other weekend and one day per week. On September 11, 2002, the court entered a judgment determining parentage, reserving entry of a permanent residential schedule for a later date.
For purposes of clarity, we refer to the parties by their first names.
On August 29, 2003, the parties entered into an agreed final residential schedule that specified R.J. would reside a majority of the time with Joshua and with Nicole overnight on Tuesdays and Wednesdays each week and alternating weekends from Friday evening to Monday morning. The parties also agreed that R.J.'s school and vacation schedules would be determined when she began kindergarten.
On August 21, 2006, Joshua moved for a "modified residential schedule" and entry of a school schedule, noting that R.J. was about to start kindergarten and that the final residential schedule had reserved determination of a school schedule. Joshua informed the court that he had chosen to send R.J. to the Learning Ladder School for kindergarten, the same preschool she had been attending in Mount Vernon, and requested that Nicole's mid-week overnight residential time be eliminated. Joshua proposed that Nicole have residential time every other weekend and for two hours one evening per week, which would have reduced R.J.'s residential time with Nicole from approximately 182 nights per year to 52 nights.
Nicole objected, challenging both Joshua's choice of school and his proposed reduction in her residential time. She argued that Joshua was failing to comply with the 2003 residential schedule, which required that educational decisions be made jointly. She also maintained that the current schedule was working well and suggested R.J. should attend Acme School, the local public elementary school.
Following a hearing on September 8, 2006, the court commissioner declined to rule on Joshua's motion until it determined where R.J. would attend school. The court then directed Nicole to file an appropriate motion to raise the issue. Joshua moved for revision, asserting, among other things, that the court had no authority to choose R.J.'s school. The superior court denied both the motion for revision and Joshua's subsequent motion for reconsideration.
In accordance with the court's order, Nicole filed a Motion to Designate Child's School on September 13, 2006. In support of the motion, Nicole agreed that R.J. could continue to attend the Learning Ladder School for kindergarten, the highest grade for the school, but indicated that she would prefer R.J. attend Acme School. Nicole repeated her objection to Joshua's proposed reduction of her residential time and her claim that the parties' 2003 residential schedule required mutual decision-making. Joshua maintained that the trial court had no authority to choose R.J.'s school because he had sole decision-making authority under the 2003 residential schedule.
After a hearing on September 29, 2006, the court found that the 2003 residential schedule did not grant either parent sole decision-making authority and should be clarified to include a mutual decision-making provision. In making this determination, the court relied in part on the fact that the 2003 residential schedule granted the parties almost equal residential time, without limiting either parent's involvement with R.J., and expressly required the parties to communicate and cooperate about major decisions involving R.J. The court also decided that R.J. should attend the Acme School, but recognized that she would continue to attend the Learning Ladder School for kindergarten because of the parties' agreement.
The court declined to make substantial changes to the residential schedule and directed that R.J. continue to reside primarily with Joshua and with Nicole each week during the school year from 6:30 p.m. on Tuesday to 8:00 a.m. on Thursday and every other weekend from 6:30 p.m. on Friday to 8:00 a.m. on Monday. The court found that this schedule, which provided each parent with approximately equal residential time, had worked well for the previous three years. The court concluded that because the 2003 residential schedule had deferred the determination of R.J.'s school schedule, the adjustment did not constitute a major or minor modification and was therefore not subject to the restrictions and standards of RCW 26.09.260.
At a subsequent hearing on October 20, 2006, the court permitted Joshua to argue all of his objections to the court's decision. The court treated the arguments as a motion for reconsideration and denied the motion. The court entered findings of fact, conclusions of law, and a final parenting plan on December 6, 2006. Except for two provisions not at issue on appeal, the superior court denied Joshua's motion for revision.
DECISION
Joshua's primary contention is that the trial court's adjustment of R.J.'s residential schedule constituted a major or minor modification of a parenting plan under RCW 26.09.260. He argues that because the court failed to comply with the strict requirements of RCW 26.09.260 or enter the necessary supporting findings of fact and conclusions of law, the modification was not authorized by law. We agree with the trial court that RCW 26.09.260 did not apply in this case.
The 2003 residential schedule was entered under the uniform parentage act, chapter 26.26 RCW, which directs the court to determine residential provisions for minor children "[o]n the same basis as provided in chapter 26.09 RCW." But the court need not enter a parenting plan unless requested by the parties. RCW 26.26.130(7). RCW 26.09.260 authorizes modification of a parenting plan or its residential aspects only when the evidence establishes, among other things, a substantial change in circumstances, even if the modification is minor. In re Marriage of Holmes, 128 Wn. App. 727, 734, 117 P.3d 370 (2005). In general, a modification occurs "when a party's rights are either extended beyond or reduced from those originally intended." In re Marriage of Christel, 101 Wn. App. 13, 22, 1 P.3d 600 (2000).
But despite the strict requirements for modification under RCW 26.09.260, the trial court retains broad equitable power to include provisions that defer final disposition of a residential schedule pending significant expected changes, regardless of whether the court's order is designated as permanent or temporary. See In re Marriage of Possinger, 105 Wn. App. 326, 336-37, 19 P.3d 1109 (2001); In re Marriage of Adler, 131 Wn. App. 717, 725, 129 P.3d 293 (2006), rev. denied, 158 Wn.2d 1026, 152 P.3d 348 (2007). In such cases, when undertaking the subsequent review process, the trial court may apply the criteria governing parenting plans in RCW 26.09.187, rather than treating the review as a modification. See Adler, 131 Wn. App. at 725.
Here, the 2003 residential schedule expressly provided that R.J.'s school and vacation schedules would be determined when she began kindergarten. Joshua's own motion asking the court to designate a school schedule and reduce Nicole's residential time relied solely on this provision, with no reference to the requirements of RCW 26.09.260. Indeed, the parties could not have expected RCW 26.09.260 to govern the court's decision because R.J.'s entry into kindergarten was not a substantial change of circumstances that would support a modification. See In re Marriage of Hansen, 81 Wn. App. 494, 500, 914 P.2d 799 (1996) (fact that child was starting school was not a substantial change of circumstances justifying modification of parenting plan). Under the circumstances, the trial court correctly concluded that the modification requirements of RCW 26.09.260 did not apply to the 2006 adjustment of R.J.'s residential schedule. See Possinger, 105 Wn. App. at 337 (trial court had authority to defer formulation of final school residential schedule until child entered elementary school). Accordingly, we do not address Joshua's remaining claims that the trial court failed to comply with the statute's procedural and substantive requirements. Joshua has not alleged, much less demonstrated, that the court's decision is inconsistent with RCW 26.09.187.
Joshua also asserts that the trial court's decision was a major modification because Nicole's residential time "was increased by more than 24 calendar days — she received an additional 42 days during the summer alone." Br. of Appellant at 20-21. But he provides no support for this calculation.
The school schedule specifies that R.J. reside with Nicole overnight on Tuesdays and Wednesdays each week and from Friday evening to Monday morning every other weekend. This is precisely the same schedule and number of overnights designated in the 2003 residential schedule. The trial court eliminated the daytime daycare that the paternal grandmother had provided on Wednesdays under the terms of the 2003 residential schedule. But Joshua has made no showing that this change had any meaningful effect on either parent's residential time now that R.J. is attending school. Substantial evidence supports the trial court's finding that the new residential schedule has "very little, if any" effect on R.J.'s residential time with Joshua.
Joshua next contends the trial court erred in rejecting his claim that he had sole decision-making authority for all major decisions involving R.J. The trial court found that the 2003 residential schedule did not include a decision-making provision and did not provide either parent with the sole authority to make major decisions involving R.J., including the choice of a school.
Joshua argues that the court's decision ignored the parties' intent and contradicted the "plain language" of the 2003 agreed residential schedule. But he has not supported these conclusory allegations with any legal argument or relevant citation to the record. Nor has he identified the "plain language" in the 2003 residential schedule that supports his claim to sole decision-making authority. In reaching its decision, the trial court relied on the absence of any limitation on either parent's involvement in R.J.'s activities, including school activities, as well as various provisions contemplating mutual decision-making, including one requiring the parties to "discuss together any major decisions which have to be made about or for the child." The record supports the trial court's determination that the 2003 residential schedule did not grant either parent sole decision-making authority. Nor has Joshua demonstrated any error in the trial court's clarification of the residential schedule with an express mutual decision-making provision.
Joshua also challenges the trial court's finding that the absence of a decision making provision in the 2003 residential schedule was largely due to the pattern forms in use at the time rather than a specific agreement by the parties. But this finding was not crucial to the trial court's decision. Even if the evidence fails to support this finding, the remaining findings, including those based on the express provisions of the 2003 residential schedule, amply support the trial court's determination that Joshua did not have sole decision-making authority.
In a related argument, Joshua contends the trial court erred by choosing the school that R.J. would attend "and forcing her to change schools." He maintains that the court's decision to choose Acme School, the local public school, was unsupported by the evidence and infringes on a parent's fundamental right to autonomy in child-rearing decisions. But Joshua's arguments mischaracterize the nature and effect of the court's decision.
The court found that it was in R.J.'s best interest to attend the local public school because attendance at the "geographically distant" private school would tend to decrease Nicole's involvement. But although the court ruled that R.J. should attend Acme School, the court recognized that the decision would apply only when she began elementary school. The parties had already agreed R.J. could remain at the Learning Ladder School, where she had started kindergarten by the time of the court's decision. Kindergarten was the highest grade available at the Learning Ladder, a circumstance that would necessarily require R.J. to change schools at the end of the school year. Nothing in the record supports Joshua's assertion that the court's decision forced R.J. to change schools.
Moreover, Joshua's arguments to the trial court rested primarily on his claim that he had the sole authority to choose R.J.'s school. For the reasons already discussed, the 2003 residential schedule did not grant either parent sole decision-making authority, and the trial court properly resolved the dispute when the parties could not agree on this issue. Nothing in the current residential schedule precludes the parties from agreeing to send R.J. to a different school in the future.
Joshua maintains that the trial court should have ruled immediately on his motion to set a school schedule and erred by deferring a ruling until Nicole filed her motion to designate R.J.'s school. But it was obvious from the outset that the issues of the school schedule and choice of school were intertwined and hotly disputed. Although Joshua characterizes his motion as merely for "adjustment" of the residential schedule because R.J. began kindergarten, he also asked the court to eliminate R.J.'s weekly overnight visits with her mother, a significant change in the residential schedule. Joshua has not cited any authority suggesting that the trial court erred or abused its discretion by seeking to be fully informed on all of the related issues before ruling.
Joshua next contends the court commissioner failed to maintain an appearance of fairness and impartiality. A judge is presumed to act without bias or prejudice, and a party challenging impartiality bears the burden of presenting evidence of actual or potential bias. State v. Post, 118 Wn.2d 596, 618, 619 n. 9, 826 P.2d 172 (1992). We then apply an objective test to determine whether a judge's impartiality might reasonably be questioned by a reasonable person who "knows and understands all the relevant facts." In re Marriage of Davison, 112 Wn. App. 251, 256, 48 P.3d 358 (2002) (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)).
In support of his claims, Joshua first points to several comments during the September 8, 2006, hearing in which the commissioner allegedly exhibited "an attitude for the Mother and against the Father." But because Joshua has not provided a transcript of the entire hearing, this court cannot review the commissioner's comments in context. See Wells v. Whatcom County Water Dist. No. 10, 105 Wn. App. 143, 158, 19 P.3d 453 (2001) (court considers alleged improper or biased comments in context).
Moreover, the challenged comments at the September 8, 2006, hearing involve the court's concerns about Joshua's motives in filing the motion for adjustment and the court's refusal to rule immediately on Joshua's motion. The court's comments do not reflect improper bias, but rather concern about Joshua's proposed reduction in Nicole's residential time and the need to be fully informed on all related issues before making a ruling.
Joshua also challenges the commissioner's comments and actions at the hearings on September 29 and October 20, 2006. These arguments rest in part on the commissioner's informal comments, taken out of context, that do not reflect the scope or seriousness of the legal issues raised and considered at both hearings. At the October 20, 2006 hearing, the commissioner addressed at length Joshua's objections to the court's decision, essentially permitting counsel to argue a motion for reconsideration. The crux of Joshua's claims of bias is a disagreement with the commissioner's legal decisions. The cited comments and actions fail to demonstrate even a prima facie case of bias.
Joshua's brief contains numerous additional conclusory allegations of error. Because these contentions are unsupported by relevant authority, meaningful legal argument, or citation to the record, we do not address them. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989).
Nicole requests an award of attorney fees on appeal. Although she makes a conclusory assertion that one of Joshua's arguments was not brought in good faith, she has not sufficiently identified a legal basis entitling her to attorney fees on appeal. See RAP 18.1(b). We therefore deny the request.
Affirmed.