Opinion
No. 28139-6-III.
February 15, 2011.
Stephen C. McDonald appeals an order granting Kristy E. Crismon's relocation request and adopting her proposed parenting plan. He argues that the trial court erred in entering the orders. Although we partially agree with him, we nonetheless affirm.
FACTS
Mr. McDonald and Ms. Crismon had four children together prior to their April, 2007 divorce. A parenting plan was established at that time. Shortly thereafter, Ms. Crismon filed notice of intent to relocate to Utah, which Mr. McDonald opposed while simultaneously moving to modify the parenting plan. Ms. Crismon was granted temporary relocation.
A relocation trial was held in March 2009. The trial court granted Ms. Crismon's relocation request and asked the parties to draft a modified parenting plan that day. The court also informed the parties that if they were unable to agree on a parenting plan, it would be willing to hold a telephonic hearing to resolve any issues. The parties were unable to finalize a parenting plan that day. Subsequently, a special hearing was set for May 15, 2009, though the specific reason for the hearing is either unknown or disputed.
Ms. Crismon states that on April 18, 2009, she sent Mr. McDonald a copy of proposed findings of fact and conclusions of law, as well as a proposed final order granting relocation and modifying the parenting plan. Mr. McDonald denies receiving any proposed documents. The May 15 hearing did not take place because on May 1, 2009, the trial court signed Ms. Crismon's proposed order and modified parenting plan.
Mr. McDonald timely appealed.
ANALYSIS
The issues presented by this appeal ask this court to determine whether the trial court abused its discretion in adopting the proposed parenting plan, whether the signed order violated CR 54(e)-(f), and whether the trial court's final order was inconsistent with its oral ruling. We address each argument in turn.
Residential Schedule
Mr. McDonald argues that the trial court abused its discretion in ordering the parenting plan because the plan failed to state with specificity the residential schedule of the children as required by RCW 26.09.184(6). We disagree.
This court reviews an ordered parenting plan for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or untenable reasons. Id. at 46-47.
RCW 26.09.184(6) states:
RESIDENTIAL PROVISIONS FOR THE CHILD. The plan shall include a residential schedule which designates in which parent's home each minor child shall reside on given days of the year, including provision for holidays, birthdays of family members, vacations, and other special occasions, consistent with the criteria in RCW 26.09.187 and 26.09.191.
The record demonstrates that the parenting plan conforms to RCW 26.09.187 and RCW 26.09.191 as required. The parenting plan explicitly states that no restrictions under RCW 26.09.191 are applicable. The record also indicates that the court considered the factors required of it by RCW 26.09.187. As ordered, the residential schedule explicitly designates the location of the children on a given day throughout the year, taking into account school schedule, winter vacation, summer vacation, vacations with parents, and other school breaks.
The only area left even partially to the parties' discretion appears to be certain one-or two-day holidays. Given the distance between the parents and the different schedules of the children, this bit of leeway was entirely logical because it permits the parents to adjust to scheduling changes from year to year. Because the court provided the parents with a mediation process in the event they are unable to reach an agreement regarding these few days, the residential schedule was within the range of acceptable choices.
The residential schedule satisfies RCW 26.09.184(6). The trial court did not abuse its discretion.
Validity of Signed Parenting Plan
Mr. McDonald also argues that the parenting plan was signed in violation of CR 54(e)-(f) because he did not receive notice of the proposed documents. He contends that the lack of notice was prejudicial because the plan as signed is a "constant mediation order" and fails to give him any clear contact with his children. Although we agree the order violated CR 54(f), we affirm because Mr. McDonald has not suffered prejudice.
CR 54(e) and (f) provide, in pertinent part:
(e) Preparation of Order or Judgment. The attorney of record for the prevailing party shall prepare and present a proposed form of order or judgment not later than 15 days after the entry of the verdict or decision, or at any time as the court may direct. . . .
(f) Presentation.
. . . .
(2) Notice of Presentation. No order or judgment shall be signed or entered until opposing counsel have been given 5 days' notice of presentation and served with a copy of the proposed order or judgment unless:
(A) Emergency. An emergency is shown to exist.
(B) Approval. Opposing counsel has approved in writing the entry of the proposed order or judgment or waived notice of presentation.
(C) After Verdict, etc. If presentation is made after entry of verdict or findings and while opposing counsel is in open court.
Generally, failure to comply with the notice requirements of CR 54(f)(2) renders a judgment invalid. Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986). However, such a judgment is not invalid where the complaining party fails to show resulting prejudice. Id. A party alleging injury is not prejudiced when it is able to timely appeal and argue any issues it wishes to raise. Id. at 353; Soper v. Knaflich, 26 Wn. App. 678, 681, 613 P.2d 1209 (1980).
Despite Ms. Crismon's contention that Mr. McDonald received notice of the proposed documents, the record lacks evidence that notice was ever sent or received. Accordingly, we agree that Mr. McDonald did not receive notice of the proposed documents. Nonetheless, we conclude that there was no prejudice because he has been able to timely appeal and has not been precluded from arguing any issues. The order is valid.
Consistency of Ruling
Mr. McDonald further contends that the trial court's order regarding the parenting plan was inconsistent with its oral ruling. However, an oral decision by a trial court is not the same as a judgment; the court is free to change its mind until formal judgment is entered. Earl v. Geftax, 43 Wn.2d 529, 530, 262 P.2d 183 (1953); Fosbre v. State, 70 Wn.2d 578, 584, 424 P.2d 901 (1967). Thus, even assuming arguendo that Mr. McDonald is correct, his argument fails.
Supplemental Assignment of Error
Finally, Mr. McDonald argues for the first time in his reply brief that no specific findings were made regarding the new parenting plan in accord with RCW 26.09.260(6). We will not consider this argument because it was raised and argued for the first time in his reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(c).
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.
Sweeney, J., Brown, J., concur.