Opinion
No. 25172-1-III.
March 27, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 00-3-00201-0, James P. Hutton, J., entered March 31, 2006.
Counsel for Appellant(s), Robert Allen Marble, Law Offices of Lighty Marble, Yakima, WA.
Counsel for Respondent(s), Howard Nathaniel Schwartz, Attorney at Law, Yakima, WA.
Dismissed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Schultheis, J.
Pamela Cline, now known as Pamela Baldoz, filed a notice of relocation along with a proposed final parenting plan changing limitations pursuant to RCW 26.09.191. Mr. Cline neither objected nor appeared, so the court entered her proposed plan ex parte. When Mr. Cline learned of this, he filed a motion to review the parenting plan and a motion to set it aside. A commissioner determined the plan that was entered was temporary, not final.
The superior court denied Ms. Baldoz's motion for revision. She appeals. Finding the temporary order is not appealable as a matter of right and discretionary review is not warranted, we dismiss the appeal.
The parties divorced in October 2000. The parenting plan gave Ms. Baldoz primary residential custody of the children. Mr. Cline had supervised visitation and was not to consume alcohol or drugs during the visits.
On August 4, 2004, Ms. Baldoz filed a petition to modify the parenting plan. She asked that Mr. Cline's visits be restricted pursuant to RCW 26.09.191 because he had no one available to supervise the visits and he continued to abuse alcohol while with the children. Ms. Baldoz claimed Mr. Cline had told one child to say vulgar things to an adult on the phone. She was also concerned about his involvement in incidents of domestic violence. Ms. Baldoz wanted him to have no residential time with the children.
Mr. Cline responded by denying any allegations of wrongdoing. He sought dismissal of the petition for modification.
In October 2004, Ms. Baldoz filed a motion to amend her petition with a new proposed parenting plan, where Mr. Cline would have no visitation with the children until several requirements were fulfilled. Those requirements were to have him (1) undergo inpatient drug/alcohol treatment, (2) comply with outpatient treatment as recommended by treatment providers, (3) complete a domestic violence perpetrators program, (4) undergo a psychological examination, and (5) sign waivers and releases necessary to give the court and Ms. Baldoz access to this information.
On November 9, 2004, the court found adequate cause to modify the parenting plan based upon a post-decree assault by Mr. Cline and the involvement of a child in phone harassment. The court entered a new parenting plan restraining his contact with the children, with this exception: Mr. Cline was to participate in family counseling with the children. He was also ordered to get a hair follicle drug test within three days of the order.
Mr. Cline did not take the drug test. On December 17, 2004, the court entered an order on sanctions finding that his refusal created an inference he would test positive for illegal drugs and that the court would regard the refusal as a negative factor regarding contact with his children. He also failed to participate in counseling.
In May 2005, Ms. Baldoz purchased a home in a new school district. On May 10, she mailed a notice of intended relocation of children and a proposed parenting plan to Mr. Cline at his last known address, return receipt requested. The documents were returned unopened. The proposed parenting plan was identical to the amended plan she had proposed in October 2004 and contained the same five conditions on Mr. Cline.
Based upon the relocation, the court entered an ex parte order on July 8, 2005, permitting relocation of the children and modifying the parenting plan in conformity with her proposed parenting plan. On February 6, 2006, Mr. Cline filed a motion to review this parenting plan. On February 16, he filed a motion to set aside the parenting plan because it was erroneously entered by default and not only permitted relocation but also changed the conditions in the parenting plan. Ms. Baldoz objected.
A superior court commissioner heard argument on these motions and determined Ms. Baldoz had complied with RCW 26.09.440, the relocation statute. Although she complied with the statute and was permitted to seek additional conditions on visitation, the court found that, since a modification action had already been filed and Mr. Cline had responded and participated, Ms. Baldoz could not permanently change the limitations on him in the relocation action. The court indicated she would not have been able to enter an ex parte final plan because Mr. Cline had responded to the modification action. The commissioner thus determined that the plan entered on July 8, 2005, was a temporary one, thus rendering moot the motion to set it aside as a final judgment.
After Ms. Baldoz's motion for reconsideration was denied, she filed a motion to revise the commissioner's ruling. Adopting the reasoning of the commissioner, the court affirmed the ruling that the July 8 parenting plan was temporary. Ms. Baldoz appealed.
But a temporary order neither resolves the issue of permanent residential placement nor ends the litigation. Accordingly, such an order is not appealable under RAP 2.2. In re Marriage of Greenlaw, 67 Wn. App. 755, 759, 840 P.2d 223 (1992), rev'd on other grounds, 123 Wn.2d 593, 869 P.2d 1024 (1994). The court in Greenlaw did review the temporary orders, but did so under discretionary review pursuant to RAP 2.3. Id. at 759-60.
RAP 2.3 sets forth the acts of a superior court, not appealable as a matter of right, that may be considered on a motion for discretionary review. In re Dependency of A.G., 127 Wn. App. 801, 808-09, 112 P.3d 588 (2005), review denied, 156 Wn.2d 1013 (2006). Subsection (b) provides that discretionary review may be accepted only in certain circumstances.
As pertinent here, they are that (1) the superior court committed obvious error rendering further proceedings useless; (2) it committed probable error and the decision alters the status quo or limits the freedom of a party to act; and (3) it has so far departed from the accepted and usual course of judicial proceedings as to call for review by the appellate court. RAP 2.3(b).
The superior court, however, did not commit obvious error. In any event, further proceedings were not rendered useless. The court also did not commit probable error. The decision did not alter the status quo or limit Mr. Cline's freedom to act. He did not have any visitation with his children under the parenting plan entered in November 2004 or in the plan entered in July 2005. He can still move to amend the temporary plan. Finally, the court's action did not so far depart from the accepted and usual course of proceedings as to call for appellate review. Discretionary review is therefore denied.
The appeal is dismissed.
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.
WE CONCUR:
Sweeney, C.J.
Schultheis, J.