Opinion
No. 25564-6-III.
September 6, 2007.
Appeal from a judgment of the Superior Court for Lincoln County, No. 06-3-01281-4, Philip W. Borst, J., entered September 28, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Brown, J.
Gaylen McDonald appeals the trial court's denial of his motion to vacate the parenting plan proposed by his spouse Patricia Fenner. A decision to vacate a parenting plan is reviewed for an abuse of discretion. Here, contrary to Mr. McDonald's assertion, the trial court did not abuse its discretion by entering a parenting plan that designated Ms. Fenner as primary custodian and allowed her to relocate the child. We affirm.
FACTS
Gaylen McDonald and Patricia Fenner were married in 1994. They had one child together. Ms. Fenner petitioned the court for dissolution of her marriage in April 2006.
Patricia Fenner, formerly Patricia McDonald, has since remarried. Her name is now Patricia Bohr.
Ms. Fenner provided the court and Mr. McDonald with a proposed permanent parenting plan. In that plan, Ms. Fenner was to be named the custodial parent, with visitation provided to Mr. McDonald. The proposed parenting plan also contained a provision that, "[t]he father agrees that the child may relocate to the State of Iowa with the mother." Clerk's Papers (CP) at 24. The plan also stated in bold typeface that, if Mr. McDonald did not file an objection within 30 days of service of the intended relocation, the relocation would be allowed.
Mr. McDonald also provided a proposed parenting plan; however, the record indicates that he failed to timely serve the plan on Ms. Fenner. Mr. McDonald's proposed parenting plan named him the custodial parent. The proposed plan also provided that both parents could remove the child from the state of Washington with only the prior written consent of the other parent. In addition, both parents could take the child out of the state only for vacations, and the child could not be absent from Washington for more than two weeks at a time.
At the dissolution proceedings, Mr. McDonald stated that he objected to Ms. Fenner's proposed parenting plan. Specifically, he objected to Ms. Fenner moving out of the state with their child. The trial court informed Mr. McDonald that he would have to file an objection with the court if he wanted to contest the provision in the parenting plan that allowed Ms. Fenner to move out of the state with their child.
When asked if he wanted the trial court to proceed with the decree of dissolution as proposed by Ms. Fenner, Mr. McDonald agreed. The trial court told Ms. Fenner that she could relocate with her child, but that she would have to come back if she and Mr. McDonald could not reach an agreement regarding the parenting plan. Once again, Mr. McDonald protested the removal of the child from Washington. The trial court stated the "only time the courts really get involved much with that [is] if somebody's doing it because there is no good reason for it," or if one parent is acting "in spite of the other one." Report of Proceedings at 11-12.
The trial court granted the petition for adopting the parenting plan proposed by Ms. Fenner on September 14, 2006. On September 25, Mr. McDonald made a motion to vacate the final parenting plan and to transfer venue to Pierce County, Washington. He argued that the dissolution hearing was wrongly placed on the "non-contested" calendar, but Mr. McDonald had contested several issues in Ms. Fenner's proposed parenting plan. CP at 115. In addition, Mr. McDonald asserted that Ms. Fenner's proposed parenting plan was not accompanied by the documentation required under RCW 26.09.194.
The court denied Mr. McDonald's motion to vacate. In its findings of fact, the trial court noted that Mr. McDonald failed to serve his proposed parenting plan on Ms. Fenner. The court further found that Mr. McDonald was held to the same standard as an attorney, and that his failure to serve Ms. Fenner with his proposed parenting plan deprived her of notice of his objections.
Mr. McDonald appeals the trial court's denial of his motion to vacate the parenting plan and his motion for change of venue.
Mr. McDonald also initially appealed the trial court's denial of an emergency stay that would have prevented Ms. Fenner from removing their child from Washington. Commissioner Joyce McCown has since granted Mr. McDonald an emergency stay, and Ms. Fenner has not appealed the commissioner's ruling.
ANALYSIS
Motion to Vacate
A decision as to whether to void a final parenting plan is reviewed for an abuse of discretion. See, e.g., In re Marriage of Wilson, 117 Wn. App. 40, 45, 68 P.3d 1121 (2003).
By statute, a party who objects to the relocation of a child is required to file an objection with the court and serve that objection on the relocating party within 30 days of the receipt of notice of the intended relocation of the child. RCW 26.09.480(1). There is a rebuttable presumption that relocation will be permitted. See In re Marriage of Horner, 151 Wn.2d 884, 887, 93 P.3d 124 (2004). But this presumption may be overcome if the objecting party can establish that the negative effect of the relocation outweighs any benefit to the child and the relocating parent. Id. If the other party fails to object to the proposed relocation as provided by statute, the relocation is permitted unless good cause is shown. Id. at 888; RCW 26.09.500(1).
The good cause provision contained in RCW 26.09.500 "requires the late-filing party to show some external reason, not resulting from a self-created hardship, which prevented him from complying with the statutory requirements." In re Marriage of Pennamen, 135 Wn. App. 790, 798, 146 P.3d 466 (2006). But the failure to timely object does not necessarily result in the automatic right to relocate the child. Where the other party attempts to object within a reasonable time, but does so in a manner that is technically lacking, the trial court still has discretion to hear the relocation issue on its merits. Id. at 799-801.
This court is confronted with a different issue than the one considered in Pennamen. The court in Pennamen reviewed the trial court's exercise of discretion in choosing to conduct a hearing on the proposed relocation of a child when the objecting party had not made a timely objection. Here, the trial court exercised its discretion and decided not to hold a relocation hearing because of the lack of a proper and timely objection.
This is not an abuse of discretion. Mr. McDonald did not demonstrate any external reason that prevented him from timely filing his objection to Ms. Fenner's proposed relocation. As a result, the proposed relocation was presumptively permissible. While the trial court had the discretion to hear the relocation issue despite the technical deficiencies in Mr. McDonald's objections, the court was not required to do so. Mr. McDonald has not demonstrated that the trial court abused its discretion by denying his motion to vacate the parenting plan.
Motion for Reconsideration
The trial court's decisions on motions to vacate and motions for reconsideration are reviewed for an abuse of discretion. Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). "This court reviews trial court decisions dealing with the welfare of children for abuse of discretion." Horner, 151 Wn.2d at 893.
In his motion to vacate, Mr. McDonald asserted that Ms. Fenner failed to file an affidavit in accordance with RCW 26.09.194. On appeal, he asserts that Ms. Fenner failed to file an affidavit in accordance with RCW 26.09.270. Neither statute applies to this case.
RCW 26.09.194 governs proposed temporary parenting plans, which are defined as plans for parenting children pending the resolution of the dissolution of marriage. RCW 26.09.004(1). In contrast, a permanent parenting plan is a plan for parenting the child, including the allocation of parenting functions. A permanent parenting plan is incorporated in any final decree of dissolution. RCW 26.09.004(2). The plan proposed by Ms. Fenner was a permanent parenting plan that was ultimately incorporated by the trial court in its decree of dissolution. Therefore, RCW 26.09.194 did not apply to her proposed permanent parenting plan.
Likewise, the procedural requirements of RCW 26.09.270 also do not apply to this case. RCW 26.09.270 requires the filing of an affidavit of facts that support the requested order. But this provision applies only to a party who is seeking a temporary custody order, temporary parenting plan, or a modification of a parenting plan. RCW 26.09.270. Ms. Fenner was not seeking a custody order and, as previously noted, she was not proposing a temporary parenting plan. There was no parenting plan in existence at the time; therefore, she was not seeking a modification of a parenting plan. As such, RCW 26.09.270 does not apply to the proposed permanent parenting plan that Ms. Fenner submitted to the court and served on Mr. McDonald.
Mr. McDonald contends that Ms. Fenner failed to file the required affidavit in support of her proposed permanent parenting plan. The statute governing the procedure for submitting a permanent parenting plan has no requirement that a separate affidavit be filed along with the proposed permanent parenting plan. See RCW 26.09.181. There is also no requirement for an affidavit in the statute that governs the general requirements of a permanent parenting plan. See RCW 26.09.184. Presumably, this is because the permanent parenting plan is established either through an evidentiary hearing or by the agreement of the parties. See In re Marriage of Littlefield, 133 Wn.2d 39, 51-52, 940 P.2d 1362 (1997). Therefore, Ms. Fenner was not required to file an affidavit along with her proposed permanent parenting plan, and her failure to do so cannot form the basis for vacating the parenting plan.
Venue
The trial court's decision whether to grant a motion for change of venue is reviewed for an abuse of discretion. See State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003). The issue of venue is waived if not timely raised before the trial court. See Schroeder v. Schroeder, 74 Wn.2d 853, 855, 447 P.2d 604 (1968). Here, both parties agreed that Lincoln County was the proper venue at trial. As such, Mr. McDonald has waived any objection to venue regarding the dissolution proceedings.
We affirm.
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, J., Sweeney, C.J., Concur