Opinion
No. 59663-2-I.
March 3, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-3-02410-2, Mary Yu, J., entered February 1, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Grosse, J., concurred in by Becker, J., and Baker, J. Pro Tem.
When a court makes the finding that a parent has a history of domestic violence, the court is required to impose certain limitations on that parent in a parenting plan unless the court also makes certain express findings why such limitations are not necessary. Here, the trial court's ambiguous and conflicting language with regard to Brian Moody's history of domestic violence necessitates us to remand for the trial court to clarify the legal basis for its decision not to impose such limitations. Accordingly, we affirm in part, reverse in part, and remand.
FACTS
Leatha Sherman and Brian Moody were married in 1999, separated in January 2006, and sought marital dissolution in February 2006. They have two minor children, M.M. and B.M., nine and three years old, respectively.
Upon filing for dissolution, the court granted Sherman temporary primary custody and Moody regular visitation rights. During the eleven months between filing for dissolution and trial, the parties repeatedly sought relief from the court on a variety of issues ranging from treatment for substance abuse, temporary maintenance and child support, preservation of financial records for trial, and Sherman sought and received permission to relocate.
At one point, both parents were required to undergo random, monitored urine analysis (UAs) a minimum of three times a week to test for alcohol or illegal drug use. Moody tested clean on all such tests administered prior to trial. None of Sherman's UAs tested positive, however, three of them were deemed diluted.
Over the course of a five day bench trial in January 2007, the trial court admitted over 100 exhibits and heard extensive testimony from the parties and various witnesses, including the court appointed parenting evaluator, drug and alcohol counselors, and family members. After trial, the court entered a Decree of Dissolution, Order of Child Support, and a Final Parenting Plan.
Under the Final Parenting Plan, Moody received immediate primary custody whereas Sherman, previously the primary caregiver, received only limited supervised visitation of up to nine hours per week. Both parents admit to having drug and alcohol dependency problems and had participated in treatment prior to trial. At the end of trial, the court found Moody sober and genuinely committed to remaining so through continued treatment. On the other hand, the court found Sherman had not fully accepted the fact that she had a drug and alcohol problem. Therefore, the court found Moody, at least temporarily, the parent most capable of caring for the children. The plan provides for a graduated visitation schedule with Sherman provided she stays sober and meets certain enumerated benchmarks regarding drug and alcohol treatment.
Language in the Parenting Plan's supporting Findings of Fact and Conclusions of Law and in the Plan itself appears to indicate the court found that Moody had a history of committing acts of domestic violence. Nonetheless, the Plan states that any limitations, mandated by the legislature upon making such a finding, did not apply. Sherman appeals.
ANALYSIS
A trial court determines and allocates child placement and parental responsibilities in accordance with the best interests of the child. "The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care." Trial courts are granted broad discretion when it comes to matters dealing with the welfare of children as they are in a unique position to observe the parties to determine their credibility and to sort out conflicting evidence. Hence, we review the trial court's order for an abuse of discretion.
Former RCW 26.09.002 (2006), amended by Laws of 2007, ch. 496, § 101; In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982).
Woffinden, 33 Wn. App. at 330 (citing Chatwood v. Chatwood, 44 Wn.2d 233, 266 P.2d 782 (1954)).
In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997); In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993).
Mandatory Limitations under RCW 26.09.191(1) and (2)
Upon making a formal finding that a parent has a history of domestic violence, the legislature requires courts to impose certain limitations or conditions in a parenting plan unless the court makes specific and express findings as to why such limitations are not necessary under the presenting circumstances. RCW 26.09.191(1) prohibits mutual decision-making or the designation of a dispute resolution process other than court action if a court finds a parent has a history of domestic violence as defined in RCW 26.50.010(1). RCW 26.50.010(1) defines domestic violence as
(a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking . . . of one family or household member by another family or household member.
RCW 26.09.191(2) mandates that a parent's residential time with a child be limited if a trial court finds a parent has a history of domestic violence similarly defined.
As to Moody, the trial court's supporting Findings of Fact and Conclusions of Law state in pertinent part:
The Court finds that Mr. Moody has openly admitted to abusing [Ms. Sherman] and the court does not take lightly nor excuse the violence and the control he exercised. The court, however, finds that Mr. Moody has taken steps to address his addiction and his use of violence.
Furthermore, the Parenting Plan states the "[f]ather also has a history of drug/alcohol abuse and domestic violence."
Thus, the trial court's language appears to indicate that Moody has a history of domestic violence. If this is so, the court should have imposed certain limitations as application of RCW 26.09.191(1) and (2)'s provisions are mandatory upon making such a finding. For instance, this court held in In re Marriage of C.M.C. that joint decision-making is statutorily precluded where such a finding is made, even if such acts did not cause grievous bodily harm or fear of such harm.
See In re Marriage of Mansour, 126 Wn. App. 1, 106 P.3d 768 (2004) (noting the word shall indicates subsection (1) and (2)'s provisions are mandatory upon finding a parent has a history of domestic violence).
In re Marriage of C.M.C., 87 Wn. App. 84, 940 P.2d 669 (1997).
Here, however, the Parenting Plan requires mutual decision-making and mediation, a dispute resolution process other than court action, contrary to the prohibitions of subsection (1). Further, the trial court not only failed to restrict Moody's residential time with the children as required under subsection (2), but made Moody the primary custodial parent after imposing discretionary limitations on Sherman's visitation and parental rights based on RCW 26.09.191(3) factors.
RCW 26.09.191(2)(n) provides that a court may decline to apply the otherwise mandatory limitations of subsections (1) and (2) upon making a finding that a parent has a history of domestic violence only:
If the court expressly finds based on the evidence that contact between the parent and the child will not cause physical, sexual, or emotional abuse or harm to the child and that the probability that the parent's or other person's harmful or abusive conduct will recur is so remote that it would not be in the child's best interests to apply the limitations of (a), (b), and . . . or if the court expressly finds that the parent's conduct did not have an impact on the child, then the court need not apply the limitations . . . of this subsection.
The trial court's finding that "Mr. Moody has taken steps to address his addiction and his use of violence" does not satisfy the statute's specific requirements.
However, we cannot tell from the record whether the court actually intended to make a formal finding that Moody had a history of domestic violence as defined by RCW 26.50.010(1). A history of domestic violence, here, would require past acts causing physical harm, bodily injury, or the infliction of immediate fear thereof. While Sherman alleges instances of imminent fear of physical harm, on this record we cannot find factual support for those allegations. The language used by the trial court indicating a finding of Moody's having a history of domestic violence and its conclusion that RCW 26.09.191(1) and (2)'s limitations do not apply are contradictory. Therefore, we remand for the court to clarify the legal basis for its decision not to impose limitations after using language indicating that Moody had a history of domestic violence.
See RCW 26.50.010(1)(a).
Discretionary Limitations under RCW 26.09.191(3)
Under RCW 26.09.191(3), a court has broad discretion to impose limitations similar to those mandatory under subsections (1) and (2) when certain circumstances are presenting. RCW 26.09.191(3) provides:
A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist:
(a) A parent's neglect or substantial nonperformance of parenting functions;
(b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;
(c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;
(d) The absence or substantial impairment of emotional ties between the parent and the child;
(e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development;
(f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or
(g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.
Parenting functions, in turn, is defined by RCW 26.09.004(3):
[T]hose aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child [and includes]:
(a) Maintaining a loving, stable, consistent, and nurturing relationship with the child;
(b) Attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
(c) Attending to adequate education for the child, including remedial or other education essential to the best interests of the child;
(d) Assisting the child in developing and maintaining appropriate interpersonal relationships;
(e) Exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level and the family's social and economic circumstances; and
(f) Providing for the financial support of the child.
Here, the trial court imposed harsh restrictions on Sherman's visitation rights under RCW 26.09.191(3). Imposing such limitations is within the trial court's broad discretion to craft a parenting plan that is in the best interests of the children. Further, the court's finding regarding Sherman's alcohol and drug abuse problems may have an adverse impact on the children's best interests is supported by substantial evidence.
Permissive limitations imposed under RCW 26.09.191(3) are not statutorily defined but must be specifically tailored to the presenting problem. Here, the limitations are narrowly tailored as Sherman's custody and visitation rights are directly conditioned upon her successfully reaching clearly specified substance abuse treatment benchmarks and remaining sober.
20 Kenneth W. Weber, Washington Practice: Family and Community Property Law § 33.24, at 88 (2007).
Moreover, the trial court found Moody credible that he was sober and was earnestly committed to his treatment whereas the court did not find Sherman credible as to her claims of success in dealing with her substance abuse problems. We defer to the trier of fact in matters of credibility. Therefore, we affirm the trial court's decision to impose limitations against Sherman in the Parenting Plan under RCW 26.09.191(3).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Alternating Weekly Residential Placement Schedule
If Sherman is successful in staying sober and meeting treatment benchmarks, the children will spend alternating weeks living with each parent as early as February 2008 in accordance with the Plan's graduated visitation schedule. At such a time, the Plan permits the parties to revisit these issues and create a completely new parenting plan under court supervision using the more flexible criteria governing new parenting plans rather than that governing modifications of existing parenting plans. While unusual, a provision providing for the creation of a new parenting plan upon the occurrence of some triggering event or at a specified point in time is not without precedence and may be appropriate in certain situations. For instance, in In re Marriage of Possinger this court upheld a trial court's authority to adopt a permanent parenting plan containing a residential schedule that will remain in effect for a specified period of time pending significant changes and permitting the parties to then create a new final parenting plan.
105 Wn. App. 326, 19 P.3d 1109 (2001); see also In re Marriage of Adler, 131 Wn. App. 717, 129 P.3d 293 (2006).
Equal time alternating visitation schedules are strongly disfavored though not absolutely prohibited. The Supreme Court in In re Marriage of Littlefield observed:
See Rickard v. Rickard, 7 Wn. App. 907, 911, 503 P.2d 763 (1972), rev. den., 81 Wn.2d 1012 (1973); Littlefield, 133 Wn.2d at 50-55.
The [Parenting] Act permits a trial court to order a parenting plan that includes a residential schedule providing that the parents will have equal or substantially equal residential time with a child. However, the trial court may not order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time unless [certain safeguards are satisfied because such arrangements may be harmful to the child].
Littlefield, 133 Wn.2d at 53 (alteration in original).
The legislature's intention is to protect children from being "'ping-pong[ed] . . . for a couple days with one parent and a couple of days with the other'" as such a frequent alternating schedule may be harmful for children and "`should be done Page 10 sparingly.'" Therefore, under the applicable statute, former RCW 26.09.187(3)(b), frequent alternating residential placement may only be ordered in limited circumstances:
In re Marriage of Rossmiller, 112 Wn. App. 304, 310, 48 P.3d 377 (2002) (quoting Littlefield, 133 Wn.2d at 53-54).
Former RCW 26.09.187(3)(b) (2006), amended by Laws of 2007, ch. 496, § 603.
(i) No limitation exists under RCW 26.09.191;
(ii)(A) The parties have agreed to such provisions and the agreement was knowingly and voluntarily entered into; or
(B) The parties have a satisfactory history of cooperation and shared performance of parenting functions; the parties are available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions; and
(iii) The provisions are in the best interests of the child.
Former RCW 26.09.187 (3)(b) (emphasis added).
Here, the reasonableness of alternating residential placement every other week is questionable. M.M. and B.M. are nine and three years of age, respectively. Prior to the dissolution trial, Sherman sought and received permission to move her residency to Maple Valley, Washington. Moody currently resides in Maltby, Washington. During the marriage, the parties resided in Woodinville, Washington. Geographic considerations alone make this schedule highly problematic. The best interest of the child is the paramount and controlling consideration and any parental interests are subsidiary to that consideration. No party has suggested that M.M. (or B.M. when school-aged) should attend a different school every other week. The nearly 50-mile distance between the parties' residences, however, make such a residential placement schedule highly problematic. Moreover, here, there is a lack of a satisfactory history of cooperation and shared performance of parenting functions.
However, because we remand seeking clarification from the trial court of its legal basis for declaring RCW 26.09.191(1) and (2) inapplicable and because we are aware that any alternating weekly residential placement schedule may soon be a moot concern, we decline to decide whether the trial court has abused its discretion under these circumstances.
The parties' motions to supplement the record are granted only to the extent that they provide exhibits missing from the court record presented at trial. The motion seeking to present new evidence not presented at the parties' dissolution trial is denied. The motion to strike and requesting sanctions is denied.
For the above reasons, we affirm in part, reverse in part, and remand.
WE CONCUR: