Opinion
46598-1-II
12-01-2015
IN RE THE PARENTAGE OF D.D.-P.
UNPUBLISHED OPINION
MAXA, J.
Darcia Davis appeals the trial court's order modifying the parenting plan between her and George Patecek regarding their son DD-P, which was entered in the context of Davis's motion for relocation. We hold that the trial court (1) approved Davis's relocation, and we therefore do not address whether it erred in failing to make findings of fact on the statutory relocation factors; (2) abused its discretion in making the parents joint custodians and changing the residential schedule in a way that requires DD-P to change school every year; and (3) did not miscalculate the amount Davis owed to Patecek for day care expenses not incurred. Accordingly, we affirm in part and reverse in part and remand for a new trial regarding custody and residential schedule.
FACTS
On April 7, 2010, the trial court entered a parenting plan and child support order regarding Davis and Patecek's son, DD-P. Under these orders, DD-P resided primarily with Davis. DD-P was three years old at that time.
On August 31, 2012, Patecek filed petitions to modify the parenting plan and the child support order. In the petition to modify the parenting plan, Patecek alleged that Davis was not properly caring for DD-P, used abusive language in the home, had mental health and substance abuse issues, and was withholding visitation. He asserted that it would be better for the child to live with him because of Davis's inconsistency and neglect. In the petition to modify the child support order, Patecek asserted that DD-P resided with him the majority of the time and that he was paying daycare expenses that Davis did not incur.
In her response, Davis asserted that she provided a stable, nurturing home for DD-P, that Patecek often forfeited his visitation time, and that she did not have mental health or substance abuse issues. She asserted that there was no factual basis for Patecek's allegations. She also opposed any changes in the child support order. On January 13, 2013, Davis also filed a petition to modify the parenting plan and proposed a new residential schedule.
The first two days of trial occurred on July 25 and 26, 2013. The guardian ad litem (GAL) testified that Davis's assertions were more credible and recommended that she remain as the primary custodial parent. He also recommended that the parents obtain counseling therapy to improve their ability to communicate with each other. The primary difficulty he identified was that Patecek lived several hours away from Davis and his days off were Wednesdays and Thursdays.
Before trial resumed, Davis, on August 2, 2013, filed a notice of intent to relocate from Westport to Bellingham. Patecek objected to the relocation and asked the court to adopt his proposed parenting plan submitted as part of the modification proceedings. On October 7, 2013, the trial court entered a temporary order granting Davis's motion to relocate temporarily, pending trial.
After an agreed continuance, trial resumed on April 18, 2014. The evidence showed that DD-P lived with Davis in Bellingham, and that Patecek lived in Clallam Bay. After a day of testimony, the trial court issued an oral ruling. Throughout its ruling the trial court expressed frustration with both parents and with their inability to cooperate. The trial court stated that if the parents were wealthy, he would send DD-P to a private school on the east coast so his contact with his parents would be limited.
With regard to DD-P's residential schedule, the trial court ruled that a substantial change in circumstances had taken place because both parents had moved, the child had reached school age, and both parents' employment had changed. The trial court then stated that it was awarding joint custody of DD-P and that DD-P would reside every other school year with each parent. Specifically, DD-P would reside with Davis until the end of the 2013-2014 school year, reside with Patecek for the 2014-2015 school year, and alternate between the parents for each subsequent school year. The trial court stated that although it was unfortunate that DD-P would have to change schools every year, this arrangement was the only way to resolve the situation because the parties did not live close to each other. The trial court entered a final parenting plan that imposed this residential schedule. Significantly, the trial court did not address in either its oral ruling or in the parenting plan whether the residential schedule was in the best interests of DD-P.
The trial court also entered a judgment against Davis for $10,966.53 for daycare expenses not incurred and an additional $2,000 in attorney fees for the collection of the overpayment. Davis appeals.
ANALYSIS
A. Relocation
Davis argues that it is not clear whether the trial court granted her petition for relocation, and claims that the trial court abused its discretion in not making findings of fact on each of the statutory relocation factors. We hold that the trial court did approve Davis's relocation, and therefore we do not address Davis's appeal on this issue.
RCW 26.09.520 sets out 11 factors the trial court must consider when making a relocation decision. The statute creates a rebuttable presumption in favor of the custodial parent that the relocation will be permitted. In re Marriage of Kim, 179 Wn.App. 232, 240, 317 P.3d 555, review denied, 180 Wn.2d 1012 (2014). The burden is on the objecting party to show that "the detrimental effect of the relocation outweighs the benefit of the change to the child and relocating person." RCW 26.09.520. We review whether the record supports the trial court's findings of fact to see if the trial court considered the statutory factors and whether substantial evidence supports the findings. Kim, 179 Wn.App. at 244.
Here, Davis filed her notice of intent to relocate in the middle of the modification trial in August 2013. In October, the trial court granted the relocation temporarily pending trial, and Davis relocated to Bellingham with DD-P. Eight months later, the modification trial resumed. Following trial, the trial court made the following findings:
Mother has moved, both parents have different employment and mulhe obligee, acted in bad faith in connection with this proceeding. In re Marriage of Nelson, 62 Wn.App. 515, 520, 814 P.2d 1208 (1991). However, Patecek has not alleged that Davis acted in bad faith regarding this appeal. Accordingly, we deny Patecek's request for attorney fees.
CONCLUSION
We affirm in part and reverse in part. We affirm the trial court's award to Patecek for child care overpayment and reverse the trial court's custody and residential schedule order. We remand for a new trial regarding custody and residential schedule.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: WORSWICK, P.J., SUTTON, J.