Opinion
No. 61229-8-I.
December 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 02-3-07049-7, Mary E. Roberts, J., entered January 10, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Becker, JJ.
This is the fourth appellate review of disputes arising from the conflicting views of David Spring and his former wife, Michelle Spring, over their parenting plan. The parenting plan provides that their child is "to reside about equally with both parents." This court previously held that the relocation act did not apply to this case because the child continued to reside about equally with her parents.
In re Marriage of Spring, No. 58916-4-I, 2007 WL 1589455 (Wn.App. Div. I June 4, 2007) (Spring I); In re Marriage of Spring, No. 59711-6-I, 2008 WL 699446 (Wn.App. Div. I March 17, 2008) (Spring II); In re Marriage of Spring, No. 60711-1-I, 2008 WL 699255 (Wn.App. Div. I March 17, 2008), review denied, No. 81816-9 (Wash. Oct. 2, 2008) (Spring III).
Nothing has changed. "Relocate" is defined under the statute as a change "in principal residence." Here, there is no principal residence of the child because she continues to reside about equally with both parents. Thus, Michelle's change of residence was not a relocation under the express terms of the act. Moreover, the notice provisions of the act apply to a parent "with whom the child resides a majority of the time." Again, there is no such parent in this case: the child resides about equally with both parents.
We use the first names of the parties for clarity.
We hold that Michelle has not violated the terms of the parenting plan. The trial court judge properly exercised her discretion in denying David's motion for an order of contempt and vacating the commissioner's order granting attorney fees to him. We affirm.
The superior court dissolved the marriage of David Spring and Michelle Spring in 2004. Their agreed parenting plan states that their daughter is "scheduled to reside about equally with both parents." Apparently, when the court approved the plan in 2005, David and Michelle both lived in North Bend where their daughter still attends school.
In June 2006, Michelle gave David notice of her intent to move to Redmond, following the notice requirements of the relocation act. In response, David sought court relief.
In July 2006, the trial court denied David's motion to restrain Michelle's move and permitted Michelle to move pending trial. In September, the trial court denied David's motion for revision, and also denied his motion for summary judgment to restrain Michelle's move. David sought discretionary review, arguing that under the relocation act, Michelle did not have the right to move her residence. This court granted review.
In Spring I, an unpublished per curiam opinion, this court held that "[b]ecause no evidence supported a finding that Michelle was a person with whom the child resided a majority of the time under [the relocation act], she was not entitled to initiate relocation of the child by giving notice. Nor was she entitled to benefit from the [relocation act's] rebuttable presumption in favor of relocation." This court remanded for entry of summary judgment in David's favor, but did not require Michelle to move back to North Bend.
In re Marriage of Spring, No. 58916-4-I, at *3, 2007 WL 1589455 (Wn.App. Div. I June 4, 2007).
Id.
On remand, the trial court entered summary judgment for David, striking Michelle's notice, dismissing David's objection to that notice, and canceling the pending trial. The court did not order Michelle to move back to North Bend. The trial court denied David's motion for reconsideration.
David appealed the court's summary judgment order, again seeking an order requiring Michelle to move back to North Bend. This court's opinion in Spring III affirmed the trial court.
In re Marriage of Spring, No. 60711-1-I, 2008 WL 699255 (Wn.App. Div. I March 17, 2008), review denied, No. 81816-9 (Wash. Oct. 2, 2008).
During this same period of time, Michelle moved to modify the parenting plan. In Spring II, this court affirmed the trial court, concluding that Michelle had not established adequate cause to require a modification hearing.
In re Marriage of Spring, No. 59711-6-I, 2008 WL 699446 (Wn.App. Div. I March 17, 2008).
In October 2007, David moved for an Order to Show Cause, arguing that Michelle was in contempt of the parenting plan by moving to Redmond. He argued that their parenting plan incorporated the notice requirements of the relocation act, which, in turn, prohibited Michelle's move. A superior court commissioner denied his motion. A commissioner also denied David's motion for reconsideration. But in an effort to resolve the matter, the commissioner ordered Michelle to bring an action and set a hearing within 60 days to address the issue of her move. The commissioner also awarded $2,000 in attorney fees to David.
David moved for revision of the portion of the commissioner's order that concluded Michelle was not in contempt. After a hearing, a superior court judge denied David's motion for revision, concluding that David's motion for contempt was properly denied and that "[t]he child relocation act has no application in this case." Further, the judge ordered that Michelle did not need to bring an action, as the commissioner had ordered, and vacated the award of attorney fees to David. The judge also denied both parties' requests for attorney fees.
David sought discretionary review, and this court ordered that this matter proceed as an appeal of right.
THE PARENTING PLAN
David argues that Michelle violated their parenting plan and the relocation act, chapter 26.09 RCW, when she changed her residence to Redmond. We hold that the relocation act does not apply to this case.
On revision of a commissioner's ruling under RCW 2.24.050, the superior court judge reviews de novo the commissioner's findings of fact and conclusions of law. On appeal, we review the superior court judge's decision, not the commissioner's.
RCW 2.24.050 provides: All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.
In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999).
RCW 2.24.050; State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004).
Our fundamental objective in reading a statute is to ascertain and carry out the legislature's intent. If a statute's meaning is plain on its face, then we must give effect to that plain meaning. Under the plain meaning rule, such meaning is derived from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question. Susceptibility to more than one reasonable interpretation renders the statute ambiguous and allows the court to employ tools of statutory construction such as legislative history to interpret the statute. But merely because two interpretations are conceivable does not render a statute ambiguous. The meaning of a statute is a question of law that we review de novo. We may affirm on any grounds supported by the record.
Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
Id.
Id. at 11-12.
Id. at 12.
Agrilink Foods, Inc. v. State of Wash. Dep't of Revenue, 153 Wn.2d 392, 396, 103 P.3d 1226 (2005).
Okeson v. City of Seattle, 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003).
LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
The facts are undisputed. This parenting plan states that "[t]he child named in this parenting plan is scheduled to reside about equally with both parents." The child still maintains the same residential schedule according to David's response to our question at oral argument of this case. Moreover, the child still attends school in the same district as she did before her mother moved.
We note that the plan does not expressly address how either parent should proceed if he or she decides to move his or her residence. As the statute requires, the parenting plan incorporates a summary of RCW 26.09.430 through .480, portions of the relocation act. But the incorporation of the summary of the act does not resolve the question whether the act applies to the facts of this case.
RCW 26.09.490 requires every court order, defined as temporary or permanent parenting plans, custody orders, visitation orders, or other orders governing residence of a child, to include a clear restatement of the provision in RCW 26.09.430 through 480.
David argues that the parenting plan here is controlled by the relocation act. Specifically, he contends that the relocation act prevents Michelle from changing her residence. He contends that Michelle is in violation of the parenting plan because she moved outside their daughter's school district. He asks for the extraordinary relief that Michelle "return[] [her residence] to the . . . school district [where their child attends] immediately," and he seeks modification of the parenting plan to require the child to stay with him on all school nights until Michelle complies. We reject these arguments.
RCW 26.09.410, the definitions section of the act, states:
(2) "Relocate" means a change in principal residence either permanently or for a protracted period of time.[]
(Emphasis added.)
RCW 26.09.430 states:
Except as provided in RCW 26.09.460, a person with whom the child resides a majority of the time shall notify every other person entitled to residential time or visitation with the child under a court order if the person intends to relocate. Notice shall be given as prescribed in RCW 26.09.440 [Contents and delivery] and 26.09.450 [How notice is given for relocation within the same school district].[]
(Emphasis added.)
Although neither the act nor the parenting plan further defines "relocate" or "principal residence," the ordinary meaning of the word "residence" is clear. And the dictionary defines the adjective "principal" as:
1: most important, consequential, or influential: relegating comparable matters, items or individuals to secondary rank[]
Webster's Third New International Dictionary 1802 (1993).
Since the child lives about equally with both parents, there is no principal residence of the child. Because there has been no change in the principal residence of the child, there has been no relocation under the express terms of the act.
We also note that under RCW 26.09.430, neither David nor Michelle qualifies as "a person with whom the child resides a majority of the time." The plain meaning of the word majority is "a number greater than half of a total." Since the child lives about equally with both parents, the child does not live with either parent a majority of the time.
Webster's Third New International Dictionary 1363 (1993).
This interpretation of the statute is also reinforced by the last part of RCW 26.09.430. It states that the required notification must be given "if the person [with whom the child resides a majority of the time] intends to relocate." As already discussed, because neither David's nor Michelle's residence is a principal residence, a move by either parent does not qualify as a relocation under the act. Accordingly, the plain language of RCW 26.09.430 does not require either David or Michelle to give notice before moving. This was the essence of this court's holding in Spring I.
See In re Marriage of Spring, No. 58916-4-I, at *3, 2007 WL 1589455 (Wn.App. Div. I June 4, 2007).
Michelle has not violated the relocation act by moving her residence to Redmond. Simply stated, there has been no relocation, as expressly defined by the act.
David makes a number of arguments to avoid the clear language of the act defining relocation and the terms under which a parent must give notice of relocation. None of his arguments is meritorious.
First, he relies on language found in RCW 26.09.405 that states:
(1) The provisions of RCW 26.09.405 through 26.09.560 and the chapter 21, Laws of 2000 amendments to RCW 26.09.260, 26.10.190, and 26.26.160 apply to a court order regarding residential time or visitation with a child issued:
(a) After June 8, 2000. . . .
He also relies on the following language found in RCW 26.09.490:
Unless waived by court order, after June 8, 2000, every court order shall include a clear restatement of the provisions in RCW 26.09.430 through 26.09.480.
The latter statute directs incorporation of a summary of the provisions of the relocation act into all parenting plans after the designated date. But the requirement to incorporate the language of the act does not, in our view, answer the question whether mere incorporation requires compliance with the provisions of the act. A plain reading of the parenting plan in this case shows that there is no such order in it. Likewise, the mere incorporation of the provisions of the act into all parenting plans after June 8, 2000, by itself, does not answer the question whether specific provisions of the act apply to this situation.
We also conclude that RCW 26.09.405, while containing sweeping language to the effect that it applies to all parenting plans entered after June 8, 2000, does not answer the question here: whether there has been a relocation as specifically defined by the relocation act. As we have explained, the plain words of the statute show there has not been a relocation under the circumstances of this case. The act does not apply.
Next, David argues that the legislative history of the relocation act supports his argument. He cites to colloquy between members of the House of Representatives on the day that the act passed:
Representative Carrell: How does this act apply in situations in which the child resides an equal amount of time with each parent?
Representative Constantine: Under such circumstances, the notice requirements apply to both parties and the presumption to neither.[]
1 House Journal 56th Leg., Reg. Sess., at 551 (Wash. 2000).
But David's reliance on legislative history is misplaced. Only where the statute is ambiguous will this court resort to aids such as legislative history to ascertain the meaning of the words of a statute. Here, the words set forth in RCW 26.09.410 and RCW 26.09.430 are not ambiguous. It is evident from the plain language of these statutes that there has been no relocation and notice of mother's change of residence was not required.
Dep't of Ecology, 146 Wn.2d at 12.
David next asserts that RCW 26.09.410, 430, and 450 state three thresholds in the act that prohibit a parent sharing about equal residential time of the child from relocating the child outside of the child's school district. We disagree.
A plain reading of RCW 26.09.410 and 430 shows there has been no relocation in this case and that notice was not required for Michelle's move. Furthermore, the alleged intent of stakeholders involved in drafting this legislation is simply irrelevant to the legislature's intent as expressed in the plain words of the statute, which we already discussed.
David next argues that the words "principal residence" in RCW 26.09.410(2) include the residences of both parents who share about equal residential time with the child. This makes no sense.
Our chief problem with this argument is that the statute does not state principal residences. Rather, the plain words of the statute state the singular, principal residence. We will not read into the statute words that are not there.
Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002).
Similarly, David argues that RCW 26.09.450 clarifies that the legislature intended "principal residence" to include any residence where the child spends school nights. RCW 26.09.450 prevents a person who is entitled to residential time with the child from objecting to a child's relocation unless the relocation is outside the "school district in which the child currently resides the majority of the time." David also gives significance to the fact that the statute's drafters did not insert the word "the" before "principal residence," thus indicating there can be more than one principal residence.
These arguments are not persuasive. They fail to deal with the plain meaning of the words defining relocation, which we previously discussed in this opinion. Likewise, they fail to deal with our discussion concerning who is required to give notice of relocation under the act.
David next argues that RCW 26.09.430 defines who must give notice under the act. We agree and that is what we held in Spring I. But we disagree with David's additional argument that somehow this statute prohibits either parent who shares about equal residential time with their child from moving outside the child's school district. RCW 26.09.410 and 430 impose no such requirement.
Citing our opinion in Spring I, David next argues that Michelle's move allows her to benefit from the act, contrary to language in that opinion. We are also unpersuaded by this argument.
In Spring I, this court held that "[Michelle] was not entitled to initiate relocation of the child by giving notice. Nor was she entitled to benefit from the [relocation act's] rebuttable presumption in favor of relocation." Our statement in Spring I simply indicated that those requirements of the act were inapplicable in this case. That continues to be true. Moreover, the fact that the act does not prohibit Michelle from moving or require her to give notice before moving does not mean that she is benefiting from the act as David claims.
In re Marriage of Spring, No. 58916-4-I, at *3, 2007 WL 1589455 (Wn.App. Div. I June 4, 2007).
David next argues that Michelle violated the parenting plan because the plan requires Michelle to give notice if she moves outside the school district. This parenting plan summarizes the relocation act's provisions, as all parenting plans must now do. But it does not impose any requirement for Michelle to give notice if she moves outside the school district where the child attends school. This argument is without any legal basis. As discussed above, the act does not require such notice here.
We acknowledge that a temporary order permitted Michelle to move in Spring I, pending final resolution of certain issues. But the temporary order is now irrelevant since she never was required to give notice under the act. Michelle's move has not violated the relocation act or the parenting plan.
David next argues that to get the relief he seeks, the act does not require any further litigation by him other than requesting a hearing under RCW 26.09.510. The simple answer to this argument is that since the relocation act does not apply, as we have explained, this argument is moot.
David next argues that neither he nor Michelle may relocate the child whenever and wherever they wish without giving notice. The simple answer to this argument is that, under the statute, so long as the child resides about equally with both parents, no notice by either parent to the other is required for that parent to move.
In sum, the relocation act does not apply to this case where both parents share about equal residential time with the child. As we held in Spring I, Michelle was not required to give notice of her move to Redmond, although she gave David actual notice of that move. Moreover, nothing requires Michelle to move back to the school district where the child attends school.
To the extent David argues matters in his reply brief that were not raised in his opening brief, we decline to consider them.
See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (Arguments first raised in a reply brief are not generally addressed.); RAP 10.3(c).
Contempt
David argues the trial court abused its discretion by denying his motion for contempt. He is wrong.
We review a trial court's decision on a motion for contempt for abuse of discretion. The trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.
In re Personal Restraint of King, 110 Wn.2d 793, 798, 756 P.2d 1303 (1988).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the trial court properly concluded that nothing in the parenting plan or the relocation act required Michelle to give notice of her move to Redmond. Thus, the trial court properly concluded that Michelle did not violate the parenting plan. Without finding a violation of the parenting plan, the court had no basis to conclude Michelle was in contempt of a court order. Accordingly, the trial court judge did not abuse her discretion by denying David's motion for contempt.
ATTORNEY FEES
Both David and Michelle seek relief regarding attorney fees. We affirm the trial judge's order vacating the award of fees to David below. We also grant attorney fees to Michelle on appeal, subject to her compliance with RAP 18.1.
In Washington, a party may recover attorney fees only when they are authorized by a private agreement, statute, or recognized ground of equity. A court may award attorney fees on the basis that one party's intransigence caused the other party to incur additional legal fees. Courts have awarded attorney fees based upon intransigence where one party engaged in "foot-dragging" and obstruction, repeatedly filed motions that were unnecessary, or simply made the trial unduly difficult and increased legal costs by his or her actions. We review a trial court's denial of attorney fees for abuse of discretion.
Mellor v. Chamberlin, 100 Wn.2d 643, 649, 673 P.2d 610 (1983).
In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006).
Eide v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969).
Chapman v. Perera, 41 Wn. App. 444, 455-56, 704 P.2d 1224 (1985).
In re Marriage of Morrow, 53 Wn. App. 579, 591, 770 P.2d 197 (1989).
Emmerson v. Weilep, 126 Wn. App. 930, 940, 110 P.3d 214 (2005) (citing Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 148, 859 P.2d 1210 (1993)).
David claims that because Michelle is in contempt of the parenting plan, he is entitled to attorney fees and sanctions under RCW 26.09.160,
RCW 26.09.160(1) permits the court upon a finding a party in contempt of court for failing to comply with provisions of a court order to award the aggrieved party reasonable attorney fees and costs incidental to bringing a motion for contempt.
RCW 26.09.470, and on equitable grounds. Because the trial court properly denied David's motion for contempt, attorney fees and sanctions cannot be justified. Likewise, David is also not entitled to attorney fees or sanctions on appeal.
RCW 26.09.470 permits the court to award sanctions against a party that fails to comply with the notice requirements of the relocation act.
Michelle seeks attorney fees on appeal based on David's intransigence. She argues that David's extensive litigation raising the same issues again and again, his repeated appeals, and his insistence on appearing pro se have caused her to extensively litigate her move for more than two years, resulting in increased legal costs. We agree. Accordingly, Michelle is entitled to reasonable attorney fees, subject to her compliance with RAP 18.1.
In Spring I, we noted the need for a definitive determination of the issues regarding the relocation act. For the reasons explained in that case, we limited our holding to the circumstances and procedural posture of that case. We also declined to give that case precedential value and, therefore, filed it as an unpublished decision.
For similar reasons, we decline to give this opinion precedential value by ordering its publication. To be clear, the parties to this case are, nevertheless, bound by this decision.
The legislative intent expressed in the plain words of the relocation act is clear. Should the legislature decide to modify its clear intent, it is free to do so.
We affirm the order on revision and award attorney fees on appeal to Michelle, subject to her compliance with RAP 18.1.
WE CONCUR: