Opinion
No. 30598-4-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No. 98-3-00162-0. Judgment or order under review. Date filed: 09/05/2003. Judge signing: Hon. Kenneth Day Williams.
Counsel for Appellant(s), Lori Ann Ferguson, Gregerson Langsdorf, 415 E 17th St, Vancouver, WA 98663-3423.
Counsel for Respondent(s), Karen L. Unger, Attorney at Law, 332 E 5th St, Port Angeles, WA 98362-3207.
Candace Feldewert (now McDaniel) appeals modification of a final parenting plan naming Edward Feldewert the residential custodian of their two children. She asserts the following errors: (1) the trial court failed to consider Feldewert's history of domestic violence when determining the children's residential schedule, (2) substantial evidence does not support the trial court's finding that she provided an environment detrimental to the children's emotional health, and (3) the trial court abused its discretion in ordering a change of primary residential parent. We affirm.
FACTS
On May 19, 1998, Feldewert and McDaniel began dissolution proceedings. Feldewert and McDaniel have two daughters, now ages 7 and 8. Following trial, the court issued a final parenting plan on February 23, 2001.
The trial court awarded residential custody to McDaniel and visitation to Feldewert. In its oral ruling, the trial court stated that McDaniel had a `fragile personality.' Clerk's Papers (CP) at 121. Although it noted that Feldewert `fit all of the classic definitions of [a] domestic violence perpetrator,' the court also indicated that `[b]etween the two of them there managed to be provocation and response and domestic violence [that] occurred in front of the children.' CP at 121. The court ordered Feldewert to `either undergo domestic violence perpetrators treatment or remain in individual counseling as his counselor recommends.' CP at 132. But the court did not check the box on the parenting plan that indicated he had a history of domestic violence.
Given the acrimonious nature of the proceedings, the court anticipated difficulty in implementing the final parenting plan. It warned that future contempt citations might result in modification: `[I]f there are two times that a party is held in contempt, I anticipate this will be back before the court and, frankly, if it is Mrs. [McDaniel] who is in contempt two more times, I will likely change the primary location of these children. I think it's a close enough call to make that clear.' CP at 131-32.
Fewer than five months later, Feldewert filed a petition for modification on July 16, 2001. Beginning in August 2001, the parties filed numerous motions for contempt against one another. Twice, the court found McDaniel in contempt. It also found Feldewert in contempt twice.
On January 3, 2002, Feldewert filed a second petition for modification, the subject of the current appeal. The same day, he petitioned for an immediate order changing the residential placement of the children. The court granted this ex parte motion on January 3, 2002, giving him temporary residential custody.
The court appointed Brent Basden as the guardian ad litem on January 25, 2002. And on February 8, 2002, the court found adequate cause to consider a major modification to the parenting plan.
Basden also served as the guardian ad litem in the dissolution proceeding.
At trial, Feldewert introduced several taped conversations in which both parties made inappropriate comments. Basden testified and recommended that the children continue to reside with Feldewert. McDaniel presented several witnesses on her behalf. Each described her as a loving mother who provided a stable living environment.
The trial court describes parts of the tapes in its oral ruling. It noted that Feldewert made such sarcastic statements as "welcome to Candyland" and that McDaniel told her children, "on the day you were born I was so happy that you didn't look like your Dad." Report of Proceedings (4/14/03) at 23, 24.
Cheryl Gano, an acquaintance of McDaniel, testified that she had a `bizarre' telephone conversation with McDaniel. Report of Proceedings (RP) (3/5/03) at 107. Gano believed that she heard the children `banging' and yelling, "Get me out of here." RP (3/5/03) at 109. After Gano asked, "Candy, where are your children right now? Have you locked them in a closet?" RP (3/5/03) at 109. McDaniel responded in a `slurred' voice, "I think I unlocked the door in the bedroom." RP (3/5/03) at 109.
In another exchange, McDaniel left a message on Gano's answering machine. Gano heard McDaniel accuse the children of calling their father, to which they responded, "No. No. We didn't call Daddy." RP (3/5/03) at 111. Gano then called Feldewert and alerted him to these conversations.
Gano and Feldewert were not acquainted.
The court issued its ruling on April 14, 2003, naming Feldewert the residential custodian. When determining whether a `significant change of circumstances' occurred, the court made the following statement about McDaniel:
Ms. McDaniel's fragile personality, her demeaning of Dr. Feldewert in front of the children were all issues previously before the Court. At the time of the [initial] decree, however, the Court believed these issues would be resolved by very clear and specific instructions contained in the court orders and that such actions would cease. . . . Such acts did not cease as contemplated and in some respects were exacerbated. Ms. McDaniel has been twice held in contempt of Court. . . . These matters constitute a significant change in the circumstances of the children from that contemplated by the Court at the time the decree was entered.
RP (4/14/03) at 28.
As to Feldewert, the court noted its finding in the final parenting plan that Feldewert `exhibited many of the classic symptoms of a domestic violence perpetrator' and "between the [two] of them there managed to be provocation and response and domestic violence [that] occurred in front of the children." RP (4/14/03) at 6. When addressing whether the children's best interests would be served by modification, the court stated:
Dr. Feldewert has addressed the Court's initial concerns about him. The Court's concerns about [him] remain that as between he and Ms. McDaniel he continues to exhibit a great deal of animosity through sarcasm and the like. Ms. McDaniel expresses a concern that his actions in regards to this entire matter are merely an additional means of him controlling her through — by withholding the children from her. Certainly the Court has previously noted that Dr. Feldewert is an individual who was controlling in his relationship with Ms. McDaniel, there's no doubt that some of his contacts and messages to her exhibit a similar continuing type of controlling and animosity behavior.
This apparently refers to Feldewert's counseling for domestic violence.
There's no evidence, however, that his interests in the children are anything other than those of a concerned and active parent.
RP (4/14/03) at 29.
When discussing the children's environment with McDaniel, the court noted as follows:
To the extent she's been unable to get past fears and paranoia regarding Dr. Feldewert as a danger to the children, their residing with her is likely to serve, in the opinion of the Court, as a continual forum of their emotional battering over their relationship with their father. . . . [S]he continues to make comments to these children which the Court believes firmly down the road is going to lead to significant emotional problems for them. Keeping them in an environment where this sort of haranguing can continue on a significant and perhaps full time basis would be detrimental to their emotional well being.
RP (4/14/03) at 30-31.
Finally, the court noted that Feldewert provided a `stable, secure environment' as the temporary residential custodian. RP 4/14/03 at 31.
McDaniel appeals.
ANALYSIS
Citing RCW 26.09.191, McDaniel argues that the trial court erred because it failed to consider Feldewert's history of domestic violence in the modification proceedings. We disagree.
RCW 26.09.191, the statute delineating restrictions in temporary or permanent parenting plans, provides in relevant part:
(2)(a) The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct: . . . (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1). . . .
Under RCW 26.50.010(1), the term `domestic violence' includes `(a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members.'
. . . .
(n) 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) . . . of this subsection, 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 (a) . . . of this subjection.
Here, the court ordered Feldewert to attend treatment or counseling for domestic violence. But it did not check the `history of acts of domestic violence' box on the final parenting plan. CP at 105.
Without citation to the record or supporting authority, McDaniel claims that the trial court found that Feldewert had a history of domestic violence. Thus, she argues, the trial court erred in failing to consider this history.
But the trial court did not make such a finding in the dissolution proceedings. As such, the trial court's actions were not governed by the terms of RCW 26.09.191 and McDaniel's argument fails.
McDaniel next contends that substantial evidence does not support the trial court's finding that she provided an environment detrimental to the children's emotional health. She further claims that the trial court abused its discretion when it ordered a change of primary residential parent.
In both claims, McDaniel argues that the trial court erroneously applied the `friendly parent' doctrine, where the court places the children with the parent most likely to foster the child's relationship with the other parent. Washington has rejected the `friendly parent' concept, making application of the doctrine an abuse of discretion. Lawrence v. Lawrence, 105 Wn. App. 683, 688, 20 P.3d 972 (2001). Because there are no indications that the trial court used the `friendly parent' concept and because its holding is supported by the record, McDaniel's argument lacks merit.
Standard of Review
`Custodial changes are viewed as highly disruptive to children, and there is a strong presumption in favor of custodial continuity and against modification.' In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). But under RCW 26.09.260(1), a trial court may modify a parenting plan based on a substantial change in the circumstances of the child or the nonmoving party such that modification is necessary to serve the best interests of the child.
RCW 26.09.260 governs modification of parenting plans and custody decrees. It states, in relevant part:
(1) . . . [T]he court shall not modify a prior . . . parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior . . . plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.
(2) In applying these standards, the court shall retain the residential schedule established by the . . . parenting plan unless:
(a) The parents agree to the modification;
(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;
(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or
(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan. RCW 26.09.260.
The trial court has broad discretion in modification proceedings. McDole, 122 Wn.2d at 610. We review decisions to modify under the abuse of discretion standard, and we will not reverse unless the trial court exercised its discretion in an untenable or manifestly unreasonable manner. In re Marriage of Velickoff, 95 Wn. App. 346, 353, 968 P.2d 20 (1998).
We uphold findings of fact if they are supported by substantial evidence. McDole, 122 Wn.2d at 610. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premise. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004).
Detrimental Environment
First, McDaniel argues that substantial evidence does not support the trial court's finding that she provided an environment detrimental to the children's emotional health. We disagree.
In its statement of policy, the Washington legislature recognized `that the [post-dissolution] relationship between the child and each parent should be fostered unless inconsistent with the child's best interests.' RCW 26.09.002. `An effort by one parent to terminate the other parent's relationship with a child can be considered detrimental to the child, and modification based on such behavior is appropriate.' Velickoff, 95 Wn. App. at 355.
In Velickoff, the former wife interfered with her former husband's relationship with their child. 95 Wn. App. at 356. She made allegations of sexual abuse, which later proved unsubstantiated. Velickoff, 95 Wn. App. at 355-56. Further, she obstructed his access to the child's medical records and restricted telephone contact. Velickoff, 95 Wn. App. at 355. We noted that her pattern of behavior was likely to recur:
There is no evidence in the record from which the trial court could have reasonably concluded that [the former wife's] destructive behavior had ceased and would not recur in the future. It was a reasonable inference that her behavior would continue because [she] had continuously interfered with [the former husband] and [the child's] father-daughter relationship from the time of the original parenting plan order until the time of trial, a period of two years.
Velickoff, 95 Wn. App. at 356.
Here, substantial evidence supports the trial court's finding that McDaniel provided an emotionally detrimental environment. Although McDaniel's actions do not rise to the level of the former wife in Velickoff, substantial evidence demonstrated that she interfered with the relationship between Feldewert and the children.
For example, McDaniel consistently disparaged Feldewert in front of the children. And the guardian ad litem testified that McDaniel actively worked to alienate the children from their father. Further, he stated that McDaniel told the children that Feldewert was a bad parent.
Specifically, Basden testified as follows:
[McDaniel's] preoccupation with what she perceives to be the father's danger to the children clouds her ability to parent these children in a way that does not alienate them from their father.
And I believe that she actively works to alienate the children from their father, and I believe that the things that she says to them . . . are destructive.
RP (3/5/03) at 20-21.
Basden stated, `I don't believe that it makes sense for the children to reside primarily in a situation where they are taught that one parent is bad. And I believe absolutely that that is what the mother believes, and I believe that she communicates it to the children.' RP (3/5/03) at 25.
Moreover, the taped conversations substantiate Basden's testimony. In its oral ruling, the court noted that McDaniel, in a conversation she knew to be recorded, told the children: "I am so angry right now, I am not angry at you, your Daddy just did something horrible today, he made it so I can't come see you today. I hate what your Daddy is doing, I know you do, too. He hurts a lot of people doesn't he and he really doesn't care." RP (4/14/03) at 24. In another recorded conversation, she stated, "on the day you were born I was so happy that you didn't look like your Dad." RP (4/14/03) at 24.
Although neither Feldewert nor McDaniel are blameless here, sufficient evidence exists to persuade a fair-minded, rational person that McDaniel interfered with the relationship of Feldewert and the children. This created an environment detrimental to the children's emotional well-being. Accordingly, we reject McDaniel's argument.
Change of Primary Residential Parent
Second, McDaniel asserts that the trial court abused its discretion when it named Feldewert the residential custodian. Again, we disagree.
Under RCW 26.09.260(2), a trial court must retain the residential schedule unless, inter alia, (1) the child's present environment is detrimental to her emotional health and any benefits of the changed environment outweigh any likely harms, or (2) the court held the nonmoving party in contempt at least twice in three years for failure to comply with the residential provisions.
Here, the court did not abuse its discretion when it made Feldewert the primary residential parent. As noted above, substantial evidence supports the trial court's finding that McDaniel provided an emotionally detrimental environment. Further, the court held McDaniel, the nonmoving party, in contempt twice for failure to comply with the residential provisions of the final parenting plan. These comprise alternative grounds to modify the parenting plan under RCW 26.09.260(2).
Based on these determinations, the court properly exercised its discretion and we affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.