Opinion
No. 40307–2–II.
2011-12-20
In re the MARRIAGE OF Kelly WEHR, Appellant,andGuy Wehr, Respondent.
Steve A. Robins, Northwest Justice Project, Port Angeles, WA, for Appellant. Mark Kevin Baumann, Attorney at Law, Port Angeles, WA, for Respondent.
Steve A. Robins, Northwest Justice Project, Port Angeles, WA, for Appellant. Mark Kevin Baumann, Attorney at Law, Port Angeles, WA, for Respondent.
PART PUBLISHED OPINION
JOHANSON, J.
¶ 1 Kelly Wehr appeals the trial court's denial of her request to relocate with her two children. In the published portion of our opinion, we hold that the trial court correctly applied a preponderance of the evidence standard when evaluating whether Guy Wehr rebutted the presumption allowing the primary parent to relocate children. In the unpublished portion of this opinion, we hold that substantial evidence supports the trial court's findings and affirm the trial court's decision to deny Kelly's relocation of the children.
We refer to Kelly and Guy by their first names for clarity to the reader and intend no disrespect.
FACTS
¶ 2 Kelly and Guy are the parents of two children. As part of their dissolution proceedings, the Clallam County Superior Court entered a parenting plan in April 2005 designating Kelly the primary residential parent. In August 2009, Kelly filed a “Notice of Intended Relocation of Children” stating her intent to move with the children from Clallam County to Clark County. Clerk's Papers (CP) at 73. Guy objected to the relocation. The trial court denied Kelly's request to relocate after applying a preponderance of evidence standard and finding that the detrimental effects of the relocation would outweigh the benefits to the children and their mother. Kelly timely appeals.
ANALYSIS
Standard of Proof for Rebutting Presumption in Favor of Relocation
¶ 3 Kelly contends that the presumption allowing relocation must be rebutted by clear, cogent, and convincing evidence. Guy contends the trial court correctly applied the preponderance of the evidence standard. We discern no error.
¶ 4 Washington's child relocation act is codified at RCW 26.09.405–.560. The act imposes notice requirements and sets standards for relocating children who are the subject of court orders regarding residential time. In re Custody of Osborne, 119 Wash.App. 133, 140, 79 P.3d 465 (2003). “Relocate” under the act means “a change in principal residence either permanently or for a protracted period of time.” RCW 26.09.410(2). A person “with whom [a] child resides a majority of the time” must provide notice of an intended relocation to every person entitled to residential time with the child. RCW 26.09.430. If a person entitled to residential time objects, the person seeking to relocate the child may not do so without a court order. RCW 26.09.480(2).
¶ 5 A trial court must conduct a fact-finding hearing, at which the relocating parent benefits from a rebuttable presumption that the relocation is allowed. RCW 26.09.520. The relocation statute, however, does not indicate which parent bears the burden of proof during this fact-finding hearing. “Rather than contravening the traditional presumption that a fit parent will act in the best interests of the child, ... the relocation statute establishes a rebuttable presumption that the relocation of the child will be allowed.” Osborne, 119 Wash.App. at 144, 79 P.3d 465. Based on 11 different factors, the objecting person may rebut the presumption by a showing that, with regard to the child and relocating person, the detrimental effects of relocating outweigh the benefits. RCW 26.09.520; see In re Marriage of Horner, 151 Wash.2d 884, 895, 93 P.3d 124 (2004). After the hearing, the trial court has authority “to allow or not allow a person to relocate the child” based on an overall consideration of the RCW 26.09.520 factors and the child's best interests. RCW 26.09.420; In re Parentage of R.F.R., 122 Wash.App. 324, 328, 93 P.3d 951 (2004); In re Marriage of Grigsby, 112 Wash.App. 1, 7–8, 57 P.3d 1166 (2002).
¶ 6 Here, we must evaluate whether the trial court erred by applying a preponderance of the evidence standard to a parent trying to rebut the presumption favoring a primary residential parent's decision to relocate a child. This is a question of first impression in Washington courts. We review de novo alleged errors of law to determine the correct legal standard. In re Marriage of Fahey, 164 Wash.App. 42, 262 P.3d 128, 134 (2011); In re Marriage of Kinnan, 131 Wash.App. 738, 751, 129 P.3d 807 (2006). We note that “[t]he function of a standard of proof ... is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Hardee v. Dep't of Soc. & Health Svcs., 172 Wash.2d 1, 7–8, 256 P.3d 339 (2011) (internal quotations omitted) (quoting Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)).
¶ 7 We hold that the trial court correctly applied the preponderance of evidence standard to rebut the statutory presumption favoring a primary residential parent's relocation decision. In part, we rely on similarities between relocation hearings and dependency proceedings—which apply a preponderance of evidence standard—rather than termination proceedings, which apply the more burdensome clear and convincing standard. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Dependency of Schermer, 161 Wash.2d 927, 942, 169 P.3d 452 (2007); In re Chubb, 46 Wash.App. 530, 536, 731 P.2d 537 (1987).
¶ 8 We recognize the significant interests at stake in child relocation cases. A parent's ability to relocate with their children is a significant interest that we do not take lightly. See In re Custody of A.C., 165 Wash.2d 568, 578–82, 200 P.3d 689 (2009) (J.M. Johnson, J. concurring); R.F.R., 122 Wash.App. at 332–33, 93 P.3d 951. But, it is important to note that the substantial right to parent one's children belongs to both parents. In re Custody of Smith, 137 Wash.2d 1, 13–14, 969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); accord Santosky, 455 U.S. at 753, 102 S.Ct. 1388.
¶ 9 Under current Washington law, various standards of proof exist for other family law issues concerning children depending on the impact a decision will have on the substantial right to parent one's own child. Due process requires clear and convincing evidence for the State to terminate parental rights. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This higher standard applies because, in a termination proceeding, parents face forced dissolution of their parental rights by the State, which has the power to “destroy permanently all legal recognition of the parental relationship.” Rivera v. Minnich, 483 U.S. 574, 580, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987). Likewise, clear and convincing evidence is required to overcome a natural parent's rights in nonparental custody actions. In re Custody of C.C.M., 149 Wash.App. 184, 204–05, 202 P.3d 971 (2009). In contrast, the preponderance of the evidence standard is sufficient for due process in dependency proceedings. Schermer, 161 Wash.2d at 942, 169 P.3d 452; Chubb, 46 Wash.App. at 536–37, 731 P.2d 537. Unlike a termination hearing, a determination of dependency does not sever all contacts between a parent and child and is a reversible decision. Chubb, 46 Wash.App. at 536, 731 P.2d 537.
¶ 10 Because both parents in a relocation dispute have a substantial right to parent their child, the applicable standard of proof must protect both of their interests. See Smith, 137 Wash.2d at 13–14, 969 P.2d 21. This aspect of relocation proceedings alone strongly suggests that a lower standard of proof, like the preponderance of evidence standard, applies. Otherwise, one parent's rights would be inappropriately subordinate to the other parent's rights. Adopting the clear, cogent and convincing standard, as Kelly argues, would create an unnecessarily high burden of proof that minimizes the objecting parent's rights to care for his or her children. See, e.g., R.F.R., 122 Wash.App. at 331–33, 93 P.3d 951.
¶ 11 In addition, relocation proceedings, like dependency proceedings, neither sever all contact between the non-residential parent and child nor permanently remove legal recognition of parental status. See Chubb, 46 Wash.App. at 536, 731 P.2d 537. Furthermore, relocation decisions and their effects can be re-evaluated, and parenting plans altered, if the non-residential parent moves to modify the new parenting plan under RCW 26.09.260. See Fahey, 262 P.3d at 141 n. 10.
¶ 12 Accordingly, we hold that due process is satisfied when a preponderance of the evidence standard is applied to rebut the statutory presumption favoring a primary residential parent's relocation decision.
¶ 13 We affirm.
¶ 14 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
******UNPUBLISHED TEXT FOLLOWS******
Substantial Evidence Supports the Trial Court's Findings
¶ 15 Next, Kelly argues that, even under the preponderance of the evidence standard, the record does not support some of the trial court's key findings of fact. Specifically, Kelly assigns error to the trial court's findings related to RCW 26.09.520 factors (3), (5), (6), (7), (8), and (10), arguing that substantial evidence does not support the findings. We disagree.
¶ 16 Our recent decision in Fahey outlines the different standards of review, and their interplay, that we apply in our review of child relocation issues:
We review challenges to a trial court's factual findings for substantial evidence. We uphold trial court findings that are supported by substantial evidence. Substantial evidence exists if the record contains evidence of a sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. We review conclusions of law to determine whether factual findings that are supported by substantial evidence in turn support the conclusions. Within the confines of these standards, the trial court has discretion to grant or deny a relocation after considering the RCW 26.09.520 relocation factors and the interests of the children and their parents. We defer to the trial court's ultimate relocation ruling unless it is manifestly unreasonable or based on untenable grounds or untenable reasons under the abuse of discretion standard. Fahey, 262 P.3d at 134–35 (citations omitted).
¶ 17 In relocation proceedings, a trial court must consider 11 factors to determine whether the detrimental effect of a proposed relocation outweighs its benefits:
We have listed only the six factors contested in this matter.
(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
...
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent;
...
(10) The financial impact and logistics of the relocation or its prevention. RCW 26.09.520; see Horner, 151 Wash.2d at 894–95, 93 P.3d 124.
A. RCW 26.09.520(3)-Disrupting Contact Between Child and Parents
¶ 18 The trial court found that “any significant disruption in contact with their father would have a damaging impact on the children.” CP at 12. Kelly argues that there is no factual basis for this finding in the record. We disagree.
¶ 19 The record is replete with evidence that Guy has an irreplaceable bond with the children. In an unchallenged finding demonstrating this bond the trial court stated, “This is a father who has never missed a support payment, has never missed an hour of visitation available to him, and has built a home in Sequim designed around the needs of his children.” CP at 12. Guy testified that he routinely takes the children skiing at Hurricane Ridge and Crystal Mountain, crabbing in Sequim Bay, and camping at nearby lakes. Also, a relocation to Vancouver, would limit the children's relationships with their paternal grandmother and aunt who live in Sequim. Contrary to Kelly's argument, substantial evidence supports the trial court's finding that a significant disruption in contact between Guy and the children would have a damaging impact on them.
Unchallenged findings are verities on appeal. Robel v. Roundup Corp., 148 Wash.2d 35, 42, 59 P.3d 611 (2002); In re Marriage of Vander Veen, 62 Wash.App. 861, 865, 815 P.2d 843 (1991).
B. RCW 26.09.520(5)—Good Faith and Reasons for Seeking/Opposing Relocation
¶ 20 The trial court found that Kelly and Guy demonstrated good faith reasons in seeking and opposing the relocation. Kelly argues that Guy's objections are not “good faith” objections but are mere objections because Guy “does not want anything to change.” Br. of Appellant at 31. But substantial evidence supports a finding that Guy made his objection in good faith.
¶ 21 As an initial matter, for the first time on appeal, Kelly objects to the trial court's reliance on Michael Aldrich's testimony. Although Guy attempted to qualify Aldrich as an expert witness on child mental health and custody issues, the trial court expressly declined to certify him as an expert, but it said it would “listen to his expert opinions .... [u]nless there is an objection and then we'll deal with it.” Report of Proceedings (RP) (Dec. 8, 2009) at 35–36. Kelly objected only to a question about changing custodial status to Guy, asking Gary what impacts he anticipated a custodial change to have on the children, and a question she believed called for “conjecture.” RP (Dec. 8, 2009) at 44. Consequently, Kelly failed to preserve this issue for review on appeal. RAP 2.5(a). Moreover, the trial court's memorandum opinion makes no reference to Aldrich's testimony as a reason for supporting its good faith finding with regard to Guy. The trial court's explanation exclusively discusses its perception of Guy's testimony. We do not review credibility determinations or weigh evidence on appeal. In re Marriage of Meredith, 148 Wash.App. 887, 891 n. 1, 201 P.3d 1056, review denied, 167 Wash.2d 1002, 220 P.3d 207 (2009).
Regardless, we note that Aldrich was qualified to be an expert witness in this case. A witness may be qualified as an expert through “knowledge, skill, experience, training, or education.” ER 702. Aldrich has a bachelor's degree in psychology and a master's degree in psychology with an emphasis on children and adolescence psychology. He is licensed as a mental health counselor and a child mental health specialist. Aldrich has worked as a psychotherapist for 10 years before transitioning into working as a mental health counselor and a child protective service worker for a little over six years. He has also previously testified as an expert witness with regard to custody issues, child placement issues, and child mental health issues.
¶ 22 Guy also presented evidence that the children currently enjoy regular visits with their paternal grandmother and aunt in Sequim, contact that would be reduced if the children moved to Vancouver. Guy saved money for several years to build a home designed around the children's needs, and he is currently heavily involved in their school and activities. Also, the outdoor activities that the children currently enjoy would not occur as frequently, as evidenced by Kelly's proposed parenting plan that recommends severely reducing Guy's residential time. All of this evidence supports the trial court's finding that Guy objects to the relocation in good faith.
C. RCW 26.09.520(6)—Impact of Relocation on Child's Development
¶ 23 The trial court found that the children “are doing very well under the status quo, and the disruption caused by the proposed relocation would necessarily have a negative impact on them, at least for the short term.” CP at 13. Kelly contests the trial court's reliance on a study and Aldrich's testimony to reach its conclusion. Aldrich's testimony aside, the record here contains substantial evidence to support the court's finding that disrupting the children's current situation would negatively affect them, at least in the short term.
¶ 24 After Kelly and Guy's divorce, G.W. experienced behavioral issues in school, including throwing bark at other children in the schoolyard, inappropriately hugging other children, and pulling the fire alarm. Guy testified that he believes G.W.'s behaviors were likely due to his emotional confusion over the divorce. G.W. has since changed his behavior, which Guy attributes to G.W. having had time to adapt to the divorce. As for E.W., the trial testimony primarily focused on a close friendship with another girl and some school and community activities. Trial testimony also highlighted that both children have regular contact with their paternal grandmother and aunt, they enjoy various activities inside and outside of school, and they regularly experience the outdoors. Accordingly, substantial evidence supports the trial court's finding with regard to RCW 26.09.520 factor six.
D. RCW 26.09.520(7)—Quality of Life in Current and Proposed Locations
¶ 25 The trial court found that the proposed relocation is not “in any way better than the children's current situation.” CP at 14. Kelly argues that this statement indicates that the trial court placed the burden on her to show that the relocation is necessary. But, the trial court's written memorandum opinion expressly states that it determined that Guy rebutted the presumption in favor of Kelly's proposed relocation.
¶ 26 Substantial evidence also supports the trial court's findings related to this relocation factor. Kelly insists that Vancouver has more job opportunities than Sequim, but she offered no evidence to support this assertion. Guy presented testimony that the unemployment rate in Clallam County is lower than in Clark County. Moreover, all the evidence we outlined supports the trial court's finding that Guy's objections were made in good faith, including the children's connections with his family, a home designed to meet the children's needs, and Guy's involvement in the children's lives and taking them on outdoor adventures. Kelly's proposed parenting plan recommended severely reducing Guy's residential time, which would have significantly altered the children's current quality of life.
¶ 27 Here, the trial court did not shift the burden to Kelly to prove the necessity of her proposed relocation. Substantial evidence also supports the trial court's findings on this relocation factor.
E. RCW 26.09.520(8)—Available Alternatives to Continue Relationship with Non–Relocating Parent
¶ 28 The trial court found that Kelly's proposed parenting plan has “the unfortunate characteristic of substituting quantity [of time] for quality [of time].” CP at 16. Kelly argues that the trial court misapplied relocation factor eight. We disagree.
¶ 29 First, the net effect of the modified parenting plan is to reduce Guy's available residential time. Without the weekday visitation rights that Guy currently enjoys, the children will lose their father's current involvement in weekday activities.
¶ 30 Second, although the parenting plan gives Guy eight uninterrupted weeks in the summer, the court did not abuse its discretion in finding that this block of time only “looks good on paper.” CP at 15. Guy only has two weeks of paid vacation. The reality is that Guy would need to work for six weeks during his summer time with the children and, consequently, he would need to leave the children with a caregiver much of this time. Third, each weekend visit in the modified parenting plan would entail a five-hour round trip to get the children in Olympia and a five-hour round trip to drop them back off. This commute would negatively affect the children's time spent with their father in outdoor recreational activities. The trial court properly analyzed this factor; no available alternatives exist for the children to continue the type of relationship they currently enjoy with their father.
F. RCW 26.09.520(10)—FINANcial impaCt of reloCation
¶ 31 Finally, the trial court found that Kelly's job prospects in Vancouver were “purely speculative.” CP at 16. Kelly argues that the trial court ignored her clear and uncontroverted testimony about her connections in Vancouver, and it failed to consider the benefits of the relocation. We disagree with Kelly.
¶ 32 Kelly testified about her job experience and her contacts in Vancouver. She testified about job possibilities with the city or her uncle. But, while this evidence shows that she has looked for employment in Vancouver, Kelly has not received any firm job offers. Further, although Kelly believes job prospects in Vancouver are better than in Sequim, she offered no evidence to support her belief. Guy presented the only evidence on this issue, which showed that Clark County has a higher unemployment rate than Clallam County. We do not review credibility determinations or weigh evidence on appeal. Meredith, 148 Wash.App. at 891 n. 1, 201 P.3d 1056. We will not disturb the trial court's findings.
Attorney Fees
¶ 33 Guy requests attorney fees arguing that Kelly's appeal is frivolous. “An appeal is frivolous if, considering the entire record and resolving all doubts in favor of the appellant, the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ, and that it is so devoid of merit that there is no possibility of reversal.” Ramirez v. Dimond, 70 Wash.App. 729, 734, 855 P.2d 338 (1993). This appeal is not frivolous, and, therefore, we decline Guy's attorney fees request.
¶ 34 We affirm the trial court's denial of Kelly's relocation request, and we deny Guy's request for attorney fees.