FILED
MARCH 26, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Parenting and Support of: ) No. 30687-9-111 ) AUTUMN KERN, ) ) LISA JAMESON, ) ) Respondent, ) UNPUBLISHED OPINION ) and ) ) DERRICK KERN, ) ) Appellant. )
KULIK, 1. - When creating a residential schedule, a trial court considers seven
statutory factors, which include the parents' work schedules. RCW 26.09.1 87(3)(a). The
trial court here rejected Derrick Kern's proposed residential schedule for his daughter,
Autumn. The court ordered a more traditional schedule and provided that Mr. Kern could
have a three-day visit every month ifhe used paid time off to accommodate it. On appeal,
Mr. Kern argues the court abused its discretion by failing to consider the seven statutory
factors and by requiring him to use his paid days off for additional visitation. We
conclude that the trial court did not abuse its broad discretion, and we affirm the court's No. 30687-9-III In re Parentage ofAutumn Kern
order.
FACTS
Lisa Jameson and Derrick Kern have a daughter, Autumn, born in 2005. Ms.
Jameson and Mr. Kern never married. They had an "on-againloff-again" relationship for
several years and broke up for good in early 2010. Report of Proceedings (RP) at 15.
In the summer of 20 10, Ms. Jameson petitioned for a final parenting plan in which
she was the primary residential parent. Before trial, Mr. Kern indicated that he wanted to
be the primary residential parent. However, he agreed at trial that Ms. Jameson should be
the primary residential parent.
A. Evidence at Trial
At trial, the parties presented evidence on the seven statutory factors that the trial
court must consider when deciding residential provisions. I They presented the following
evidence on each factor:
1. The agreements of the parties, provided they were entered into knowingly and voluntarily
Both parents testified that they had been unable to agree on any provisions of a
final parenting plan.
No. 30687-9-111 In re Parentage ofAutumn Kern
2. Each parent's employment schedule
Mr. Kern testified that he worked full time as a firefighter. He worked only nine
days per month. He worked those days in 24 hour shifts, followed by 48 hours off, in a
cycle that repeated itself every three weeks.
In addition to his regular days off, he had three weeks of vacation and 13 "Kelly
days" per year. Kelly days are paid days off. He testified that he was not proposing that
the court use the Kelly days in the residential schedule, but that he was willing to use
those days to make himself available for Autumn. He also testified that he could trade
days offwith co-workers.
Ms. Jameson testified that she worked full time, but had a flexible schedule. She
could usually come and go from her work freely and could work from home.
3. The wishes of the parents
Mr. Kern proposed a schedule based on their temporary residential schedule at the
time of trial. Both schedules divided residential time nearly equally and were based on
Mr. Kern's work schedule. The proposed schedule followed a three-week rotation that
paralleled Mr. Kern's work schedule, which meant that Mr. Kern would not see Autumn
on the same days every week.
3 No.30687-9-III In re Parentage ofAutumn Kern
In the temporary schedule, there was also a time every month when Autumn did
not see Mr. Kern for an entire week. His proposed schedule broke up that week with an
additional visit. It also required the parties to exchange Autumn as many as 16 times per
month.
Ms. Jameson proposed a schedule that gave Mr. Kern one overnight visit and one
evening visit each week. She testified that they used that schedule sometime between
August 2008 and July 2009 and that it worked well.
4. The emotional needs and developmental level of the child
At the time of trial, Autumn was several months from beginning kindergarten.
The parties disputed how well she had adjusted to the current residential schedule.
Mr. Kern testified that Autumn had adapted well to the schedule and that she liked
going back and forth between two homes. He also stated that the only problem with the
current schedule was that, just prior to the seven-day absence from him, Autumn would
become withdrawn and resistant to going to preschool. His girl friend, who he has since
married, Amanda Kern, testified that Autumn understood her schedule.
Ms. Jameson testified that the current schedule was not working well for Autumn.
She explained that Autumn did not know where she would be or who she would be with
from day to day. She also testified that, when Autumn would return from a long visit
with Mr. Kern, she was tired and cranky. As a result, Ms. Jameson avoided planning any
activities for the days when Autumn returned from Mr. Kern's house. Ms. Jameson was
also concerned that this would impact Autumn's learning when kindergarten started.
5. Each parent's past and potential for future performance of parenting functions, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child
Evidence showed both parents had performed parenting functions in the past and
could continue to perform them in the future.
Mr. Kern testified that he was Autumn's primary caregiver when she was an infant
and that he continued to do laundry, cook, and clean for Autumn. He also picked up and
dropped off Autumn at preschool regularly.
Ms. Jameson testified that she took Autumn to doctor, dentist, and haircut
appointments. She also testified that she dropped off and picked up Autumn at preschool
regularly.
6. The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities
Ms. Jameson testified that Autumn has a good relationship with two older half-
siblings from Ms. Jameson's prior marriage. Although her adult half-brother used drugs
in the past, Ms. Jameson testified that he no longer used drugs currently and that she
No.30687·9-III In re Parentage ofAutumn Kern
would not tolerate drug use while he lived in her home. Ms. Jameson also testified that
Mr. Kern's mother lived nearby. Autumn visited her grandmother several times per
week.
Mr. Kern testified that he lives about 2.5 miles from Ms. Jameson. His father lived
with him and that his mother lived about one block away. Amanda Kern testified that she
usually saw Autumn every day that Autumn was with Mr. Kern. Amanda Kern testified
that she had two children, but did not indicate whether they had a relationship with
Autumn.
7. The relative strength, nature, and stability of the child's relationship with each parent
There was no dispute that Autumn had a strong and stable relationship with both
parents.
B. The Court's Ruling
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FILED
MARCH 26, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Parenting and Support of: ) No. 30687-9-111 ) AUTUMN KERN, ) ) LISA JAMESON, ) ) Respondent, ) UNPUBLISHED OPINION ) and ) ) DERRICK KERN, ) ) Appellant. )
KULIK, 1. - When creating a residential schedule, a trial court considers seven
statutory factors, which include the parents' work schedules. RCW 26.09.1 87(3)(a). The
trial court here rejected Derrick Kern's proposed residential schedule for his daughter,
Autumn. The court ordered a more traditional schedule and provided that Mr. Kern could
have a three-day visit every month ifhe used paid time off to accommodate it. On appeal,
Mr. Kern argues the court abused its discretion by failing to consider the seven statutory
factors and by requiring him to use his paid days off for additional visitation. We
conclude that the trial court did not abuse its broad discretion, and we affirm the court's No. 30687-9-III In re Parentage ofAutumn Kern
order.
FACTS
Lisa Jameson and Derrick Kern have a daughter, Autumn, born in 2005. Ms.
Jameson and Mr. Kern never married. They had an "on-againloff-again" relationship for
several years and broke up for good in early 2010. Report of Proceedings (RP) at 15.
In the summer of 20 10, Ms. Jameson petitioned for a final parenting plan in which
she was the primary residential parent. Before trial, Mr. Kern indicated that he wanted to
be the primary residential parent. However, he agreed at trial that Ms. Jameson should be
the primary residential parent.
A. Evidence at Trial
At trial, the parties presented evidence on the seven statutory factors that the trial
court must consider when deciding residential provisions. I They presented the following
evidence on each factor:
1. The agreements of the parties, provided they were entered into knowingly and voluntarily
Both parents testified that they had been unable to agree on any provisions of a
final parenting plan.
No. 30687-9-111 In re Parentage ofAutumn Kern
2. Each parent's employment schedule
Mr. Kern testified that he worked full time as a firefighter. He worked only nine
days per month. He worked those days in 24 hour shifts, followed by 48 hours off, in a
cycle that repeated itself every three weeks.
In addition to his regular days off, he had three weeks of vacation and 13 "Kelly
days" per year. Kelly days are paid days off. He testified that he was not proposing that
the court use the Kelly days in the residential schedule, but that he was willing to use
those days to make himself available for Autumn. He also testified that he could trade
days offwith co-workers.
Ms. Jameson testified that she worked full time, but had a flexible schedule. She
could usually come and go from her work freely and could work from home.
3. The wishes of the parents
Mr. Kern proposed a schedule based on their temporary residential schedule at the
time of trial. Both schedules divided residential time nearly equally and were based on
Mr. Kern's work schedule. The proposed schedule followed a three-week rotation that
paralleled Mr. Kern's work schedule, which meant that Mr. Kern would not see Autumn
on the same days every week.
3 No.30687-9-III In re Parentage ofAutumn Kern
In the temporary schedule, there was also a time every month when Autumn did
not see Mr. Kern for an entire week. His proposed schedule broke up that week with an
additional visit. It also required the parties to exchange Autumn as many as 16 times per
month.
Ms. Jameson proposed a schedule that gave Mr. Kern one overnight visit and one
evening visit each week. She testified that they used that schedule sometime between
August 2008 and July 2009 and that it worked well.
4. The emotional needs and developmental level of the child
At the time of trial, Autumn was several months from beginning kindergarten.
The parties disputed how well she had adjusted to the current residential schedule.
Mr. Kern testified that Autumn had adapted well to the schedule and that she liked
going back and forth between two homes. He also stated that the only problem with the
current schedule was that, just prior to the seven-day absence from him, Autumn would
become withdrawn and resistant to going to preschool. His girl friend, who he has since
married, Amanda Kern, testified that Autumn understood her schedule.
Ms. Jameson testified that the current schedule was not working well for Autumn.
She explained that Autumn did not know where she would be or who she would be with
from day to day. She also testified that, when Autumn would return from a long visit
with Mr. Kern, she was tired and cranky. As a result, Ms. Jameson avoided planning any
activities for the days when Autumn returned from Mr. Kern's house. Ms. Jameson was
also concerned that this would impact Autumn's learning when kindergarten started.
5. Each parent's past and potential for future performance of parenting functions, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child
Evidence showed both parents had performed parenting functions in the past and
could continue to perform them in the future.
Mr. Kern testified that he was Autumn's primary caregiver when she was an infant
and that he continued to do laundry, cook, and clean for Autumn. He also picked up and
dropped off Autumn at preschool regularly.
Ms. Jameson testified that she took Autumn to doctor, dentist, and haircut
appointments. She also testified that she dropped off and picked up Autumn at preschool
regularly.
6. The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities
Ms. Jameson testified that Autumn has a good relationship with two older half-
siblings from Ms. Jameson's prior marriage. Although her adult half-brother used drugs
in the past, Ms. Jameson testified that he no longer used drugs currently and that she
No.30687·9-III In re Parentage ofAutumn Kern
would not tolerate drug use while he lived in her home. Ms. Jameson also testified that
Mr. Kern's mother lived nearby. Autumn visited her grandmother several times per
week.
Mr. Kern testified that he lives about 2.5 miles from Ms. Jameson. His father lived
with him and that his mother lived about one block away. Amanda Kern testified that she
usually saw Autumn every day that Autumn was with Mr. Kern. Amanda Kern testified
that she had two children, but did not indicate whether they had a relationship with
Autumn.
7. The relative strength, nature, and stability of the child's relationship with each parent
There was no dispute that Autumn had a strong and stable relationship with both
parents.
B. The Court's Ruling
The trial court found that "Autumn seems to be doing pretty well. She is nota
messed up kid by any means, at least as far as 1 can tell." Clerk's Papers (CP) at 231.
The court then explained that its goal was to create a schedule that will work for Autumn
and the parties for the next 13 years. It explained that, "I try to apply in these cases,
within the boundaries of the applicable statutory framework, ... to come up with a plan
which is, above all, practical, realistic, [and] predictable." CP at 234.
No.30687-9-III In re Parentage ofAutumn Kern
The court then commented on the parents' work schedules and created a schedule
based on those. The trial court noted that Mr. Kern typically has two weekends off every
month and most Wednesdays off. It then awarded Mr. Kern residential time two
weekends per month and an overnight visit every Wednesday. The court also ruled that
Mr. Kern could have visitation from Friday to Sunday or Saturday to Monday once per
month if he used a Kelly day for an additional day off. The court noted that the day of the
mid-week visit could change if Mr. Kern's work schedule changed. The court also
awarded each parent two weeks of vacation with Autumn. The court did not file written
findings of fact.
Mr. Kern moved for reconsideration and the trial court denied the motion. Mr.
Kern appeals.
ANALYSIS
Review of Findings. Ms. Jameson argues that the trial court should be affirmed
because it did not abuse its discretion when it denied Mr. Kern's motion for
reconsideration. From Mr. Kern's brief, however, it is clear that he seeks review of the
findings underlying the final parenting plan rather than the order denying his motion for
reconsideration.
Ms. Jameson also argues that Mr. Kern did not file his appeal until more than 30
days after the court entered its findings. According to Ms. Jameson, Mr. Kern has not
timely appealed the findings.
Designating an order on a motion for reconsideration brings up the final judgment
for review. RAP 2.4(c). Additionally, appeal of a final judgment is timely if the
appellant appeals within 30 days of entry of an order on a motion for reconsideration.
RAP 5.2(e). Therefore, Mr. Kern has timely filed an appeal of the findings underlying the
Statutory Factors. We review the court's ruling on a residential schedule for an
abuse of discretion. In re Marriage ofKovacs, 121 Wn.2d 795, 801, 854 P.2d 629
(1993). A court abuses its discretion when it bases its decision on untenable grounds or
reasons. Id.
When a court determines a child's residential schedule, the court must consider the
child's best interest. See RCW 26.09.002. When the child's best interest does not require
that one parent's residential time is limited, the court must consider seven statutory
factors. RCW 26.09.l87(3)(a). Those factors are:
(i) The relative strength, nature, and stability of the child's relationship with each parent; (ii) The agreements of the parties, provided they were entered into knowingly and voluntarily; (iii) Each parent's past and potential for future performance of parenting functions as defined in ... RCW 26.09.004(3), including whether a
No. 30687-9-III In re Parentage 0/ Autumn Kern
parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child; (iv) The emotional needs and developmental level of the child; (v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities; (vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and (vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
RCW 26.09.1 87(3)(a). The first factor should be given the most weight. Id.
Here, there are no written findings regarding these factors. Mr. Kern argues that
the record is, therefore, absent any showing that the trial court considered the factors.
Ms. Jameson replies that there is substantial evidence to support each factor, so we should
assume that the trial court considered the factors.
When the parties present substantial evidence on each factor, findings specific to
each factor are not required and this court may rely on the trial court's oral opinion. In re
Marriage o/Croley, 91 Wn.2d 288,292,588 P.2d 738 (1978); In re Marriage o/Murray,
28 Wn. App. 187, 189,622 P.2d 1288 (1981). Absent evidence to the contrary, this court
assumes that the court considered the evidence presented. Croley, 91 Wn.2d at 291.
Stated differently, "the failure of the written findings or oral opinion to reflect any
application of the statutory elements or to even mention the best interests of the child"
No.30687·9-1II In re Parentage ofAutumn Kern
rebuts the presumption that the trial court considered the statutory factors. Murray, 28
Wn. App. at 189-90.
Here, the parties presented substantial evidence on each factor and court's oral
ruling suggested that it considered each factor. As noted, the court stated, "my personal
standard that I try to apply in these cases, within the boundaries ofthe applicable
statutory framework, is to try to come up with a plan which is, above all, practical,
realistic, [and] predictable." CP at 234 (emphasis added). It went on to say, "I think that
we can come up with something here which is probably ... not what either side would
ideally like to have but at least ... serves the needs ofsatisfYing the statute and also being
practical and predictable." CP at 237 (emphasis added). A more detailed ruling would
have been helpful, but the court's comments indicate that it considered the statutory
framework and satisfied the statutes. This court, therefore, concludes that the trial court
considered the evidence presented and complied with the relevant statutes.
Abuse o(Discretion. Mr. Kern next contends that the decision to reduce his
residential time was contrary to the evidence and was not in Autumn's best interest.
Essentially, Mr. Kern argues that the court incorrectly weighed the evidence at trial.
However, this court will not substitute its judgment for that of the trial court by
reweighing the evidence. In re Marriage ofRich, 80 Wn. App. 252, 259, 907 P .2d 1234
No.30687-9-II1 In re Parentage ofAutumn Kern
(1996).
The trial court did not err by assigning more weight to Ms. Jameson's testimony.
She testified that the schedule made Autumn confused, tired, and cranky. Amanda Kern
testified that, to the contrary, Autumn understood her schedule and was well adjusted.
Mr. Kern also testified that the current schedule was problematic, not because it confused
Autumn, but because it created too much time away from him. While either version of
the facts is possible, the court was entitled to accept Ms. Jameson's testimony over the
Kerns'testimony.
Because the court considered the relevant law and evidence, we cannot say that its
decision was against Autumn's best interest. Although the schedule reduced Mr. Kern's
residential time, it created a workable schedule. The court did not abuse its discretion.
"Kelly Davs." Finally, Mr. Kern argues that the court abused its discretion by
requiring him to use his Kelly days to have a three-day weekend with Autumn once per
month. He contends that the requirement that he use a Kelly day is arbitrary and that he
should be able to use any type of leave available to him. He also contends that this
requirement infringes on his right to take a two-week vacation with Autumn. He reasons
that, because he must save his Kelly days for three-day weekends, he will have to use
annual leave to make himself available for his regular visits, and he will therefore have
little annual leave to use for an actual vacation.
The trial court was required to consider each parent's employment schedule and
make accommodations for that schedule. RCW 26.09.1 87(3)(a)(vii). If the trial court
considered Mr. Kern's schedule and made accommodations for it, it did not abuse its
discretion. See Kovacs, 121 Wn.2d at 801 (a court abuses its discretion when it bases a
decision on untenable grounds or reasons).
The court's ruling shows that it considered Mr. Kern's schedule and
accommodated it. The evidence showed that Mr. Kern has 13 Kelly days each year and
three weeks of annual leave. Mr. Kern testified that, although he was not proposing that
the Kelly days be used in the residential schedule, he could use them to make himself
available to Autumn. He also testified that he could use the Kelly days any time. The
trial court noted that Mr. Kern typically has two weekends off every month and most
Wednesdays off. Based on that, the court scheduled Mr. Kern to have visits with Autumn
two weekends per month and every Wednesday. Requiring Mr. Kern to use his Kelly
days for visitation was not an abuse of discretion.
Attorney Fees. Ms. Jameson asks for attorney fees on the basis of Mr. Kern's
intransigence and RAP 18.9. RAP 18.9(a) allows for an award of fees for a party's
intentional delay, misuse of the rules, or frivolous appeal. The record does not support an
award on either basis.
Ms. Jameson also seeks attorney fees pursuant to RCW 26.09.140.
RCW 26.09.140 provides that this court may award reasonable attorney fees after
considering the financial resources of the parties. Both parties have filed financial
affidavits pursuant to RAP 18.1(c). After considering those, we award Ms. Jameson
attorney fees on appeal.
We affirm the trial court's order.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Brown, 1. Korsmo, C.J.