In Re Marriage of Adler

129 P.3d 293
CourtCourt of Appeals of Washington
DecidedFebruary 27, 2006
Docket55383-6-I
StatusPublished
Cited by26 cases

This text of 129 P.3d 293 (In Re Marriage of Adler) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Adler, 129 P.3d 293 (Wash. Ct. App. 2006).

Opinion

129 P.3d 293 (2006)
131 Wash.App. 717

In the Matter of the MARRIAGE OF Gary Todd ADLER, Respondent, and
Maria das Gracas Adler, Appellant.

No. 55383-6-I.

Court of Appeals of Washington, Division 1.

February 27, 2006.

Grasa Barbosa, Meyrick-Aylmer Cortes, Attorney at Law, Seattle, WA, for Appellant.

Valerie Anne Bell, Bell Flegenheimer & Nance, Catherine Wright Smith, Valerie A. Villacin, Edwards Sieh Smith & Goodfriend, Seattle, WA, for Respondent.

APPELWICK, A.C.J.

¶ 1 Grasa Barbosa (formerly known as Maria das Graças Adler) appeals the trial court's denial of her motion to vacate the modified parenting plan under CR 60(b)(1) and (b)(11). Barbosa and Gary Adler dissolved *294 their marriage in 2001, and agreed to a parenting plan with a provision that either could request a review of the terms before the end of the year without a showing of a substantial change in circumstances. Adler requested review and the parties stipulated to adequate cause for a hearing. After the hearing, the trial court modified the parenting plan, giving Barbosa less decision-making authority than before. We hold that stipulations to adequate cause do not violate public policy, and the review provision at issue here is permissible under Washington case law. In addition, the restrictions on Barbosa's speech in the modified parenting plan are not error under CR 60(b)(11).

FACTS

¶ 2 Gary Adler (Adler) and Grasa Barbosa (formerly known as Maria das Graças Adler) married in 1988. During the marriage, Adler and Barbosa had two children together: a son, J.A., born in 1990; and a daughter, T.A., born in 1997.

¶ 3 In April 2000, Adler filed a petition for dissolution of marriage. In May 2001, the court entered a parenting plan. Adler and Barbosa agreed on the provisions of the parenting plan. The children were to spend equal time with each parent, with some of their time overlapping with each other. Dr. Stuart Greenberg, a forensic psychologist, recommended the schedule, and the parties agreed to it. With some exceptions, major decision-making authority for J.A. was vested with Adler, and authority for T.A. was vested with Barbosa. The final parenting plan also provided that "[a]t the request of either party by 12-31-01, as recommended by Dr. Stuart Greenberg, the residential schedule and decision[-]making provisions herein shall be subject to review without the statutorily required showing of a change in circumstances."

¶ 4 Adler instituted a review in accordance with the provision in the original parenting plan. Dr. Greenberg interviewed the parties, their children, and collateral persons. He also gave a battery of assessment tests to Adler and Barbosa. In his resulting report, Dr. Greenberg recommended that the children reside a majority of the time with Adler, and that Adler have sole decision-making authority.

¶ 5 As a result of these recommendations, Adler filed for a modification of the parenting plan in November 2002. In the order on adequate cause, the commissioner found that the parties had stipulated to adequate cause, and set the matter for a future hearing. The commissioner denied Adler's request for a temporary parenting plan because she found no showing that the current plan is detrimental to the children.

¶ 6 The trial occurred in October and November of 2003. In January 2004, the court issued its order. The court found that the plan should be modified because the parties had provided for a review of the residential provisions and the modification was in the best interests of the children. The court based this decision on a finding that the children's environment under the current plan was detrimental to them, and that the harm likely to be caused by a change in environment is outweighed by the advantage of the change. When holding that there was a substantial change in circumstance, the court found that the current residential schedule and Barbosa's decision-making power had engendered conflict between the parents. The court also noted the parties' agreement that the parenting plan was subject to review without the statutorily required showing of a change in circumstances.

¶ 7 The court modified the parenting plan, giving Barbosa less residential time with the children than before. Adler was given sole power to make major decisions regarding the children. The plan stated that Barbosa "shall refer all medical and educational professionals to [Adler] and defer to his decisions." The modified plan also restricted Barbosa's communication with medical and education personnel, requiring that she not be unnecessarily derogatory to Adler.

¶ 8 In November 2004, Barbosa filed a motion to correct some provisions of the modified plan. The trial court denied that motion. Barbosa simultaneously filed a motion for reconsideration of the denial, and a notice of appeal in the trial court. Then, in January 2005, Barbosa filed a motion to vacate *295 or correct the parenting plan on several grounds, including mistake, irregularity, fraud, newly discovered evidence, and an extraordinary reason justifying relief. The trial court denied Barbosa's motion. Barbosa amended her notice of appeal to incorporate this denial.

ANALYSIS

I. Adequate Cause Stipulation

¶ 9 Barbosa claims that the provision in the original parenting plan waiving the showing of a change in circumstances contravenes public policy and is therefore an extraordinary circumstance warranting vacation. She asserts that the waiver abrogated her children's rights, and that agreements in which parents bargain away their children's rights violate public policy. Barbosa also contends that the agreement in the original parenting plan to waive the statutory requirement of a substantial change in circumstances was an irregularity requiring vacation under CR 60(b)(1). Barbosa argues that the language of RCW 26.09.260 and .270 is mandatory, and a trial court must find those factors fulfilled in order to go forward on a modification hearing. Finally, she claims that the trial court's order setting the modification for trial after it specifically found that the original parenting plan was not detrimental to the children was an irregularity requiring vacation under CR 60(b)(1).

A. Public Policy and Children's Rights

¶ 10 Barbosa claims that the stipulation violates public policy in violation of CR 60(b)(11). Under CR 60(b)(11), a court can relieve a party from a final judgment, order, or proceeding for any other reason justifying relief from the operation of the judgment. CR 60(b)(11) has been used to vacate an agreement that violated public policy and was unenforceable. See In re the Marriage of Hammack, 114 Wash.App. 805, 810-11, 60 P.3d 663 (2003) (property settlement agreement that waived child support was unenforceable and trial court did not err in vacating the agreement under CR 60(b)(11)).

¶ 11 Modifications of parenting plans are governed by RCW 26.09.260 and .270. Courts have interpreted RCW 26.09.260

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Bluebook (online)
129 P.3d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-adler-washctapp-2006.