In re Marriage of Chandola

• Court: Washington Supreme Court
• Decided: June 19, 2014
• Docket: 89093-5
• Status: Published

Opinion

/ /'FILE IN CLERKS OFFICE llJIMME COURT, STATE OF WMIINCrlal

~ IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In re the Marriage of: NO. 89093-5

NEHA VYAS CHANDOLA, ENBANC Respondent, and\, JUN 1 9 2014 Filed ----=------'----=----'----- MANJUL VARN CHANDOLA,

GORDON McCLOUD, J.-This case concerns three prov1s1ons of a

parenting plan that limits contact between the petitioner, Manjul Vam Chandola, and

his young daughter. The trial court imposed those restrictions under RCW

26.09.191 (3 )(g), which authopi'zes a court to "preclude or limit any provisions of the

parenting plan" if necessary to protect against "adverse effect to the child's best

interests." This case presents the question what type of"adverse effect to the child's ~:-'f~

best interests" a trial court must find before imposing parenting plan restrictions In reMarriage of Chandola (No. 89093-5)

under the catchall provision, RCW 26.09.191(3)(g). We hold that restrictions

imposed under that statute must be reasonably calculated to prevent relatively severe

physical, mental, or emotional harm to a child. Applying that standard, we affirm

the trial court's decision to impose two of the challenged restrictions but reverse its

decision to impose the third.

FACTS

Manjul Yarn Chandola (Chandola) and Neha Vyas Chandola (Vyas) were

married in 1998; Vyas gave birth to the couple's daughter, P.R.C., in 2008. Both

Chandola and Vyas are attorneys, but Chandola was consistently unemployed or

underemployed during their marriage. Accordingly, he was home with P.R.C. more

often than Vyas was during the first two years ofP.R.C.'s life. At different intervals,

both Vyas's mother and Chandola's parents also lived in the home. The

grandparents provided a great deal of child care, and while Vyas and Chandola were

married, P.R.C. always slept in the same room as either her parents or one of her

grandmothers.

Chandola's and Vyas's most serious conflicts arose after P.R.C. was born.

Vyas accused Chandola of engaging in abusive behavior towards her-yelling at

her, calling her names, and telling her that she was a bad mother. She felt that

Chandola and his parents were trying to marginalize her, encouraging P.R.C. to bond 2 In reMarriage ofChandola (No. 89093-5)

with Chandola and minimizing Vyas's role. Vyas also objected to Chandola's

parenting style. Particular sources of conflict were Chandola's inability to maintain

a consistent meal and sleep schedule for P.R.C. and his obsessive concern that

something bad would happen to her. According to Vyas, this concern manifested in

Chandola's holding P.R.C. excessively, discouraging her from playing with other

children, and insisting that she be supervised by a family member at all times-even

while she slept.

In February 2011, Vyas filed for dissolution. She told Chandola that she was

concerned about the possibility of sexual abuse because P.R.C. had complained of

vaginal pain. When the couple separated in late February 2011, Chandola agreed to

supervised visitation with P.R.C. at the advice of his attorney at the time. The

supervised visitation was lifted in December 2011.

The court-appointed parenting expert, Dr. Jennifer Wheeler, concluded that

P.R.C.'s statements were not evidence of sexual abuse. In its findings of fact, the

trial court also dismissed the allegations, concluding instead that "[Vyas] may have

needed to precipitate a crisis in order to escape the marriage and extended family

dynamic." Clerk's Papers (CP) at 94. In short, the sexual abuse allegations were

unsubstantiated.

3 In reMarriage ofChandola (No. 89093-5)

In the divorce proceedings, Chandola sought a 50-50 residential split. Vyas

requested that Chandola's residential time with P.R.C. be limited under RCW

26.09.191 (3 )(b) and (e), which allow a trial court to "preclude or limit any provisions

of the parenting plan" upon certain findings. Subsection (3 )(b) allows restrictions

on the basis of a parent's "long-term emotional ... impairment which interferes

with . . . parenting functions." Subsection (3 )(e) allows restrictions on the basis of

a parent's "abusive use of conflict ... which creates the danger of serious damage

to the child's psychological development." 1

1 RCW 26.09.191(3) reads in full as follows:

A parent's involvement or conduct may have an adverse effect on the child's hP<;!t intPt'P<;!tQ __ - ¥ -~---- -~ ,.,~, !lnrt thP l"r\llt'f 1'YI!l" .t"'..._ ...,...,...._...,._...,. _.,....._ _ _ ,.. --...._-"'V".,J ---.--.- _ 1"\t'P.f"'JllrlP ..._.. . . , , . .... .., r\1" ..._,.._ J;,'Y'I;f . . ._. . ._. ._ .... .._ . . . " •H'Hl ..,..,.,-,.u;0;,-,..-,,., '-"'.&..l..J _t--'..1.. '-''I' .&.U..I.'-J.&..l.IJ n.f' V..l. i-h= \-..1...1.'-"

parenting plan, if any of the following factors exist:

(a) A parent's neglect or substantial nonperformance of parenting functions;

(b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;

(c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;

(d) The absence or substantial impairment of emotional ties between the parent and child;

(e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development;

4 In reMarriage ofChandola (No. 89093-5)

Dr. Wheeler's written pretrial parenting evaluation stated that there was no

basis on which to impose RCW 26.09.191 restrictions. It acknowledged that

Chandola appeared to have some problematic personality traits but concluded that

they did not manifest frequently enough to "meet criteria for a major mental health

or personality disorder that would support restrictions to the residential schedule

consistent with RCW 26.09.191(3)(b)." 2 Verbatim Report of Proceedings (VRP)

(Jan. 31, 2012) at 297.

Nevertheless, Dr. Wheeler recommended a residential schedule that limited

Chandola to roughly the same total amount of contact he had had with P .R.C. during

the period of supervised visitation (before the judge rejected the abuse allegations).

The schedule she recommended amounted to about 20 hours per week (two seven-

hour visits per week and one overnight stay every other Saturday). She also

recommended a residential schedule in "phase[s]," whereby Chandola would

progress to greater residential time with P.R.C. every few years if he successfully

complied with certain recommendations. Id. at 235-45. These recommendations

were fairly limited: Dr. Wheeler recommended that Chandola continue to see his

(f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or

(g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child. 5 In reMarriage ofChandola (No. 89093-5)

therapist and participate in individual parent training but did not recommend any

restrictions on Chandola's conduct or his parents' contact with P.R.C.

At trial, Dr. Wheeler agreed that her recommendations gave Chandola time

with P.R.C. that was "significantly more limited than what would generally be the

norm." !d. at 305. When pressed to explain these recommendations on the witness

stand, Dr. Wheeler disavowed her written evaluation to some extent:

I also don't think I gave due consideration in my formulation of the .191 restrictions to what my concerns were and how they might play out in terms of abusive use of conflict. I was very focused as I read it here on domestic violence, sexual abuse allegations and the emotional impairment.

My authority for my opinion is that the personality traits that I've been describing all morning in my opinion, the risk to [P.R.C.] of those traits is ongoing conflict that is essentially emotionally abusive to her. And 1 do think that until those traits are better regulated and [Chandola is] able to interact with [P.R.C.] in a way that does not perpetuate this conflict and parent in a way that does not continue to inflame this conflict, I do think that [the] father is vulnerable to engaging in abusive use of conflict. That supports generally why I am limiting his residential schedule relative to what you just referred to as the normal, typical kind of recommendation.

!d. at 305-06.

After six days of testimony, the trial court found that "the father's parenting

history has had an adverse effect on the child's best interests pursuant to RCW

26.09.191(3)(g)." CP at 80. Unlike RCW 26.09.191(3)(b) and (e)-the provisions

that Vyas invoked in her brief to the trial court, which specifically address a parent's 6 In reMarriage ofChandola (No. 89093-5)

emotional impairment and abusive use of conflict-RCW 26.09.191(3)(g) is a

catchall provision. It allows courts to "preclude or limit any provisions of the

parenting plan" in light of "[s]uch other factors or conduct as the court expressly

finds adverse to the best interests of the child." RCW 26.09.191(3)(g). In

accordance with its finding of adverse effect, the trial court placed several

restrictions and conditions on Chandola's contact with P.R.C.

Thus, the court's parenting plan provided for a residential schedule in three

stages. The first stage, which was to last approximately two and a half years, allows

Chandola to have P.R.C. for one seven-hour visit every Tuesday evening, one

overnight stay every other Thursday, and one overnight stay every other weekend.

The second stage, which is to last from August 1, 2014 until P.R.C. entered the third

grade, increases Chandola's residential time with P.R.C. to one overnight stay per

week and a full Friday afternoon through Sunday evening stay every other weekend.

The third and final stage allows Chandola to have P.R.C. stay every Thursday night

and every other weekend from Friday after school until Monday morning.

Under the terms of this plan, each new stage commences only ifChandola has

complied with several conditions designed to improve his parenting skills:

The parties shall only progress to the next stage if the father has routinely abided by the mother's bedtime routine and time (unless otherwise recommended by the case manager); the child sleeps in her own room at the father's house (unless otherwise recommended by the 7 In reMarriage ofChandola (No. 89093-5)

case manager); the father has remained compliant with counseling requirements; the father has successfully completed parent training; the father has abstained from discussing the case or any disputed facts/claims in the case with the child; the father has complied with the restrictions regarding paternal grandparent contact in Section 3.1 0; and the father has complied with any and all recommendations by the child's therapist, the parent trainer, and the case manager. If the parties disagree about the father's compliance with these conditions to progress to the next phase of residential time, the father may (within two months of the dates for potential progress to the next phase) bring a motion on the family law motions calendar with at least 14 days notice to the mother to resolve the disagreement.

CP at 81. The "restrictions regarding paternal grandparent contact," id., are as

follows:

For Stage 1 and 2 the father shall not facilitate or allow either paternal grandparent to be present during the father's residential time except as follows: either or both paternal grandparents may be present up to 20% total of the father's time in any given calendar year. However the grandparents should not be present tor any parenting observations, training or coaching sessions. During the 20% time the father may leave the child with the grandparents i.e. he need not be present. This provision shall not be construed to create a right or entitlement for grandparent visitation but is intended to maintain the child's connection with her paternal grandparents while promoting direct parenting by the father without the presence of the grandparents. The father shall notify the mother and case manager in advance of any time his parents visit.

CP at 84.

Chandola appealed, arguing that his parenting behaviors did not have the kind

of"adverse effect" on P.R.C. that the legislature required in RCW 26.09.191(3). He

also sought attorney fees. The Court of Appeals affirmed, and Chandola petitioned 8 In reMarriage ofChandola (No. 89093-5)

this court for review. In reMarriage ofChandola, noted at 174 Wn. App. 1073,

review granted, 179 Wn.2d 1008,315 P.3d 531 (2013). Vyas cross-petitioned this

court for attorney fees on appeal.

ANALYSIS

Standard ofReview

A trial court's parenting plan is reviewed for an abuse of discretion, which

"occurs when a decision is manifestly unreasonable or based on untenable grounds

or untenable reasons." In reMarriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546

(2012) (citing In reMarriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362

(1997) ). The trial court's findings of fact are treated as verities on appeal, so long

as they are supported by substantial evidence. !d. (citing Ferree v. Doric Co., 62

Wn.2d 561, 568, 383 P.2d 900 (1963)). "Substantial evidence" is evidence sufficient

to persuade a fair-minded person of the truth of the matter asserted. !d.

While a parenting plan is reviewed for abuse of discretion, the trial court's

discretion is cabined by several provisions in chapter 26.09 RCW, including the

catchall provision at issue in this case: RCW 26.09.191(3)(g). !d. at 35-36. As noted

above, RCW 26.09.191(3) bars the trial court from "preclud[ing] or limit[ing] any

provisions of the parenting plan" (i.e., restricting parental conduct) unless the

9 In reMarriage ofChandola (No. 89093-5)

evidence shows that "[a] parent's ... conduct may have an adverse effect on the

child's best interests."

Chandola makes two general arguments regarding the trial court's ruling and

the Court of Appeals' decision. First, he argues that the trial court improperly relied

on conditions that existed during the year before trial only because of Vyas's

unfounded allegations of abuse. Second, he argues that the trial court applied an

incorrect standard when it found an "adverse effect" justifying restrictions on parent-

child contact. RCW 26.09.191(3).

For the reasons given below, we disagree with Chandola's first argument-

we find that the trial court did not rely at all on the discredited abuse allegations or

on conditions resulting from those allegations. With regard to Chandola's second

argument, we take this opportunity to clarify the level of "adverse effect" necessary

to sustain parenting plan restrictions under RCW 26.09.191(3)(g)'s catchall

provision: that adverse effect must be similar in severity to the adversity illustrated

by that subsection's neighboring provisions, RCW 26.09.191(a)-(f).

Applying that standard, we affirm the Court of Appeals' decision to uphold

the restrictions on residential time and cosleeping. With respect to the third

restriction (the limit on grandparental contact), however, we find that the trial court

10 In reMarriage ofChandola (No. 89093-5)

abused its discretion. We therefore reverse the Court of Appeals' decision to uphold

that restriction.

I. The Trial Court Did Not Improperly Rely on Conditions That Resulted from the Unfounded Abuse Allegations

Chandola first argues that the trial court improperly relied on the unfounded

abuse allegations in two ways: (1) by crediting the court-appointed expert's

relatively negative assessment, based on an in-home observation, of what Chandola

contends was the "artificial environment" created by supervised visitation (imposed

in the wake of the later-rejected sexual abuse allegations) and (2) by attributing

P.R.C. 's improved social skills to her reduced contact with Chandola (and denying

Chandola the opportunity to prove that his parenting skills had improved). Pet. for

Review at 16-18. We are not persuaded.

The record shows that the trial court based its decision on conditions that

existed before the allegations, before the separation, and before the supervised

visitation-not on conditions that existed during the parenting expert's home visits.

See CP at 92 ("Prior to separation the father consistently engaged in a pattern of

interaction with [P.R.C.] which ... lacked, in concerning degree, objectivity with

respect to her healthy development."). The court did note that P.R.C.'s socialization

had improved after her father's influence was reduced, but that is not unfair reliance

on the conditions resulting from the unfounded abuse allegations. Rather, it is a 11 In reMarriage ofChandola (No. 89093-5)

reasonable assessment of the facts that existed at trial, which is well within the

court's discretion.

As for Dr. Wheeler's in-home observation, it is true that she noted the "high

energy" tenor of the observation. RP (Jan. 31, 2012) at 215-17. But this was due to

Chandola' s own behavior, rather than any fact that resulted from supervised

visitation itself. !d. at 215 ("there was a lot more activity, a lot more energy ... in

part because of the number of people but also in part because father's style is very

high energy"). Moreover, this observation does not appear to have played any

significant role in the trial court's decision, which omitted any reference to

Chandola's postseparation interactions with P.R.C.

II. Restrictions Imposed under RCW 26.09.191(3)(g) Must Be Reasonably Calculated To Prevent Physical, Mental, or Emotional Harm to the Child

There is some overlap between the trial court's authority under RCW

26.09.187, to establish the terms of the parenting plan, and its authority under RCW

26.09.191(3), to "preclude or limit any provisions of the parenting plan." Practically

speaking, a court can substantially restrict a parent's contact with his or her child

simply by establishing a residential schedule pursuant to its discretion under RCW

26.09.187.

But that is not what the court did with the challenged restrictions here; instead,

it proceeded under RCW 26.09.191(3). The "limitations" in that statute are 12 In reMarriage ofChandola (No. 89093-5)

fundamentally different from the provisions necessary to every parenting plan under

RCW 26.09.187. Restrictions on a parent's geographic location, for example, are

not authorized as typical parenting plan provisions under RCW 26.09.187. See

Littlefield, 133 Wn.2d at 54-55; LAWS OF 2000, ch. 21. They are instead imposed

under RCW 26.09.191(3). Similarly, restrictions on a parent's travel or conduct can

be imposed only under RCW 26.09.191-not as features of the parenting plan under

RCW 26.09.187. Katare, 175 Wn.2d at 35-37; In reMarriage ofWicklund, 84 Wn.

App. 763,770-72,932 P.2d 652 (1996).

Before imposing RCW 26.09.191(3)(g) restrictions, a trial court must find

"'more than the normal ... hardships which predictably result from a dissolution of

marriage."' Katare, 175 Wn.2dat36 (alteration in original) (quotingLittlefield, 133

Wn.2d at 55). While the court "need not wait for actual harm to accrue before

imposing restrictions," it may impose restrictions only where substantial evidence

shows "'that a danger of ... damage exists."' Id. at 35-36 (emphasis added)

(alteration in original) (quoting and citing In reMarriage of Burrill, 113 Wn. App.

863, 872, 56 P.3d 993 (2002)).

With respect to the level of harm required for restrictions under RCW

26.09.191(3)(g), Chandola makes two arguments. First, he urges this court to

interpret RCW 26.09.191(3)(g) to impose a standard analogous to that applied in

13 In reMarriage of Chandola (No. 89093-5)

nonparental custody proceedings. Under that approach, a trial court could not

impose restrictions under RCW 26.09.191(3)(g) unless it found that a parent was

incapable of"meet[ing] a child's basic needs" or that the restrictions were necessary

to avoid '"actual detriment to [a] child's growth and development."' In re Custody

ofB.M.H, 179 Wn.2d 224,235-36,315 P.3d 470 (2013) (construing chapter 26.10

RCW, which governs nonparental actions for child custody (quoting In re Custody

ofShields, 157 Wn.2d 126, 143, 136 P.3d 117 (2006))). Second, Chandola contends

that where the parents' "differing views can both be accommodated" without the

imposition ofRCW 26.09.191(3) restrictions, any such restriction should be subject

to strict scrutiny. Suppl. Br. of Pet'r at 2. Chandola contends that both of his

arguments are compelled by the due process clause of the Fourteenth Amendment

to the United States Constitution, which protects a parent's fundamental right to

"autonomy in parenting." Id. at 5.

We decline to analogize parenting plan restrictions to nonparental petitions

for custody. The nonparental custody statutes are designed to address situations

wholly different from a divorce. A restriction imposed under RCW 26.09.191(3)

might be relatively minor-for instance, as here, a parent might be required to attend

parenting classes-but the result sought in a nonparental custody petition is the

14 In reMarriage ofChandola (No. 89093-5)

termination of parental custody. Thus, the legislature would likely disagree with

Chandola's analogy.

We also decline to subject Chandola's parenting plan to strict scrutiny. To be

sure, the right to parental autonomy is a '"fundamental liberty interest protected by

the Fourteenth Amendment,"' and the State may not intrude upon it absent a

compelling interest and narrow tailoring. In re Custody of Smith, 13 7 Wn.2d 1, 14-

15, 969 P.2d 21 (1998) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388, 71 L. Ed. 2d 599 (1982)). Strict scrutiny therefore applies to the state's

infringement on parental autonomy in favor of a nonparent 's interest. But it does

not apply in a proceeding characterized by the "equivalent parental positions of the

parties." In re Parentage ofL.B., 155 Wn.2d 679, 710, 122 P.3d 161 (2005). 2

But RCW 26.09.191(3)(g) does require a particularized finding of a specific

level of harm before restrictions may be imposed. Two principles of statutory

interpretation compel this conclusion.

First, the disputed catchall provision, RCW 26.09.191(3)(g), follows a list of

specific "factors" that "may have an adverse effect on the child's best interests,"

2 This court has reached the same conclusion in numerous prior cases. See, e.g., Katare, 175 Wn.2d at 42 (strict scrutiny has no application to parenting plan, because adverse parties have equivalent interests); Parentage ofL.B., 155 Wn.2d at 710 (same).

15 In reMarriage ofChandola (No. 89093-5)

justifying restrictions on parent-child contact. RCW 26.09.191(3)(a)-(f). When a

statute employs such a general catchall term in conjunction with specific terms, the

general term is "deemed only to incorporate those things similar in nature or

'comparable to' the specific terms." Simpson Inv. Co. v. Dep 't of Revenue, 141

Wn.2d 139,151,3 P.3d 741 (2000) (quotingJohnH Sellen Canst. Co. v. Dep'tof

Revenue, 87 Wn.2d 878, 883-84, 558 P.2d 1342 (1976)). In RCW 26.09.191(3), all

of the factors specifically listed concern either the lack of any meaningful parent-

child relationship whatsoever or conduct by the parent that seriously endangers the

child's physical or emotional well-being:

A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist: (a) A parent's neglect or substantial nonperformance of parenting functions;

(b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;

(c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;

(d) The absence or substantial impairment of emotional ties between the parent and the child;

(e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development; 16 In reMarriage ofChandola (No. 89093-5)

(f) A parent has withheld from the other parent access to the child for a protracted period without good cause.

Consistent with the nature of these specific terms, trial courts typically invoke the

catchall provision in RCW 26.09.191(3)(g) only after identifying a specific, and

fairly severe, harm to the child. 3

Second, statutory language is to be interpreted in context, considering

"'related provisions, and the statutory scheme as a whole."' Lake v. Woodcreek

Homeowners Ass 'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting State v.

Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009)). Thus, RCW 26.09.191(3)(g)

must be read in light of chapter 26.09 RCW's statement of policy, codified at RCW

26.09.002. It provides that "the best interest of the child i~ ordinarily served when

the existing pattern of interaction between a parent and child is altered only to the

extent necessitated by the changed relationship of the parents or as required to

protect the child from physical, mental, or emotional harm." RCW 26.09.002

(emphasis added).

3 E.g., Katare, 175 Wn.2d at 38 (permitting travel restrictions on the basis of evidence that father posed a risk of abduction). Courts have also relied on RCW 26.09.191(3)(g) to impose visitation restrictions designed to prevent young children from spending large amounts of time in transit. E.g., In re Marriage of Fahey, 164 Wn. App. 42, 67-68, 262 P.3d 128 (2011). 17 In reMarriage o[Chandola (No. 89093-5)

In light of this policy, as well as the nature of the specific grounds for

parenting plan restrictions listed RCW 16.09.191(3)(a)-(f), we conclude that the

legislature intended RCW 26.09.191(3) restrictions to apply only where necessary

to "protect the child from physical, mental, or emotional harm," RCW 26.09.002,

similar in severity to the harms posed by the "factors" specifically listed in RCW

26.09.191 (3 )(a)-( f). A trial court abuses its discretion if it imposes a restriction that

is not reasonably calculated to prevent such a harm.

III. The Trial Court Did Not Abuse Its Discretion by Limiting Chandola's Residential Time with P.R.C. or by Prohibiting Cosleeping; the Trial Court Did Abuse Its Discretion by Restricting P.R.C. 's Contact with Her Paternal Grandparents

Chandola challenges three restrictions imposed by the trial court: (1) the

limitation of his residE.mtial time with .PJ{.C. to one ovemighf stay arid one evening

visit per week, 4 (2) the prohibition on cosleeping, and (3) the restriction on P.R.C.'s

contact with her paternal grandparents. The trial court did not abuse its discretion

by imposing the first two restrictions: the record shows that they were reasonably

calculated to prevent physical, mental, or emotional harm to P.R.C. The trial court

4 The trial court imposed the restrictions on Chandola's residential time with P.R.C. under RCW 26.09.191(3)(g). See CP at 93 ("It is ... necessary to impose such restrictions as may best be anticipated [to] assure the mother's parenting is not diluted by the father. Certainly a 'fifty/fifty' parenting plan would not accomplish this." (emphasis added)). 18 In reMarriage ofChandola (No. 89093-5)

did abuse its discretion, however, by restricting P.R.C.'s contact with her paternal

grandparents.

A. The trial court did not abuse its discretion by limiting Chandola 's residential time with P.R. C.

Vyas asserts that "the trial focused [primarily] on [Chandola]'s parenting

deficits and troubling personality traits" and that both the court-appointed expert,

Dr. Susan Wheeler, and the father's expert witness, Dr. Marsha Hedrick, agreed that

these deficits and traits were grounds to limit Chandola's parenting time. Resp't's

Suppl. Br. at 2-3. There is ample support for this assertion in the record.

The "deficits" and "traits" to which Vyas refers all involved Chandola's

inability to provide P.R.C. with a proper diet, sleep schedule, or socialization. Id.

Vyas testified that when she was working full time, she would often arrive home in

the evening to find that Chandola had not yet fed P.R.C. lunch, or that he had fed

her only a cookie or donut. She also stated that Chandola persistently and

"randomly" woke P.R.C. up during the night to hold her, and that he would often be

unable to eat or wash himself while Vyas was at work because he could not bring

himself to put P.R.C. down. 3 VRP (Feb. 1, 2012) at 410-12.

Several family friends testified to similar concerns, particularly relating to

Chandola's constant holding of P.R.C., which prevented her from exploring and

socializing, and to his refusal to establish a sleep or meal schedule for her. Indeed, 19 In reMarriage ofChandola (No. 89093-5)

even one of Chandola's lay witnesses testified about Chandola's tendency to hold

P.R.C. too much and to perceive himself as persecuted by friends and family who

suggested that he alter his parenting practices. The common theme that emerged

from the various witness' testimony was that prior to the separation (before

Chandola's contact with P.R.C. was restricted) P.R.C. had been a fearful and sleep-

deprived child. 5

Dr. Wheeler testified that she believed Chandola's "obsessive compulsive,"

overly protective parenting style appeared to be a means of "regulating his own

anxiety versus recognizing what's really best for [P.R.C.]." 2 VRP (Jan. 31, 2012)

at 189. She made similar comments about Chandola's habit of feeding P.R.C. milk

- at night, which was contrary to both Vyas's wishes and P.R.C.'s pediatrician's - -

advice. Dr. Wheeler indicated that this was unhealthy for P.R.C. but done because

it "felt good" to Chandola. ld. at 191.

Ultimately, Dr. Wheeler recommended that P.R.C. have very limited

residential time with Chandola because:

... I feel like the personality traits that I observed, while they didn't rise to the level to be consistent with .191 restrictions from the emotional impairment standpoint, I do have concerns that right now his

5 One of Chandola's lay witnesses contradicted this testimony, but credibility determinations are for the trial court. Chatwood v. Chatwood, 44 Wn.2d 233, 240, 266 P.2d 782 (1954) (trial judge better positioned than appellate court to weigh evidence and credibility in custody proceeding). 20 In reMarriage ofChandola (No. 89093-5)

skills are not sufficient to be able to overcome some of those personality problems and exhibit skills where he's kind of mastered some of these deficits that he has right now that would bring him up to the level of being a good enough parent that would warrant having equivalent access .

. . . So that's why I'm recommending these kind of lengthy times that they can spend together and have very enriched, rewarding time together where they can accomplish a lot of parent-child tasks to help foster and maintain the relationship that they already have, but without unduly exposing her to some of these more problematic traits until these can kind of be better regulated.

Id. at 235-37. Significantly, Dr. Hedrick testified that she shared Dr. Wheeler's

concerns about the nighttime bottle feeding, overly protective parenting, lack of

structure, and lack of empathy. She agreed that Chandola's "difficulties

·· · -understanding normal child development''-particularly his need to hold P.R.C.

instead of letting her explore-were cause for concern. 3 VRP (Feb. 1, 2012) at

492-93.

Dr. Hedrick testified at length about the legitimacy of Dr. Wheeler's report

and recommendations. She stated that she considered Dr. Wheeler's written report

to be fundamentally sound but also thought that Dr. Wheeler should have

recommended more visitation time for Chandola and P.R.C. Dr. Hedrick testified

that in order to protect P.R. C.'s relationship with Chandola, the court would need to

allow at least one overnight stay per week. The residential schedule ultimately 21 In reMarriage ofChandola (No. 89093-5)

imposed by the trial court met this criterion. (Dr. Wheeler's recommended schedule

afforded Chandola only one overnight stay every other week.)

In light of this record, we conclude that the trial court did not abuse its

discretion by imposing restrictions on Chandola's residential time with P.R.C.

Contrary to Chandola's assertions, the trial court's concerns were not simply a

matter of parenting "style." Suppl. Br. of Pet'r at 14. Rather, they involved

fundamental human needs: sleep, nutrition, and socialization. The trial court's

written findings make clear that it believed P.R.C. had made substantial emotional

and social progress since her parents' separation (which reduced her time with

Chandola): "It is telling that subsequent to separation the child's behavior repertoire

increased dramatically. As more than one lay witness observed since separation

'[P.R.C.] is a changed child, more outgoing, interactive."' CP at 92-93 (citations

omitted).

In imposing the residential restrictions, the trial court clearly intended to

ensure that this progress continue unhindered. There is substantial evidence in the

record to support the conclusion that these restrictions were reasonably calculated to

accomplish that end. We therefore affirm the Court of Appeals' decision upholding

the parenting plan's residential schedule.

B. The trial court did not abuse its discretion when it prohibited Chandola from cosleeping with P.R. C. 22 In reMarriage ofChandola (No. 89093-5)

Vyas contends, and we agree, that the cosleeping restriction was imposed so

that P .R.C. could maintain a consistent sleep schedule-and not because of any

innate distrust of cosleeping.

Vyas testified that Chandola's method of putting P.R.C. to bed was to show

her YouTube videos, sometimes until one or two in the morning, and that P.R.C.

was chronically sleep deprived as a result. She also testified that Chandola could

not resist picking P.R.C. up in the middle of the night and that Vyas therefore

believed that cosleeping was unhealthy for both Chandola and P.R.C. The trial court

apparently found this testimony credible. 6

Chandola concedes that sleep deprivation 1s a harm justifying RCW

26.09.-191(3)(g) restrictions. He argues thatthe cosieepirigprohibition was improper

only because it was not narrowly tailored to prevent that harm. He contends that the

court should simply have prohibited him from picking P .R.C. up while she slept,

instead of prohibiting co sleeping altogether. He asserts that the blanket prohibition

"forced [him] and P.R.C. to violate the standards of their culture." Suppl. Br. of

Pet'r at 20.

6With respect to the cosleeping issue, Dr. Wheeler made no recommendation other than to "comply[] with the parent trainer recommendations versus abiding by what the mother wants." 2 VRP (Jan. 31, 2012) at 241. 23 In reMarriage ofChandola (No. 89093-5)

As explained above, parenting plan provisions are not subject to strict scrutiny

and thus need not be narrowly tailored. Instead, restrictions imposed under RCW

26.09.191(3) need only be reasonably calculated to prevent the kind of harm

described above. Thus, Chandola's narrow tailoring argument fails.

Without doubt, a trial court must consider cultural factors when imposing a

parenting plan. In re Parentage of Jannot, 149 Wn.2d 123, 127, 65 P.3d 664 (2003)

("parenting plans are individualized decisions that depend upon a wide variety of

factors, including 'culture, family history, the emotional stability of the parents and

children, finances, and any of the other factors that bear upon the interests of the

children"' (quoting In re Parentage of Jannot, 110 Wn. App. 16, 20, 37 P.3d 1265

- (2002))). In this case, the court heard testimony from both parents regarding their - -- -- -- -- - - - - -- - -- -- - - - - - -- --

positive assessment of co sleeping before it prohibited Chandola from continuing that

practice. But the court also considered testimony that P .R.C. was sleep deprived and

only then determined that the cosleeping prohibition was necessary. It also

preserved flexibility, ordering that the prohibition be enforced "unless otherwise

recommended by the case manager." CP at 81.

The cosleeping restriction was therefore reasonably calculated to prevent

mental and physical harm to P.R.C. We therefore affirm the Court of Appeals'

decision to the extent that it upholds this restriction.

24 In reMarriage ofChandola (No. 89093-5)

C. The trial court abused its discretion when it ordered that Chandola 's parents be present for no more than 20 percent of Chandola 's residential time with P.R. C.

Unlike the other two restrictions challenged in this case, the restriction on

grandparental contact does not meet the RCW 26.09.191(3) standard. Vyas asserts

that the trial court imposed this restriction because "the presence of [Chandola]'s

parents prevented [Chandola] from developing the necessary parenting skills and

contributed to conflict by demeaning and devaluing [Vyas]." Resp't's Suppl. Br. at

14.

_- · - - Ihere_is_ample_supporLin_the_record_for_the_ conclusion_thaLprior_to_the______ _

separation, Chandola and his parents had diminished Vyas's role in the family and

coached P.R.C. to choose her father over her mother. There is also ample support

for the conclusion that Chandola relied on his parents to care for P.R.C. But neither

conclusion warrants the imposition of the trial court's third restriction.

Assuming that Chandola's parents did undermine Vyas's bond with P.R.C.,

the severe restrictions on Chandola's parenting time are more than sufficient to

remedy this harm. Nothing in the record suggests that Chandola and his parents

could continue to diminish Vyas' s role after she became the primary custodial

parent.

25 In reMarriage ofChandola (No. 89093-5)

With respect to Chandola's reliance on his parents, we are unable to discern

what harm the trial court believed this was causing P.R.C. The trial court did not

identify any particular harm in its ruling; it opined only that Chandola-the father,

not the child-was insufficiently independent:

[Chandola]'s opportunities to parent and to learn from the opportunities must in large part be without the presence of his parents. The court recognizes that there are several cultural aspects to the history of the marriage and these may or may not include the paternal grandparents [sic] approach and influence. Or it may be due to [Chandola] being an only child, or likely a combination of both. Whatever the antecedents of the extended family dynamic the so called "team" approach at this time needs to stop. Therefore [Chandola]'s residential time must exclude his parents with occasional exceptions ....

CP at 93-94.

----- This ruling is a statement of opinion. It is an opinion that a father-an "only --- -- - ----- ---- -- - -- --- - -- ----- -- - -- ------ - --------

child" of Indian "cultural ... history"-relies too much on "extended family" to help

him raise his child. Id. That opinion is not sufficient to support RCW

26.09.191(3)(g) restrictions. It is not a finding that P.R.C. was at risk of a physical,

mental, or emotional harm comparable to the harms inherent in the factors listed in

RCW 26.09.191(3)(a)-(f).

Indeed, the facts here compel the opposite conclusion. The record contains

no evidence that Chandola's reliance on his parents was causing P.R.C. to go unfed,

unwashed, or otherwise uncared for. Instead, it shows that Chandola's mother was

26 In reMarriage ofChandola (No. 89093-5)

a doting grandmother who carefully attended to P.R.C.'s needs. 7 The restriction on

grandparent contact thus appears calculated to increase Chandola's independence

rather than to prevent mental, physical, or emotional harm to P .R.C. This is not

permitted under RCW 26.09.191(3)(g).

Any other conclusion leaves families vulnerable to a trial court's biases. By

requiring trial courts to identify specific harms to the child before ordering parenting

plan restrictions, RCW 26.09.191(3) prevents arbitrary imposition of the court's

preferences. Wicklund, 84 Wn. App. at 770-71 (distinguishing trial court's

disapproval of homosexuality from a finding of harm sufficient to justify parenting

plan restrictions (citing In reMarriage ofCabalquinto, 43 Wn. App. 518, 519, 718

___ _f.~q ?_ (}<;)~~))). _'f~Ls__!sp~rti~lJJarly i~po~ta9:t in_ t~e _f(lrngY l~'Y- c_o_ntext,_wher~the trial court is empowered to regulate intimate aspects of the parties' lives. See

Santosky, 455 U.S. at 762-63 (noting that in the family law context minority groups

are particularly "vulnerable to judgments based on cultural or class bias[ es ]").

We do not mean to imply that the trial court here was motivated by bias or

cultural insensitivity; we conclude only that it did not justify the restriction on

7 If Chandola' s basic parenting skills remained deficient after the separation, P .R.C. might be harmed if her grandmother were absent and Chandola could not independently provide for her basic needs. But the court-ordered "in-home" parent training is presumably sufficient to address that hypothetical harm. CP at 90. If it were not, then P.R.C. would certainly be harmed, rather than protected, by the restriction on grandparent contact. 27 In reMarriage ofChandola (No. 89093-5)

grandparent contact with the finding of relatively severe harm required by RCW

26.09.191(3)(g). We therefore reverse the portion ofthe Court of Appeals' decision

that upholds the restriction on grandparent contact.

IV. Neither Party Is Entitled to Attorney Fees or Costs

Both parties request attorney fees under RCW 26.09.140, which permits an

appellate court to award costs and/or fees after "considering the financial resources

of both parties." 8 Vyas also requests fees on the basis of Chandola's alleged

intransigence. A party's "intransigence" is an equitable as opposed to statutory basis

for awarding attorney fees. In reMarriage of Greenlee, 65 Wn. App. 703, 708-09,

829 P.2d 1120 (1992). We affirm the Court of Appeals' decision denying

Chandola's request and deny both parties' requests for attorney fees in this court.

A. Neither party is entitled to attorney fees under RCW 26.09.140

RCW 26.09.140 provides that "[u]pon any appeal, the appellate court may, in

its discretion, order a party to pay for the cost to the other party of maintaining the

appeal and attorneys' fees in addition to statutory costs." This statute applies only

8 Under Rules of Appellate Procedure (RAP) 18.1, a party has a right to recover reasonable attorney fees or expenses on review in the Supreme Court if authorized by law, and if the party has put the request in his or her opening brief. State ex rel. MM G. v. Graham, 159 Wn.2d 623, 637-38, 152 P.3d 1005 (2007). Chandola did not request attorney fees in his briefs to this court, but under RAP 18.1 (b) "[r]equests made at the Court of Appeals will be considered as continuing requests at the Supreme Court .... " 28 In reMarriage ofChandola (No. 89093-5)

to dissolution proceedings and "invest[ s] appellate courts with discretion to order a

party to pay fees and costs to the opposing party [after] consider[ ation] of financial

circumstances." In re Marriage of Rideout, 150 Wn.2d 337, 357, 77 P.3d 1174

(2003).

This court has awarded attorney fees under RCW 26.09.140 where the

requesting party demonstrated "disparity in [the parties'] income." In reMarriage

of Buecking, 179 Wn.2d 438, 455, 316 P.3d 999 (2013). It has also denied fees on

the basis that the requesting party did not "substantially prevail[] on appeal." In re

Marriage ofMcCausland, 159 Wn.2d 607,622, 152 P.3d 1013 (2007). Here, neither

party satisfies those requirements.

- First, Chandola challenged three conditions imposed in the parenting plan and -- ---- ----- -------- ------ ---- - ---- ----- - ---- - -- ------ -- ----- ------- -- -- - -----

prevailed as to one. Thus, neither party here has "substantially prevailed" before

this court. See State v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000) (citing RAP

14.2 and collecting cases; noting that "when both parties prevail on major issues,

there may be no substantially prevailing party").

Second, the record in this case does not establish a disparity in the parties'

income that would justify an award of fees to either party. Vyas, who is employed

full time, receives roughly $1,000 per month in child support payments and

preschool tuition from Chandola, who is currently seeking full time work.

29 In reMarriage ofChandola (No. 89093-5)

The parties appear to have roughly equivalent savings. Both cite financial

hardship. Vyas states that she is in debt for dental bills and that her mortgage

exceeds the value of her home. Chandola points out that he has had to bear 90

percent of the costs of the supervised visitation, has paid for counseling as a result

of the unfounded sexual abuse allegations, and is underemployed. Both parties

assert that the other receives substantial support from his or her parents. The

financial affidavits submitted indicate that both have relied fairly heavily on support

from family to fund this litigation.

Based on this record, we deny both parties' requests for discretionary attorney

fees under RCW 26.09.140.

B. c;Jz_qn_d_Q_lq_'s_ _alleged__ "intrans_igen~e ~' d_Of!S 710t jus_t(fy _a11 cnyar_d _Qf fees to Vyas

'"Awards of attorney fees based upon the intransigence of one party have been

granted when the party engaged in "foot-dragging" and "obstruction" ... or simply

when one party made the trial unduly difficult and increased legal costs by his or her

actions."' J(atare, 17 5 Wn.2d at 42 (alteration in original) (quoting Greenlee, 65

Wn. App. at 708). This court denied the mother's request for attorney fees inKatare,

even though the petitioner in that case "repeatedly reasserted arguments that had

been rejected" over the course of three separate appeals. !d. at 43 (Chambers, J.,

concurring). Despite Vyas's contrary views, Chandola has not engaged in behavior 30 In reMarriage ofChandola (No. 89093-5)

like that of the petitioner in Katare. His arguments to this court are less extreme and

fewer in number than those he advanced in the Court of Appeals. Moreover, he

prevailed on one of them. We therefore deny Vyas's request for attorney fees on the

basis of intransigence.

CONCLUSION

Trial courts have broad discretion to create parenting plans tailored to the

needs of the individuals involved in a particular dissolution. This discretion

promotes finality, preventing "extended litigation [that] can be harmful to children."

Jannot, 149 Wn.2d at 127. It also vests appropriate authority in the trial court, which

is best situated to "assign the proper weight to each of the varied factors" relevant to

a particular case. I d. (emphasis omitted).

But while trial courts have broad discretion in the context of a parenting plan,

that discretion must be exercised within the bounds of the applicable statutes. Here,

the applicable statute is RCW 26.09.191(3)(g). It permits parenting plan restrictions

only when they are reasonably calculated to prevent relatively severe physical,

mental, or emotional harm to the child.

Two of the three challenged restrictions in this case satisfy that standard-the

residential provisions and cosleeping prohibition. We therefore affirm the Court of

Appeals' decision upholding these restrictions. The third challenged restriction-

31 In reMarriage ofChandola (No. 89093-5)

limiting the child's contact with her paternal grandparents-does not. We therefore

reverse the Court of Appeals' decision upholding that restriction.

32 Chandola v. Chandola (No. 89093-5)

WE CONCUR:

~~+)g.

33 In re Marriage of Chandola

No. 89093-5

OWENS, J. (dissenting) - One ofthe most important and difficult

responsibilities of our judicial system is adjudicating family law cases. This burden --- ----- --- ------- -------- - - -- -- --- - -- - - - - - - ------------- ---- -- -- - - ----- --- - ----- -- - --- - --

falls heaviest on our trial court judges, who personally oversee these deeply emotional

proceedings. The decisions they face "are difficult at best," which is why this court

has repeatedly instructed that those decisions should "seldom be changed upon

appeal." In reMarriage ofLandry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985). The

emotional and financial interests ofthe families "are best served by finality." Id.

Therefore, when reviewing trial court decisions in family law cases, "[a]ppellate

courts should not encourage appeals by tinkering with them." I d. (emphasis added).

In this case, the majority oversteps its role as a reviewing court and improperly

substitutes its judgment for that of the trial court. I respectfully dissent. In re Marriage of Chandola 89093-5 Owens, J., Dissenting

A trial court has wide discretion to set the terms of a parenting plan, and we

will not reverse its decision unless we find that it abused its discretion. In re

Marriage ofLittlefield, 133 Wn.2d 39, 46,940 P.2d 1362 (1997). An abuse of

discretion occurs when a trial court's "decision is manifestly unreasonable or based on

untenable grounds or untenable reasons." !d. at 46-47. "A court's decision is

manifestly unreasonable if it is outside the range of acceptable choices, given the facts

and the applicable legal standard." Id. at 47. A court's decision "is based on

untenable grounds if the factual findings are unsupported by the record." Id. A

court's decision "is based on untenable reasons if it is based on an incorrect standard

or the facts do not meet the requirements of the correct standard." !d.

In this case, the trial judge presided over a trial that lasted more than a week

and heard testimony from many witnesses, including family members, friends, and

multiple parenting experts. Ultimately, the evidence showed that the father, Manjul

Yarn Chandola, lacked necessary parenting skills and suffered from problematic

personality traits. The trial judge expressly found that the father's conduct was

"adverse to the best interests ofthe child." Clerk's Papers (CP) at 92. The trial judge

found that Chandola "was unwilling or unable to establish boundaries, routines,

schedules, and structure" and that he "discouraged exploration and independence."

!d. The trial judge also found that Chandola was unable to recognize many of the

2 In re Marriage of Chandola 89093-5 Owens, J., Dissenting

issues with his parenting. This was consistent with the parenting expert's finding that

Chandola had difficulty "integrating data inconsistent with his view of reality." Id. at

93.

To address the issues with Chandola' s lack of parenting skills, the trial judge

imposed "such restrictions as may best be anticipated [to] assure the mother's

parenting is not diluted by the father." Id. The court imposed restrictions "designed

to address increased awareness" for the father but also give him the opportunity to

parent regularly. Id. The court expected that this would allow evaluation of"his

judgment and reasoning with regard to parenting decisions." !d. The majority does

not object to most of the restrictions imposed by the trial court, including requiring the

father to:

- Abide by the mother's bedtime routine and time; - Have his daughter sleep in her own room when at his house; - Comply with counseling requirements; - Complete parent training; - Abstain from discussing this court case with his daughter; and - Comply with any recommendations made by the child's therapist, the parent trainer, and the case manager.

I agree with the majority that the trial court is allowed to impose these restrictions,

which were designed to prevent immediate harm to Chandola's daughter and also

improve his parenting skills so that he would be able to increase his time with her in

the future without bringing any harm to his daughter. It was and is Chandola's lack of

parenting skills that harms his daughter, not any malicious intent. However, the

3 In re Marriage of Chandola 89093-5 Owens, J., Dissenting

majority singles out one restriction for reversal: the requirement that when Chandola

spends time with his daughter, he must ensure that most of that time is spent without

the presence of his parents so that he may gain necessary parenting skills. I see no

basis for overturning that term of the parenting plan, which is reasonably calculated to

prevent future harm to Chandola's daughter.

The majority claims that "[t]he trial court did not identify any particular harm

in its ruling" that would justify the restriction, Majority at 26, but that is untrue. The

trial judge clearly found that Chandola' s daughter was being harmed by his parenting

deficiencies, and created a parenting plan designed to give Chandola the opportunity

and resources to develop needed parenting skills so that he would be able to spend

time parenting his daughter in the future without harming her. The trial judge made a

specific finding that Chandola needed to spend parenting time without his parents for

the purpose of developing his parenting skills. CP at 84. Many of the other

restrictions had the same goal, including the requirement that Chandola complete

parent training.

The restrictions-including the requirement that Chandola spend parenting

time without his parents-were designed to prevent immediate harm to Chandola' s

daughter resulting from his lack of parenting skills as well as harm over the long term.

It is clear that the restrictions were specifically designed to improve Chandola' s

parenting skills to avoid harm to his daughter because the restrictions were set to be

4 In re Jvfarriage of Chandola 89093-5 Owens, J., Dissenting

implemented in stages, with Chandola scheduled to have increased time with his

daughter after demonstrating compliance with the restrictions and presumably

improving his parenting skills.

The majority acknowledges that parenting plan provisions need not be

"narrowly tailored" to prevent harm, only "reasonably calculated" to prevent harm.

Majority at 24. Here, each of the restrictions in the parenting plan was reasonably

calculated to either prevent immediate harm or help Chandola develop the parenting

skills he needs to prevent harm in the long term. The judge carefully explained that

the requirement that Chandola spend time with his daughter practicing those parenting

skills without his parents present was for that same purpose. Notably, this restriction

is lifted after the first two stages of the parenting plan, presumably because those

stages are designed to ensure that Chandola will gain those needed parenting skills.

Thus, this restriction was temporary and tailored to fit the specific needs of the

situation.

The majority would overturn the judge's conclusion based solely on its reading

of the record. I disagree. The judge heard from the family members and the parenting

experts and concluded that this temporary requirement, in combination with the other

provisions of the parenting plan, would help Chandola develop those parenting skills

he needs to be able to spend time with his daughter without harming her. The trial

court's assessment of Chandola' s problematic lack of parenting skills is supported in

5 In re Marriage of Chandola 89093-5 Owens, J., Dissenting

the record and confirmed by the dramatic improvement in his daughter's behavior

after the parents separated and the daughter began living with the mother. Since the

separation, witnesses testified that the daughter '"is a changed child, more outgoing,

interactive."' CP at 93. The majority acknowledges that the child "made substantial

emotional and social progress" after she began living primarily with her mother and

that "the trial court clearly intended to ensure that [the daughter's] progress continue

unhindered." Majority at 22. To ensure that progress continued, the trial court crafted

a parenting plan reasonably calculated to improve Chandola's parenting skills, the

ultimate issue causing harm to the daughter. It did not abuse its discretion in setting

the terms of that parenting plan, so I would affirm.

Every family law case is unique. Each family faces different challenges, and

trial court judges are responsible for crafting orders and plans that take those

challenges into account. Trial judges have wide discretion in those decisions, and we

seldom upset them on appeal. This case is no different: the trial court judge oversaw

an extensive trial, identified Chandola' s parenting deficits as the primary cause for

concern, and carefully designed a parenting plan to give Chandola the opportunity and

resources to address those deficits while maintaining a relationship with his daughter.

While some members of this court might have designed a different plan to achieve

those goals, that is not our decision to make. We must be cautious of substituting our

6 In re Marriage of Chandola 89093-5 Owens, J., Dissenting

judgment for that of the trial court judge. I agree with the Court of Appeals' holding

that the parenting plan in this case was within the discretion of the trial court.

I respectfully dissent.

7 In re Marriage of Chandola 89093-5 Owens, J., Dissenting