In Re Marriage of Zigler and Sidwell

226 P.3d 202
CourtCourt of Appeals of Washington
DecidedMarch 4, 2010
Docket27378-4-III
StatusPublished
Cited by57 cases

This text of 226 P.3d 202 (In Re Marriage of Zigler and Sidwell) 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 Zigler and Sidwell, 226 P.3d 202 (Wash. Ct. App. 2010).

Opinion

226 P.3d 202 (2010)

In re the MARRIAGE OF Lisa ZIGLER, Appellant, and
Kirk SIDWELL, Respondent.

No. 27378-4-III.

Court of Appeals of Washington, Division 3.

March 4, 2010.

*203 Dustin Douglass Deissner, Van Camp & Deissner, Spokane, WA, for Appellant.

Blaine Thomas Connaughton, Connaughton Law Office, Yakima, WA, for Respondent.

SWEENEY, J.

¶ 1 A trial judge who modifies a parenting plan must find, among other things, that a *204 substantial change in circumstances makes the child's primary residence detrimental to his health. RCW 26.09.260(2)(c). The finding must be based on facts that have arisen since the last contested parenting plan. RCW 26.09.260(1). Here, the trial judge modified a child's primary residence from his mother's house to his father's house after finding that domestic violence at his mother's house is detrimental to his health. This finding is based on acts of domestic violence between members of the mother's household that arose after the last contested parenting plan was entered in 2002. We, therefore, conclude that the trial judge properly exercised his discretion to modify the parenting plan. We reject the mother's additional assignments of error. And we affirm the order modifying the parenting plan.

FACTS

¶ 2 Kirk Sidwell and Lisa Zigler married in 1999. They had a child together, a son named Blake Sidwell, in 2000. They divorced in 2002. The 2002 parenting plan made Ms. Zigler's home Blake's primary residence.

¶ 3 Mr. Sidwell and Ms. Zigler agreed to modify the parenting plan in April 2004. In December 2004, Mr. Sidwell moved to modify this agreed parenting plan for several reasons, including:

• Incidents of domestic violence between Ms. Zigler and her ex-husband, Tim Briggs, that occurred before 2002;
• Incidents of domestic violence between Ms. Zigler and Mr. Sidwell that apparently occurred between 2002 and 2004;
• An assault by Ms. Zigler on her daughter, Darci Briggs, in September 2004;
• Substance abuse by Ms. Zigler's son, Cory Briggs, in 2004; and
• Possession of a gun at school by Cory Briggs in 2003.

A superior court commissioner concluded that Mr. Sidwell had not established adequate cause for modification and denied his motion. Mr. Sidwell and Ms. Zigler later agreed to modify the parenting plan in March 2006, making minor adjustments to the plan's residential schedule.

¶ 4 "On April 25-26, 2006[,] a serious argument and physical altercation took place in Lisa Zigler's home in Yakima. The incident involved Lisa Zigler, her husband[,] Zario Zigler, and her children Christopher Briggs and Kyle Ogdon. Zario Zigler was charged with assaulting Kyle Ogdon and Lisa Zigler in connection with this occurrence." Clerk's Papers (CP) at 74; see CP at 247-49; Report of Proceedings (RP) at 838-43, 845. Mr. Ogdon, however, also punched Mr. Zigler during the course of this altercation. And Ms. Zigler bit Mr. Zigler. Mr. Sidwell moved to modify the agreed parenting plan of 2006 based on this incident of domestic violence. This time the commissioner found adequate cause for modification and granted Mr. Sidwell a hearing on the merits.

¶ 5 After a 12-day hearing, the trial court granted Mr. Sidwell's motion to modify the parenting plan:

The custody decree/parenting plan/residential schedule should be modified because a substantial change of circumstances has occurred in the circumstances of the child or the nonmoving party and the modification is in the best interest of the child and is necessary to serve the best interest of the child. This finding is based on the factors below.
The child's environment under the custody decree/parenting plan/residential schedule is detrimental to the child's physical, mental or emotional health and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.
The following facts, supporting the requested modification, have arisen since the decree or parenting plan or were unknown to the court at the time of the last parenting plan:
A history of domestic violence in mother's home; a chaotic, dysfunctional home environment which is detrimental to the emotional health of the child.

CP at 66-67. The court modified the parenting plan by ordering that Blake reside primarily with Mr. Sidwell.

¶ 6 Ms. Zigler appeals.

*205 DISCUSSION

STANDARD OF REVIEW

¶ 7 We review a trial court's decision to modify a parenting plan for abuse of discretion. In re Marriage of Hansen, 81 Wash.App. 494, 498, 914 P.2d 799 (1996). We will not reverse the decision unless the court's reasons are untenable. In re Marriage of McDole, 122 Wash.2d 604, 610, 859 P.2d 1239 (1993).

A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; [and] it 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.

In re Marriage of Fiorito, 112 Wash.App. 657, 664, 50 P.3d 298 (2002).

PARENTING PLAN MODIFICATIONS—STATUTORY BACKGROUND

¶ 8 Parenting plan modifications require a two-step process set out in RCW 26.09.260 and .270. First, a party moving to modify a parenting plan must produce an affidavit showing adequate cause for modification before the court will permit a full hearing on the matter. RCW 26.09.270. "[T]he information considered in deciding whether a hearing is warranted should be something that was not considered in the original parenting plan." In re Parentage of Jannot, 110 Wash.App. 16, 25, 37 P.3d 1265 (2002), aff'd, 149 Wash.2d 123, 65 P.3d 664 (2003).

¶ 9 If the moving party establishes adequate cause and the court holds a full hearing, the court may then modify the existing parenting plan if it finds that (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child's health, (3) modification is in the child's best interest, and (4) the change will be more helpful than harmful to the child. RCW 26.09.260(1), (2)(c).

¶ 10 Ms. Zigler's appeal implicates the second step of the modification process. The primary issue here on appeal is whether the trial court properly based its decision on "facts that have arisen since the prior ... plan or that were unknown to the court at the time of the prior ...

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Cite This Page — Counsel Stack

Bluebook (online)
226 P.3d 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-zigler-and-sidwell-washctapp-2010.