IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 72343-0-1
ANGELIKA MCNAUGHT, DIVISION ONE
Respondent, PUBLISHED OPINION and
BYRON MCNAUGHT,
Appellant. FILED: August 17, 2015
Leach, J. — Byron McNaught appeals the trial court's relocation order
allowing Angelika McNaught and their daughter, A.J.M., to move to Texas. He
challenges the trial court's application of the relocation presumption, the trial
court's evaluation of the statutory relocation factors, and the sufficiency of the
evidence to support the trial court's relocation decision. Additionally, he makes
legal challenges to certain parenting plan provisions. Finally, he challenges the
trial court's award of attorney fees to Angelika and asks this court not to award
her fees on appeal.
Because the relocation presumption reflects a legislative policy decision
and Washington case law requires a quantum of proof to rebut it, this
presumption shifts the burdens of production and persuasion to the parent
opposing the relocation. The trial court correctly applied the presumption. NO. 72343-0-1 / 2
The record includes evidence addressing each relevant relocation factor,
and the trial court's findings reflect its consideration of each factor. Substantial evidence supports these findings and the trial court's relocation decision. But the evidence does not support the parenting plan notice provisions. And, because a parent may delegate its residential time to family members absent any indication of harm to a child, the trial court abused its discretion by denying Byron this discretion. Byron's other challenges to the parenting plan lack merit. Because Byron earns significantly more than Angelika, we conclude that the trial court did not abuse its discretion when it awarded Angelika attorney fees. We affirm in part, reverse in part, deny fees to both parties, and remand for further proceedings consistent with this opinion. FACTS
Angelika and Byron McNaught met in Texas and married there in 2004. In 2010, they moved to Seattle, so Byron could take a job. Angelika began a web design position, allowing her to work from their home on Mercer Island. They had a child, A.J.M., in February 2012. As an infant, A.J.M. woke up four or five times per night, leaving both parents, especially Angelika, sleep deprived. Byron's parents moved from Florida to Mercer Island, and Byron's mother, Laurel McNaught, provided childcare to A.J.M. A.J.M. and Byron's parents became close. But in the months after A.J.M.'s birth, Byron and Angelika's marriage NO. 72343-0-1 / 3
began to have difficulties. Angelika criticized Byron for the social time he spent with coworkers and pursuing hobbies and believed that the time he spent away
from home indicated that he did not want to parent.
In June 2013, Angelika and Byron separated. Angelika petitioned for
dissolution of marriage.
On July 12, 2013, Angelika filed a motion for temporary orders allowing her to relocate A.J.M. to Texas, where her family lives. The trial court denied her
request. It also appointed Dr. Wendy Hutchins-Cook to make recommendations about a parenting plan and the relocation issue. The trial court ordered that A.J.M.'s childcare by Laurel McNaught continue but provided Angelika the option for Laurel McNaught to provide care in Byron's home. By January 2014, Angelika had gradually reduced and then eliminated Laurel's care of A.J.M. Between January and April 2014, Dr. Hutchins-Cook performed psychological testing, observed A.J.M. with each parent, and conducted interviews with the parents and third parties. She issued her report on April 21, 2014. Angelika reported to Dr. Hutchins-Cook that she did not plan to relocate, though she wanted to be near her family, because the trial court had required that she remain in Washington. She said that she had come to realize it was better for A.J.M. to be around her father more and said that she would stay, reporting that her parents closed their restaurant and hoped to buy property in -3- NO. 72343-0-1/4
Washington. Angelika's mother temporarily stayed with her and helped with
A.J.M.
Dr. Hutchins-Cook concluded that A.J.M. is more reactive and sensitive
than other children and fares better with gradual rather than dramatic changes.
Dr. Hutchins-Cook found A.J.M. to be well bonded with each parent, finding no
concerns with either parent's ability to fulfill parenting functions. She found that
Angelika had provided a majority of A.J.M.'s care. She also found A.J.M. to be attached to Byron's parents and Angelika's mother. Dr. Hutchins-Cook
recommended a residential schedule that gradually reached a week-on, week-off
schedule by the time A.J.M. turned five.
Dr. Hutchins-Cook did not evaluate the issue of relocation because at the
time of evaluation, Angelika did not plan to move. But she did find that A.J.M.
had established relationships with relatives in Texas. Before trial, Angelika filed
a second notice of intended relocation. Her parents were not able to move to
Washington permanently. She stated in her notice that her move would depend
on the trial court's decision.
At trial, Angelika, Byron, Dr. Hutchins-Cook, and other witnesses who knew the parents and A.J.M. testified to A.J.M.'s relationship with her parents. Though Dr. Hutchins-Cook did not evaluate the issue of relocation, she did testify about relocation issues.
-4- NO. 72343-0-1 / 5
The trial court allowed the requested relocation and adopted a parenting
plan. The trial court denied Byron's motion for stay. After Byron appealed, this court denied a second motion for stay.
STANDARD OF REVIEW
Parental rights constitute a protected, fundamental liberty interest under
the Fourteenth Amendment to the United States Constitution.1 This court
reviews a trial court's parenting plan decision for an abuse of discretion.2 Atrial court abuses its discretion when it makes a manifestly unreasonable decision or
bases its decision on untenable grounds or untenable reasons.3
"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; 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."141 ANALYSIS
Relocation Presumption
The child relocation act (CRA), RCW 26.09.405-.560, provides notice
requirements and standards for changing the primary residence of a child who is
1 In re Marriage of Chandola, 180 Wn.2d 632, 646, 327 P.3d 644 (2014) taunting In re Custody of Smith, 137 Wn.2d 1, 14-15, 969 P.2d 21 (1998)). 2 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). 3 Chandola, 180 Wn.2d at 642 (quoting In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012)). * In re Marriage of Horner, 151 Wn.2d 884, 894, 93 P.3d 124 (2004) (quoting Littlefield, 133 Wn.2d at 47). -5- NO. 72343-0-1 / 6
the subject of a court order regarding residential time.5 If a person entitled to
residential time or visitation objects to a child's relocation, the person seeking to
move the child may not relocate the child without court approval.6
Upon a proper objection, a trial court must conduct a fact-finding hearing
on the proposed move.7 RCW 26.09.520 establishes a rebuttable presumption
permitting the move:
There is a rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended relocation of the child may rebut the presumption by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person.
This presumption incorporates and gives substantial weight to the
traditional presumption that a fit parent acts in his or her child's best interests,
including when that parent relocates the child.8 "The CRA shifts the analysis
away from only the best interests of the child to an analysis that focuses on both
the child and the relocating person."9 A person opposing the move must rebut
the presumption by a preponderance of the evidence.10
5 In re Marriage of Wehr, 165 Wn. App. 610, 612, 267 P.3d 1045(2011). 6 RCW 26.09.480(2). 7 Wehr, 165 Wn. App. at 612 (citing RCW 26.09.520). 8 Horner, 151 Wn.2d at 894-95 (quoting In re Custody of Osborne. 119 Wn. App. 133, 144-45, 79 P.3d 465 (2003)). 9 Horner, 151 Wn.2d at 887. 10 Wehr, 165 Wn. App. at 614. -6- NO. 72343-0-1 / 7
Byron contends that this presumption has a limited purpose. It places on
the opposing party the burden of producing sufficient evidence to overcome the
presumption by a preponderance of the evidence. Once this occurs, the
presumption disappears, and the court weighs the evidence without regard to the
presumption. Implicit, but unstated, in Byron's argument is the view that rebuttal
of the presumption in this manner shifts the burden of persuasion to the person
requesting the move. We recently rejected a similar argument in the context of a
different statutory presumption.11
In Larson v. City of Bellevue,12 we held that a statutory presumption that
certain diseases contracted by firefighters were occupational diseases shifted the
burdens of production and persuasion. Two factors present in both Larson and
this case persuade us that RCW 26.09.520 places both the burden of production
and persuasion on the objecting person. First, this statute reflects a public policy
decision made by the legislature favoring relocation. Second, Washington
precedent requires a defined quantum of proof (preponderance) to rebut the
presumption. Deciding if the evidence produced achieves the necessary level of
persuasiveness requires an evaluation of witness credibility and the
persuasiveness of all admitted evidence. Logically, this shifts to the objecting
11 Larson v. City of Bellevue, No. 71101-6-1, 2015 WL 4204116, at *7 (Wash. Ct. App. July 13, 2015). 12 No. 71101-6-1, 2015 WL 4204116, at *7 (Wash. Ct. App. July 13, 2015). -7- NO. 72343-0-1 / 8
person the burden of persuading the court that detriment of the proposed
relocation outweighs the benefit of the change to the child and relocating
person.13
Byron cites Bank of Washington v. Hilltop Shakemill, Inc.,14 to support his
position. In Hilltop, this court held that the trial court must disregard a
presumption of a community debt once the debtor presents evidence to
overcome the presumption.15 Byron argues that consistent with the provisions
and policy of the CRA, the trial court should have applied the relocation
presumption in the same way. He claims that retaining the presumption after the
objecting person has rebutted it impermissibly elevates one parent's fundamental
parenting right over that of the other parent. But this mechanical argument fails
to address that the CRA's presumption of relocation "'incorporates and gives
substantial weight to the traditional presumption that a fit parent will act in the
best interests of her child.'"16 As Division Two of this court has concluded, the
preponderance of the evidence standard of proof required to overcome the
presumption adequately protects the interests of both parents.17
13 Larson, 2015 WL 4204116, at *6. 14 26 Wn. App. 943, 946, 948, 614 P.2d 1319 (1980). 15 Hilltop, 26 Wn. App. at 948. 16 Horner, 151 Wn.2d at 895 (quoting Osborne, 119 Wn. App. at 144). 17 Wehr, 165 Wn. App. at 614. -8- NO. 72343-0-1 / 9
Courts interpret statutory presumptions to give them the force intended by
the legislature.18 The CRA's 11 child relocation factors "serve as a balancing test
between many important and competing interests and circumstances involved in
relocation matters," while the presumption in favor of relocation operates to give
particular importance to the interests and circumstances of the relocating parent,
not only the best interests of the child.19 The significant yet surmountable hurdle
the legislature established for the opposing party supports the view that the
presumption does not disappear upon a party's production of evidence. If it
disappeared as suggested, the presumption would do little to further the
legislature's apparent purpose of generally favoring relocation. As we apply the
presumption, it provides the standard the trial court uses at the conclusion of trial
to resolve competing claims about relocation. This approach furthers the
legislature's policy reflected in the presumption.
RCW 26.09.520 shifts the burdens of persuasion and production to a party
opposing relocation. The trial court did not err in its application of the statutory
presumption.
Court's Consideration of Child Relocation Factors
Byron next argues that the trial court failed to consider all 11 relocation
factors in RCW 26.09.520. A trial court must consider all 11 statutory factors in
18 Larson, 2015 WL 4204116, at *7. 19 Horner, 151 Wn.2d at 894. NO. 72343-0-1/10
child relocation matters to determine if a detrimental effect outweighs the benefits
to both the child and the parent wishing to relocate.20 Each factor has equal
importance, and they are not weighted or listed in any order but rather provide a
balancing test between the competing interests and circumstances that exist
when a parent wishes to relocate.21 The trial court must enter specific findings
on each factor, or parties must have presented substantial evidence on each
factor with the trial court making findings and oral articulations that reflect its
consideration of each.22 A trial court abuses it discretion when it fails to consider
each factor.23
The trial court heard testimony from both parents and from Dr. Hutchins-
Cook about the 11 relocation factors. The trial court's findings of fact and
conclusions of law stated that it had "considered the factors in RCW 26.09.520,
and those factors favor the mother and her preferred relocation to Texas."
Because the trial court did not enter specific findings on each factor, we must
determine if the court heard substantial evidence on each factor and reflected its
consideration of each in its findings and oral articulations.
20 Horner. 151 Wn.2d at 894-95 (quoting Osborne. 119 Wn. App. at 144- 45). 21 Horner. 151 Wn.2d at 894. 22 Horner. 151 Wn.2d at 895-96. 23 Horner. 151 Wn.2d at 894-95. -10- NO. 72343-0-1 /11
(1) The relative strength, nature, gualitv. extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life
Dr. Hutchins-Cook testified that A.J.M. had strong bonds with both
parents, as well as her paternal grandparents and maternal grandmother. She
found A.J.M. equally attached to both parents. Dr. Hutchins-Cook also found that
Angelika was very good at providing care to A.J.M. and did 75-85 percent of the
parenting. Byron testified at trial that he shared parenting responsibilities with
Angelika and that both he and Angelika had a strong bond with A.J.M. The trial
court considered this factor when it found that A.J.M.'s relationship with Angelika
and her family in Texas is at least as strong as the relationship A.J.M. has with
Byron and his family.
(2) Prior agreements of the parties
Dr. Hutchins-Cook testified that during evaluation Angelika stated she
would not relocate but also testified that the parties had made no agreement.24
This factor is inapplicable.
24 Byron asserts that an agreement existed because he relied on Angelika's statements to Dr. Hutchins-Cook. But the record fails to support any agreement between the parties on this issue. -11- NO. 72343-0-1 /12
(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation
Dr. Hutchins-Cook testified that at A.J.M.'s age, disrupting A.J.M.'s
relationship with Angelika is more harmful than disrupting her relationship with
Byron. Dr. Hutchins-Cook testified that relocation makes a significant impact on
the quality of the relationship but is unlikely to break the attachment of a child to
his or her parent. The trial court's finding that the strength of A.J.M.'s
relationship to Angelika and her family in Texas is at least as strong as her
relationship with Byron and his family reflects the court's consideration of this
factor.
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191
Because neither party alleged harm to A.J.M. under RCW 26.09.191, the
court did not need to consider this factor.
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in reguesting or opposing the relocation
Angelika testified that she wanted to be close to her family and move to a
community where she could purchase a home. Byron testified about his close
relationship with A.J.M. and his strong concern about her relocation. He thought
Angelika may be trying to relocate A.J.M. away from him. During cross-
examination, he challenged her assertion that Texas provides a cheaper cost of
-12- NO. 72343-0-1/13
living and asserted in argument that she changed her position about moving to
preclude Dr. Hutchins-Cook from evaluating the relocation issue. Angelika
testified that at the time of evaluation, she believed she would not relocate
because her parents sold their restaurant and were trying to buy a home in
Seattle but later changed her mind when their plans failed.
The trial court addressed Byron's reasons for opposing the relocation in its
order denying his motion for stay when it acknowledged that relocation may be
disruptive to his relationship with his daughter. But the trial court ultimately
adopted Angelika's reasoning, referencing in its order the strong bond between
A.J.M. and Angelika's family in Texas, as well as opportunities for A.J.M. and
Angelika there.
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child
Dr. Hutchins-Cook testified that both parents understood A.J.M. to be a
sensitive child but that she did not believe A.J.M. had special needs. She
testified that if A.J.M. remains, A.J.M. has everything she needs, including both
parents. She acknowledges that if A.J.M. moves, it would disrupt her relationship
with her father. The trial court's statement in its order denying Byron's motion for
stay that Angelika's establishment of a "home with permanence" provided A.J.M.
"stability and security" reflects the court's consideration of this factor. -13- NO. 72343-0-1 /14
(7) The gualitv of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations
Dr. Hutchins-Cook testified that she believed A.J.M. had everything
available to her in the status quo but knew nothing about Angelika's financial or
housing situation. Angelika testified that she could not afford to live on Mercer
Island once her lease expired, about her ability to buy a home for her and A.J.M.
in Texas, and her high quality of life there compared with the less desirable
lifestyle she could afford in Seattle. The trial court stated that
[A.J.M] can look forward to a substantially better housing by granting the motion to relocate. She can expect to enjoy the stability of residence that home ownership usually provides. The community to which Petitioner proposes to move is, by the evidence, rated highly in all categories, most particularly, in the quality of schooling to which she will have access.
While Mercer Island, from which she will move, has high quality schools, she probably could not continue to reside there.
(8) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent
Dr. Hutchins-Cook testified that she recommends Skype™ (Microsoft
Corp. product providing video chat and voice calls from various electronic
devices) or FaceTime™ (Apple Inc. product providing video chat and voice calls
from various electronic devices) as a useful tool for A.J.M. to communicate with
Byron. The trial court included Skype and FaceTime arrangements in its
•14- NO. 72343-0-1/15
parenting plan. Its order denying Byron's motion for stay also indicated it
considered this factor:
No one questions that the father is dedicated to his child, and she to her father. To the extent that the relocation is disruptive to that relationship, he is in the better position to ameliorate the negative aspects of their separation, by his regular and consistent contact with her, than by denying the benefits to her of the relocation. He does have the resources, and apparently the intent, to continue to see his daughter in Texas, where he, too, has family and roots.
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also
Angelika testified that while she had always considered relocating, she
had tried to stay in Seattle when her parents attempted to move to Seattle.
Byron testified that he could not relocate to Texas due to logistical, financial, and
professional constraints. The trial court's order reflects its consideration of this
factor, finding that Angelika likely was unable to continue living on Mercer Island
and would not be able to provide A.J.M. access to desirable resources.
(10) The financial impact and logistics of the relocation or its prevention
Angelika testified that Texas had cheaper housing prices and less
expensive activities for A.J.M. In cross-examination, Byron challenged these
assertions. The trial court stated in its order that Angelika probably could not
continue living on Mercer Island, while in Texas A.J.M. could look forward to
substantially better housing.
-15- NO. 72343-0-1 /16
(11) For a temporary order, the amount of time before a final decision can be made at trial
This is not applicable to this court's analysis.
The trial court wrote in conclusion, "Considering all the factors of RCW
26.09.520, the very substantial weight of the evidence supports granting
Petitioner's motion." Thus, we conclude that the court's findings reflect that it
properly considered each of the applicable factors under RCW 26.09.520.
Abuse of Discretion
Byron contends that he demonstrated harm under RCW 26.09.520,
reciting his evidence addressing each factor, while arguing that Angelika did not
meet her burden. But as Angelika contends, Byron's argument asks this court to
reexamine the evidence and reach a different conclusion than the trial court,
misapprehending this court's role. We do not review credibility determinations or
reweigh the evidence to determine if we should reach a different conclusion, as
Byron's argument implies.25 We review instead for abuse of discretion.26
Byron contends that the court should not have looked at Angelika's close
relationship with her family. This ignores the trial court's obligation to consider
her interests under RCW 26.09.520.27 He further claims that Angelika waived the
protections of RCW 26.09.530 and that the trial court failed to consider that she
25 See In re Marriage of Fahev. 164 Wn. App. 42, 62, 262 P.3d 128 (2011); see also Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). 26 Chandola. 180 Wn.2d at 642. 27 Horner. 151 Wn.2d at 894. -16- NO. 72343-0-1/17
would not relocate unless the court allowed A.J.M.'s relocation. But this is not a
mandatory factor under RCW 26.09.520, and the court had discretion not to
examine that issue. Byron further asserts the court erred as a matter of law
when it considered Angelika's interest in buying a home. RCW 26.09.520
permits considering this as a potential benefit to a relocation.
Sufficient evidence supports the court's relocation decision. Angelika
testified that when she told Dr. Hutchins-Cook she would not relocate, she based
this on the fact that her parents had moved to Seattle. It is important for her to
be near her family. When her parents returned to Texas, she had no family in
Seattle. She testified, "[Ijt's hard to be away from them, especially right now."
Angelika also has friends in Texas and goes back about every six months. And
she felt she had no support from Byron's family. Angelika also testified that
purchasing a home is important to her and she would be able to do so in Texas,
where houses cost less than in Seattle. She testified that A.J.M. could
participate in activities at less cost in Texas than in Seattle. In Seattle, Angelika
could not save money. Angelika believes A.J.M. should relocate with her
because she has provided a majority of the care and A.J.M. goes to her for
comfort, guidance, love, and affection. Dr. Hutchins-Cook testified that a
relocation does not break attachment between an infant or toddler and his or her
long-distance parent, but the quality of the relationship is not as good as when a
-17- NO. 72343-0-1/18
parent has regular, frequent contact. Dr. Hutchins-Cook testified that at A.J.M.'s
age, greater harm would likely come to A.J.M. through disruption of her
relationship with her mother than disruption of the relationship with her father.
Thus, we conclude that because the evidence at trial and the trial court's
findings reflect its consideration of all 11 child relocation factors and because
sufficient evidence supported the trial court's conclusion that upon consideration
of those factors it should grant the relocation, the trial court did not abuse its
discretion.
Challenged Terms in Parenting Plan
Byron challenges several terms of the parenting plan fashioned by the trial
court, arguing that the trial court failed to support its findings of fact with
substantial evidence, leading to improper parenting plan terms. But, as Angelika
argues, a trial court need not support each term of a parenting plan with specific
factual findings. Rather, a trial court has broad discretion to structure a parenting
plan, guided by the provisions of the applicable statutes.28 We look at each
challenged term, reviewing for abuse of discretion.
Byron first contends that the trial court abused its discretion when it
ordered that Byron could not designate other caretakers. Angelika clarifies that
28 Katare, 175 Wn.2d at 35-36. -18- NO. 72343-0-1/19
the restriction does not limit Byron's ability to leave the child with others but
simply limits his ability to allocate his entire time to another person.
Ordinary parental decision-making rights include designating family
members to care for one's child.29 A trial court may impose restrictions on
parental rights under RCW 26.09.191. But "[a] trial court abuses its discretion if it
imposes a restriction that is not reasonably calculated to prevent... a harm"
"similar in severity to the harms posed by the 'factors' specifically listed in RCW
26.09.191 (3)(a)-(f)."30
The trial court found that "[tjhis is father's time to be with the child; he
cannot delegate the time to his family, other than when he is physically present in
Texas, unless agreed upon between the parents." But, as Byron argues, in this
case the trial court did not impose any restrictions under RCW 26.09.191. Byron
analogizes to In re Marriage of Chandola.31 a case decided after the trial court's
decision in this case. There, the trial court imposed a restriction limiting the
paternal grandparents' contact with the child to 20 percent of the father's
residential time to encourage the father to directly parent.32 But the Washington
Supreme Court held that absent findings of harm to the child under RCW
29 In re Marriage of Magnusson, 108 Wn. App. 109, 110-11, 29 P.3d 1256 (2001). 30 Chandola. 180 Wn.2d at 648. 31 180 Wn.2d 632, 327 P.3d 644 (2014). 32 Chandola. 180 Wn.2d at 641. -19- NO. 72343-0-1 / 20
26.09.191, those necessary to prevent mental, physical, or emotional harm to the
child, the court abused its discretion.33
In In re Marriage of Magnusson.34 this court affirmed a trial court's
parenting plan that had a provision allowing a fisherman father to designate time
to his parents during his absence. Angelika attempts to distinguish Magnusson.
arguing that in that case the father had regular residential time and required
daycare, where here, if Byron does not go to Texas, then he is not entitled to the
time at all. Angelika also argues that allowing Byron to delegate his residential
time to a family member conflicts with the U.S. Supreme Court's decision in
Troxel v. Granville.35 protecting parental rights against those of third parties.
We disagree with Angelika's understanding of Magnusson and Troxel.
Byron does have regular residential time with A.J.M. should he choose to use it.
And a court presumes that a fit parent acts in the best interests of his or her
children.36 Magnusson distinguishes Troxel as a case about the competing rights
of parents and nonparents. Here, as in Magnusson, where wishes conflict only
between two parents, "[i]n the absence of a finding that spending time
with . . . relatives was against [a child's] best interests," a parent designating time
33 Chandola. 180 Wn.2d at 658-59. 34 108 Wn. App. 109, 111, 113, 29 P.3d 1256(2001). 35 530 U.S. 57, 69-70, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). 36 Troxel. 530 U.S. at 69. -20- NO. 72343-0-1/21
to relatives "simply confirms a normal right of parental decision making."37
Because no evidence supports the challenged limitation and because the trial
court found Byron a competent parent who can take care of A.J.M. and make
decisions on her behalf, we conclude that this limitation constitutes an abuse of
Byron contends that the trial court abused its discretion when it required
him to provide a 45-day notice to Angelika for his monthly visits, a 60-day notice
after A.J.M. begins school, and an 8-month notice for winter break travel plans.
Angelika testified that 30 days is reasonable notice. Dr. Hutchins-Cook testified,
however, that a 15- to 30-day notice is reasonable but that a 60-day notice is
unreasonable and too long. Because no evidence supports the trial court's
notice requirements, the trial court abused its discretion imposing them.
Byron next contends that the trial court abused its discretion when it
concluded that until age 18 A.J.M. may not spend more than three to four days
with Byron without interruption by Angelika. If true, his contention might have
merit. But Byron has misinterpreted the trial court's residential schedule.
Before A.J.M. reaches school age, the trial court provided Byron a five-day
monthly residential schedule. After A.J.M. reaches school age, the residential
schedule provides him seven days per month, interrupted by an overnight with
37 Magnusson. 108 Wn. App. at 113. -21- NO. 72343-0-1 / 22
Angelika. But the schedule provides different terms for A.J.M.'s winter vacation,
other school breaks, and summer vacation. The trial court divides A.J.M.'s winter
holiday break in two parts and requires an interruption of Byron's time with A.J.M.
only if Angelika travels to Washington with A.J.M. The trial court's parenting plan
provides no interruptions when Byron has A.J.M. for her midwinter or spring
breaks, when A.J.M. may visit Washington after she begins school. And the trial
court imposed a progressive schedule for A.J.M.'s summer vacation. Until A.J.M.
turns five and begins school, Byron may have her for up to 10 days and only
when Angelika brings A.J.M. to Washington must there be a designated break in
the middle. After A.J.M. turns five and begins school but before she turns seven,
Byron may have her for two weeks without interruption. And after A.J.M. turns
seven, during her summer vacation Byron may have her for an uninterrupted four
weeks. And Angelika admits in her appellate brief to this court that she "has no
objection, 3-4 years out, to not having the father's time with [A.J.M.] interrupted
by the mid-period return to her" under the court's order.
Because the trial court fashioned a schedule tailored to A.J.M.'s age that
provides Byron significant time with his daughter in Washington, we conclude
that the trial court did not abuse its discretion when fashioning the terms of the
parenting plan's residential schedule.
-22- NO. 72343-0-1 / 23
Byron further contends that the trial court arbitrarily imposed a restriction
in the parenting plan limiting Byron's holiday visits in Texas to the day of the
holiday between the hours of 10:00 a.m. and 8:00 p.m. He argues that it serves
no purpose other than to limit A.J.M.'s ability to see him. But Byron may
schedule his residential time in Texas to include major holidays. And the trial
court's schedule for other special occasions, though limited to one day, reflects
the court's reasonable allocation of these days to both Angelika and Byron, so
each can celebrate with A.J.M. without disrupting A.J.M.'s schedule. Thus, we
conclude that the trial court did not abuse its discretion when limiting special
occasions to a single day.
Byron also contends that the trial court abused its discretion by arbitrarily
limiting his video chat time with his daughter to one to two times per week when
no evidence in the record supported that limitation. But because this provides
him semiregular contact with A.J.M. and avoids burdening Angelika with
scheduling more frequent contact while she provides childcare and implements
schedules, we conclude that this is a reasonable parenting plan term and within
the trial court's discretion.
Split of Travel Expenses
Byron argues that the trial court abused its discretion when it ordered a
proportional split of airfare alone, leaving Byron responsible for additional
-23- NO. 72343-0-1 / 24
expenses associated with his trips to Texas, including room and board and car
rental. RCW 26.19.080(3) states that long-distance travel costs "to and from the
parents for visitation . . . shall be shared by the parents in the same proportion as
the basic child support obligation." A trial court must apportion these costs.38
Angelika argues that the statute's plain language defines the proportional
travel expense to include merely airfare and not the cost of living while with a
child. An appellate court does not construe a statute's unambiguous language.39
Here, RCW 26.19.080(3) explicitly requires allocation of travel expenses incurred
"to and from" the location and not all costs associated with long-distance
visitation.
Additionally, a trial court has discretion to decide what travel expenses are
necessary and reasonable.40 In this case, evidence supports the trial court's
conclusion that expenses above airfare were not necessary and reasonable.
Byron testified that he has a brother living in Texas, though the brother planned
to move to Seattle in January 2015. Byron also testified that he did not think it
would be possible for A.J.M. and him to stay with his sister who lives with her
boyfriend near Angelika's proposed town of relocation. But Angelika testified that
Byron and his siblings remained close, that he had previously stayed with his
38 In re Paternity of Hewitt. 98 Wn. App. 85, 89, 988 P.2d 496 (1999). 39 In re Marriage of Scanlon, 109 Wn. App. 167, 172, 34 P.3d 877 (2001). 40 Hewitt. 98 Wn. App. at 89. -24- NO. 72343-0-1 / 25
brother, and that Byron could potentially stay with his family during visits to see
A.J.M. Because Byron has family in Texas and the trial court could have found
that air travel was the only necessary and reasonable travel expense, the trial
court did not abuse its discretion when it ordered a proportional division of costs
for airfare alone.
Attorney Fees
Byron finally argues that the trial court abused its discretion when it
awarded Angelika "a portion of her reasonable attorney fees and costs" under
RCW 26.09.140 in the amount of $15,000. RCW 26.09.140 allows a trial court to
award attorney fees after consideration of the financial resources of each party.
A court awards attorney fees under the statute based on need and ability to pay;
even if one party has a need, a trial court does not award the fee if the other
party does not have the ability to pay.41
Byron argues he had no ability to pay, that each party received an equal
division of property, and that the maintenance award substantially equalized the
parties' respective net incomes. But Byron testified to earning an annual salary
of $140,000, with a monthly net income of $8,295. He believed his income would
grow perhaps by as much as nearly $4,000 per month that year. His monthly
expenses total $5,694. Byron's maintenance obligation to Angelika is $2,250 per
41 RCW 26.09.140; In re Marriage of Schnurman, 178 Wn. App. 634, 644- 45, 316 P.3d 514 (2013), review denied. 180 Wn.2d 1010 (2014). -25- NO. 72343-0-1 / 26
month for 36 months. He is also responsible for $841 in child support payments
during maintenance and $1,053 in child support payments after maintenance.
Angelika testified that she makes $40,000 per year and had spent $30,000
of her savings in attorney fees, with $40,000 remaining in her savings account.
Because of the disparity between Angelika's and Byron's income and earning
potential, with Byron far better situated financially, we conclude that the trial court
did not abuse its discretion when it awarded reasonable attorney fees and costs
to Angelika.
Angelika requests attorney fees under RAP 18.1. Byron objects on the
grounds that Angelika did not properly brief the issue. Because Angelika does
not devote any argument to the issue, we deny fees under RAP 18.1.
CONCLUSION
Because the relocation presumption shifts the burdens of production and
persuasion, the trial court properly applied the presumption. Because the court
heard testimony on the RCW 26.09.520 relocation factors and reflected its
consideration of the factors in its findings, the court did not abuse its discretion.
Because substantial evidence supports the trial court relocation decision, we
affirm it. Because a parent may delegate its residential time to family members
absent any indication of harm to a child, the trial court abused its discretion by
denying Byron this discretion. Because no evidence supports the parenting plan
-26- NO. 72343-0-1 / 27
notice requirement, the trial court abused its discretion fashioning these terms.
But because a court has broad discretion to fashion a parenting plan, we
conclude that the remaining challenged terms fall within the trial court's
discretion. Because RCW 26.19.080(3) requires a mandatory proportional split
of travel expenses to and from a location and Byron's brother and sister live near
Angelika's relocation destination, we conclude that the trial court reasonably
required a split for airfare and no other travel expenses. And because evidence
reflects that Byron earns more than Angelika and Angelika spent significant
savings on attorney fees, the trial court did not abuse its discretion by awarding
Angelika attorney fees. We decline to award attorney fees under RAP 18.1. We
affirm in part, reverse in part, and remand for proceedings consistent with this
opinion.
A*/y WE CONCUR:
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-27-