In Re The Marriage Of: Eve H. Snider Anderson, App. And Judah Stroud, Res.

430 P.3d 726

• Court: Court of Appeals of Washington
• Decided: December 3, 2018
• Docket: 77583-9
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON o Cfrn .7.1 In the Matter of the Marriage of o ts.'

No. 77583-9-1 0-r EVE H. SNIDER, e G3 *71>"re — DIVISION ONE mas -urn CA Mr," Appellant, PUBLISHED OPINION r- cpCn -1 and — ru 2"‹

JUDAH STROUD,

Respondent. FILED: December 3, 2018

APPELWICK, C.J. — The parenting plan for the parties' children allocates residential time equally with each parent. Anderson filed a notice of intended

relocation. Stroud successfully moved to prevent Anderson from relocating with

the children. Anderson argues that the trial court erred by interpreting the child

relocation act' (CRA) in a manner that prevents parents that share equal

residential time from having a procedural mechanism to address the intended

relocation of one parent. She also argues that the trial court should have made an

adequate cause determination under the modification statute and that her

proposed relocation is a minor modification. We affirm.

FACTS

On April 22,2015,the trial court entered a final agreed parenting plan while

dissolving the marriage of Eve Snider Anderson2 and Judah Stroud. Under the

1 RCW 26.09.405-.560. 2 Snider has remarried and her name has changed. No. 77583-9-1/2

plan, Anderson and Stroud agreed to evenly split residential time with their two

children with an "alternating 2-2-5-5 schedule"(50/50 residential schedule3). Each

parent had the children every other weekend, and they transferred the children

midweek every week.

On July 5, 2017, Anderson filed a notice of intended relocation under the

CRA,° seeking to move the children with her to Winston Salem, North Carolina.

She then filed a proposed parenting plan reflecting the intended relocation.

Anderson planned to move to North Carolina to live with her new husband, who

has resided there for nine years. She was also offered a job there.

Stroud opposed Anderson's intended relocation with the children. He filed

an objection to the notice and a proposed parenting plan, in the event Anderson

was permitted to move with the children. He also filed a motion for temporary

orders to prevent Anderson from moving with the children.

On August 10, 2017, a commissioner denied Anderson's request to

relocate. The order stated,

The court finds that the case Illn re Marriage of Worthlevf,198 Wn. App. 419, 393 P.3d 859(2017)] is persuasive in that there is no presumption in a 50/50 parenting plan and that neither parent can pursue relocation under the CRA and supporting case law. Petitioner shall not relocate the children.

3 The parties describe their residential time with the children as "50/50." Their parenting plan also describes their residential time as "50/50": "Parents shall evenly split visitation with the children 50/50." Accordingly, we refer to the parties' parenting plan, and other parenting plans where the children reside with neither parent a majority of the time, as a "50/50 residential schedule." 4 Under the CRA,"a person with whom the child resides a majority of the time" must provide notice of the proposed relocation. RCW 26.09.430. There is a rebuttable presumption that the relocation will be permitted. RCW 26.09.520.

2 No. 77583-9-1/3

(Italics added.) Anderson then filed a motion for reconsideration of the

commissioners ruling. The motion was denied.

Anderson next moved to revise the commissioner's ruling. In her motion,

Anderson asked the trial court to find that the CFtA applies to a 50/50 residential

schedule, and that either parent to a 50/50 residential schedule may pursue

relocation of the children. She argued that this court's decision in Worthley "has

stripped both parents and the children of statutory remedy to address the

relocation of either parent and it actually interferes with the moving parents

fundamental right to travel and to parent the children." The trial court denied her

motion.

On March 6,2018, Anderson filed a petition to modify the parties' parenting

plan to reflect her intent to relocate with the children to North Carolina.

Before petitioning to modify the parties' parenting plan, Anderson appealed

the trial court's order on relocation, order on reconsideration, and order on revision. DISCUSSION

Anderson makes three main arguments. First, she argues that Worthley is

not binding on this court. Second,she argues that even if this court finds Worthley

persuasive, the trial court should have determined whether her proposed

relocation "demonstrated adequate cause to modify the parenting plan? Third,

she argues that the appropriate standard for analyzing a petition to modify a 50/50

residential schedule to allow relocation is the minor modification standard.

Statutory interpretation is a question of law that this court reviews de novo.

State v. Gray, 174 Wn.2d 920, 926, 280 P.3d 1110 (2012). Our fundamental

3 No. 77583-9-1/4

objective in interpreting a statute is to ascertain and carry out the legislature's

Intent. Smith v. Moran, VVindes & Wona, PLLC, 145 Wn.App.459,463, 187 P.3d

275 (2008). Where the meaning of a statute is plain on its face, we give effect to

the plain meaning. Id. If a statute is ambiguous, we look to outside sources, such

as legislative history, to determine legislative intent. Id. at 463-64. We will not

interpret a statute in such a way as to render any portion meaningless or that

results in strained meanings or absurd consequences. Id. at 464.

I. Interpretation of CRA

Anderson argues that the trial court erred by interpreting the CFtA in a

manner that prevents parents from having a procedural mechanism to address the

intended relocation of one parent. To do so, she argues first that Worthlev, a

Division II decision, Is not binding on this court.

One division of the Court of Appeals is not bound by the decision of another

division. In the Matter of the Pers. Restraint of Arnold, 190 Wn.2d 136, 154, 410

P.3d 1133 (2018). Nor is one panel of the Court of Appeals bound by another

panel, even In the same division. See. en, Grisbv v. Herzog, 190 Wn. App. 786,

810-11, 362 P.3d 763 (2015)(stating a holding inconsistent with a panel in the

same division). However, trial courts are bound by published decisions of the

Court of Appeals. RCW 2.06.040; see also In re Pers. Restraint of Arnold, 198

Wn. App 842, 846, 369 P.3d 375(2017)("Under vertical stare decisis, courts are

required to follow decisions handed down by higher courts in the same

jurisdiction."), rev'd on other grounds, 190 Wn.2d 136,410 P.3d 1133(2018). The

trial court properly followed Worthley below.

4 No. 77583-9-1/5

The CRA defines "relocate" as "a change in principal residence either

permanently or for a protracted period of time." ROW 26.09.410(2). Under the

statute,"a person with whom the child resides a majority of the time" must provide

notice of a proposed relocation. ROW 26.09.430. The person proposing the

relocation must provide his or her reasons for the intended relocation, and "R]here

is a rebuttable presumption that the intended relocation of the child will be

permitted." ROW 26.09.520. A person entitled to object to the relocation may

rebut this presumption "by demonstrating that the detrimental effect of the

relocation outweighs the benefit of the change to the child and the relocating

person," based upon eleven factors. ROW 26.09.520.

In Worthlev, Division II held that the CRA does not apply to a proposed

relocation that would modify a 50/50 residential schedule "to something other than

joint and equal residential time."5 198 Wn. App. at 422. It looked at the plain and

ordinary meaning of undefined terms, and defined "'principal'" as"'most important"

or "'influential,'" and 'majority' as "'a number greater than half of a total.'" it at

426-27 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1802, 1363

(2002)). It reasoned that these definitions exclude 50/50 residential schedules,

"because there is no'most important or influential' or'principal' residence and there

5Division III of this court also recently clarified that "[t]he CRA and its presumption permitting relocation apply only when the person relocating is 'a person with whom the child resides a majority of the time.'" In re Marriage of Jackson,4 Wn. App. 2d 212, 220,421 P.3d 477(2018)(quoting ROW 26.09.430). Relying on Worthlev, It stated that "[i]n situations where residential placement is shared, both parents are presumptively fit, and neither would be entitled to a favorable presumption." Id. at 220.

5 No. 77583-9-1/6

is no person with whom the child resides 'greater than half or the 'majority of the

time.'" Id. at 427.

Worthley also agreed with the argument that "it is consistent with the CRA

and its statutory scheme to require a parent to prove adequate cause under the

modification statute" when a proposed relocation will change a 50/50 residential

schedule. Id. at 428. First, it explained that the policy section for chapter 26.09

RCW states that "the best interests of the child are served by parenting

arrangements that best maintain a child's emotional growth, health, stability, and

physical care." Id. at428. Second, it found that the high burden of adequate cause

under the modification statute, RCW 26.09.260(1), "fulfills the policy to maintain

the existing pattern of the parent-child relationship to protect the best interest of

the child." Id. at 429. Third, it found that when a proposed relocation would modify

a 50/50 residential schedule, the focus should be on the child's best interest. See

id. at 431. Fourth, it found that the modification requirements protect both parents.

See id. at 432. Similar to the CRA,"nonrelocating parents have rights under the

modification statute." it They can pursue sanctions or contempt if the relocating

parent removes a child from their school district, can object to the relocating

parent's decision by filing a petition for modification, and can move for a temporary

order requiring the child to return. Id. at 432-33.

We agree with Worthlev. In a 50/50 residential schedule, neither parent is

"a person with whom the child resides a majority of the time," so neither parent is

entitled to the CRNs presumption permitting relocation. RCW 26.09.430. This is

the plain meaning of the language.

6 No. 77583-9-I/7

Since enactment of the Parenting Act of 1987, several policies have

remained constant: RCW 26.09.002 as a policy matter favors stability for the

children; RCW 26.09.187(3)(b) has allowed for substantially equal residential time

with each parent under certain conditions; and RCW 26.09.260 has limited

modifications of parenting plans to favor stability. See LAWS OF 1987, ch. 460,§§

2, 9, 19. Yet, in 2000 when the CRA was enacted,the legislature chose to use the

language "with whom the child resides a majority of the time" as the basis for which

parents could initiate the CRA process. RCW 26.09.430. There can be no doubt

the legislature made a policy choice that parents who entered into 50/50 residential

schedules would not be eligible to use the CRA procedures.

Based on its plain meaning and legislative intent, the CRA does not apply

to a proposed relocation when there is a 50/50 residential schedule.

II. Refusal to Find Adequate Cause to Modify

Anderson argues second that even if the CRA does not apply, the trial court

should have determined whether her proposed relocation demonstrated adequate

cause to modify the parenting plan. She argues that the trial court had everything

before it to determine whether there was adequate cause, pointing out that both

she and Stroud "asked the trial court to modify the parenting plan in their notice of

Intent to relocate and objection." She cites RCW 26.09.260(5), the subsection

governing minor modifications, as the basis for the court's ability to make an

adequate cause determination.

7 No. 77583-9-1/8

Anderson had not filed a petition to modify the parties' parenting plan under

RCW 26.09.260.6 Rather,she filed a notice of intended relocation under the CRA,

which is governed by RCW 26.09.405-.560. A trial court is not entitled to grant a

modification to a parenting plan sua sponte. See In re Marriage of Christel, 101

Wn. App. 13, 23-24, 1 P.3d 600 (2000) (holding that the trial court abused its

discretion when the language in its order amounted to a modification of a parenting

plan, rather than a clarification, when a clarification rather than a modification was

pending). The trial court was under no obligation absent an appropriate petition to

decide whether a major modification or minor modification was being sought,

whether the appropriate threshold had been met, or to proceed to the merits.

The trial court did not err by not making an adequate cause determination,

because no petition to modify the parenting plan was before the court.

III. Minor versus Major Modification

Anderson argues next that if the CRA does not apply to 50/50 residential

schedules, the applicable modification standard should be that of a minor

modification under RCW 26.09.260(5)rather than a major modification under RCW

26.09.260(1). She asserts that a change to a 50/50 residential schedule is minor,

because(1)it is based on a change of residence of the parent with whom the child

does not reside a majority of the time, and (2) it will not change the residence the

child is schedule to reside the majority of the time.

8 On March 6, 2018, after appealing the trial court's order denying her motion to revise, Anderson petitioned the trial court to modify the parties' parenting plan under RCW 26.09.260. That petition is not before the court here.

8 No. 77583-9-1/9

Under RCW 26.09.260(5), a minor modification to the residential schedule

Is one that "does not change the residence the child is scheduled to reside in the

majority of the time." The parenting plan here does not designate a parent with

whom the children reside a majority of the time. The parties do not allege that they

do not in fact follow the 50/50 residential schedule. So the correct answer to the

question, "with whom do the children reside a majority of the time," would be,

neither parent. Anderson's proposed minor modification would have the court

change the answer to, Mom. While that would not be a change from Dad to Mom,

it would be a change in where the children reside a majority of the time. That takes

such a decision out of RCW 26.09.260(5), and places it under RCW 26.09.260(1)

(major modification).

Second, she argues that applying the major modification standard to a

parent's proposed relocation interferes with the moving parent's fundamental right

to travel. She asserts that if a relocating parent with a 50/50 residential schedule

cannot prove a basis for a major modification, the parent will be prevented from

relocating,"because she is bound to a parenting plan that places the child equally

in each parent's home regardless of the distance." She relies on In re Marriage of

Momb, 132 Wn. App. 70, 82, 130 P.3d 406(2006).

To satisfy the adequate cause burden for a major modification under RCW

26.09.260(1), the parent must make a threshold showing that, since the entry of

the original plan, "a substantial change has occurred in the circumstances of the

child or the nonmoving party and that the modification is in the best Interest of the

child and is necessary to serve the best interests of the child." RCW 26.09.260(1).

9 No. 77583-9-Y10

A substantial change In the circumstances of the moving party alone is not

adequate. Anderson's desire to relocate would appear not to satisfy that threshold

requirement. But, it does not mean that the modification statute or the CRA deny

her right to travel.

Anderson relies on Momb for the proposition that this interpretation

Interferes with a parent's fundamental right to travel. This reliance is misplaced.

In Momb the trial court denied Momb's request to relocate with his child. 132 Wn.

App. at 74. On appeal, Momb argued that the relocation statutes violated his right

to travel. Id. at 82. This court disagreed. Id. It noted that the order entered by

the trial court prevented the child from relocating, not Momb. Id. It explained that

a child's constitutional rights may be treated differently than an adult's, "because

of the peculiar vulnerability of children; their inability to make informed, mature, , and critical decisions; and the importance of the parental role in child rearing." Id.

Likewise here, if a trial court determined Anderson failed to meet the adequate

cause burden for a major modification, it would not prevent her from traveling or

relocating. Rather, it would prevent her from relocating her children.

The restrictions Anderson complains of were imposed by the parties on

themselves when they chose to enter into a 50/50 residential schedule. The major

modification standards and the CRA standards have not changed since that time.

And,chapter 26.09 RCW has always promoted stability in the residential schedule

for the children. See RCW 26.09.002(111he best interest of the child is 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

10 No. 77583-9-1/11

parents."). Anderson is not left without a remedy. She can move, Stroud can file

a petition to modify their parenting plan under RCW 26.09.260(1) based on

Anderson's change in circumstances, and she can respond. Anderson may not

like the option she has, but it flows from the agreement she made with Stroud in

the final agreed parenting plan, notfrom an unconstitutional statute orjudicial error.

Third, she argues that once adequate cause is shown for a hearing on a

petition to modify a parenting plan, the trial court should consider the RCW

26.09.520 factors in deciding whether to allow the relocation. She argues that the

factors in RCW 26.09.260, the modification statute, and the factors in RCW

26.09.520, the CRA, "require similar considerations directed at the child's best

interests."

As established above, the CRA does not apply to 50/50 residential

schedules. See VVorthIev, 198 Wn. App. at 424. And, this court has found that

"the focus should be on the child's best interest when a proposed relocation would

result in a modification" of a 50/50 residential schedule. Id. at 431. The CRA

factors focus on the interests of both the relocating parent and the child. See RCW

26.09.520. The modification statute "does not emphasize one parent's best

Interests butfocuses on the child's best interests." Worthlev, 198 Wn. App. at 431.

The CRA factors are therefore not appropriate to consider when a parent's

proposed relocation would modify a 50/50 residential schedule.

We recognize the difficult choice a parent faces when their desired

relocation makes a 50/50 residential schedule impracticable. The CRA does not

provide a presumption in favor of their intended relocation, and a substantial

11 No. 77583-9-1/12

change in the circumstances of the party wishing to relocate does not constitute

adequate cause for a major modification initiated by that parent. These burdens

flow from the agreement the parents made to evenly split residential time with their

children, without also addressing the limitations in the statutes that come with that

decision, not from judicial error.

We affirm.

WE CONCUR: ,e'zie2e.eA,,e;z72 Ot*AmAtTe teifi.