In re the Marriage of McDole

841 P.2d 770, 67 Wash. App. 884, 1992 Wash. App. LEXIS 477
CourtCourt of Appeals of Washington
DecidedDecember 10, 1992
DocketNo. 11130-0-III
StatusPublished
Cited by3 cases

This text of 841 P.2d 770 (In re the Marriage of McDole) 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 the Marriage of McDole, 841 P.2d 770, 67 Wash. App. 884, 1992 Wash. App. LEXIS 477 (Wash. Ct. App. 1992).

Opinion

Sweeney, J.

The marriage of James and Cynthia McDole was dissolved on November 23, 1988. Mrs. McDole (now Mrs. Hatch) was designated as the primary residential parent for the McDoles' son, Joseph McDole. Mrs. Hatch moved to Utah and remarried in March 1990. Mr. McDole filed a motion for temporary custody and for an order to require Mrs. Hatch to show cause why she should not be held in contempt for removing the child from the county without the court's permission. The court modified the custody temporarily, and later, permanently, to designate Mr. McDole as the primary residential parent. Mrs. Hatch appeals the modification. Mr. McDole requests attorney fees and costs on appeal. We reverse.

Facts and Procedural Background

Mrs. Hatch and Mr. McDole were married February 22, 1986. They had one child, Joseph McDole (Joey), born January 12, 1987. Mrs. Hatch's son from a prior marriage, James Franklin (Jimmy), also lived with them. In 1988, Mrs. Hatch petitioned for dissolution of the marriage; both parents petitioned for designation as Joey's primary residential parent.

[886]*886The court found both parents fit and capable to fulfill all parenting functions but designated Mrs. Hatch the primary residential parent because she had been Joey’s primary care giver. Their marriage was dissolved on November 23, 1988. Mr. McDole was awarded visitation consisting of 2 days a week, plus additional vacations and holidays. In its oral comments, the court said ”[b]oth parties will be enjoined from taking the child from Walla Walla County without the Court's permission." This restriction, however, does not appear in the dissolution decree.

Following the dissolution, Mr. McDole visited Joey without interference from Mrs. Hatch. A dispute developed, however, over Mr. McDole's visitation with Jimmy, his stepson. After an unsuccessful effort at mediation, the court ordered scheduled visitation with Jimmy. Thereafter, Mr. McDole exercised his visitation with Jimmy without interference from Mrs. Hatch.

On March 9, 1990, Mrs. Hatch moved to Utah to marry Dr. Lance Hatch. Prior to leaving, she consulted an attorney who, after reviewing the dissolution decree, advised her that there was no prohibition to her removing the children from the state. She took Joey and Jimmy without notifying Mr. McDole. On March 9, Mr. McDole received a letter from Mrs. Hatch's attorney suggesting a revised visitation schedule due to the move.

Three days later, on March 12, Mr. McDole filed a motion for an order awarding him temporary custody and requiring Mrs. Hatch to show cause why she should not be held in contempt for violating the court's order by removing Joey from Walla Walla County. On March 15, Mrs. Hatch moved to continue argument on the motion because she was getting married and would not be able to appear. The judge ordered Mrs. Hatch to provide an address and a telephone number where the child could be reached and postponed ruling on the continuance. On March 19, the judge denied the continuance because only a business telephone number had been provided. The court indicated that a continuance might still be granted if Mrs. Hatch complied by providing a [887]*887telephone number where Joey could be reached. Mrs. Hatch did provide a residential telephone number, but the March 23 hearing proceeded as scheduled.

At the March 23 hearing, the attorneys argued over whether the continuance had already been denied. Mr. McDole's attorney said it had. Mrs. Hatch's attorney argued that: a continuance should be granted; she had complied with the order to provide the telephone number; and the move was not legal grounds for a change in custody.

Between March 9 and 23, Mr. McDole talked to Joey by phone twice, briefly. Mrs. Hatch did not appear at the March 23 hearing. The same trial judge, who had presided over the dissolution proceeding and ordered visitation for Mr. McDole's stepson Jimmy, commented that "[t]his is too much messing around." He concluded that Mrs. Hatch was not being candid with the court and changed custody temporarily to Mr. McDole, pending a modification hearing.

Mr. McDole's motion to modify the parenting plan was heard on July 2, 1990. Both parents testified that they wished to be the primary residential parent. Richard Garcia, a social worker, testified that he had evaluated Joey following his return from Utah and found that Joey may have been injured by the move. His opinion was based on the fact that Joey cried when talking to Mr. McDole once from Utah and cried at night for 2 weeks after returning to Walla Walla.

The court found that Mrs. Hatch was extremely resistive to visitation, and that this represented a substantial change in circumstances. It found that she was desirous of and would take actions to limit Joey's contact with his father and, therefore, the environment for the child would be detrimental if he remained with his mother. The court further found that modification was necessary for the best interests of Joey's emotional health. On the basis of these findings, the court concluded that the original decree of dissolution should be modified to designate Mr. McDole as the primary residential parent.

[888]*888Mrs. Hatch appeals the modification contending that the findings of the court are not supported by sufficient evidence and the conclusion of law is erroneous. Mr. McDole requests attorney fees and costs on appeal.

Standard of Review

A trial court's award of custody will not be disturbed on appeal absent a manifest abuse of discretion. Chapman v. Perera, 41 Wn. App. 444, 446, 704 P.2d 1224, review denied, 104 Wn.2d 1020 (1985). An abuse of discretion occurs when no reasonable person would have ruled as the trial court did on the facts before it. See In re Marriage of Pilant, 42 Wn. App. 173, 176, 709 P.2d 1241 (1985). Findings of the trial court will not be disturbed if supported by substantial evidence. Chapman, at 449. Conclusions of law must be upheld if they are supported by the findings of fact. Chapman, at 449.

Modification of Primary Residential Parent

The court is prohibited from modifying a prior custody decree unless it finds upon the basis of facts, arising since the prior plan: (1) a substantial change has occurred in the circumstances of the child or the nonmoving party, and (2) modification is necessary to serve the best interests of the child. In applying these standards, the court shall retain the custody established by the decree or parenting plan unless it finds: (3) the child's present environment is detrimental to the child's physical, mental, or emotional health; and (4) the harm likely to be caused by a change of environment is outweighed by the advantage of the change to the child. Former RCW 26.09.260(1)(c); Anderson v. Anderson, 14 Wn. App. 366, 368, 541 P.2d 996 (1975), review denied, 86 Wn.2d 1009 (1976).1

Custodial changes are very disruptive to children. In re Marriage of Stern, 57 Wn. App. 707, 712, 789 P.2d 807

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Related

In re the Marriage of McDole
859 P.2d 1239 (Washington Supreme Court, 1993)
MATTER OF MARRIAGE OF McDOLE
859 P.2d 1239 (Washington Supreme Court, 1993)

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Bluebook (online)
841 P.2d 770, 67 Wash. App. 884, 1992 Wash. App. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mcdole-washctapp-1992.