1LE COURT OF APPEALS D' i I S 1 O N I I
201LIAUG 12 P11 ! 2: 145
IN THE COURT OF APPEALS OF THE STATE OF WASHING'S
DIVISION II
In re the Marriage of No. 43812- 7- 11
MCKAYLA ELIZABETH CLINTON SMITH,
Appellant, and
MATTHEW DARRELL SMITH, UNPUBLISHED OPINION
Respondent.
LEE, J. — McKayla Smith appeals the entry of a modified parenting plan placing primary
residential custody of her two sons with her former husband Matthew.' McKayla contends that
the trial court lacked authority to enter the 2012 modified parenting plan and that the modified
parenting plan does not comply with several statutory requirements. McKayla also challenges
the denial of her motion to remove the guardian ad litem ( GAL), the rejection of her affidavits of
prejudice filed against the three Grays Harbor County superior court judges, the trial court' s
award of back child support, and several orders that preceded the parenting plan at issue.
Matthew requests attorney fees on appeal.
We need not review the orders that preceded the modified parenting plan because
McKayla has already appealed these orders or waived any challenge to them. We hold that the
1 We refer to the parties' first names for clarity. We intend no disrespect. No. 43812 -7 -II
trial court had authority to modify the initial parenting plan and that it did not abuse that
authority by entering the 2012 modified parenting plan. McKayla provides no argument to
support her challenge of the back support award, so we do not review it. We see no abuse of
discretion in the trial court' s denial of McKayla' s motion to remove the GAL, and we, affirm the
denial of her affidavits of prejudice because she had already filed an affidavit in this case. We
deny Matthew' s request for attorney fees because he cites no authority for that request. FACTS
McKayla and Matthew married in 2003. Their two sons, CS and RS, were born in 2003
and 2006. In 2006, McKayla filed a petition to dissolve the marriage. On August 15, 2008,
Judge David Edwards entered a parenting plan that designated McKayla as the primary
residential parent and established Matthew' s visitation schedule.
A month later, Matthew filed a contempt motion, alleging that McKayla had interfered
with his visitation. He moved to modify the parenting plan on October 24, 2008, alleging that he
was concerned for his sons' safety because McKayla had twice been the victim of domestic,
violence by a boyfriend, with at least one incident occurring after entry of the August 2008
parenting plan. Matthew, asked for a temporary parenting plan designating him as the primary
residential parent.
On the day of the contempt hearing, McKayla filed an affidavit of prejudice against
Judge Edwards. He denied the affidavit of prejudice on the contempt motion and ordered
McKayla to comply with the 2008 parenting plan under penalty of contempt. Judge Edwards
acknowledged that McKayla had also filed an affidavit of prejudice in the modification
proceeding, but he did not grant or deny it.
2 No. 43812 -7 -II
On November 3, 2008, Judge F. Mark McCauley presided over the adequate cause
hearing on Matthew' s motion to modify the 2008 parenting plan. Judge McCauley declined to
make an adequate cause determination at the time but appointed a GAL to investigate whether
there was adequate cause for a trial. He continued the hearing for 30 days to allow the GAL to
provide an oral report.
Judge Edwards presided over the resulting hearing on May 8, 2009. The GAL gave her
report, and the court set a review hearing for August 7. On August 7, Judge Edwards signed an
agreed parenting plan that allowed McKayla to retain primary custody.
During a scheduled review hearing on February 5, 2010, the GAL raised issues of
immediate concern regarding the children' s psychological and physical health and safety. Judge
Edwards temporarily amended the parenting plan and granted Matthew primary residential
custody pending a testimonial hearing. On April 30, 2010, Judge Edwards entered an order
modifying the parenting plan that granted Matthew primary custody of the boys and ordered
McKayla to pay child support. The order stated that McKayla' s psychological issues and anger
needed to be addressed before she could effectively co- parent her sons. Judge Edwards entered
subsequent orders finding McKayla in contempt of the 2010 parenting plan that culminated in
her serving j ail time.
McKayla appealed the 2010 orders temporarily amending and then modifying the
parenting plan. In re Marriage of Smith, noted at 162 Wn. App. 1032 ( 2011). In a decision filed
June 28, 2011, we held that McKayla had filed a timely affidavit of prejudice that divested Judge
Edwards of authority to rule on the motion to modify the 2008 parenting plan. Accordingly, we
vacated the 2009 and 2010 parenting plans and remanded for further proceedings before a No. 43812 -7 -II
different judge. We also found it unnecessary to review the 2010 order temporarily amending
the parenting plan.
McKayla immediately filed for welfare benefits, stopped the child support order imposed
against her, changed the boys' primary care providers, and made medical appointments for them
with different doctors without consulting Matthew. She did so under the apparent belief that our
decision invalidated all of the earlier custody rulings except the 2008 parenting plan that gave
her primary residential custody. In a hearing before Judge McCauley on July 11, 2011, Matthew
maintained that our decision did not alter the 2010 order granting him temporary custody and
asked the court to uphold that order. The GAL stated that she had " very serious concerns" about
McKayla and supported Matthew' s request. Report of Proceedings ( RP) ( July 11, 2011) at 9.
Judge McCauley ratified the 2010 order pending a full testimonial hearing.
At a hearing before Judge Gordon Godfrey on August 1, 2011, the trial court found that
there was adequate cause for a modification hearing. The GAL subsequently filed a report in
which she asserted that the earlier rulings regarding custody were appropriate and likely would
not have differed had another judge applied the law to the facts. The GAL contended that
McKayla' s questionable conduct had escalated since this court' s decision, and she recommended
that the children be placed in the primary residential custody of Matthew and that McKayla be
required to undergo a psychological evaluation and complete a parenting class.
On August 18, the trial court held a hearing at which the GAL, McKayla, and Matthew
testified. The parties then debated whether the matter was properly before the trial court as a
motion to modify the 2008 parenting plan and whether the 2010 order giving Matthew temporary
custody remained in effect. No. 43812- 7- 11
On January 30, 2012, the trial court issued an order clarifying that the case was properly 2. before it as a motion to modify the. 2008 parenting plan. That order referenced the parties'
agreement that Matthew would retain primary residential custody pending an additional
evidentiary hearing to update the trial court on the case.
Before the March 2012 hearing, Dr. Mark Whitehill conducted a psychological
evaluation of McKayla and filed a sealed report. Dr. Whitehill testified about his evaluation and
his recommendation that McKayla engage in 18 to 24 months of intensive psychotherapy.
McKayla and Matthew also testified at the March hearing, as did members of their families and
the GAL.
The trial court ruled that McKayla had experienced a substantial change in personality
after entry of the 2008 parenting plan and that Dr. Whitehill' s report had revealed information about her that was not known in 2008. The court modified the 2008 parenting plan to give
Matthew primary residential custody, with McKayla receiving visitation every other weekend.
The trial court ordered McKayla to pay back child support of $50 per month for the last two
years and declined to award attorney fees to either party.
McKayla then filed a pro se motion to remove the GAL, as well as affidavits of prejudice
against all three Grays Harbor County judges. The trial court denied the motion and affidavits,
2 A brief describing this order is part of the appellate record, but the order itself is not. We may take judicial notice of the order deficiency. Spokane despite this Research & Defense Fund v.
City ofSpokane, 155 Wn.2d 89, 98, 117 P.3d 1117 ( 2005).
5 No. 43812- 7- 11
and it filed an order modifying the parenting plan and the modified parenting plan on June 28, 3 2012.
McKayla now appeals several of the orders in this proceeding.
ANALYSIS
A. ORDERS PRECEDING 2012 MODIFIED PARENTING PLAN
McKayla challenges the 2010 order granting Matthew temporary primary custody of the
children, as well as the 2011 order ratifying that order. She also challenges the 2009 and 2010
parenting plans. We do not address these challenges.
McKayla challenged the 2010 order in her earlier appeal. We did not find it necessary to
address that order after invalidating the July 2009 agreed parenting plan and the April 2010
modified parenting plan. On remand, the trial court ratified the 2010 order after a testimonial
hearing. The trial court then issued an order clarifying that the matter was before the court on a
motion to modify the 2008 parenting plan and referenced in the order the parties' agreement that
Matthew would retain primary residential custody pending a decision on the motion to modify.
McKayla does not now challenge the order setting forth that agreement. Consequently, she has
waived any challenge to the order temporarily granting Matthew primary custody. Moreover,
the 2012 order modifying the parenting plan has supplanted the prior temporary orders. Thus,
we will not consider McKayla' s challenges to the prior orders or to the parenting plans that we
have already vacated.
3 The order modifying the parenting plan is not part of the appellate record, but we may take judicial notice thereof. Spokane Research & Defense Fund, 155 Wn.2d at 98. No. 43812 -7 -II
B. 2012 MODIFIED PARENTING PLAN
McKayla also challenges the 2012 modified parenting plan. She asserts that the trial
court lacked authority to enter that plan and did so without complying with several statutory
requirements.
We begin our review by observing that trial court decisions in dissolution proceedings
will seldom be changed on appeal. In re Marriage ofBooth, 114 Wn.2d 772, 776, 791 P.2d 519
1990); In re Parentage of Jannot, 110 Wn. App. 16, 21, 37 P. 3d 1265 ( 2002), aff'd, 149 Wn.2d
123, 65 P. 3d 664 ( 2003). The spouse who challenges such decisions bears the heavy burden of
showing a manifest abuse of discretion on the trial court' s part. In re Marriage ofLandry, 103
Wn.2d 807, 809, 699 P. 2d 214 ( 1985). We will affirm the trial court' s decision unless no
reasonable judge would have reached the same conclusion. Landry, 103 Wn.2d at 809 -10.
It is well settled that trial courts have authority to modify parenting plans if certain
statutory criteria are satisfied. In re Marriage of Stern, 57 Wn. App. 707, 711, 789 P.2d 807,
review denied, 115 Wn.2d 1013 ( 1990); RCW 26. 09. 260, . 270. " The courts' powers, therefore,
are limited to those which may be inferred from a broad interpretation of the legislation that
governs the proceeding." Stern, 57 Wn. App. at 711. To justify a full hearing on a petition to
modify a residential schedule, the petitioner must demonstrate that adequate cause exists. In re
Marriage of Tomsovic, 118 Wn. App. 96, 104, 74 P. 3d 692 ( 2003); RCW 26. 09.270. Along with
the motion to modify, the petitioner must submit affidavits with specific relevant factual
allegations that, if proved, would permit a court to modify the parenting plan under RCW
26. 09. 260. Tomsovic, 118 Wn. App. at 104. If the trial court finds that the affidavits establish a
prima facie case, it sets a hearing date on an order to show cause why the requested modification
7 No. 43812- 7- 11
should not be granted. Tomsovic, 118 Wn. App. at 104; RCW 26. 09. 270. The primary purpose
of the adequate cause requirement is to prevent movants from harassing nonmovants by
obtaining a useless hearing. In re Marriage of Adler, 131 Wn. App. 717, 724, 129 P. 3d 293
2006), review denied, 158 Wn.2d 1026 ( 2007).
McKayla now argues that there was no adequate cause hearing and no entry of findings
of fact to support the conclusion that adequate cause for a full modification hearing existed. We
disagree and conclude that the August 1 hearing was sufficient to satisfy the requirements of
RCW 26. 09. 270 as an adequate cause hearing. Written findings of fact and conclusions of law
were not required. In re the Marriage of Kinnan, 131 Wn. App. 738, 750, 129 P. 3d 807 ( 2006).
The trial court based its adequate cause finding on the pleadings and the " extensive record" in
the file. Clerk' s Papers ( CP) at 18. Given the history of this case, which included a temporary
modification of the children' s primary residential placement, the trial court did not abuse its
discretion in making the adequate cause determination.
McKayla next contends that the trial court failed to make findings of fact and conclusions
of law showing that the statutory criteria for modifying a parenting plan were satisfied. RCW
26. 09.260( 1) sets forth a general standard for modification:
T] he court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that 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.
In re Marriage of Watson, 132 Wn. App. 222, 230, 130 P. 3d 915 ( 2006). Subsection ( 2) of the
statute then establishes a presumption against changing a previously decreed residential
schedule:
8 No. 43812 -7 -II
In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:... ( c) The child' s present environment is detrimental to the child' s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
Watson, 132 Wn. App. at 231. Therefore, under RCW 26. 09.260, a modification of custody is
permissible only when there is sufficient evidence to support a finding that ( 1) there has been a
change in circumstances; ( 2) the child' s best interests will be served by modification; ( 3) the
present environment is harmful to the child' s well- being; and ( 4) the harm caused by the change
is outweighed by the advantage of a change. Anderson v. Anderson, 14 Wn. App. 366, 368, 541
P. 2d 996 ( 1975), review denied, 86 Wn.2d 1009 ( 1976). The trial court' s failure to make
findings that reflect the application of each relevant factor is error. Kinnan, 131 Wn. App. at
752.
In addition, RCW 26. 09. 191( 3) provides that a court may restrict a parent' s contact with
a child if it finds that the parent' s involvement or conduct may have an adverse effect on the
child' s best interests. This adverse effect may be demonstrated by a long - term emotional
impairment that interferes with parenting functions or by an abusive use of conflict that creates
the danger of serious damage to the child' s psychological development. RCW
26. 09. 191( 3)( b),( e); Watson, 132 Wn. App. at 231 -32.
In its order modifying the parenting plan, the trial court expressly found that each factor
in RCW 26. 09.260 justified a modification. The court then added these findings:
McKayla] has demonstrated extremely detrimental behavior including refusal to follow court orders resulting in further conflict to parties in this litigation;
S] he has failed to follow appropriate direction of the guardian ad litem and verbally profanely abused the guardian ad litem and her office staff;
9 No. 43812 -7 -II
She has] engaged in inappropriate behaviors at transfers of the children; and she has delayed, prevented and refused proper health care for the children against medical advice and without good cause.
The health care issue has resulted in [McKayla] significantly abus[ ing] health care decision making and inappropriately obtain[ ing] health care for the children against court orders;
S] he has been unwilling or unable to allow the children to participate in extracurricular sports:
Additionally on March 1, 2012, Dr. Mark Whitehill completed a psychological evaluation and provided a diagnosis ( incorporated herein by reference and ordered to remain SEALED). This evaluation was something neither the parties nor the
court were aware of at the entry of the August 15, 2008 Parenting Plan, and the court can take it into consideration in making its decision. Dr. Whitehill' s March 1, 2012 evaluation report is included herein as [ a] finding of fact. [ McKayla] is in need of long term intensive psychotherapy. [ McKayla' s] psychological condition
was unknown to the Court and the parties at [ the] time of the previous parenting plan' s entry.
CP at 144 -45.
The accompanying parenting plan stated that McKayla has had an adverse effect on the
children' s best interests because of her long -term emotional impairment and her abusive use of
conflict. In addition to granting Matthew primary residential custody, the modified plan
restricted McKayla' s decision - making authority and required her to obtain long - erm t
psychotherapy from a GAL - approved therapist and complete a college -level course on parenting.
McKayla contends that there was no substantial change in circumstances because the
parties' inability to co- parent and communicate was anticipated in the 2008 parenting plan. The
trial court must base its determination of a substantial change in circumstances on facts unknown
to the court at the time of the prior decree or plan or arising since entry of the decree or plan.
Tomsovic, 118 Wn. App. at 105. Unknown facts include those facts that were not anticipated by
the court at the time of the prior plan. Tomsovic, 118 Wn. App. at 105.
10 No. 43812- 7- 11
Here, the trial court cited Dr. Whitehill' s diagnosis and recommendation of 18 -24 months
of intensive psychotherapy as new information that satisfied the significant change in
circumstances requirement. Dr. Whitehill testified that McKayla has personality traits that
warrant clinical attention, " especially given their potential ramifications for parenting." 1 RP at
13.
The GAL explained that she recommended a psychological evaluation of McKayla after
things " took a turn south" following entry of the 2009 parenting plan. 1 RP at 135.
I did not want to believe that anyone would intentionally be conducting themselves the way [ McKayla] was conducting herself; you just wouldn' t do that if things were right. I wanted to give her an opportunity to be evaluated to see if there was some chemical or mental health issue that could be addressed that could be treated, that would explain the behaviors. Otherwise, it meant that she was just nasty because she wanted to be, and I didn' t want to believe that about her. I saw, and I still do see in [ McKayla], the core of what is a good mom. But all of her interactions had become so abhorrent, so hostile, so outrageous, that you couldn' t reach that core, and I wanted to give her a tool to improve.
1RPat135.
Given this testimony, substantial evidence supports the trial court' s finding that the
changes in McKayla' s behavior, coupled with Dr. Whitehill' s 2012 evaluation disclosing
personality disorders that warranted treatment, satisfied the substantial change in circumstances
requirement. See In re Marriage of Bernard, 165 Wn.2d 895, 903, 204 P. 3d 907 ( 2009) ( we will
uphold a trial court' s findings of fact if substantial evidence supports them).
We also find substantial evidence to support the trial court' s finding that the children' s
best interests were served by their primary residential placement with Matthew because of
McKayla' s detrimental behavior, which included her emotional issues and abusive use of
conflict. During her testimony in 2012, McKayla acknowledged that she had had seven
11 No. 43812- 7- 11
attorneys since filing for divorce in 2006. She admitted that she would strip the boys of their
clothing after visits with Matthew to determine whether they had any signs of physical abuse.
She acknowledged that a boyfriend had assaulted her and that she had dated a sex offender after
entry of the 2008 parenting plan. She conceded that she had used obscene gestures against
Matthew' s girlfriend in court and had thrown rocks at her car after a transfer of the children. She
also admitted that she had taken the boys to the emergency room at least three times after a court
order prohibited her from making regular medical appointments for the boys. Finally, she
acknowledged being verbally abusive toward the GAL.
Matthew described several problems that occurred after entry of the 2009 agreed
parenting plan. He testified that McKayla signed the boys up for a church class on the evening
that he was to have an evening phone call with them; sent the children to him with an unmarked
bottle of prescription medication that lacked dosage information; prevented RS from having
dental surgery she had requested by arguing that he was sick, even though a physician had
cleared him for surgery; interfered with vaccinations that the pediatrician recommended; filed
several unfounded complaints against Matthew with Child Protective Services; talked to CS
about child support issues; and refused to take the boys to extracurricular activities that were
scheduled during her time with them.
The GAL testified that after the 2009 agreed parenting plan was entered, McKayla
became very uncooperative and tried to sabotage Matthew' s relationship with the children.
McKayla also resisted taking the parenting class the GAL had recommended. 8 - 18 RP 37 -38.
The GAL had become more concerned over time about the children. The GAL stated that she
saw actual harm to the boys as a result of McKayla' s actions, behaviors, and attitudes:
12 No. 43812- 7- 11
I think it hit home most clearly when I saw [ CS]. The damage that' s been done already. The level of anger and frustration and confusion in that little boy, is only going to continue until this thing stops, and I am really worried that [ RS] is going to do the same thing. I know these folks don' t have much money, they are like a lot of by this economy. So the resources that are available to folks really hit hard get these kids, help are limited, but until these two bury the hatchet, these boys are really at risk. The constant CPS referrals, they have been through the examinations by doctors and law enforcement and social workers, the tugging and pulling can' t be healthy, and we see the damage in court, in juvenile court every week, I don' t want to see that for these two little boys, and [ I] think the more stable home right now is [ Matthew' s]. I am not saying that [ McKayla' s] home couldn' t be the most stable home in the future, but for right now, and for the last two years, it' s been [ Matthew].
1 RP at 146 -47.
The record shows that the trial court entered the required findings of fact and conclusions
of law needed to support the modified parenting plan. The record also shows that substantial
evidence supports the court' s findings regarding the statutory criteria for modification. The trial
court did not abuse its discretion in modifying the parenting plan and giving Matthew primary
residential custody.
C. BACK CHILD SUPPORT
In the conclusion of her brief, McKayla asks this court to reverse the order requiring her
to pay back child support. Because she does not support this request with argument or citation of
authority, we do not consider it further. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 809, 828 P. 2d 549 ( 1992); Fabre v. Town ofRuston, 180 Wn. App. 150, 164 n.7, 321 P. 3d
1208 ( 2014); RAP 10. 3( a)( 6).
13 No. 43812- 7- 11
D. MOTION TO REMOVE GUARDIAN AD LITEM
McKayla also argues that the trial court erred in denying her pro se motion to remove the
GAL, which she filed after the trial court entered the 2012 parenting plan. McKayla contended
in her motion that the GAL was biased and unprofessional.
During her testimony, the GAL observed that once she made a recommendation in favor
of one party in a case, she was perceived as biased by the other party. She maintained, however,
that her job as a GAL was to make such recommendations:
You can' t be deaf, dumb, and blind. If you feel that the children are in danger, or there is harm, or it' s not in their best[] interests, then you have to make a recommendation. It' s very, very rare that you come in as a GAL, and I have done this in cases, and say, these are equally good, or equally bad people, and they should have equal time and equal responsibility. This is not how I perceive this case.
1 RP at 127.
The record shows that the GAL completed each request made by the trial court over the
course of the proceedings and that she intervened on McKayla' s behalf to obtain a continuance
of court- ordered obligations. McKayla complains that the GAL never observed her interacting
with the boys, but the GAL testified that McKayla refused to allow her to meet with the boys
when they were with McKayla. The record does not support McKayla' s claim of bias or lack of
professionalism, and we see no abuse of discretion in the trial court' s refusal to remove the GAL.
See In re Marriage of Bobbitt, 135 Wn. App. 8, 23, 144 P. 3d 306 ( 2006) ( applying abuse of
discretion standard of review to motion to remove a GAL in title 26 RCW cases).
E. AFFIDAVIT OF PREJUDICE
McKayla also contends that the trial court erred in denying the affidavits of prejudice she
filed against all three Grays Harbor County judges. McKayla admits that she was attempting to
14 No. 43812 -7 -II
4 obtain a change of venue through these affidavits. However, McKayla never moved for a
change of venue, and having filed an earlier affidavit of prejudice against Judge Edwards, she is not entitled to file further affidavits in this case. RCW 4.12. 050.
F. ATTORNEY FEES
Matthew seeks an award of attorney fees on appeal, but he cites no authority supporting
that request. Accordingly, we deny his request for fees on appeal. See Wilson Court Ltd. P 'ship
v. Tony Maroni' s, Inc., 134 Wn.2d 692, 710 n.4, 952 P. 2d 590 ( 1998).
We affirm the 2012 modified parenting plan, reject McKayla' s additional requests for
relief, and deny Matthew attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
4 She asks for a change of venue to Pacific County in her appellate brief, but we cannot grant such relief in the first instance.