In Re The Marriage Of: Michelle Abbess, V. Phillip Abbess

CourtCourt of Appeals of Washington
DecidedSeptember 6, 2022
Docket82358-2
StatusPublished

This text of In Re The Marriage Of: Michelle Abbess, V. Phillip Abbess (In Re The Marriage Of: Michelle Abbess, V. Phillip Abbess) 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: Michelle Abbess, V. Phillip Abbess, (Wash. Ct. App. 2022).

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Marriage of No. 82358-2-I MICHELLE CLARENE ABBESS, (consolidated with No. 81415-5-I)

Respondent,

and PUBLISHED OPINION

PHILLIP JAMES ABBESS,

Appellant.

BOWMAN, J. — Phillip Abbess appeals the trial court’s order granting

Michelle Abbess’ petition to relocate their child to Oregon. Phillip1 argues that

the trial court should have ruled on his request for substantially equal residential

time before considering Michelle’s petition to relocate at trial. He contends the

trial court erred by setting aside evidence presented at trial, turning instead to the

residential schedule established in a temporary order to apply the relocation

factors. We agree. When both a residential schedule and a petition to relocate

are contested issues at trial, a trial court must determine whether one parent is

entitled to a majority of residential time using criteria for a permanent residential

schedule before applying the relocation factors. Because the trial court instead

relied on a temporary residential schedule to resolve the contested issue of

residential time and apply the relocation factors, we reverse and remand.

1 We refer to Phillip Abbess and Michelle Abbess by their first names for clarity. We mean no disrespect.

Citations and pin cites are based on the Westlaw online version of the cited material. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82358-2-I (consol. with No. 81415-5-I)/2

FACTS

Phillip and Michelle married in 2015 and had a daughter, S.A., in 2017.

They separated in July 2019 and Michelle petitioned for dissolution in August

2019. Michelle immediately sought to restrict Phillip’s residential time with S.A.,

alleging he abused alcohol and drugs. Based on those allegations, a superior

court commissioner issued an ex parte order placing S.A. with Michelle. The

court allowed Phillip one professionally supervised visit of up to two hours per

week.

In January 2020, the parties agreed to a temporary parenting plan under

which S.A. stayed with Michelle most of the time. Phillip received alternating

weekends with S.A. plus an overnight every other Tuesday and Thursday, giving

him four overnights every two weeks. Phillip said he agreed to the plan to have

as much time as possible with S.A. until he could convince the court that

Michelle’s allegations of alcohol and drug abuse were unfounded. After

arbitration in April 2020, Phillip received one more night of visitation every two

weeks.

On July 1, 2020, Michelle filed a notice of intent to relocate with S.A. to

Gold Hill, Oregon. She said that she was having trouble finding a job and there

was one waiting for her in Oregon, that she wanted to move closer to family who

could help with childcare, and that she was losing her housing and there was a

much more affordable apartment available for her to rent in Gold Hill. Phillip

objected. Michelle then moved for a temporary order to relocate, which Phillip

also opposed. The court denied Michelle’s request “pending a final decision

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82358-2-I (consol. with No. 81415-5-I)/3

during mediation or trial” and ordered she “must not move with the child before

the court makes a final decision about the move at trial.”

In October 2020, the court held a six-day trial. Phillip presented evidence

that he had no substance abuse issues and asked that he and Michelle share

equal residential time with three-and-a-half-year-old S.A. He also opposed

Michelle’s petition to relocate with S.A. In closing argument, Phillip asked the

court to allocate a permanent residential schedule based on evidence presented

at trial before considering Michelle’s petition to relocate. His attorney argued that

“to forego the application of the [parenting] statute and dive straight into the

relocation factors would defy the purpose of the statute.”

Michelle urged the court first to consider her request to relocate with S.A.

She claimed she was entitled to a presumption of relocation based on her

majority residential schedule under the temporary parenting plan. Her attorney

argued, “[I]n making an initial determination of a permanent parenting plan, a

parent’s intention to relocate with the child must be considered. And to the

extent they conflict, the factors in determining [a] parenting plan . . . are

superseded by the relocation factors.”

After trial, the court entered extensive “Findings and Conclusions about a

Marriage.” It concluded that it should first analyze relocation using the residential

schedule in the temporary parenting plan to determine that Michelle enjoyed a

majority of residential time and apply a rebuttable presumption in favor of

relocation. The court then found that Phillip failed to rebut the presumption

sufficiently and granted Michelle’s motion to relocate. Turning next to the

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82358-2-I (consol. with No. 81415-5-I)/4

permanent residential schedule, the court determined that Michelle’s allegations

of substance abuse were unfounded and her testimony on the matter was “not

credible.” But because Michelle and S.A. would now be living in Oregon, the

court entered a permanent “long-distance” residential schedule that gave Phillip

visitation one “long weekend” per month in Seattle “and an optional second

weekend in Gold Hill.”

Phillip appeals.

ANALYSIS

Phillip argues that the trial court erred by refusing to determine whether

the evidence presented at trial warranted equal residential time under the criteria

for establishing a permanent residential schedule in Washington’s Parenting Act

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re the Marriage of Hansen
914 P.2d 799 (Court of Appeals of Washington, 1996)
In Re Marriage of Littlefield
940 P.2d 1362 (Washington Supreme Court, 1997)
In Re the Marriage of C.M.C.
940 P.2d 669 (Court of Appeals of Washington, 1997)
In Re the Marriage of Ebbighausen
708 P.2d 1220 (Court of Appeals of Washington, 1985)
Flanigan v. Department of Labor & Industries
869 P.2d 14 (Washington Supreme Court, 1994)
In Re Marriage of Horner
93 P.3d 124 (Washington Supreme Court, 2004)
State v. Liden
156 P.3d 259 (Court of Appeals of Washington, 2007)
In Re Marriage of Watson
130 P.3d 915 (Court of Appeals of Washington, 2006)
State Ex Rel. Pna v. State Dept. of Transp.
12 P.3d 134 (Washington Supreme Court, 2000)
State v. Brown
940 P.2d 546 (Washington Supreme Court, 1997)
In re the Marriage of Littlefield
133 Wash. 2d 39 (Washington Supreme Court, 1997)
In re the Marriage of Caven
966 P.2d 1247 (Washington Supreme Court, 1998)
In re the Marriage of Horner
93 P.3d 124 (Washington Supreme Court, 2004)
R.B. v. C.W.
383 P.3d 492 (Washington Supreme Court, 2016)
In re the Marriage of Watson
132 Wash. App. 222 (Court of Appeals of Washington, 2006)
State v. Liden
138 Wash. App. 110 (Court of Appeals of Washington, 2007)
In re the Marriage of Kim
317 P.3d 555 (Court of Appeals of Washington, 2014)
In re the Marriage of McNaught
359 P.3d 811 (Court of Appeals of Washington, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
In Re The Marriage Of: Michelle Abbess, V. Phillip Abbess, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-michelle-abbess-v-phillip-abbess-washctapp-2022.