In re the Marriage of Underwood

326 P.3d 793, 181 Wash. App. 608
CourtCourt of Appeals of Washington
DecidedJune 3, 2014
DocketNo. 44068-7-II
StatusPublished
Cited by17 cases

This text of 326 P.3d 793 (In re the Marriage of Underwood) 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 Underwood, 326 P.3d 793, 181 Wash. App. 608 (Wash. Ct. App. 2014).

Opinion

Maxa, J.

¶1 Robert Underwood appeals multiple trial court orders entered in proceedings related to the dissolution of his marriage to Kara Underwood. We hold that the trial court erred in allowing the parties’ two teenage children to determine the amount of their residential time with Robert1 without supporting that decision with appropriate findings. In the unpublished portion of this opinion we address the remainder of Robert’s arguments. We affirm in part, reverse in part, and remand for further proceedings. We also award Kara her attorney fees on appeal.

FACTS

¶2 Kara and Robert Underwood married in Montana in 1991. They have two children. In 2010, Kara petitioned for [610]*610dissolution of her marriage to Robert. At the time, their older child was 14 and their younger child was 12. After a bench trial, the trial court entered a final parenting plan that allowed the children to decide whether Robert would have residential time with them. The trial court stated:

[T]he [children] are mature and intelligent. Due to this, along with the age of the children, the residential time between [them] and their father in the future shall be based on the desires of the [children]. At present they have no desire to have contact with their father. The court will honor their wishes. They will be allowed to have contact with their father and residential time if they later cho[o]se to.

Clerk’s Papers (CP) at 35. Robert appeals this ruling, as well as several other trial court orders addressed in the unpublished portion of this opinion.

ANALYSIS

¶3 We review a trial court’s parenting plan for abuse of discretion. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012), cert. denied, 133 S. Ct. 889 (2013). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Katare, 175 Wn.2d at 35.

¶4 Robert argues that the trial court abused its discretion when it allowed the children to decide whether he would receive any residential time with them because this ruling effectively eliminated his residential time with them. We hold that although under certain circumstances and in its discretion the trial court may allow a child to determine the amount of residential time with the noncustodial parent, it may do so only based on appropriate findings. Because the trial court did not make adequate findings supporting its decision here, we must remand for reconsideration of this issue.

¶5 The trial court did not expressly order the elimination of Robert’s residential time with the children. However, it [611]*611acknowledged that the children did not desire to have contact with their father at that time. As a result, the trial court knew that its parenting plan likely would result in the elimination of Robert’s residential time for the foreseeable future. The question here is whether the trial court had the discretion to allow the children to determine the amount of their residential time with Robert, knowing that this decision effectively would eliminate Robert’s residential time with them.

¶6 Although the trial court did not explain the basis for its ruling on residential time, it apparently viewed its order as a limitation on residential time justified by its findings under RCW 26.09.191(2) and (3). RCW 26.09.191(2)(a) requires limitation of residential time if the parent has engaged in certain conduct. The trial court determined that Robert had engaged in two types of conduct referenced in the statute: a history of acts of domestic violence as defined in RCW 26.50.010(1) and emotional abuse of a child. But RCW 26.09.191(2)(a) does not give the trial court authority to eliminate residential time. That authority is granted by other subsections of RCW 26.09.191.

¶7 RCW 26.09.191(2)(m)(i), for example, provides:

If the court expressly finds based on the evidence that limitations on the residential time with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting residential time, the court shall restrain the parent requesting residential time from all contact with the child.

There is no question here that express findings regarding protecting the children from harm or abuse would have been required if the trial court had explicitly eliminated Robert’s residential time under RCW 26.09.191(2)(m)(i), and that the trial court made no such findings.

¶8 A different subsection, RCW 26.09.191(3), authorizes a trial court to completely preclude a parent’s residential time if certain factors exist. The trial court found three [612]*612of these factors present in this case: (1) a long-term emotional or physical impairment that interferes with the performance of parenting functions as defined in RCW 26.09.004, (2) the absence or substantial impairment of emotional ties between the parent and child, and (3) the abusive use of conflict by the parent that has damaged the children’s psychological development. Based on these findings, the trial court had discretionary authority under RCW 26.09.191(3) to enter an order that effectively eliminated Robert’s residential time with the children.

¶9 However, the trial court’s exercise of discretion to essentially eliminate a parent’s residential time must be exercised in the context of other important considerations. First, the legislature has expressed a policy favoring maintaining relationships between parents and children when setting a residential schedule in a dissolution action. RCW 26.09.002 provides that “[t]he state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests.” Further, RCW 26.09-.187

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Cite This Page — Counsel Stack

Bluebook (online)
326 P.3d 793, 181 Wash. App. 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-underwood-washctapp-2014.