In re the Marriage of Walter N. Clark, III and Tiffany A. Clark

• Court: Court of Appeals of Washington
• Decided: September 1, 2016
• Docket: 33717-1
• Status: Unpublished

Opinion

FILED Sept. 1, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill

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

In the Matter of the Marriage of ) No. 33717-1-111 ) WALTER N. CLARK III, ) ) Respondent, ) ) UNPUBLISHED OPINION and ) ) TIFFANY A. CLARK, ) ) Appellant. )

PENNELL, J. -Tiffany Clark (n/k/a Tiffany Zaphia) appeals the trial court's

parenting plan modification reducing residential time with her son W.C. and designating

W.C.'s father, Walter Clark, as the primary residential parent. Tiffany argues the trial

court erred because substantial evidence showed Walter's care was detrimental to W.C.

and the court violated several of her constitutional rights. Because the trial court did not

abuse its discretion in modifying the parenting plan and because Tiffany failed to

sufficiently argue her constitutional claims, we affirm the modification and deny her

requests for expenses and sanctions. No. 33717-1-III In re Marriage of Clark

FACTS 1

Walter and Tiffany2 married in 2005. Walter filed for dissolution of the marriage

in April 2012 and requested full custody of the couple's five-year-old son, W.C. In

September 2012, the court entered a temporary parenting plan naming both parents as

joint custodians and Tiffany the primary residential parent. The court also ordered a

guardian ad litem (GAL) appointed to "further investigate both [parents'] concerns" over

parenting issues. Clerks Papers (CP) at 12. While the temporary parenting plan was in

place, W.C. was diagnosed with and successfully treated for kidney cancer. He has had

no issues with cancer throughout the events described below.

In October 2013, the court entered a decree of dissolution and a final parenting

plan, increasing the amount ohime W.C. spent with Walter, resulting in near equal

residential time between Walter and Tiffany. The final parenting plan also noted Tiffany

suffered from an untreatable delusional disorder that could be a precursor to

schizophrenia; to ensure this disorder did not affect Tiffany's ability to parent, the court

required her to have annual evaluations and to provide Walter with a summary of them.

1 Neither party recites any facts in the briefing. These facts are recited as best as possible from the limited record available. 2 The parties' first names are used for clarity and readability. No disrespect is intended by doing so.

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The court also ordered Walter to pay child support.

In June 2014, Tiffany moved for an order finding Walter in contempt. Tiffany's

motion was premised on allegations of Walter not paying child support, not complying

with the parenting plan, and willfully neglecting W.C. In part, Tiffany alleged that when

W.C. was with Walter, W.C. had to live in a tent and was forced to bathe outside in cold

water, his allergies to pets went uncontrolled, and W.C. was not appropriately dressed for

weather conditions. Tiffany subsequently filed a petition for modification in July 2014,

claiming W.C.'s current environment was "detrimental to [his] physical, mental or

emotional health." CP at 64. The same alleged facts supporting Tiffany's motion for

contempt supported her petition for modification. Walter generally denied the

allegations.

At the hearing, the court found Walter in contempt for failing to pay child support.

While the court found Walter had been complying with the parenting plan, it did restrict

W.C.'s overnight visits with Walter because Walter's living situation exacerbated W.C.'s

allergies. Walter was living in an army tent while his trailer was under construction; the

tent's inhabitants had access to a bathroom with running water and a kitchen, they slept

on beds, the floor was insulated, and the tent had power. However, the court allowed

Walter to have overnight visits with W.C. if a suitable residence was used. The court

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refused to address modification of the parenting plan until Walter had proper notice.

In May 2015, Tiffany again filed a petition to modify the parenting plan, alleging

Walter refused to perform parenting functions and emotionally abused W.C. Walter

denied the allegations and claimed Tiffany's actions were creating a detrimental

environment for W.C. Noting W.C. continued to have allergies and displayed behavioral

issues at school, the court reappointed the GAL. Specifically, the court wanted the GAL

to investigate and recommend which household was more suitable for primary placement

in light of W.C.'s need for a structured environment with clear boundaries due to his

attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder.

The GAL recommended primary placement be with Tiffany. He qualified this

conclusion as "a difficult recommendation" because Tiffany ( 1) had not been getting

annual mental health evaluations as required in the parenting plan, (2) had inappropriately

shown W.C. court papers, (3) may have made false allegations as to sexual behavior by

Walter's current wife, (4) created issues with recent exchanges, and (5) did not take

responsibility for W.C.'s failure to complete homework. CP at 144. However, because

Walter was still living in a tent and also failed to take responsibility for W.C.'s

homework, the GAL thought Tiffany could provide a more stable environment.

4 No. 33717-1-III In re Marriage a/Clark

The court found modification of the parenting plan was in W.C.'s best interests as

his current environment was detrimental to his physical and emotional health. Noting the

current situation was failing, the court granted primary placement to Walter. The court

found:

[W.C.] has been diagnosed to have ADHD and oppositional defiance disorder. His behavior at school is disruptive and he has endangered other students and adults. The mother is unwilling to use pharmaceutical medications, instead has treated his ADHD with fish oil, which has been ineffective. The child only returned one homework assignment during the entire school year. He is performing below standard in reading and writing even though he has an above average IQ [intelligent quotient]. The mother is unwilling to acknowledge that the child even has a problem with his homework. The child has been suspended from school for behavioral issues.

CP at 168. While the court had concerns about Walter's living situation, it found Walter

could provide consistency to W.C. and W.C. would spend most nights with his paternal

grandmother-one ofW.C.'s stability factors-until Walter's home was completed.

Tiffany appeals.

ANALYSIS

Modification of Parenting Plan

Tiffany contends the trial court abused its discretion by modifying the parenting

plan in favor ofW.C.'s father. Because changes in residence are highly disruptive to

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children, this court employs a strong presumption against modification of a parenting

plan. In re Marriage ofStern, 57 Wn. App. 707, 712, 789 P.2d 807 (1990). Courts must

follow the statutorily prescribed procedures before modifying a parenting plan. See id. at

711. In relevant part, a trial court can modify a parenting plan under RCW 26.09.260 if

(1) there is a substantial change in the circumstances of the child or the nonmoving party,

(2) the present environment is detrimental to the child's well-being, (3) the harm caused

by the parenting plan is outweighed by the advantage of a change in the plan, and (4) the

child's best interests will be served by modification. RCW 26.09.260(1), (2)(c). In the

context of joint custody, the inquiry under RCW 26.09.260 is in part whether there has

been a change in the circumstance of the ''joint custodians as established by the decree."

In re Marriage of Murphy, 48 Wn. App. 196, 198-99, 737 P.2d 1319 (1987).

We uphold a trial court's findings of fact in a modification proceeding if supported

by substantial evidence, defined as a quantum of evidence sufficient to persuade a rational

fair-minded person the premise is true. In re Marriage of Chua, 149 Wn. App. 147, 154,

202 P.3d 367 (2009); In re Marriage ofAkon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011).

We will not reverse a trial court's decision to modify a parenting plan under RCW

26.09.260 unless the trial court exercised its discretion in an untenable or manifestly

unreasonable way. In re Marriage of Zigler, 154 Wn. App. 803, 808, 226 P.3d 202

6 No. 33717-1-III In re Marriage of Clark

(2010). We defer to the fact finder on issues of conflicting testimony, witness credibility,

and the persuasiveness of the evidence. In re Parentage ofJH, 112 Wn. App. 486, 493

n.1, 49 P.3d 154 (2002).

Tiffany seemingly contends (1) W.C.'s environment when with her was not

detrimental, (2) there is no evidence that harm from the residential schedule change was

outweighed by advantage to W.C., and (3) modification was not in W.C.'s best interests.

In a joint custody situation, "a finding of detriment to the child in his or her present

environment need not be based upon the parenting of either party, but may arise from a

change in the joint custodial environment." Stern, 57 Wn. App. at 715. As such, in the

context of modification of a parenting plan that provides for shared residential placement,

the changed circumstances alone can justify a trial court's conclusion that the present

environment is detrimental to a child's well-being. Based on changed circumstances in

the joint custodial environment, Tiffany herself petitioned for modification. She alleged

the environment provided by Walter was emotionally and physically detrimental to W.C.

However, it was the decaying relationship between the parties that created a detrimental

environment for W.C. Tiffany showed W.C. the court file and discussed the case with

him. She created issues at exchanges. Tiffany failed to effectively treat W.C.'s ADHD.

Neither Tiffany nor Walter took responsibility for W.C.'s homework, but Tiffany blamed

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the school. The friction in Tiffany and Walter's relationship manifested itself in W.C.'s

behavioral problems and academic progress.

To show Walter's care was detrimental to W.C., Tiffany points to the exacerbation

of W.C.'s allergies, her allegations of willful neglect, and her allegations that Walter

emotionally manipulated W.C. However, Tiffany is merely rearguing facts-some of

which the GAL disputed and some of which the court found not credible-and introduces

facts not in the record. To the extent Tiffany argues the court improperly based its

modification on her mental health, the court's findings do not support that contention as

they are devoid of any mention of her mental health condition affecting her ability to

parent. Tiffany does not challenge any of the court's findings of fact, which are

supported by substantial evidence.

As noted by the trial court, W.C. 's current situation was failing and something

needed to change. While the court did not agree with the GAL's recommendation, judges

in a bench trial "understand that the GAL presents one source of information among

many, that credibility is the province of the judge, and can without difficulty separate and

differentiate the evidence they hear." In re Guardianship ofStamm, 121 Wn. App. 830,

841, 91 P.3d 126 (2004). The court thought Walter would be a better choice for primary

residential placement. While Walter's living situation was not ideal, Walter told the court

8 No. 33717-1-III In re Marriage o/Clark

he could provide W.C. with consistency. The court believed Walter. The court also

thought placing W.C. with Walter and allowing W.C. to temporarily spend the nights with

his paternal grandmother would provide W.C. with stability as W.C. told the GAL he

liked the normalcy of his grandmother's home and wanted to spend more time there. It

was the court's hope that primary residential placement with Walter-where W.C. would

be surrounded by stability factors-would help W.C. succeed in school both academically

and socially. It is clear this in tum supports the trial court's determination that

modification was in W.C. 's best interests. The trial court did not abuse its discretion in

modifying the parenting plan.

Constitutional Claims

Tiffany next contends the trial court violated her due process rights by (1) not

conducting a full testimonial hearing on the merits, (2) failing to properly docket

hearings, (3) not creating verbatim reports of proceeding or correct clerk's minutes, and

(4) denying her a contempt filing. Tiffany also argues the trial court violated her right to

care for her child, her freedom of movement, and her freedom against social stigma.

We decline to review Tiffany's constitutional claims for two reasons. First,

Tiffany's analysis on all the issues is scant, and she cites to no case law addressing any of

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her claims. 3 RAP I0.3(a)(6) directs each party to supply, in their brief, "argument in

support of the issues presented for review, together with citations to legal authority and

references to relevant parts of the record." This court does not consider conclusory

arguments unsupported by citation to authority. Joy v. Dep 't ofLabor & Indus., 170 Wn.

App. 614,629,285 P.3d 187 (2012). '" [P]assing treatment of an issue or lack of

reasoned argument is insufficient to merit judicial consideration.'" West v. Thurston

County, 168 Wn. App. 162, 187,275 P.3d 1200 (2012) (quoting Holland v. City of

Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998)).

Second, should we look past the deficiencies in Tiffany's briefing, it does not

appear Tiffany objected in the trial court on these constitutional grounds. Her failure to

3 Tiffany cites to In re Marriage ofRideout, 150 Wn.2d 337, 77 P.3d 1174 (2003), for her contention that her due process rights were violated by not conducting a full hearing on the merits. Rideout determined the standard of review for a contempt hearing and discussed when a parent could be held in contempt under RCW 26.09 .160. Tiffany cites to In re Marriage of Mansour, 126 Wn. App. 1, 106 P.3d 768 (2004), for her contention that she was held responsible for the effects of her mental illness on W.C. Mansour involved statutorily-required limitations in a parenting plan for a parent who abused their child. Tiffany next cites to In re Marriage ofEklund, 143 Wn. App. 207, 177 P.3d 189 (2008), for her contention that the court based its rulings on hearsay and libel. Eklund involved a contempt proceeding where the trial court consolidated separate violations of a parenting plan into a single finding of contempt and declined to order statutorily-required remedies. Lastly, Tiffany cites to Title 4 RCW for her procedural due process argument. While Title 4 does discuss civil procedure, Tiffany only makes a general conclusory argument.

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object precludes her ability to raise the issue now on appeal unless she can demonstrate

there was a manifest constitutional error. RAP 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91,

97-99, 217 P.3d 756 (2009). Tiffany bears the burden of proving (1) a manifest

constitutional error actually occurred and (2) the error resulted in actual prejudice.

RAP 2.5(a)(3); O'Hara, 167 Wn.2d at 98. To demonstrate actual prejudice, Tiffany must

plausibly show the asserted error had practicable and identifiable consequences in the

trial. O'Hara, 167 Wn.2d at 99. "In determining whether the error was identifiable, the

trial record must be sufficient to determine the merits of the claim. 'If the facts necessary

to adjudicate the claimed error are not in the record, no actual prejudice is shown and the

error is not manifest.'" Id. (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d

1251 (1995)). Tiffany has failed to meet her burden of proof. No facts from the trial

court record show the court violated her procedural due process rights, did not allow her

to testify at the modification hearing, held her mental illness against her, or denied her the

right to raise her child. The error she asserts is not manifest. We decline to review.

Appellate Expenses and Sanctions

Tiffany requests appellate expenses under RAP 18.1. She included one sentence

requesting expenses, without citing any authority for her request, and thus did not comply

with the mandatory requirements of RAP 18.l(b). See Stiles v. Kearney, 168 Wn. App.

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250,267,277 P.3d 9 (2012) (RAP 18.l(b) requires more than a bald request for attorney

fees). Moreover, she does not prevail on appeal.

Tiffany also appears to request this court sanction Walter for a misuse of the

appellate rules under RAP 18.9. She asserts Walter misused the rules when he filed his

response brief late, thus increasing the length of time before her appeal was heard.

Because Tiffany requested an extension for filing her opening brief, Walter's late filing of

his brief did not prejudice her, and the clerk's office chose not to impose sanctions when

he filed his brief one day late. We deny her request for sanctions.

Based on the foregoing, we affirm the trial court's order modifying the parenting

plan.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Pennell, J. WE CONCUR: