In the Matter of the Marriage of: Benjamin E. Jones & Lisa A.M. Jones

• Court: Court of Appeals of Washington
• Decided: February 8, 2022
• Docket: 37863-2
• Status: Unpublished

Opinion

FILED FEBRUARY 8, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

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

In the Matter of the Marriage of: ) No. 37863-2-III ) BENJAMIN E. JONES, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) LISA A.M. JONES, ) ) Respondent. )

PENNELL, C.J. — Benjamin Jones petitioned to modify a parenting plan, claiming

a substantial change of circumstances based on his daughter’s assertions of abuse against

her mother. Mr. Jones also sought appointment of a guardian ad litem (GAL) to

investigate the daughter’s claims. The superior court denied Mr. Jones’s petition,

explaining any statements of the daughter were hearsay and could not be relied on to

establish adequate cause for modification of the parenting plan.

On appeal, Mr. Jones argues the superior court committed legal error because a

number of the statements submitted in support of his petition for modification did not

qualify as hearsay. We agree and therefore remand for reassessment of the petition,

including appointment of a GAL. This matter is otherwise affirmed. No. 37863-2-III In re Marriage of Jones

FACTS

Benjamin Jones and Lisa McCrea-Jones 1 divorced in 2018 and share an adolescent

daughter. The daughter’s custody is governed by a parenting plan issued out of Spokane

County. The plan places the daughter in Ms. McCrea-Jones’s primary custody with

regularly scheduled residential time for Mr. Jones. At some point after the divorce,

Mr. Jones relocated from Spokane to Seattle. Because he works for an airline, Mr. Jones

was still able to maintain the residential schedule by frequently flying back and forth

between the two cities.

The parties’ post-dissolution relationship has been riddled with conflict. Things

worsened with the onset of the COVID-19 pandemic. In July 2020, the parties’ daughter

refused to return to Ms. McCrea-Jones’s home at the conclusion of her residential time

with Mr. Jones. The daughter made allegations of abuse by her mother and Mr. Jones

successfully filed for a temporary restraining order. 2 Mr. Jones then filed a petition

requesting (1) a major modification, changing the daughter’s primary residence,

1 The respondent’s name was changed to “Lisa Annette McCrea-Jones” under the terms of the final dissolution decree. 2 The temporary restraining order was allowed to lapse prior to resolution of the parties’ dispute and the daughter was returned to Ms. McCrea-Jones’s care. No full hearing on the restraining order was ever held.

2 No. 37863-2-III In re Marriage of Jones

(2) or alternatively a minor modification to accommodate Mr. Jones’s move to Seattle,

and (3) the appointment of a GAL.

A superior court commissioner denied Mr. Jones’s petition. The commissioner

explained the court could not consider hearsay statements attributed to the parties’ minor

daughter. The court then ruled Mr. Jones had failed to demonstrate adequate cause for

either a major or minor modification. The commissioner went on to reason that the

appointment of a GAL first required a finding of adequate cause, and therefore denied

this request as well.

Mr. Jones unsuccessfully moved to revise the commissioner’s ruling. Like the

commissioner, the superior court judge explained that the court could not consider the

hearsay statements by the parties’ daughter, wherein the daughter made allegations of

abuse. The superior court also agreed a GAL could not be appointed without a finding of

adequate cause.

After the superior court denied the petition to modify and for appointment of a

GAL, Mr. Jones filed a motion to find Ms. McCrea-Jones in contempt for violating the

parenting plan’s residential time and cell phone provisions. The commissioner denied this

motion as well, finding no willful violations. Mr. Jones did not seek revision by the

superior court of the commissioner’s ruling on the contempt motion.

3 No. 37863-2-III In re Marriage of Jones

Mr. Jones appeals and assigns error to the superior court’s rulings regarding

adequate cause, denial of the GAL, and denial of his motion for contempt.

ANALYSIS

Standard of review

All matters on review in this appeal are assessed for abuse of discretion. See

In re Parentage of Jannot, 149 Wn.2d 123, 126, 65 P.3d 664 (2003) (adequate cause);

Wildermuth v. Wildermuth, 14 Wn. App. 442, 446, 542 P.2d 463 (1975) (GAL); In re

Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010) (contempt). This is a

deferential standard. However, a court necessarily abuses its discretion if its decision is

premised on legal error. State v. Ramirez, 191 Wn.2d 732, 741, 426 P.3d 714 (2018).

We note that some of the issues on review went through a revision hearing in

superior court. When a decision on a motion for revision is appealed, we review “the

decision of the superior court judge, not the commissioner.” In re Marriage of Lyle,

199 Wn. App. 629, 633, 398 P.3d 1225 (2017). But when the superior court denies

revision of a commission’s decision, this generally “constitutes an adoption of the

commissioner’s decision.” Williams, 156 Wn. App. at 27-28.

4 No. 37863-2-III In re Marriage of Jones

Petition for major modification and for GAL

Parenting plan modifications are governed by RCW 26.09.260 and

RCW 26.09.270. These statutes establish “a strong presumption against modification

and in favor of continuity.” In re Marriage of Cardwell, 16 Wn. App. 2d 90, 96, 479 P.3d

1188 (2021). A party petitioning for modification must first submit sworn statements

establishing adequate cause to justify a full modification hearing. RCW 26.09.270.

“At the very minimum, ‘adequate cause’ means evidence sufficient to support a finding

on each fact that the movant must prove in order to modify; otherwise, a movant could

harass a nonmovant by obtaining a useless hearing.” In re Marriage of Lemke, 120 Wn.

App. 536, 540, 85 P.3d 966 (2004). If the adequate cause burden is not met, the court

cannot proceed to a full hearing on the merits of a petition. Jannot, 149 Wn.2d at 124.

Mr. Jones asked for a major modification that would change his daughter’s

primary residence. Relevant here, justification for a major modification requires showing

a substantial change of circumstances and that “[t]he 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.” RCW 26.09.260(2)(c).

5 No. 37863-2-III In re Marriage of Jones

Mr. Jones contends his petition for major modification did not rely on hearsay;

thus, the court erred when it rejected his petition as lacking adequate cause on the basis of

hearsay. Hearsay is defined as a statement by an out-of-court declarant, offered for the

truth of the matter asserted. ER 801(c). Statements that qualify as hearsay are generally

inadmissible. ER 802. However, there are numerous exceptions to the rule against hearsay

See ER 803; ER 804.

We agree with the superior court that Mr. Jones’s recitation of his daughter’s

allegations against Ms. McCrea-Jones constitutes inadmissible hearsay. According to

Mr. Jones, his daughter alleged Ms. McCrea-Jones engaged in physical violence, name

calling, and threats against the daughter’s pet. To the extent these allegations are assessed

for their truth value, they are all hearsay. The superior court properly excluded these

statements in making its adequate cause determination.

However, not all of the assertions submitted by Mr. Jones constituted hearsay

descriptions of his daughter’s statements. For example:

• In his declaration in support of modification, Mr. Jones recounted an

incident on July 8, 2020. When it came time for the parties’ daughter

to return to Ms. McCrea-Jones’s home after Mr. Jones’s residential

time, Mr. Jones saw his daughter become “emotionally dysregulated.”

6 No. 37863-2-III In re Marriage of Jones

Clerk’s Papers at 336. The daughter started “sobbing and curled into

the fetal position.” Id. Mr. Jones took his daughter to her mental health

counselor. After this meeting, the daughter appeared to calm down.

Mr. Jones then drove the daughter to Ms. McCrea-Jones’s house, but upon

arrival the daughter refused to get out of the car. The foregoing information

is limited to what Mr. Jones personally saw and heard; it is not hearsay.

• A declaration filed by Tara Fletcher recounts an August 19, 2020, phone

conversation with the parties’ daughter. During the call, the daughter was

“crying.” Id. at 508. The daughter said she was scared, felt unsafe, and

wanted Ms. Fletcher to come pick her up from her mother’s house. This

information is a combination of nonhearsay as well as an apparent excited

utterance, which is an exception to the hearsay rule. ER 803(a)(2).

• Ms. McCrea-Jones’s neighbor, Kaila Singleton, filed a declaration critical

of Ms. McCrea-Jones and alleging she could hear from across the street

Ms. McCrea-Jones screaming at her children, even though her door was

closed. To the extent Ms. Singleton relayed what she heard, this allegation

does not meet the definition of hearsay.

7 No. 37863-2-III In re Marriage of Jones

• A declaration filed by the daughter’s mental health counselor states the

counselor has made three mandatory reports to CPS (child protective

services) following disclosures by the parties’ daughter, with the most

recent occurring on August 27, 2020. This information does not constitute

hearsay.

The foregoing statements qualify as nonhearsay evidence, relevant to the issue

of whether continued placement in Ms. McCrea-Jones’s home is harmful to the physical

and emotional well-being of the parties’ daughter. The information certainly is not

dispositive of Mr. Jones’s major modification request. However, it sets forth a

nonspeculative basis for finding adequate cause under RCW 26.09.270 and appointing

a GAL under RCW 26.09.220. The superior court committed legal error in overlooking

Mr. Jones’s nonhearsay evidence and therefore abused its discretion.

We remand with instructions for the superior court to exercise its discretion in

assessing whether adequate cause exists to proceed on Mr. Jones’s petition for

modification, taking into account assertions that do not qualify as mere hearsay. Should

the court find adequate cause, it may appoint a GAL and schedule a merits hearing after

receipt of the GAL report.

8 No. 37863-2-III In re Marriage of Jones

Minor modification

Mr. Jones also appeals the superior court’s denial of his petition for a

minor modification to the parenting plan. A minor modification is also subject to

an adequate cause requirement. To establish adequate cause for a minor modification,

Mr. Jones was required to show both a substantial change of circumstances and that

his change of residence made the parties’ current residential schedule impractical.

RCW 26.09.260(5)(b).

The record fails to clarify what type of minor modification Mr. Jones sought from

the court in order to accommodate his relocation to Seattle. Contrary to Mr. Jones’s

position on appeal, the parties never agreed that a specific type of adjustment was

warranted. In addition, there was no evidence the parenting plan was rendered impractical

by Mr. Jones’s relocation. Mr. Jones has been able to fly back and forth between Seattle

and Spokane and still comply with the terms of the plan. Given the factual record and the

lack of any specific request for changes, the superior court did not error in refusing to find

adequate cause for a minor modification.

At oral argument before this court, Mr. Jones asserted a minor modification

was necessary because the parties were confused as to how to treat holidays under the

parenting plan. This type of concern is not an appropriate basis for a modification.

9 No. 37863-2-III In re Marriage of Jones

Instead, the remedy is a motion for clarification. Rivard v. Rivard, 75 Wn.2d 415, 418-19,

451 P.2d 677 (1969). A motion for clarification is not dependent on a finding of adequate

cause and can be raised at any time. To the extent Mr. Jones remains confused about the

terms of the parenting plan, he has adequate recourse.

Contempt

To find contempt the commissioner was required to find a bad faith violation of

the parties’ parenting plan. See RCW 26.09.160(2)(b). Mr. Jones does not challenge the

commissioner’s factual findings. Nevertheless, he claims the facts weigh in his favor.

We are unpersuaded.

The commissioner acted within their discretion in denying Mr. Jones’s contempt

motion. With respect to the allegations regarding residential time, the parties submitted

competing explanations regarding whether they had respected residential time or acted

pursuant to past agreements. The commissioner justifiably found the parties’ differences

were due to misunderstandings, not bad faith. With respect to the cell phone dispute,

the parenting plan did not require the daughter to have a cell phone. Instead, it merely

permitted the daughter to have a cell phone at the discretion of either parent. The

commissioner was entitled to rely on Ms. McCrea-Jones’s statement that she never

withheld the daughter’s cell phone for the purpose of preventing communication with

10 No. 37863-2-III In re Marriage of Jones

Mr. Jones. Therefore, the commissioner did not abuse discretion by denying Mr. Jones’s

motion for contempt.

CONCLUSION

The superior court’s decision denying Mr. Jones’s petition for major modification

and request for GAL appointment is reversed and we remand for further proceedings.

We otherwise affirm. Ms. McCrea-Jones’s request for appellate attorney fees is denied.

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, C.J.

WE CONCUR:

____________________________ Siddoway, J.

Lawrence-Berrey, J.