FILED SEPTEMBER 24, 2024 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In the Matter of the Marriage of: ) No. 39749-1-III ) ROBERT J. WALDEN, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) LYNDSEY M. WALDEN, ) ) Respondent. )
PENNELL, J. — Robert Walden appeals a trial court order on adequate cause
that dismissed a petition for minor modification to the parties’ parenting plan. We reverse
and remand for a full hearing on the modification petition.
FACTS
Robert Walden and Lyndsey Hansen, formerly known as Lyndsey Walden, married
in 2006. They have two school-age daughters. In 2016, Mr. Walden initiated an action in
Lincoln County Superior Court to dissolve the marriage. Proceeding pro se, both parties No. 39749-1-III In re Marriage of Walden
stipulated in February 2017 to an order authorizing their mediator to prepare agreed-upon
final orders.
As relevant here, the parties agreed to a parenting plan imposing no restrictions on
either parent and requiring joint decision-making. The plan required the parties to attend
mediation “[t]o solve disagreements” about the plan, rather than going straight to court.
Clerk’s Papers (CP) at 16. The plan named Ms. Hansen the children’s primary custodian.
It provided that Mr. Walden was entitled to have the children stay with him every
other weekend, as well as an overnight visit every other Wednesday, and a week of
uninterrupted vacation time in the summer. The plan stated “the parents agree to return
to mediation to expand the parenting plan as needed.” Id. at 17.
Mr. Walden signed the parenting plan on April 26, 2017. Ms. Hansen signed it on
May 12, 2017. 1 The final dissolution orders, including the parenting plan, were not
entered until July 7, a delay apparently resulting from outstanding payments due to the
mediator. As Ms. Hansen wrote in an April 2022 declaration, “The original parenting
1 The signatures were an acknowledgement that the proposed parenting plan was agreed to and presented by the parties, and that it could be entered by the court without notice to either party. Id. at 25. A handwritten notation was added to the proposed plan, and acknowledged by the parties on June 20 and 21, memorializing their agreement to maintain the under school-age residential schedule once their older daughter began kindergarten, “until further order of the court.” Id. at 18.
2 No. 39749-1-III In re Marriage of Walden
plan was built with the idea that [Mr. Walden] was living locally here in Spokane, the
same city as myself and our children.” Id. at 80.
During June 2017, after the parties’ agreement to the parenting plan but before the
court issued its final orders, Mr. Walden moved to Hailey, Idaho, more than an eight-hour
drive from Spokane. As a result, from day one, the parties never strictly followed their
parenting plan. The parties agree that, given the distance, Mr. Walden never exercised his
Wednesday overnight visits as contemplated by the plan. The parties disagree about the
frequency with which Mr. Walden failed to exercise weekend visitation while he lived in
Hailey, but it is undisputed that some weekend visits, as well as frequent phone contact,
occurred.
In late 2021, Mr. Walden and his current wife moved to Hayden, Idaho, which the
parties agree is roughly a one-hour commute from Ms. Hansen’s Spokane County home.
In April 2022, Ms. Hansen petitioned to modify the parenting plan. She sought
both major and minor modifications. As the reason for her requested major modifications,
Ms. Hansen claimed, first, that the children “have been integrated” into Ms. Hansen’s
new family unit “in substantial deviation” of the original plan, with Mr. Walden’s
consent; and second, that Mr. Walden’s home was “detrimental” to the children’s health.
Id. at 59; see RCW 26.09.260(2)(b), (2)(c). As the reason for her minor modifications,
3 No. 39749-1-III In re Marriage of Walden
Ms. Hansen claimed the original plan was “difficult to follow because” Mr. Walden “has
moved.” CP at 60; see RCW 26.09.260(5)(b).
In her modification petition, Ms. Hansen asked the court to adopt her proposed
parenting plan that included new RCW 26.09.191 findings and resultant restrictions
against Mr. Walden. Specifically, Ms. Hansen’s proposed plan included, as reasons for
placing limitations on a parent, that Mr. Walden had “abandoned” his children, “has a
history of domestic violence,” and makes “[a]busive use of conflict.” CP at 63-64; see
RCW 26.09.191(1)(a), (1)(c), (2)(a)(i), (2)(a)(iii), (3)(e). As for major modifications,
Ms. Hansen’s proposed plan provided her with sole decision-making authority over the
children and a slight reduction in Mr. Walden’s residential time. Rather than his current
entitlement to every other weekend with the children, Ms. Hansen’s plan would reduce
this entitlement to every third weekend. As for minor modifications, Ms. Hansen wanted
one of her daughters to be in counseling, restrictions on Mr. Walden’s interactions with
that daughter, removal of the mediation requirement, and for pickup and drop-off of
the children to take place at a neutral site rather than the parties’ homes. CP at 64; see id.
at 60, 65, 67.
On May 3, 2022, Ms. Hansen separately served Mr. Walden with a notice of her
intent to relocate with the children from Spokane to Deer Park.
4 No. 39749-1-III In re Marriage of Walden
On May 10, 2022—just two days before the adequate cause hearing on the
modification petition—Mr. Walden filed a document formally styled as an “Objection
about Moving with Children and Petition about Changing a Parenting/Custody Order.”
Id. at 237. Notwithstanding the document’s title, Mr. Walden stated, he did “not object”
to Ms. Hansen moving with the children, “but I ask the court to approve my proposed
Parenting Plan or Residential Schedule.” Id. The filing went on to state, “If the children
are allowed to move with [Ms. Hansen], I ask the Court to approve the Parenting Plan or
Residential Schedule that is proposed by me.” Id. at 238.
Mr. Walden separately filed a proposed parenting plan that would retain joint
decision-making. Mr. Walden proposed changes to the children’s residential schedule.
He sought to remove the Wednesday overnight visits from the parenting plan and retain
the every-other-weekend schedule during the school year, but expand his summertime
entitlement from every-other-weekend to an equal residential schedule.
In support of his “objection” and proposed parenting plan, Mr. Walden filed a
sworn declaration. He began his declaration, “I respectfully ask that this Court deny
[Ms. Hansen’s] request to find adequate cause to change the parenting plan based on her
allegations, and deny her new requested parenting plan. Instead, I request that [the] Court
to adopt my parenting plan . . . .” Id. at 241. Mr. Walden claimed the superior court had
5 No. 39749-1-III In re Marriage of Walden
“per se [a]dequate [c]ause” for the modifications set forth in his proposed plan, based on
Ms. Hansen’s proposed relocation to Deer Park. Id.
Mr. Walden claimed he had been planning to file a petition of his own since his
recent move to Hayden, but Ms. Hansen filed the instant petition first. He informed the
court that he believed “expanded time” as the children aged “was contemplated in the
prior parenting plan and is in the best interest of our daughters.” Id. In support of this
contention, he cited the original parenting plan, which stated, “the parents agree to return
to mediation to expand the parenting plan as needed.” Id. at 251; see id. at 17; see also
id. at 18 (handwritten stipulation in original parenting plan contemplating that the under
school-age residential schedule would be maintained “until further order of the court”
even as the children aged and started attending school). Mr. Walden claimed that, when
he and his current wife moved to Hailey, they always intended to move back somewhere
closer to Spokane in a few years after her daughters graduated high school, with the
expectation of increased visitation with his own children once the move occurred.
Mr. Walden referenced that his recent move to Hayden was a valid reason for
granting him more residential time during the summer, writing, “It seems cruel that now
that [my wife] and I have finally reached our goal of moving back up to the Spokane
area to be near the girls, that [Ms. Hansen] is attempting to unnecessarily limit my time.”
6 No. 39749-1-III In re Marriage of Walden
Id. at 249. Mr. Walden noted that a weeknight visit during the school year was
impractical given the girls’ residence in Spokane County, but contended “[t]here is
no reason the girls shouldn’t spend equal time with each parent during the Summer.”
Id. at 248-49.
Mr. Walden disputed Ms. Hansen’s allegations of abandonment, domestic
violence, and abusive use of conflict. He claimed there was no proof that his oldest
daughter was having anxiety attacks, but he nevertheless said he was supportive of her
receiving counseling.
The superior court held an adequate cause hearing, as scheduled, on May 12, 2022.
At the outset of the hearing, Ms. Hansen’s counsel addressed the court:
The first thing I need to just address is something that was raised by Mr. Walden in his declaration, which is exactly the reason that we are here. We are here on a motion for adequate cause and a motion for temporary orders under a petition for modification. It is true that Ms. [Hansen] has . . . served a notice of intent to relocate. However, that is a separate proceeding. It is my understanding that Mr. Walden’s objection to that has not been properly served. So, the relocation action, if there is going to be one, is not before the court today. And any requests by Mr. Walden related to relocation are not before the court today.
Rep. of Proc. (RP) (May 12, 2022) at 4. The court agreed that the issue of relocation was
not before the court that day.
7 No. 39749-1-III In re Marriage of Walden
Mr. Walden’s counsel began his argument by stating, “I don’t want to belabor the
point, but Mr. Walden’s position today is that he does have a right to ask for increased
time.” Id. at 13. Counsel represented that, upon the filing of a notice of relocation and
objection, “per se adequate cause [is established pursuant to RCW 26.09.260(6)] to
modify the parenting plan” and the court could then adopt either party’s proposed plan.
Id. at 13-14. The court interrupted Mr. Walden’s attorney, reminding him that “the
relocation issue is not in front of me.” Id. at 14. Mr. Walden’s attorney conceded, “Okay,
understood. I’ll move on . . . . In that case, Your Honor, we would request that this court
deny the parenting plan as proposed by Ms. [Hansen].” Id. Mr. Walden’s counsel finished
his argument by adding, “I think that even though it’s not before the court today, the final
parenting plan did anticipate that Mr. Walden would be getting more time as the girls got
older and that’s what he eventually hopes to get.” Id. at 22.
The superior court proceeded to its oral ruling:
. . . [F]irst, I want to point out that neither of the parties were following the original parenting plan, apparently. Yes, he moved to Hailey, Idaho; and if Ms. [Hansen] was concerned that he wasn’t visiting them, it seems like that’s the time she would [have] brought a petition to modify. But it also appears that he is a caring father, and he’s made a lot of effort to stay in touch with his children. I look at the photos, it looks like . . . very happy children with their father. It seems that this comes down to a few issues; one is the issue of the counselor, one is the issue of the visits between the parties, the frequency of the father’s visits with the children. And then added to that the parties don’t
8 No. 39749-1-III In re Marriage of Walden
appear to be able to cooperate very well with each other, and there seems to be an issue of about how often he can Facetime with the children. . . . [O]ne of my comments will be that [the] parenting plan made Ms. [Hansen] the custodian and it seemed to contemplate that she would be the primary parent. So, allegations that she’s doing all the parenting in terms of day-to-day decisions it seems like that’s what the original parenting plan contemplated. .... . . . I’ll agree that there doesn’t seem to be any type of medical evidence that the child . . . is having some kind of stress or anxiety disorder. But mom wants to send the child to a counselor and . . . father agrees to send the child to a counselor. So, I’m not seeing an issue there. Then mom wants to change the parenting plan to every three weeks when the original parenting plan contemplated every other week, that’s not a huge difference and it seems like both parties agree to not have the Wednesday visitation in there . . . . . . . All right, so then I go to the original parenting plan . . . which says that to solve disagreements about this parenting plan the parents will go to mediation. It does not appear that’s occurred. I don’t know why nobody has brought it up, but that’s what the parenting plan contemplates. When I look at the issues, counselor, which both parties agree, visits including maybe not having the Wednesday visits, the parents’ inability to communicate effectively on parenting, that gets handled a lot in my court with the parents using a family app. I assume both parties are probably agreeable to that. Then we get to the amount of Facetime the father has with the children, does it happen at a certain time, if it doesn’t happen at a certain time, does he get to make it up, all those things could be resolved through mediation. So frankly, I am not finding adequate cause to modify the parenting plan. Now, I don’t know what the—I really don’t know what the issue as to relocation is, and that’s not in front of me. But what is in front of me I do not find adequate cause to modify the parenting plan. I find that you can resolve these issues in mediation it seems as far as the Wednesday visits, both parties agree. As far as the counseling, both parties agree. So, that’s it. I do not find adequate cause to modify the parenting plan as it stands. These children, obviously, Mr. Walden has a desire to be a parent in these
9 No. 39749-1-III In re Marriage of Walden
children’s lives, they have a right to have their father be a parent in their lives; and we’re talking every other weekend and I just don’t find adequate cause to modify it at this time.
CP at 475-78.
The court subsequently entered an order on adequate cause:
1. [Lyndsey Hansen] made a Motion for Adequate Cause Decision, [Robert Walden] objected to adequate cause being found as to [Ms. Hansen]’s Petition, and the court finds there is reason to approve this order. An adequate cause hearing was held. The Court considered the file, the pleadings submitted by parties, and the argument of counsel.
The Court Finds: .... 4. Adequate Cause
There is not adequate cause (valid reasons) to hold a full hearing or trial about the Petition. The Petition should be dismissed.
5. Other Findings (if any)
Of the issues raised by [Ms. Hansen] that this Court deemed valid, the parties are encouraged to settle and resolve those issues through mediation.
Oral findings incorporated.
The Court Orders:
6. Decision
No Adequate Cause—The Petition to Change a Parenting Plan or Custody Order is dismissed.
10 No. 39749-1-III In re Marriage of Walden
7. Other orders (if any)
The parties are encouraged to attend mediation on the issues of counseling, the mid-week visits, and other disagreements the parties may have as to the current parenting plan.
Id. at 406-07.
Despite the court’s suggestion, mediation did not take place. Mr. Walden filed a
motion to compel mediation, noting he would like “to mediate his requests to increase his
time in the summer months and around the holidays.” Id. at 409. Mr. Walden requested
that, if Ms. Hansen continued to avoid mediation, he be allowed to file his own
modification petition “even absent mediation.” Id. at 410. The motion further sought
sanctions for Ms. Hansen’s purported intransigence. Mr. Walden noted a hearing on
his motion to compel mediation.
After a hearing on July 5, 2022, the superior court granted Mr. Walden’s motion
to compel mediation, but denied his request for sanctions.
The court-ordered mediation was unsuccessful. In the meantime, Mr. Walden
began exercising his right to midweek overnight visits pursuant to the terms of the
original parenting plan.
In December 2022, Mr. Walden filed a petition in the superior court for a minor
modification of the parenting plan, and simultaneously filed a proposed plan. Mr. Walden
11 No. 39749-1-III In re Marriage of Walden
sought the same changes to the children’s residential schedule as he had proposed in his
May 10, 2022, filing. That is, in his December 2022 proposal, he again sought the
removal of the Wednesday overnight visits, and to retain the every-other-weekend
schedule during the school year, but shift to an equal residential schedule during the
summer. He moved for a finding of adequate cause and noted a hearing on his adequate
cause motion.
In a simultaneously filed declaration, Mr. Walden cited his move to Hayden as a
change in circumstances, explaining, “Given that I now live about an hour away from
Lyndsey and the girls, I believe it is in their best interest and more practical for everyone
involved to remove the mid-week visit during the school year and instead increase my
time with the girls over the summer months.” Id. at 496. He cited the provision in the
original parenting plan by which the parties agreed to “‘return to mediation to expand the
parenting plan as needed,’” and the handwritten note by which the parties contemplated
maintaining the existing under school-age residential schedule for their children once
they reach school age “‘until further order of the court.’” Id. at 497 (quoting id. at 17-18).
Mr. Walden opined that his proposal was in the children’s best interest because it would
allow the children to have “significant blocks of time” with each of their parents when
they are out of school for the summer. Id. at 498-99.
12 No. 39749-1-III In re Marriage of Walden
Ms. Hansen filed a memorandum and sworn declaration in opposition to
Mr. Walden’s petition. Ms. Hansen claimed “[t]his court has already ruled that
[Mr. Walden’s] moves to and from southern Idaho were insufficient to establish a
substantial change of circumstances . . . . [Mr. Walden] cannot now use that as a
foundation for his requests.” Id. at 521. Ms. Hansen argued “the Court has no ability
to re-open this plan.” Id. Ms. Hansen agreed the mid-week visits should be removed from
the parenting plan, because it is impractical, but opposed any other changes to the plan.
Apart from objecting to Mr. Walden’s petition, Ms. Hansen also moved to change
venue to Spokane County. Mr. Walden objection to the venue motion, but the court
granted the motion and the matter was transferred to Spokane County Superior Court.
The court did not rule on Mr. Walden’s modification petition before transferring venue.
Approximately one week after Lincoln County transmitted its case file to Spokane
County, Mr. Walden moved for a finding of adequate cause on his petition.
In Spokane County, a superior court commissioner heard argument on
Mr. Walden’s motion for adequate cause. The commissioner found there was adequate
cause to support the petition and scheduled a full hearing. Ms. Hansen moved to revise
the commissioner’s ruling, arguing Mr. Walden was “judicially estopped” from citing
his move to Hayden as a substantial change in circumstances. Id. at 575.
13 No. 39749-1-III In re Marriage of Walden
A superior court judge granted Ms. Hansen’s motion to revise, thereby denying
adequate cause and dismissing Mr. Walden’s petition. The superior court held that Mr.
Walden was “judicially estopped from alleging that his move constitutes a substantial
change of circumstances for a minor modification.” Id. at 614. The court reasoned:
Mr. Walden opposed [Ms. Hansen’s] modification in its entirety arguing that there was no detriment or integration and that the move did not constitute a substantial change. On May 16, 2022, [the Lincoln County court] agreed and denied adequate cause on Ms. [Hansen]’s petition for a major and minor modification. . . . .... Mr. Walden’s argument in Lincoln County against Ms. [Hansen]’s petition for a major and minor modification was that his move did not constitute a substantial change of circumstance. His declaration describes the efforts he went through to ensure that he was seeing the children every other weekend [when he lived in Hailey]. This position is clearly inconsistent with his current position that his move is a substantial change of circumstance. Mr. Walden’s argument that he did not stipulate to the move as a substantial change of circumstance because it would require him to stipulate to Ms. [Hansen]’s allegations of abandonment and integration are without merit. Mr. Walden could have asked the court to find that his move was a substantial change for a minor modification and asked the court to adopt his proposed parenting plan instead.
Id. at 613-14. The superior court opined that, if it agreed with Mr. Walden, it would
create the impression the Lincoln County court was misled and that Ms. Hansen would
be unfairly disadvantaged from allowing Mr. Walden to cite his move as a substantial
change. The court further held that the parenting plan’s provision by which the parents
14 No. 39749-1-III In re Marriage of Walden
agreed to return to mediation to expand the plan did not excuse Mr. Walden from pointing
to a substantial change in circumstances.
The superior court also held that, in the alternative, even if Mr. Walden was not
judicially estopped from “arguing that his moves . . . constitute[] a substantial change of
circumstance,” the moves were “in fact, . . . not . . . a substantial change of
circumstance.” Id. at 615. The court noted first that Mr. Walden’s move “was known to
the parties” prior to the entry of the final parenting plan in July 2017. Id. Second,
the court reasoned that Mr. Walden could not “in good faith” claim the Wednesday
overnight visits were now impractical due to his residence in Hayden when he had
“voluntarily abdicated” those visits for years while living in Hailey. Id. at 616.
Mr. Walden timely filed a notice of appeal.
ANALYSIS
At issue in this appeal is whether Mr. Walden has established adequate cause
for a minor modification to the parties’ parenting plan pursuant to RCW 26.09.260(1)
and (5). Our review is of the superior court judge’s decision, not the commissioner’s.
In re Marriage of Lyle, 199 Wn. App. 629, 633, 398 P.3d 1225 (2017).
Here, the superior court judge determined Mr. Walden had failed to establish
adequate cause on two bases: judicial estoppel and lack of factual basis. Each of these
15 No. 39749-1-III In re Marriage of Walden
determinations is reviewed for abuse of discretion. See Miller v. Campbell, 164 Wn.2d
529, 536, 192 P.3d 552 (2008) (judicial estoppel); In re Parentage of Jannot, 149 Wn.2d
123, 125-26, 65 P.3d 664 (2003) (factual basis). While the abuse of discretion standard is
deferential, it has its limits. Discretion is abused if the court’s decision is rooted in legal
error or is exercised on untenable grounds or for untenable reasons. Ugolini v. Ugolini,
11 Wn. App. 2d 443, 446, 453 P.3d 1027 (2019).
We discuss the superior court judge’s two bases for revision in turn.
Judicial Estoppel
“‘Judicial estoppel is an equitable doctrine that precludes a party from asserting
one position in a court proceeding and later seeking an advantage by taking a clearly
inconsistent position.’” Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13
(2007) (quoting Bartley-Williams v. Kendall, 134 Wn. App. 95, 98, 138 P.3d 1103
(2006)). This doctrine seeks to preserve respect for judicial proceedings, and to avoid
inconsistency, duplicity, and waste of time. Id.
“Three core factors guide a trial court’s determination of whether to apply the
judicial estoppel doctrine.” Arkison, 160 Wn.2d at 538. The first factor asks whether the
party’s prior position and later position are “clearly inconsistent.” Anfinson v. FedEx
Ground Package Sys., Inc., 174 Wn.2d 851, 864, 281 P.3d 289 (2012) (emphasis added);
16 No. 39749-1-III In re Marriage of Walden
see also Arkison, 160 Wn.2d at 538. The second factor weighs in favor of estoppel if the
record indicates that either the first or second court “was misled.” Anfinson, 174 Wn.2d at
864; see also Arkison, 160 Wn.2d at 539. The third factor supports estoppel if the party
would “‘derive an unfair advantage’” from being allowed to assert the purportedly
inconsistent position. Arkison, 160 Wn.2d at 539 (quoting New Hampshire v. Maine,
532 U.S. 742, 750-51, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001)). 2
Here, none of the three core factors support finding judicial estoppel.
First, Mr. Walden has not taken clearly inconsistent positions. Throughout these
proceedings, Mr. Walden has consistently maintained that the parenting plan needed to
be changed due to his move to Idaho and the impracticality of the Wednesday visits.
While Mr. Walden opposed Ms. Hansen’s petition for a major modification in the
Lincoln County proceedings, this was because Ms. Hansen sought to reduce his time
2 These factors are neither exclusive nor exhaustive. See Kellar v. Estate of Kellar, 172 Wn. App. 562, 580, 291 P.3d 906 (2012); DeAtley v. Barnett, 127 Wn. App. 478, 483, 112 P.3d 540 (2005); see also New Hampshire, 532 U.S. at 750 (“‘[T]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation . . . .’”) (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)). Additional factors “may” guide a court’s decision, including whether the first-asserted position was successfully maintained; whether a judgment has been rendered adopting the prior position; whether the parties and questions are identical; and whether a misled party has changed position based on the inconsistent arguments. Kellar, 172 Wn. App. at 580.
17 No. 39749-1-III In re Marriage of Walden
with his daughters and deprive him of decision-making authority. Mr. Walden had made
clear during the Lincoln County proceedings that he did not oppose “reopen[ing] the
parenting plan.” CP at 594. In fact, he even filed a proposed parenting plan as part of
those proceedings. See id. at 366-72.
Nor was the Lincoln County court misled about Mr. Walden’s position. That court
held there was not adequate cause to hold a full hearing on Ms. Hansen’s petition.
Id. at 406-07. Nevertheless, the court recognized that the current parenting plan was
problematic. In recognition that the original plan required mediation to settle the parties’
disputes, the Lincoln County court first encouraged and then required the parties to
engage in mediation. It would be anomalous to conclude that the Lincoln County court
would have ordered mediation if the court did not think there was any reason to modify
the parenting plan.
Finally, there are no countervailing fairness concerns. There is nothing inherently
unfair about allowing Mr. Walden to seek the same modifications he had sought all along,
a request on which no trial court has yet reached the merits.
Given none of the three core factors support application of judicial estoppel,
the Spokane County Superior Court abused its discretion by invoking judicial estoppel
as a bar to finding adequate cause. See Anfinson, 174 Wn.2d at 865 (holding judicial
18 No. 39749-1-III In re Marriage of Walden
estoppel did not apply “[b]ecause two of the three factors disfavor[ed] application”);
see also Arp v. Riley, 192 Wn. App. 85, 101, 366 P.3d 946 (2015) (reversing where
“the record does not establish . . . the pertinent elements of judicial estoppel”).
Factual basis
To establish adequate cause for a full hearing on a parenting plan modification, a
petitioning parent has the burden of presenting “‘evidence sufficient to support a finding
on each fact that [they] must prove in order to modify.’” In re Custody of T.L., 165 Wn.
App. 268, 275, 268 P.3d 963 (2011) (quoting In re Marriage of Lemke, 120 Wn. App.
536, 540, 85 P.3d 966 (2004)). In the context of a minor modification petition, this entails
showing that there has been a substantial change of circumstances and that modification
is in a child’s best interests. RCW 26.09.260(1), (5).
The superior court ruled Mr. Walden failed to present sufficient facts to establish a
substantial change of circumstances. While Mr. Walden claimed that his move to Idaho
satisfied this criterion, the court noted that this fact was known to the parties at the time
the original parenting plan was entered by the Lincoln County court. In addition, the court
faulted Mr. Walden for failing to seek modification of the plan at any time during the
years he lived in Hailey, Idaho. Because of this, the court reasoned, Mr. Walden’s
19 No. 39749-1-III In re Marriage of Walden
argument that the weeknight visits—which he had never exercised—were only now
impractical was brought in bad faith.
We disagree with both of the superior court’s reasons for rejecting Mr. Walden’s
proof as to a change of circumstances.
The record makes plain that, at the time the parties agreed to terms of the original
parenting plan, Mr. Walden lived in Spokane and the expectation was that he was to
remain there. Although the Lincoln County court did not enter the parties’ agreed
parenting plan until after Mr. Walden moved to Idaho, the court was not alerted to the
move at the time it entered its final parenting plan. Thus, Mr. Walden’s move from
Spokane to Idaho qualified as a change of circumstances that was “unknown to the court
at the time of ” the original plan. RCW 26.09.260(1). Given the “paramount concern for
the best interests of the child,” it is not the timing of the circumstances that matters, but
rather whether the circumstance was previously known to the court. See In re Marriage
of Timmons, 94 Wn.2d 594, 597-98, 617 P.2d 1032 (1980).
Mr. Walden’s delay in bringing to the attention of the court his relocation
from Washington is not fairly attributable to bad faith. For years after Mr. Walden
moved to Idaho, neither parent petitioned to modify the plan, notwithstanding its obvious
impracticality, and notwithstanding that they were not following it. Instead, the parents
20 No. 39749-1-III In re Marriage of Walden
found extrajudicial work-arounds. Once Mr. Walden moved to Hayden, Idaho, he was
close enough to exercise more robust visitation and began asking for the court’s
assistance in short order. The timing of Mr. Walden’s decision to engage in litigation is
not a basis for denying adequate cause, especially given it is uncontested that the current
parenting plan is unworkable and contrary to the best interest of the parties’ children.
CONCLUSION
The superior court’s order on revision denying adequate cause on Mr. Walden’s
petition to modify the parenting plan is reversed. This matter is remanded with
instructions for the court to hold a full modification hearing. The parties’ requests for
attorney fees are denied, as is Mr. Walden’s request for judicial reassignment.
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:
______________________________ _________________________________ Lawrence-Berrey, C.J. Fearing, J.