In the Matter of the Marriage of: Vanessa M. Weaver & Richard J. Weaver
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Opinion
FILED NOVEMBER 18, 2021 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In the Matter of Marriage of ) ) No. 37790-3-III VANESSA M. WEAVER, ) ) Appellant, ) ) and ) UNPUBLISHED OPINION ) RICHARD J. WEAVER, ) ) Respondent. )
FEARING, J. — Vanessa Weaver challenges the trial court’s order denying her
request to relocate, with her young sons, to Hoquiam from Wenatchee. She contends that
the trial court ignored the rebuttable presumption in favor of relocation and failed to
consider her interests in relocation. We disagree and affirm the trial court.
FACTS
This appeal arises from the parentage by former husband and wife, Richard and
Vanessa Weaver, of two sons, David and Jesse. The boys’ names are pseudonyms. The
dissolution decree’s parenting plan awarded Vanessa primary placement of the two boys. No. 37790-3-III In re Marriage of Weaver
A year thereafter, Vanessa sought to move from Wenatchee to Hoquiam. We address the
trial court’s denial of the request to relocate with the boys.
In a parental relocation case, both court levels must review numerous factors,
which, in turn, renders a flood of facts relevant. Thus, even published decisions
involving this topic run long. Shrauner v. Olsen, 16 Wn. App. 2d 384, 402-03, 483 P.3d
815 (2020); In re Marriage of McNaught, 189 Wn. App. 545, 555, 359 P.3d 811 (2015);
In re Marriage of Kim, 179 Wn. App. 232, 244, 317 P.3d 555 (2014); In re Marriage of
Fahey, 164 Wn. App. 42, 58, 262 P.3d 128 (2011).
On April 25, 2017, Vanessa and Richard Weaver dissolved their seven-year
marriage. The couple’s two sons, born respectively in 2010 and 2012, each have special
needs. The older son, David, suffers allergies, asthma, and Li-Fraumeni Syndrome
(LFS), a paternal genetic syndrome predisposing him to cancer. The younger son, Jesse,
has autism.
Richard Weaver has lived in Wenatchee for fifteen years and the surrounding
environs longer. Since 1996, Richard has owned Westgate Communications, LLC,
which provides lifeline telephone Internet service for Upper Lake Chelan. Because of his
job, relocation for Richard is not feasible.
Vanessa Weaver is an art teacher. Vanessa holds a substitute teacher’s certificate
that allows her to substitute teach at any grade level on any subject. She also has a
2 No. 37790-3-III In re Marriage of Weaver
professional teaching certificate with an endorsement to teach at the elementary level and
to be an art specialist for grades K-12.
At the time of their divorce, the parties entered an agreed parenting plan that
granted Vanessa and Richard Weaver joint decision making. Pursuant to the plan, the
boys lived primarily with Vanessa, and Richard enjoyed the standard visitation schedule.
The agreed marital dissolution decree awarded the Wenatchee family home to
Vanessa Weaver so that the boys would continue to reside in the home. The decree,
however, required Vanessa to refinance the home, in her name alone, by February 28,
2018, or vacate the residence. In the event Vanessa failed to refinance the home, the
Weavers would sell the home at an agreed price or a price established by the court. As of
February 28, 2018, Vanessa Weaver remained unable to refinance the home.
Vanessa Weaver worked as an art teacher at Lincoln Elementary School in the
Wenatchee School District. David, the older son, attended Lincoln Elementary. Jesse
attended a self-contained classroom in another school. Vanessa advocated for him to
attend Lincoln Elementary so that the brothers could attend the same school and she
would be available to assist Jesse.
In the spring of 2018, the school district notified Vanessa that her work would be
reduced to half-time from her current 0.8 position. As a result, Vanessa gave notice of
her resignation effective at the end of the 2017-18 school year. Vanessa believed she
could not live on her remaining income.
3 No. 37790-3-III In re Marriage of Weaver
Vanessa Weaver applied for a full-time art teacher position at Wenatchee High
School, but did not receive an offer. Vanessa’s job opportunities grew scarcer as the
months progressed into May 2018. She concluded that the western side of Washington
State afforded more possibilities.
In February 2018, Richard Weaver learned from David that he and his mother
might move. In June 2018, Vanessa Weaver spoke with Richard about the potential
relocation, including possible visitation arrangements and arrangements for selling the
family home. Richard eventually objected to any move of the sons to Western
Washington.
We only review the trial court’s decision entered after a three-day trial on Vanessa
Weaver’s application for court permission to relocate with her two sons. Nevertheless,
the case includes a long and germane procedure leading to the trial.
On August 30, 2018, Richard Weaver filed an ex parte motion for a restraining
order to prevent Vanessa from relocating. Richard alleged that Vanessa, on August 29,
2018, told him that she planned to live in western Washington by September 10.
According to Richard, Vanessa reported that she would live in a fifth wheel trailer on her
mother’s home property while she searched for a job and her mother cared for the
children. Vanessa insisted she needed to move in order to obtain a full-time teaching
position. The trial court granted Richard’s ex parte motion and entered an order which
prohibited Vanessa from relocating with the children, temporarily placed the boys with
4 No. 37790-3-III In re Marriage of Weaver
Richard, required the boys’ enrollment in Wenatchee schools, prohibited Vanessa from
contact with the boys, and set a hearing date for September 10, 2018.
On August 31, 2018, Vanessa filed a notice of intent to relocate and a motion to
terminate the restraining order. As part of the motion to terminate the restraining order,
she asked that the children be enrolled in online school. In the notice of intent to
relocate, Vanessa stated that she intended to buy property in western Washington and
build a home with her share of the proceeds from the sale of the Wenatchee residence.
She intended to live in a trailer while the house was being built.
Richard Weaver objected to the move and requested primary custody should
Vanessa choose to move. Richard described Vanessa’s plans to move as vague because
the plans kept changing and she disclosed no firm date for the move. He highlighted that
Jesse experienced autism, but Vanessa planned to enroll both boys in a virtual school.
On September 6, 2018, Vanessa Weaver moved for a temporary order permitting
her to relocate with the children. Vanessa cited the legal presumption that a custodial
parent should be permitted to relocate with a child. She accused Richard of alcoholism
and emotional struggles.
On September 10, 2018, the Chelan County Superior Court held a hearing only
regarding Richard Weaver’s application for a restraining order prohibiting the children’s
move. During the hearing, Vanessa testified that she planned to substitute teach for a
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FILED NOVEMBER 18, 2021 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 Marriage of ) ) No. 37790-3-III VANESSA M. WEAVER, ) ) Appellant, ) ) and ) UNPUBLISHED OPINION ) RICHARD J. WEAVER, ) ) Respondent. )
FEARING, J. — Vanessa Weaver challenges the trial court’s order denying her
request to relocate, with her young sons, to Hoquiam from Wenatchee. She contends that
the trial court ignored the rebuttable presumption in favor of relocation and failed to
consider her interests in relocation. We disagree and affirm the trial court.
FACTS
This appeal arises from the parentage by former husband and wife, Richard and
Vanessa Weaver, of two sons, David and Jesse. The boys’ names are pseudonyms. The
dissolution decree’s parenting plan awarded Vanessa primary placement of the two boys. No. 37790-3-III In re Marriage of Weaver
A year thereafter, Vanessa sought to move from Wenatchee to Hoquiam. We address the
trial court’s denial of the request to relocate with the boys.
In a parental relocation case, both court levels must review numerous factors,
which, in turn, renders a flood of facts relevant. Thus, even published decisions
involving this topic run long. Shrauner v. Olsen, 16 Wn. App. 2d 384, 402-03, 483 P.3d
815 (2020); In re Marriage of McNaught, 189 Wn. App. 545, 555, 359 P.3d 811 (2015);
In re Marriage of Kim, 179 Wn. App. 232, 244, 317 P.3d 555 (2014); In re Marriage of
Fahey, 164 Wn. App. 42, 58, 262 P.3d 128 (2011).
On April 25, 2017, Vanessa and Richard Weaver dissolved their seven-year
marriage. The couple’s two sons, born respectively in 2010 and 2012, each have special
needs. The older son, David, suffers allergies, asthma, and Li-Fraumeni Syndrome
(LFS), a paternal genetic syndrome predisposing him to cancer. The younger son, Jesse,
has autism.
Richard Weaver has lived in Wenatchee for fifteen years and the surrounding
environs longer. Since 1996, Richard has owned Westgate Communications, LLC,
which provides lifeline telephone Internet service for Upper Lake Chelan. Because of his
job, relocation for Richard is not feasible.
Vanessa Weaver is an art teacher. Vanessa holds a substitute teacher’s certificate
that allows her to substitute teach at any grade level on any subject. She also has a
2 No. 37790-3-III In re Marriage of Weaver
professional teaching certificate with an endorsement to teach at the elementary level and
to be an art specialist for grades K-12.
At the time of their divorce, the parties entered an agreed parenting plan that
granted Vanessa and Richard Weaver joint decision making. Pursuant to the plan, the
boys lived primarily with Vanessa, and Richard enjoyed the standard visitation schedule.
The agreed marital dissolution decree awarded the Wenatchee family home to
Vanessa Weaver so that the boys would continue to reside in the home. The decree,
however, required Vanessa to refinance the home, in her name alone, by February 28,
2018, or vacate the residence. In the event Vanessa failed to refinance the home, the
Weavers would sell the home at an agreed price or a price established by the court. As of
February 28, 2018, Vanessa Weaver remained unable to refinance the home.
Vanessa Weaver worked as an art teacher at Lincoln Elementary School in the
Wenatchee School District. David, the older son, attended Lincoln Elementary. Jesse
attended a self-contained classroom in another school. Vanessa advocated for him to
attend Lincoln Elementary so that the brothers could attend the same school and she
would be available to assist Jesse.
In the spring of 2018, the school district notified Vanessa that her work would be
reduced to half-time from her current 0.8 position. As a result, Vanessa gave notice of
her resignation effective at the end of the 2017-18 school year. Vanessa believed she
could not live on her remaining income.
3 No. 37790-3-III In re Marriage of Weaver
Vanessa Weaver applied for a full-time art teacher position at Wenatchee High
School, but did not receive an offer. Vanessa’s job opportunities grew scarcer as the
months progressed into May 2018. She concluded that the western side of Washington
State afforded more possibilities.
In February 2018, Richard Weaver learned from David that he and his mother
might move. In June 2018, Vanessa Weaver spoke with Richard about the potential
relocation, including possible visitation arrangements and arrangements for selling the
family home. Richard eventually objected to any move of the sons to Western
Washington.
We only review the trial court’s decision entered after a three-day trial on Vanessa
Weaver’s application for court permission to relocate with her two sons. Nevertheless,
the case includes a long and germane procedure leading to the trial.
On August 30, 2018, Richard Weaver filed an ex parte motion for a restraining
order to prevent Vanessa from relocating. Richard alleged that Vanessa, on August 29,
2018, told him that she planned to live in western Washington by September 10.
According to Richard, Vanessa reported that she would live in a fifth wheel trailer on her
mother’s home property while she searched for a job and her mother cared for the
children. Vanessa insisted she needed to move in order to obtain a full-time teaching
position. The trial court granted Richard’s ex parte motion and entered an order which
prohibited Vanessa from relocating with the children, temporarily placed the boys with
4 No. 37790-3-III In re Marriage of Weaver
Richard, required the boys’ enrollment in Wenatchee schools, prohibited Vanessa from
contact with the boys, and set a hearing date for September 10, 2018.
On August 31, 2018, Vanessa filed a notice of intent to relocate and a motion to
terminate the restraining order. As part of the motion to terminate the restraining order,
she asked that the children be enrolled in online school. In the notice of intent to
relocate, Vanessa stated that she intended to buy property in western Washington and
build a home with her share of the proceeds from the sale of the Wenatchee residence.
She intended to live in a trailer while the house was being built.
Richard Weaver objected to the move and requested primary custody should
Vanessa choose to move. Richard described Vanessa’s plans to move as vague because
the plans kept changing and she disclosed no firm date for the move. He highlighted that
Jesse experienced autism, but Vanessa planned to enroll both boys in a virtual school.
On September 6, 2018, Vanessa Weaver moved for a temporary order permitting
her to relocate with the children. Vanessa cited the legal presumption that a custodial
parent should be permitted to relocate with a child. She accused Richard of alcoholism
and emotional struggles.
On September 10, 2018, the Chelan County Superior Court held a hearing only
regarding Richard Weaver’s application for a restraining order prohibiting the children’s
move. During the hearing, Vanessa testified that she planned to substitute teach for a
year so she could explore opportunities in the community to where she would move. She
5 No. 37790-3-III In re Marriage of Weaver
explained that substitute teaching would allow her to network and review prospective
jobs. Vanessa promoted the number and proximity of school districts in western
Washington compared to Wenatchee, such that she enjoyed more job prospects on the
west side of the State.
At the conclusion of the September 10 hearing, the superior court precluded any
move by the sons for the time being because of Vanessa’s lack of a concrete plan.
The court expressed concern about the boys living in a trailer. If Vanessa chose to
continue to live in Wenatchee, the residential arrangement under the original parenting
plan would be reinstated. The court suggested that, should Vanessa develop “a solid
plan,” the court would reconsider its decision on relocation after an evidentiary trial.
Report of Proceedings (RP) at 26-27.
On November 6, 2018, Vanessa Weaver filed a proposed modification to her
motion for a temporary order allowing her to relocate. She declared that she now had
concrete relocation plans. According to these plans, she had enrolled the children in a
Port Townsend elementary school, and she had arranged for after school childcare at the
YMCA. Vanessa had registered to become a substitute teacher in the Port Townsend
school district. The family of three would live in a fifth wheel trailer in a mobile home
park. Vanessa asserted that Richard’s history of alcohol abuse, emotional and mental
instability, and emotional abuse of her placed the children at risk for serious harm.
6 No. 37790-3-III In re Marriage of Weaver
Vanessa also requested appointment of a guardian ad litem to investigate and report to the
court about her potential relocation.
On November 29, 2018, Richard filed a responsive declaration in which he denied
any alcohol abuse. He also denied threatening or verbally abusing Vanessa. Richard
declared that he wished to follow plans recommended by the boys’ respective teachers
for the sons. He enjoyed a large extended family in the Wenatchee area, who agreed to
assist with childcare until he could hire a nanny. He agreed to the appointment of a
guardian ad litem.
During a December 3, 2018 hearing, Vanessa Weaver informed the superior court
that her mother had recently suffered an accident and, because of injuries in the accident,
planned to move with Vanessa and the boys to property on which they would build a
home. The court asked Vanessa about her job status. Vanessa responded that she filed
for substitute teacher work with Port Townsend school district and, once she lived in the
town, the school would permit her to serve as a substitute.
During the December 3 hearing, Richard Weaver complained again about the
vagueness of Vanessa’s plans. Richard highlighted that Vanessa still lacked a job. He
suggested that Vanessa could not build a home herself as she had never completed
remodeling projects in the Wenatchee family home. Richard agreed to permit Vanessa to
continue to reside in the Wenatchee family home despite her lack of refinancing. He
noted that Vanessa had failed to apply for jobs locally despite the availability of
7 No. 37790-3-III In re Marriage of Weaver
employment and a lower cost of living in Wenatchee. Richard claimed that Vanessa had
not procured doctors or dentists for the boys in Port Townsend.
The superior court denied Vanessa Weaver’s motion for a temporary order for
relocation. The court noted that Vanessa still lacked housing and employment despite the
special needs of the children. The court appointed a guardian ad litem to determine the
best interest of the children.
Seven months later and on July 16, 2019, Vanessa again moved for a temporary
order allowing relocation with the children pending the permanent relocation trial.
According to the motion, Vanessa had obtained full-time employment as an art teacher in
Hoquiam and had located schools in Hoquiam for each son. Her employment removed
the need for day care before and after school because the boys could be with Vanessa
during this time. Vanessa had obtained a rental home within 1.5 miles of work. She
averred to the accessibility of autism support agencies within ninety minutes and claimed
the presence of twelve close family and friends within two hours’ distance.
On July 30, 2019, before any hearing on Vanessa Weaver’s new motion, guardian
ad litem Ruth Esparza filed a report of her investigation. The report described visits,
including surprise visits, to each parent’s home and included interviews with school
personnel, medical providers, and the two boys. Esparza reported that Vanessa’s home
appeared cluttered with pet hair scattered throughout. Son David told Esparza that he
enjoyed his mom’s home, however, he would prefer to live with his father.
8 No. 37790-3-III In re Marriage of Weaver
Ruth Esparza also visited Richard’s apartment and found the residence organized
and clean. During the visit, David informed Esparza that he had never seen his dad
consuming alcohol. Esparza later conducted a surprise visit to Richard’s home and did
not discover any signs of alcohol.
Guardian ad litem Ruth Esparza met with three teachers from the boys’ schools.
They reported that, while in the care of their mother, both boys accumulated nineteen
tardies to school. According to the teachers, the tardies discombobulated David’s school
day. On the days that the boys appeared late, they looked disheveled. On one day, Jesse
wore his clothes backward. David reported to his teachers that he and his brother arrived
late to school because of his mother’s late sleeping and his difficulty in preparing Jesse
for school. The teachers worried about the mother placing a responsibility on David for
preparing Jesse for school. The school placed David on probation.
The teachers reported to guardian ad litem Ruth Esparza that Vanessa often fails to
timely retrieve the boys from school, while the father always waits outside the school
when the school ends for the day. Jesse’s teachers told Esparza that an online school
setting would not permit Jesse to thrive because of a lack of opportunities to socialize.
Also, Jesse needed routine.
In the conclusion to her report, guardian ad litem Ruth Esparza recommended that
Richard Weaver gain primary placement of the boys because of his consistency. Esparza
suggested that the father be awarded the family home.
9 No. 37790-3-III In re Marriage of Weaver
On August 2, 2019, the superior court heard oral argument on Vanessa’s second
request for a temporary order permitting her to relocate with the boys until the concluding
trial. During the hearing, Vanessa explained that she would begin work in Hoquiam on
August 22. Guardian ad litem Ruth Esparza addressed the court and expressed her
opinions that the boys should not relocate to Hoquiam and that the court should award
Richard primary placement.
After the August 2 hearing, the superior court concluded that it, after an
evidentiary trial, would unlikely approve relocation after considering the factors listed in
RCW 26.09.520. The court also concluded that Richard Weaver would likely rebut the
presumption in favor of relocation. The superior court denied the temporary relocation
and ordered that the 2017 parenting plan remain in place. If Vanessa chose to relocate,
Richard would receive primary placement of the two young sons.
On August 23, 2019, Richard filed a petition to modify the parenting plan and
asked for primary placement of the children with him. Richard claimed that Vanessa had
moved to Hoquiam and left the children in the care of her mother in Wenatchee in
violation of the order awarding him primary placement should Vanessa relocate.
On September 5, 2019, Richard Weaver filed a motion for contempt. He averred
that, under the parenting plan, Vanessa and he shared joint decision making on
educational decisions and yet she had enrolled David in a different school. He repeated
10 No. 37790-3-III In re Marriage of Weaver
that, in violation of a court order, Vanessa left the boys with their grandmother in
Wenatchee while moving to Hoquiam.
In response to Richard’s motion to modify the parenting plan and motion for
contempt, Vanessa Weaver declared that she commuted to and from Wenatchee and
Hoquiam so that the boys could remain in the family home without a needless transfer or
exchange. Vanessa averred that she drove to Hoquiam on Monday morning for work and
returned Tuesday afternoon. She returned to Hoquiam on Wednesday morning and
returned to Wenatchee on Thursday or Friday depending on the requirements of work.
Her mother stayed with the children while she was absent.
On September 6, 2019, the superior court entertained argument on the motion for
contempt. The superior court ruled that Vanessa’s decision to commute between
Hoquiam and Wenatchee would not serve as a basis for finding her in contempt. The
court, however, held Vanessa in contempt for withdrawing David from his elementary
school without the consent of Richard. The court gave Vanessa forty eight hours to
reenroll David in his former elementary school. Finally, the court reinstructed Vanessa
that, if she continued to work for the Hoquiam School District, the children must be
placed with Richard. The court granted Vanessa two weeks to resign from employment
with the Hoquiam School District. Vanessa continued to work in Hoquiam and, in
September 2019, the two boys went to live with Richard.
11 No. 37790-3-III In re Marriage of Weaver
On October 28, 2019, the superior court heard argument regarding a temporary
parenting plan. The court ruled that the parties should have joint decision making. The
court affirmed Richard Weaver as the primary care giver and granted Vanessa two
weekends a month for visitation.
On June 12, 2020, Vanessa Weaver moved to amend the temporary parenting plan
to grant her sole decision making authority and primary placement of the children.
Vanessa alleged that Richard had neglected the children, withheld the children from her,
and refused to engage in joint decision making. With her motion, Vanessa submitted a
declaration in which she stated that she had twice seen bruising on Jesse, which
discoloring appeared to be intentionally inflicted. On June 25, 2020, Vanessa filed a
motion for contempt.
On June 29, 2020, the superior court entertained argument regarding the motion
for an amendment to the temporary parenting plan. The court noted that the relocation
trial was scheduled to begin in five weeks. Therefore, the court denied the motion other
than to award summer visitation to Vanessa.
PROCEDURE
Hearings on temporary motions ceased and a three-day bench trial on Vanessa
Weaver’s request for relocation and Richard’s petition to modify the parenting plan
commenced on August 10, 2020. By that date, Vanessa had been employed with the
Hoquiam School District for three weeks.
12 No. 37790-3-III In re Marriage of Weaver
During the trial, Richard Weaver emphasized Vanessa’s habit of tardiness and her
failure to follow plans. Richard related that, in 2019, the entire family took a trip to the
east coast for David’s annual appointment at the National Institute of Health (NIH).
Vanessa, who stayed at a hotel across the street from the NIH, arrived late to the
appointment. Vanessa also insisted on flying with the boys on a separate flight because
Richard purportedly caused conflict. Richard took a separate flight to Seattle and
planned a connecting flight to Wenatchee. Before he boarded the plane for Wenatchee,
Vanessa called Richard and told him that she was stranded in Seattle and unable to rent a
car. Richard forewent his flight, rented a car, and drove the boys and Vanessa home,
arriving at 3 a.m.
The trial court admitted as exhibits pictures of Richard’s new home, which
photographs showed no signs of clutter. Richard averred that the family home was
messy and cluttered when Vanessa lived therein. He did not explain why, if the home
was muddled, he did not tidy and clean the home rather than waiting for Vanessa to
perform the tasks.
During trial testimony, Richard Weaver denied Vanessa’s allegations that he
physically abused the boys. In response to an earlier allegation, he showed a photograph
of one of the boys to a teacher and a physician assistant. The teacher concluded that the
bruise likely resulted from a piece of playground equipment. The physician assistant,
13 No. 37790-3-III In re Marriage of Weaver
with little concern, deemed the blemish on the boy a yeast infection. Eventually, the
bruise or rash disappeared.
Richard Weaver testified to a second occasion when Vanessa reported bruising on
Jesse. Richard saw no bruising, but he took Jesse to an urgent care facility the same day
as Vanessa’s complaint. On pulling into the facility’s parking lot, he received a call
from Child Protective Services (CPS) asking for his address so the agency could speak
to him about alleged bruising. Richard told CPS that he and Jesse were at the care
facility. The physician at the facility found no bruising on Jesse.
During his testimony, Richard Weaver mentioned that, on the day after the call
from CPS, he met with a CPS investigator, the school counselor, and Jesse’s teacher.
CPS informed Richard that it planned a month-long investigation into the suspected
bruising. Richard showed the CPS investigator the picture he had received from
Vanessa five or six months earlier. Richard explained that the mark on Jesse resulted
from either a bruise caused by playground equipment or a yeast infection. On the
following day, the CPS investigator met with Richard and the two boys. The
investigator thereafter closed the investigation.
According to Richard Weaver, son David is more relaxed and Jesse has improved
in school since living with him. Richard enrolled Jesse in speech classes. Richard
maintained frequent contact with his sons’ teachers. In the last annual individualized
education plan meeting, Jesse’s teachers informed Richard that Jesse had improved in
14 No. 37790-3-III In re Marriage of Weaver
both speech and attention span. Jesse was gradually integrating into a regular classroom.
During his testimony, Richard emphasized his large extended family and the activities
he provided the boys, including visiting museums, hiking trails, and attending hockey
games. He holds familiarity with services available for his son in the Wenatchee area.
Guardian Ad Litem Ruth Esparza testified at trial regarding the results of her
investigation. Esparza repeated testimony from an earlier hearing and continued to
recommend that both children live with Richard with visitation for Vanessa.
During her testimony, Ruth Esparza questioned Vanessa Weaver’s insistence that
she take Jesse on the trips to Maryland for David’s examinations by NIH and, in turn,
Vanessa’s persistence that she alone accompany David to the NIH facility, while
Richard tended to Jesse. Richard suffered from the same rare condition and should have
accompanied David on his appointments. Esparza criticized Vanessa’s desire to enroll
Jesse in an online academy. According to Esparza, Jesse’s teachers wanted Jesse to
attend school in person for needed socialization.
Counsel for Richard Weaver questioned guardian ad litem Ruth Esparza:
Q. Were you aware in September of 2019 that Ms. Weaver was hired full time in Hoquiam at that point? A. I think so, yes. I believe. Q. And were you aware that even though she was hired full time in Hoquiam and working over there, she left her children with her mother instead of Mr. Weaver when she was off working? A. I was not aware of that. Q. Assuming that to be the case, do you think that’s evidence of bad faith on the part of the mother here?
15 No. 37790-3-III In re Marriage of Weaver
A. Yes.
RP at 365.
Ruth Esparza testified that children with autism need stability and routine. Based
on reports of David’s preparing Jesse for school, Esparza envisioned chaotic mornings
without an established routine if Vanessa recovered primary placement.
During her trial testimony, Vanessa Weaver testified to her care for her sons while
she enjoyed primary placement. She conceded that situations arose when she could not
arrive at the boys’ schools when classes ended. Vanessa denied that she ever directed
David to assist Jesse in preparing for school.
Vanessa Weaver testified that she lived in a “little attic apartment” in Hoquiam
that lowered her cost of living significantly. RP at 511. Her teaching at the Hoquiam
school district ended the need for childcare as the boys could go to Vanessa’s school in
the morning with her and then a school bus would transport them to their elementary
school. She averred that she could not break her employment contract with the Hoquiam
School District because she would gain a blemish on her professional reputation and
encounter difficulty finding other teaching jobs.
On cross-examination, Vanessa Weaver acknowledged that, as of 2018, she had no
physician or dentists retained for the boys in western Washington. She answered that she
had requested two pediatricians for referrals and not received any.
16 No. 37790-3-III In re Marriage of Weaver
Vanessa Weaver declared, during her trial testimony, that she bought property
between Graham and Eatonville approximately seventy miles from her current residence.
She planned to build a home on the land. She would then need to find a new job, and,
assuming the court allowed the children to move with her to Hoquiam, the children
would move again on the completion of the home.
At the conclusion of the trial, the superior court ruled from the bench and denied
Vanessa Weaver permission to move with the children. We quote some of the oral ruling
because of its assistance in resolving whether sufficient evidence supports the trial court’s
findings and the court’s conclusions as to whether statutory factors favor or disfavor
relocation.
The superior court first highlighted testimony from guardian ad litem Ruth
Esparza:
The guardian ad litem testified that she believed that Mr. Weaver was more stable than Mrs. Weaver and Ms. Weaver tended to be chaotic. The guardian ad litem said what I think everyone agrees with, that autistic children especially need routine and stability and that the father is stable and the mother is less stable.
RP at 721 (emphasis added).
During its oral ruling, the superior court observed that, according to Ruth Esparza,
the mother often failed to timely deliver and retrieve the boys from school, whereas
Richard performed like Swiss “clockwork.” RP at 721. The court considered the amount
17 No. 37790-3-III In re Marriage of Weaver
of tardies that David accrued when placed with Vanessa and the tardies resulting in
David’s probation at school.
After making these observations, the superior court reviewed the eleven factors
listed in the parental relocation statute. As to factor 1, which includes the strength of the
relationship between the children and the respective parents, the court commented that
strength of the relationships is equal between the parents and both children. The court
remarked as to consistency and stability:
And both parents are extremely involved in the children’s lives, and both parents are very aware of the children’s needs. And as I indicated, the children have a strong bond with not only both parents but with each other, as you would expect brothers to have and they do. And in terms of the stability of relationship with each parent, again, the Court feels that the father’s relationship with the children is strong. It’s very stable. It’s very steady. And the mother’s relationship, I think it could be classified in those terms as well, but that she is less consistent with them than the father is.
RP at 722.
In its oral ruling, the superior court considered factor three, stating:
Factor 3 is whether disrupting the contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation. Given what I’ve already said and also how the children are doing currently, this court believes that the disruption to the children will be greater and more detrimental if the contact between them and their father is disrupted. The father’s very stable and consistent. The children are enrolled in school in Wenatchee and would have to change schools if they’re forced to relocate with the mother. And Wenatchee is pretty much the only home that these children have ever known.
18 No. 37790-3-III In re Marriage of Weaver
RP at 723 (emphasis added).
As to factor 4, whether any parental misconduct limits placement and visitation,
the superior court remarked:
There’s allegations in this case of alcohol abuse of the father and maybe some verbal abuse and some emotional abuse. The Court does not believe that those are supported by the evidence.
RP at 723.
Relevant to factor six, the age and needs of the boys, the superior court stated:
The testimony is that [David] is ten years old, I believe, and he’s a very gifted student. And the Court believes that his educational needs have been and will continue to be met here in Wenatchee. And the Court believes that [Jesse’s] emotional needs are better met with him remaining here in Wenatchee as well with his father. [Jesse] is eight years old. . . . I think everyone’s on—in agreement in terms of what autistic children need is routine and structure. And the Court believes although it would be possible for the mother to provide that at some point with the relocation, it’s unknown how long that would take. The professionals around [Jesse] in this community know him. They’ve worked with him. They’re aware of what he needs to be successful. The testimony is that he’s thriving here. And the court is not convinced he would get the same care if he moved because basically he would have to start all over again getting the connections and the professionals surrounding him in a new community.
RP at 725.
The superior court addressed factor 7, the improvement in the quality of life of the
parents and children because of the relocation:
The court believes, frankly, that the mother’s quality of life will likely improve because she’ll be—she’s working as a full-time teacher. But
19 No. 37790-3-III In re Marriage of Weaver
again, the opportunities and resources available to the children would not necessarily be better for the reasons I’ve already stated.
RP at 725-26.
As to factor 8, the availability of alternative arrangements, the superior court
remarked:
There are no other arrangements available to foster and continue the objecting person’s relationship and contact with the children.
Clerk’s Papers (CP) at 124. The court added:
Unfortunately, the mother’s chosen to move five to seven hours away. That’s not really any—if the Court allowed that to happen, basically the father would be reduced to seeing the children every other weekend and then maybe on Zoom, which is not substitute—not an adequate substitute for seeing them face-to-face.
RP at 726.
In its oral ruling the superior court stated with regard to factor 9, the desirability
and feasibility of the other parent to relocate:
[T]he father has a long time—term business here in the Chelan County area, and it’s simply not feasible for him to relocate. It would be a lot easier for the mother to relocate than the father would.
On September 23, 2020, the superior court entered an order and written findings of
fact. Because of their importance to the appeal, we quote the findings at length:
5. Factors for / against move with children . . . The children . . . [p]reviously spent most of their time with the relocating person until September of 2019 when the court ordered that the
20 No. 37790-3-III In re Marriage of Weaver
children spend most of their time with the objecting party and based on the factors below the court concludes that the planned move would cause more harm to the children than good to the children and the person who wants to move. Factors: a. Relationships: The children’s relationships with each parent, any siblings, and other important people in the children’s life. . . . Both parties have a strong relationship with the children but the parties parenting styles are different. Both parents are involved with the needs of the children. The father has more stability than the mother when it comes to the care of the children. b. Agreements: Findings: There . . . were not agreements between the relocating and objecting persons about moving with the children. c. Contact: Findings: Disrupting the children’s contact with the relocating person . . . would not be more harmful to them than disrupting their contact with the objecting person. The children have lived in Wenatchee the majority of their lives and have all the care present for their physical, mental, and emotional well being and educational needs. Relocating the children would require that new contacts in all areas of the children’s development be located. d. limitations: Findings: The current parenting/custody order . . . does not include limitations under RCW 26.09.191 on a parent. The court finds that there is no evidence of any alcohol abuse on the part of the father. e. Reasons for moving: Findings: The reasons for moving . . . were . . . given in good faith. The financial need of the mother is better met at her present location and employment. f. Reasons for objecting: Findings: The reasons for objecting to the move . . . were . . . given in good faith. The father did not object for personal selfish reasons but instead for the benefit of the children. g. Children: Findings: Allowing or preventing the move would affect the children’s physical, educational, and emotional development, considering their age, developmental stage, and needs (including any special needs) as follows: If move is allowed: As indicated in paragraph 3, a relocation would require the finding and hiring and retention of medical doctors, specialists and others pertaining to the children and particularly the autism of the youngest child. The oldest child is a gifted child in advanced classes at his present school. Autistic children need routine and structure which is
21 No. 37790-3-III In re Marriage of Weaver
provided by the father although the mother may have eventually been able to provide such for the youngest child. If move is not allowed: The children’s routine and structure are presently in the best interest of the children here in Wenatchee. The father is fully capable of taking care of the children on a full-time basis. The father meets all of the children’s physical, educational and emotional development when placed with him. h. Quality of life: The quality of life, resources, and opportunities available to the children and the relocating person in the current location and in the new location. Findings: The mother’s resources will increase presently residing on the west side of the state but there is no advantage regarding the quality of life and opportunities available to the children where the mother resides. i. Other arrangements: Other arrangements available to foster and continue the objecting person’s relationship and contact with the children. Findings: There are no other arrangements available to foster and continue the objecting person’s relationship and contact with the children. j. Alternatives: Alternatives to the planned move, and whether it is possible or desirable for the objecting person to move too. Findings: There are no alternatives to the planned move, and it is not desirable or possible for the objecting person to move given his self- employment for several years in the Wenatchee area. k. Financial: The financial impact and logistics of moving or not moving (for example, the timing, cost, and how the move would happen). Findings: As indicated in paragraph h, the mother has obtained full time employment where she currently resides. 6. Changes to parenting/custody order Change—There are valid reasons to change the final parenting/custody order because: . . . the court is not allowing the children to move and the person who asked to move with the children is moving without the children. The new Parenting Plan or Residential Schedule changes the person with whom the children live most of the time.
CP at 123-25 (boldface, underline, and italics omitted). In the written order, the superior
court expressly declared that it had applied the presumption in favor of relocation, but
that Richard had rebutted it.
22 No. 37790-3-III In re Marriage of Weaver
LAW AND ANALYSIS
Child Relocation
On appeal, Vanessa Weaver challenges the superior court’s denial of her motion
for relocation with her children. She particularly claims that the court failed to apply the
requisite presumption in favor of relocation. We conclude that the trial court recognized
and applied the presumption and did not abuse its discretion in denying Vanessa’s
motion.
In 2000, the Washington Legislature enacted the Washington child relocation act
(CRA), RCW 26.09.405-.560. The act imposes notice requirements and sets standards
for relocating children who are the subject of court orders regarding residential time. In
re Custody of Osborne, 119 Wn. App. 133, 140, 79 P.3d 465 (2003). “Relocate” under
the act means “a change in principal residence either permanently or for a protracted
period of time.” RCW 26.09.410(2). A person “with whom [a] child resides a majority
of the time” must provide notice of an intended relocation to every person entitled to
residential time with the child. RCW 26.09.430. If a person entitled to residential time
objects, the person seeking to relocate the child may not do so without a court order.
RCW 26.09.480(2).
The CRA shifts the analysis away from only the best interests of the child to an
analysis that focuses on both the child and the relocating person. In re Marriage of
Horner, 151 Wn.2d 884, 887, 93 P.3d 124 (2004). The relocating person must provide
23 No. 37790-3-III In re Marriage of Weaver
his or her reasons for relocating, and the court must operate under the presumption that
the intended relocation will be permitted. Shrauner v. Olsen, 16 Wn. App. 2d 384, 402-
03 (2020). This presumption accords with the traditional principle that “a fit parent acts
in his or her child’s best interests, including when that parent relocates the child.” In re
Marriage of McNaught, 189 Wn. App. 545, 553 (2015). To rebut the presumption, the
party objecting to the relocation has the burden of demonstrating that “the detrimental
effect of the relocation outweighs the benefit of the change to the child and the relocating
person.” Shrauner v. Olsen, 16 Wn. App. 2d 384, 403 (2020).
Two divisions of this court disagree as to how a parent qualifies for the
presumption in favor of relocation. In In re Marriage of Fahey, 164 Wn. App. 42, 58
(2011), Division II held that only the parent designated in the parenting plan as the
custodial parent benefits from the presumption. Our division, based on the language of
RCW 26.09.430, ruled that “a person with whom the child resides a majority of the time”
garners the presumption. In re Marriage of Jackson & Clark, 4 Wn. App. 2d 212, 217,
421 P.3d 477 (2018). RCW 26.09.430 declares:
. . . [A] person with whom the child resides a majority of the time, or a person with substantially equal residential time, shall notify every other person entitled to residential time or visitation with the child under a court order if the person intends to relocate.
Richard Weaver asks this court to follow Marriage of Jackson & Clark.
Consistent with Richard’s request, we question whether a parent should receive the
24 No. 37790-3-III In re Marriage of Weaver
presumption when the children have resided with the other parent for a majority of the
time for at least the last year. Nevertheless, we decline to resolve this issue and, like the
superior court, apply the relocation presumption.
On an objection to the relocation, the superior court must conduct a fact-finding
hearing. The court has discretion to grant or deny a relocation only after considering all
eleven relocation factors catalogued in RCW 26.09.520. In re Marriage of Horner, 151
Wn.2d 884, 894 (2004). RCW 26.09.520, the meat of the Washington child relocation
act, declares:
The person proposing to relocate with the child shall provide his or her reasons for the intended relocation. There is a rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended relocation of the child may rebut the presumption by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, based upon the following factors. The factors listed in this section are not weighted. No inference is to be drawn from the order in which the following factors are listed: (1) The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life; (2) Prior agreements of the parties; (3) Whether disrupting the contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation; (4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191; (5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation; (6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s
25 No. 37790-3-III In re Marriage of Weaver
physical, educational, and emotional development, taking into consideration any special needs of the child; (7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations; (8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent; (9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also; (10) The financial impact and logistics of the relocation or its prevention; and (11) For a temporary order, the amount of time before a final decision can be made at trial.
RCW 26.09.520 neither weighs nor lists the relocation factors in any particular
order. Shrauner v. Olsen, 16 Wn. App. 2d 384, 403 (2020). Presumably the superior
court must grant the motion for relocation if all eleven factors favor a move in residence.
Presumably the superior court must deny the motion if all eleven factors disfavor
relocation. No case discusses how to count or weigh the various factors when some favor
and others disfavor relocation. After the hearing, the court has authority “to allow or not
allow a person to relocate the child” based on an overall consideration of the RCW
26.09.520 factors and the child’s best interests. RCW 26.09.420; In re Parentage of
R.F.R., 122 Wn. App. 324, 329, 93 P.3d 951 (2004); In re Marriage of Grigsby, 112 Wn.
App. 1, 7-8, 57 P.3d 1166 (2002).
This reviewing court reviews a trial court’s decision on relocation for an abuse of
discretion. In re Marriage of Horner, 151 Wn.2d 884, 893 (2004). An abuse of
discretion occurs when a decision is manifestly unreasonable or based on untenable
26 No. 37790-3-III In re Marriage of Weaver
grounds or untenable reasons. In re the Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d
546 (2012).
This court reviews challenged findings of fact for substantial evidence. In re
Marriage of Fahey, 164 Wn. App. 42, 55 (2011). Substantial evidence exists if the
record contains evidence of a sufficient quantity to persuade a fair-minded, rational
person of the truth of the declared premise. In re Marriage of Fahey, 164 Wn. App. at
55. This court does not substitute its judgment for that of the trial court or reweigh the
evidence or the credibility of the witnesses. In re Marriage of Rich, 80 Wn. App. 252,
259, 907 P.2d 1234 (1996).
A superior court must enter specific findings on each statutory factor. When it
fails, the appellate court asks whether substantial evidence supports each factor and
whether the superior court’s findings or oral opinion reflect that it considered each factor.
In re Marriage of Horner, 151 Wn.2d 884, 896 (2004).
Vanessa Weaver contends that the superior court only applied a “best interests of
the children” standard and, therefore, focused only on maintaining the status quo. She
argues that the emphasis should be on the requirement that the objecting parent show that
relocation would be so detrimental as to outweigh the benefits to the children and the
parent wishing to relocate. By disregarding the interests of the relocating parent, she
argues that the superior court necessarily abused its discretion.
27 No. 37790-3-III In re Marriage of Weaver
We conclude that the superior court considered each factor. The court’s ruling
does not demonstrate an improper shift of the burden of proof to Vanessa Weaver or a
failure to apply the presumption in favor of relocation. The evidence supported the
court’s findings, and, after reviewing the eleven statutory factors, the evidence and
findings support denial of Vanessa’s application for relocation.
Factor 1: The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent
Vanessa Weaver contends that the superior court failed to expressly state whether
the first factor weighed in favor of relocation. Nevertheless, according to Vanessa, the
court’s findings and oral ruling demonstrate that the court concluded that Richard failed
to overcome the presumption in favor of relocation. Vanessa emphasizes her role as
primary caregiver for her children. She contends that she primarily assisted in their
education.
Richard Weaver responds that the trial court weighed the factor in Richard’s favor.
He highlights that the trial court concluded that Jesse needed routine and stability, which
only Richard offered. Richard further underscores that both boys lived with him for one
year before trial. He attended to the sons’ medical, social and emotional needs. The
guardian ad litem testified that Richard appeared “very comfortable parenting these kids.”
David expressed a preference for living with his father.
28 No. 37790-3-III In re Marriage of Weaver
As to the strength of the relationship between the children and the parents, the
superior court weighed this as equal between the parents. Based on this finding, Vanessa
Weaver contends that the factor favors her. In so arguing, she posits that her case echoes
the decision in Shrauner v. Olsen, 16 Wn. App. 2d 384 (2020). In Shrauner, the superior
court found that both parents had a strong relationship with their child, but concluded that
the child’s relationship with the mother, Shelby Shrauner, was less stable. The trial court
added that Schauner’s employment history, her lifestyle, the quantity of her romantic
relationships, and her moving before the court approved relocation demonstrated her
instability. On appeal, Shelby Shrauner argued that the superior court improperly
focused on the stability of the parents in their personal lives rather than on her
relationship with her son. This court agreed that no facts supported that Shrauner’s
employment, romantic attachments, or lifestyle had affected her relationship with her son,
and, therefore, the superior court’s findings lacked relevance.
We distinguish Shrauner v. Olsen. Unlike the superior court in Shrauner, the
Weavers’ trial court considered Richard’s stability and Vanessa’s instability, not in terms
of lifestyle or romantic relationships, but in the context of their respective relationships
with the boys and in the context of providing care for the children. The child of the
former couple, in Shrauner v. Olsen, lacked any special needs. The Court of Appeals in
Shrauner disliked the trial court’s value judgments about Shrauner wishing to live an
alternative lifestyle off the grid.
29 No. 37790-3-III In re Marriage of Weaver
We disagree that the superior court determined factor (1) to favor Vanessa
Weaver. Admittedly, the superior court compared as equal the respective strengths of
Richard’s and Vanessa’s relationships with the two sons. Nevertheless, factor (1) lists
other dynamics in the parent-child relationship for consideration. Those other
components include the nature, quality, extent of involvement, and stability of the child’s
relationship to the parent. The “nature” of the relationship would encompass numerous
qualities and elements.
In finding 5(a), the superior court wrote that the father presents more stability. In
its oral ruling, the court relied heavily on the opinions of guardian ad litem Ruth Esparza,
and the court began its ruling by highlighting testimony from Esparza.
Both David and Jesse possess special needs and demand stability and consistency.
Although factor 1 only expressly mentions the stability of the child’s relationship with
the parent, the parent’s contribution to the child’s stability falls under the nature and
quality of the parent-child relationship. Richard exceeds Vanessa in other parenting
skills such as house maintenance. Although the superior court discounted the clutter and
filth in Vanessa’s home, this reviewing court can consider those underlying facts, along
with the finding of stability, when affirming the superior court’s conclusion that factor 1
supports denial of relocation.
30 No. 37790-3-III In re Marriage of Weaver
Factor 2: Prior agreements
RCW 26.09.520(2) requires the superior court to consider any prior agreements
between the parties. The superior court determined that no prior agreements existed
between the parties. The court stated that “Factor 2 is not really a consideration for the
Court.” RP at 722.
Vanessa Weaver characterizes factor 2 as neutral and that any neutral factor
operates in favor of relocation. Richard Weaver argues that factor number 2 does not
apply and thus the factor neither supports nor undermines relocation.
Because the statute weighs in favor of relocation, a factor which does not operate
to rebut the presumption generally favors relocation. Shrauner v. Olsen, 16 Wn. App. 2d
384, 407 (2020). In Shrauner v. Olsen, the superior court considered the first factor
under former RCW 26.09.520 (2000) and determined that both parents had a stable
relationship with their child and, therefore, the factor was neutral. On appeal, this court
stated that a neutral factor has the effect of favoring the presumption. Nevertheless, this
court noted that factor 2, prior agreements, and factor 11, temporary orders, “do not apply
and are not at issue in this case.” Shrauner v. Olsen, 16 Wn. App. 2d 384, 405 n.2
(2020). The court did not weigh either factor in favor of relocation.
An earlier agreement or temporary order bears relevance, if at all, to a motion to
relocate because the court needs to decide whether to enforce the agreement and the
impact on the proceeding of the earlier order. The two factors lack germaneness to the
31 No. 37790-3-III In re Marriage of Weaver
best interests of the child and the child’s relationships with the respective parents.
Therefore, we agree with Richard Weaver that the lack of a prior agreement, as an
inapplicable factor, does not support relocation.
Factor 3: Whether disrupting contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation
Vanessa Weaver contends that the superior court improperly shifted the focus of
factor 3 from the detriment of disruption of contact between the boys and the respective
parents to that of harm resulting from the disruption of contact between the boys and the
city of Wenatchee. She contends that the superior court relied on circumstances that arise
any time a child moves such as the need to procure new health care providers. She
complains that the court also failed to consider her role as primary caregiver for the
children up to September 2019. Richard responds that the superior court considered the
disruption to the relationship of each parent and, in doing so, considered the fact that the
boys had spent the past year with Richard in Wenatchee and appeared to be doing well.
In both its oral ruling and finding of fact 5(c), the superior court expressed concern
about any relocation disrupting the children’s connection to their school and health care
providers. The court added that the boys will suffer more by the disruption of their
contact with their father than their mother. Ample evidence supported the finding.
32 No. 37790-3-III In re Marriage of Weaver
Therefore, we agree with the superior court that this important factor supports denial of
We might express concern about the superior court inverting the presumption in
another case wherein the court emphasizes a child’s tie to his present community. This
appeal is not any case, however. Jesse’s makeup lies within the autism spectrum.
Autistic persons suffer from major changes and moves.
Factor 4: Limitations on the parties
Vanessa Weaver contends that factor four is neutral as the superior court rejected
her concerns regarding Richard’s excessive alcohol consumption, and, therefore, the
factor weighs in favor of relocation. Richard disputes the neutrality of the factor. He
argues that the superior court’s rejection of Vanessa’s dishonorable accusations of
alcohol abuse demonstrate that the factor should weigh against relocation.
RCW 26.09.520(4) asks the superior court to consider whether either parent or a
person entitled to residential time with the child is subject to limitations under RCW
26.09.191. The latter statute limits a parent’s residential time if the parent has been
convicted of certain sexual crimes or has engaged in willful abandonment; physical,
sexual, or a pattern of emotional abuse of a child; or a history of domestic violence.
Although we do not condone falsely accusing another of alcoholism, we agree
with Vanessa Weaver. RCW 26.09.191 does not list fabricated accusations as a reason
33 No. 37790-3-III In re Marriage of Weaver
for limiting a parent’s time with a child. Neither party engaged in conduct that could
impose limitations on visitation. The factor is neutral and thereby favors relocation.
Factor 5: Reasons for seeking or opposing relocation and good faith of each party
The parties agree that factor 5 is neutral. This factor, therefore, weighs in favor of
Factor 6: The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child
Vanessa Weaver argues that, with respect to factor 6, the superior court
improperly shifted the burden of proof to her to convince the court that the children
would obtain the same level of care in the Hoquiam area should they move. In turn,
Vanessa further argues that Richard must prove that the children’s needs would not be
served in the Hoquiam area should they relocate. Finally, she contends that the superior
court again relied on facts inherent in any relocation.
Richard Weaver responds that he bore the burden to provide some evidence on
each factor and to show the superior court on a more likely than not basis that the factors
disfavor relocation. He adds that he cannot be expected to definitively prove a negative,
such as the Hoquiam area could not satisfy the boys’ care. Richard argues that the
burden of showing a negative shifted to Vanessa.
34 No. 37790-3-III In re Marriage of Weaver
A burden of production and persuasion may shift depending on which party
forwards the affirmative allegation or possesses peculiar means of knowledge. Alaska
Department of Environmental Conservation v. Environmental Protection Act., 540 U.S.
461, 494 n.17, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004); Nayab v. Capital One Bank
(USA), N.A., 942 F.3d 480, 494 (9th Cir. 2019). For this reason, when a party has ready
access to evidence that the other party does not, the burden of establishing a negative will
be shifted. Nayab v. Capital One Bank (USA), N.A., 942 F.3d at 494. When the subject-
matter of a negative averment lies peculiarly within the knowledge of the other party, the
averment is taken as true unless disproved by that party. United States v. Denver & Rio
Grande R.R. Co., 191 U.S. 84, 92, 24 S. Ct. 33, 48 L. Ed. 106 (1903); Nayab v. Capital
One Bank (USA), N.A., 942 F.3d at 494.
The superior court entered finding of fact 5(g), which stated that relocation of the
children would impact the children’s physical, educational, and emotional development.
Ample evidence confirms this finding.
David was ten years old and Jesse eight years old at the time of trial. Richard and
Vanessa Weaver’s superior court commented that David is a gifted student, whose
educational needs are met in Wenatchee. Jesse, being autistic, needs emotional stability,
routine, and structure. The superior court found that Vanessa could not at this time
provide those needs for Jesse. Richard was fulfilling the needs. Jesse had visited many
professionals in the Wenatchee area, who already knew of Jesse’s needs. Jesse is
35 No. 37790-3-III In re Marriage of Weaver
currently thriving, despite his disability. The superior court commented that Jesse would
need to start over with other professionals if he relocated. Factor 6 supports denial of
Factor 7: The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic areas
Vanessa Weaver argues that the superior court, once again, improperly shifted the
burden to her to show the advantages to her and the children by moving. She argues that
Richard presented no evidence that a lack of resources and opportunities existed in the
Hoquiam area. Vanessa argues that the superior court’s finding that “no advantage”
existed as a result of relocation ignored the fact that she had childcare and school
transportation available in Hoquiam, but not Wenatchee. The court need not have
believed this testimony.
Vanessa Weaver argues that a court can conclude that, when a parent obtains
better opportunities, the benefits extend to the child and their quality of life is likewise
improved. She cites Shrauner v. Olsen, 16 Wn. App. 2d 384, 412 (2020) for this
proposition. We do not find such a proposition on any page within Shrauner v. Olsen.
Nevertheless, we agree that in many circumstances the increase in opportunity for the
parent will benefit the child. But benefit to the child will not always be true.
Factor 7 covers only the relocating parent’s current and proposed circumstances,
with no counterbalanced consideration of the other parent’s circumstances. Bergerson v.
36 No. 37790-3-III In re Marriage of Weaver
Zurbano, 6 Wn. App. 2d 912, 922, 432 P.3d 850 (2018). The superior court, during its
oral ruling, found that Vanessa Weaver’s quality of life will increase by a move to
Hoquiam, but the quality of life for the boys will not improve. In so finding, the superior
court relied on factors previously discussed. The court confirmed the oral findings in
written finding of fact 5(h).
The superior court could have reasonably concluded, based on ample evidence,
that a move to Hoquiam would not improve the quality of life for David and Jesse and
would probably decrease their quality of life. Vanessa Weaver sat in the best position to
present evidence of opportunities for the boys in the Hoquiam area. As far as services for
Jesse, her testimony confirmed a lack of autism services for him in Hoquiam. The boys
already had a network of family and friends and established medical and educational
resources available in Wenatchee.
Factor 8: The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent
Vanessa Weaver argues that the trial court erred in determining that no alternative
arrangements existed that would permit Richard to continue his relationship with the boys
should she and the boys relocate. Richard responds that, although alternative
arrangements would have permitted the continuation of some relationship, the trial court
did not err in ruling in his favor on factor 8 since any remote participation would have
37 No. 37790-3-III In re Marriage of Weaver
been insufficient given the fact that Richard had primary custody of the boys at the time
of trial.
The superior court must not interpret factor 8 as a requirement for the parties to
maintain, in effect, the same residential schedule or quantity of residential time as under
the prior arrangements. Shrauner v. Olsen, 16 Wn. App. 2d 384, 417 (2020). Still, factor
8 assumes some continuity in the relationship with both parents, despite the move.
The boys’ relationship with their father, at the time of trial, entailed the father
successfully fulfilling the role of primary care giver. If Vanessa Weaver continued to
live in Wenatchee, both parents could have spent considerable time with both boys. Her
move to Hoquiam with the two boys would end the current relationship with the father
and significantly interfere in Richard’s access to the sons. The distance between the two
cities is 239 miles and, assuming light traffic, the trip takes more than four hours. A
move by the boys with Vanessa would significantly change Richard’s relationship with
his boys. Ample evidence supported a finding that factor 8 disfavored relocation.
Factor 9: The alternatives to relocation and whether it is feasible and desirable for the other party to relocate
In its oral ruling, the superior court observed Richard Weaver’s operation of a
business in Chelan for many years and thus the lack of desirability of his moving to
Hoquiam. The court, in finding of fact 5(j), found a lack of alternatives to the planned
38 No. 37790-3-III In re Marriage of Weaver
move and the impossibility of Richard moving from Wenatchee because of his self-
employment.
Vanessa Weaver interprets the finding of a lack of alternatives to impliedly mean
that she lacked any alternative but to move to Hoquiam. Nevertheless, Vanessa had
already moved and presented no alternatives to the court. We hold that sufficient
evidence supports finding of fact 5(j). This factors weighs against relocation.
Factor 10: The financial impact and logistics of the relocation or its prevention
The parties agree that this factor weighed in favor of relocation and that sufficient
evidence supported the trial court’s finding of fact 5(k) that Vanessa “has obtained full
time employment where she currently resides.” CP at 125.
Factor 11 only concerns temporary orders.
Aggregation of Factors
In sum, the superior court considered all eleven statutory factors. The superior
court ruled against relocation after determining that Richard had rebutted the presumption
favoring relocation because the detrimental effect to the move outweighs any benefit of
relocation. Although the superior court stated in its oral ruling that denial of relocation
would serve the best interests of the children, the court did not solely rest its decision on
the children’s interests. The court weighed all factors, including Vanessa Weaver’s
39 No. 37790-3-III In re Marriage of Weaver
interest in relocating with her boys. Most of the factors favored denying Vanessa’s
application for relocation.
Attorney Fees
Both parties request attorney fees. Vanessa Weaver requests fees pursuant to
RCW 26.09.140 and RAP 18.1(a). Richard requests fees under RCW 26.09.140 on the
basis of alleged intransigence on the part of Vanessa. Richard also requests fees under
RAP 18.9(a) for Vanessa’s alleged filing of a meritless appeal.
RCW 26.09.140 permits this reviewing court to exercise its discretion and “order a
party to pay for the cost to the other party of maintaining the appeal and attorneys’ fees in
addition to statutory costs.” This court has stated that “[i]n exercising our discretion, we
consider the issues’ arguable merit on appeal and the parties’ financial resources,
balancing the financial need of the requesting party against the other party’s ability to
pay.” In re Marriage of Kim, 179 Wn. App. 232, 256 (2014).
RAP 18.9(a) provides:
The appellate court on its own initiative or on motion of a party may order a party or counsel, or a court reporter or authorized transcriptionist preparing a verbatim report of proceedings, who uses these rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court.
An appeal is frivolous if the appellant presents no debatable issues and the appeal has no
chance of success. Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009).
40 No. 37790-3-III In re Marriage of Weaver
We deny each party’s request for fees. Neither party can afford to pay attorney
fees, let alone the other party’s fees. We do not deem Vanessa Weaver’s appeal to be
frivolous, nor do we conclude she engaged in intransigence. She forwarded many valid
arguments, despite failing to convince us to reverse.
Both parties have filed motions and affidavits, with this court, in support of and in
opposition to requests for reasonable attorney fees and costs. Because of our denial of
both requests, we do not address the motions.
CONCLUSION
We affirm the trial court’s ruling that denied Vanessa Weaver’s motion for
relocation with the two children. We deny each side an award of reasonable attorney fees
and costs.
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.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ _________________________________ Pennell, C.J. Staab, J.
Related
Cite This Page — Counsel Stack
In the Matter of the Marriage of: Vanessa M. Weaver & Richard J. Weaver, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-marriage-of-vanessa-m-weaver-richard-j-weaver-washctapp-2021.