FILED JULY 14, 2020 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In re Parentage of: ) No. 36916-1-III ) J.C.N.† ) ) Minor Child, ) ) MIRANDA GARRAHAN, ) UNPUBLISHED OPINION ) Appellant, ) ) CODY NELSON, ) ) Respondent. )
LAWRENCE-BERREY, J. — Miranda Garrahan appeals after the trial court denied
her request to reconsider aspects of the parenting plan entered by the court. She argues
the trial court erred (1) by prospectively denying her the right to relocate with J.C.N.
absent a finding of a limiting factor, (2) by inequitably granting Mr. Nelson visitation for
every school-year weekend including Monday holidays, and (3) when it declined to find
the presence of a limiting factor on Mr. Nelson. We disagree and affirm.
† To protect the privacy interests of the minor child, we use his initials throughout this opinion. General Order for the Court of Appeals, In re Changes to Case Title, (Aug. 22, 2018), effective Sept. 1, 2018. No. 36916-1-III In re Parentage of J.C.N.
FACTS1
Miranda Garrahan and Cody Nelson became romantically acquainted in 2010 and
began living together in Mr. Nelson’s mother’s home. On July 23, 2011, J.C.N. was born.
At the time of trial, J.C.N. was seven years old and enrolled in Whitman Elementary
School in Spokane, Washington.
Ms. Garrahan and Mr. Nelson lived in Mr. Nelson’s mother’s home until they
separated in 2013. At that time, Mr. Nelson moved into the garage and lived there until
2016.
Mr. Nelson developed a romantic relationship with Kathleen Kearney. They
eventually married. Ms. Garrahan continues to live with Mr. Nelson’s mother. She is in
a romantic relationship with Adam Brant. Mr. Brant lives in nearby Medical Lake with
his three children.
J.C.N. has experienced behavioral problems. Counseling has helped some of these
problems. J.C.N. is extremely close with his paternal grandmother, with whom he has
resided his entire life.
1 Because there are no written findings of fact, we derive our facts from the trial court’s oral ruling, which preceded entry of the parenting plan and its subsequent letter ruling denying reconsideration.
2 No. 36916-1-III In re Parentage of J.C.N.
Ms. Garrahan petitioned for entry of a parenting plan and to relocate from Spokane
to Medical Lake. She believes the quality of the schools are similar and the small town
atmosphere would help J.C.N.
The trial court made the following findings with respect to RCW 26.09.187’s
parenting plan factors:
Under RCW 26.09.187, there are many factors that the Court has to weigh in creating a parenting plan. These factors include the relative strength, nature, and stability of the child’s relationship with each parent, and any agreement of the parties, each parent’s past and potential for future performance of parenting functions, the emotional needs and developmental level of a child, the child’s relationship with others, the employment schedule of the parents, and the wishes of the parents and the wishes of a child who is sufficiently mature to express a reason and independent preference as to his residential schedule. In looking at these factors, it’s obvious that [J.C.N.] is not sufficiently mature enough to express a reason and independent preference for his schedule; therefore, the Court will only analyze the remaining factors. Factor number one is the relative strength, nature, and stability of the child’s relationship with each parent. Both parents have a strong and stable relationship with [J.C.N.], although in different ways. Ms. Garrahan has taken a lead in parenting obligations whereas Mr. Nelson tends to have a relationship based more or less upon activities. This factor is generally neutral. Factor number three is each parent’s past and potential for future performance of parenting functions. The history of each parent’s parental functions is clear. The best way to gauge the future performance of parenting functions is to look at the past. Mr. Nelson took the lead as a parent when Ms. Garrahan was employed as a dental hygienist. Recently, Ms. Garrahan has been the parent who’s provided greater parenting functions. While [J.C.N.] is in either parent’s care, his needs are met.
3 No. 36916-1-III In re Parentage of J.C.N.
One aspect of parenting that stood out was the—was Mr. Nelson’s comment about how much fun [J.C.N.] had while with his father. This Court doesn’t gauge a parent’s ability to provide for their children by looking at the amount of fun a child is having. In many cases, like this one, a child needs structure and discipline. So when structure and—when structure and discipline are removed, a child may tend to act out. In looking at the totality of the facts, this factor tends to weigh in favor of Ms. Garrahan. Factor number four is the emotional needs and developmental level of the child. And this factor is perhaps the most important of them all. Given [J.C.N.’s] current behavioral issues, a parenting plan must be developed that creates a structure and stability for him. Since a temporary parenting plan went into effect, [J.C.N.] has greatly improved. A 50/50 parenting plan would place [J.C.N.] into a chaotic situation. Each week he would reside with a different parent, have different routines in preparing for school and in returning to school and for completing his homework. More concerningly, allowing [J.C.N.] to move to Medical Lake would prove detrimental. He would leave the only school district he’s ever known, be placed in a new environment, compete for attention among three other children, and be away from, perhaps, the most stable person in his life, which is his grandmother. The parenting plan will be entered that takes into account this most important factor. Factor number five is the child’s relationship with others. The Court previously commented on this factor, and a parenting plan can be entered that assists in maintaining these relationships. Factor number six is the employment schedule of the parents. Mr. Nelson is unemployed, therefore, he’s able to parent at any time. Ms. Garrahan cares for Mr. Nelson’s mother and attends school online. She’s also able to parent at any time. Her schedule may change once she graduates and obtains full-time employment. Currently, both parents have flexible schedules. Factor number seven is the wishes of the parents. The wishes of the parents are clear, and the Court has taken those wishes into consideration. The second factor I neglected to comment on is factor number two, which is any agreement of the parties. There doesn’t appear to be a whole
4 No. 36916-1-III In re Parentage of J.C.N.
lot of agreement between the parties, but where there is agreement, the Court will give those agreements some deference.
Report of Proceedings (RP) at 8-12.
The trial court entered a parenting plan that provides different schedules depending
upon whether J.C.N. is in school or on summer break. During the school year, the
parenting plan grants Ms. Garrahan primary residential placement and Mr. Nelson
weekend visitation, including Monday holidays. During the summer break, the parenting
plan places J.C.N. with Mr. Nelson the first week and then alternates placement each
week until school resumes. However, if Ms. Garrahan chooses to live outside the
Whitman Elementary School boundary, the parenting plan flips and grants Mr. Nelson
primary residential placement, and Ms.
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FILED JULY 14, 2020 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 re Parentage of: ) No. 36916-1-III ) J.C.N.† ) ) Minor Child, ) ) MIRANDA GARRAHAN, ) UNPUBLISHED OPINION ) Appellant, ) ) CODY NELSON, ) ) Respondent. )
LAWRENCE-BERREY, J. — Miranda Garrahan appeals after the trial court denied
her request to reconsider aspects of the parenting plan entered by the court. She argues
the trial court erred (1) by prospectively denying her the right to relocate with J.C.N.
absent a finding of a limiting factor, (2) by inequitably granting Mr. Nelson visitation for
every school-year weekend including Monday holidays, and (3) when it declined to find
the presence of a limiting factor on Mr. Nelson. We disagree and affirm.
† To protect the privacy interests of the minor child, we use his initials throughout this opinion. General Order for the Court of Appeals, In re Changes to Case Title, (Aug. 22, 2018), effective Sept. 1, 2018. No. 36916-1-III In re Parentage of J.C.N.
FACTS1
Miranda Garrahan and Cody Nelson became romantically acquainted in 2010 and
began living together in Mr. Nelson’s mother’s home. On July 23, 2011, J.C.N. was born.
At the time of trial, J.C.N. was seven years old and enrolled in Whitman Elementary
School in Spokane, Washington.
Ms. Garrahan and Mr. Nelson lived in Mr. Nelson’s mother’s home until they
separated in 2013. At that time, Mr. Nelson moved into the garage and lived there until
2016.
Mr. Nelson developed a romantic relationship with Kathleen Kearney. They
eventually married. Ms. Garrahan continues to live with Mr. Nelson’s mother. She is in
a romantic relationship with Adam Brant. Mr. Brant lives in nearby Medical Lake with
his three children.
J.C.N. has experienced behavioral problems. Counseling has helped some of these
problems. J.C.N. is extremely close with his paternal grandmother, with whom he has
resided his entire life.
1 Because there are no written findings of fact, we derive our facts from the trial court’s oral ruling, which preceded entry of the parenting plan and its subsequent letter ruling denying reconsideration.
2 No. 36916-1-III In re Parentage of J.C.N.
Ms. Garrahan petitioned for entry of a parenting plan and to relocate from Spokane
to Medical Lake. She believes the quality of the schools are similar and the small town
atmosphere would help J.C.N.
The trial court made the following findings with respect to RCW 26.09.187’s
parenting plan factors:
Under RCW 26.09.187, there are many factors that the Court has to weigh in creating a parenting plan. These factors include the relative strength, nature, and stability of the child’s relationship with each parent, and any agreement of the parties, each parent’s past and potential for future performance of parenting functions, the emotional needs and developmental level of a child, the child’s relationship with others, the employment schedule of the parents, and the wishes of the parents and the wishes of a child who is sufficiently mature to express a reason and independent preference as to his residential schedule. In looking at these factors, it’s obvious that [J.C.N.] is not sufficiently mature enough to express a reason and independent preference for his schedule; therefore, the Court will only analyze the remaining factors. Factor number one is the relative strength, nature, and stability of the child’s relationship with each parent. Both parents have a strong and stable relationship with [J.C.N.], although in different ways. Ms. Garrahan has taken a lead in parenting obligations whereas Mr. Nelson tends to have a relationship based more or less upon activities. This factor is generally neutral. Factor number three is each parent’s past and potential for future performance of parenting functions. The history of each parent’s parental functions is clear. The best way to gauge the future performance of parenting functions is to look at the past. Mr. Nelson took the lead as a parent when Ms. Garrahan was employed as a dental hygienist. Recently, Ms. Garrahan has been the parent who’s provided greater parenting functions. While [J.C.N.] is in either parent’s care, his needs are met.
3 No. 36916-1-III In re Parentage of J.C.N.
One aspect of parenting that stood out was the—was Mr. Nelson’s comment about how much fun [J.C.N.] had while with his father. This Court doesn’t gauge a parent’s ability to provide for their children by looking at the amount of fun a child is having. In many cases, like this one, a child needs structure and discipline. So when structure and—when structure and discipline are removed, a child may tend to act out. In looking at the totality of the facts, this factor tends to weigh in favor of Ms. Garrahan. Factor number four is the emotional needs and developmental level of the child. And this factor is perhaps the most important of them all. Given [J.C.N.’s] current behavioral issues, a parenting plan must be developed that creates a structure and stability for him. Since a temporary parenting plan went into effect, [J.C.N.] has greatly improved. A 50/50 parenting plan would place [J.C.N.] into a chaotic situation. Each week he would reside with a different parent, have different routines in preparing for school and in returning to school and for completing his homework. More concerningly, allowing [J.C.N.] to move to Medical Lake would prove detrimental. He would leave the only school district he’s ever known, be placed in a new environment, compete for attention among three other children, and be away from, perhaps, the most stable person in his life, which is his grandmother. The parenting plan will be entered that takes into account this most important factor. Factor number five is the child’s relationship with others. The Court previously commented on this factor, and a parenting plan can be entered that assists in maintaining these relationships. Factor number six is the employment schedule of the parents. Mr. Nelson is unemployed, therefore, he’s able to parent at any time. Ms. Garrahan cares for Mr. Nelson’s mother and attends school online. She’s also able to parent at any time. Her schedule may change once she graduates and obtains full-time employment. Currently, both parents have flexible schedules. Factor number seven is the wishes of the parents. The wishes of the parents are clear, and the Court has taken those wishes into consideration. The second factor I neglected to comment on is factor number two, which is any agreement of the parties. There doesn’t appear to be a whole
4 No. 36916-1-III In re Parentage of J.C.N.
lot of agreement between the parties, but where there is agreement, the Court will give those agreements some deference.
Report of Proceedings (RP) at 8-12.
The trial court entered a parenting plan that provides different schedules depending
upon whether J.C.N. is in school or on summer break. During the school year, the
parenting plan grants Ms. Garrahan primary residential placement and Mr. Nelson
weekend visitation, including Monday holidays. During the summer break, the parenting
plan places J.C.N. with Mr. Nelson the first week and then alternates placement each
week until school resumes. However, if Ms. Garrahan chooses to live outside the
Whitman Elementary School boundary, the parenting plan flips and grants Mr. Nelson
primary residential placement, and Ms. Garrahan weekend visitation, including Monday
holidays.
In its oral ruling, the court clarified that Ms. Garrahan could request a modification
of the parenting plan if she desires to relocate in the future. Paragraph 13 of the parenting
plan explicitly incorporates standard language explaining to the parties their rights and the
process to follow should the primary residential parent desire to relocate with a child.
The court declined to find that Mr. Nelson engaged in abusive use of conflict. The
trial court recognized that neither party came to court with clean hands—they both
created conflicts with J.C.N. Both parents criticize the other.
5 No. 36916-1-III In re Parentage of J.C.N.
Reconsideration request and denial
Ms. Garrahan filed a motion for reconsideration. She argued the court erred:
(1) by prospectively modifying the parenting plan (should she choose to relocate outside
the school district) without considering the relocation factors in RCW 26.09.520,
(2) by giving Mr. Nelson all three-day weekends during the school year, and (3) by not
finding that Mr. Nelson exercised abusive use of conflict and entering parental
restrictions under RCW 26.09.191.
The trial court denied Ms. Garrahan’s motion. With respect to her first argument,
the trial court reasoned that the factors it analyzed under RCW 26.09.187 are the same or
similar as the relocation factors under RCW 26.09.520. The court added, consistent with
its oral ruling, that the detrimental effect of relocation outweighed the benefit of change
to Ms. Garrahan and J.C.N. In addition to reciting its earlier oral findings, which
discussed how moving would harm J.C.N., the court added:
Ms. Garrahan’s boyfriend, with whom she wishes to reside, is the restrained party in an anti-harassment order, protecting Mr. Nelson. According to Ms. Garrahan’s own testimony, [J.C.N.] has difficult[y] adjusting to change. Here, she seeks to change his residence, school, with whom he resides, and town in which he resides.
Clerk’s Papers (CP) at 64.
6 No. 36916-1-III In re Parentage of J.C.N.
With respect to her second argument, the trial court noted that the law does not
require equal residential time, and because “Ms. Garrahan was granted a majority of time
with [J.C.N.], that it was in the best interest of [J.C.N.] to be with Mr. Nelson during the
weekends.” CP at 64.
With respect to her third argument, the trial court reiterated that neither party came
to court with clean hands. It also refused to consider additional unsworn accusations
contained in Ms. Garrahan’s reconsideration motion.
Ms. Garrahan appealed the trial court’s denial of her reconsideration motion.
ANALYSIS
Ms. Garrahan contends the trial court erred when it denied her motion for
reconsideration.
We review a trial court’s decision on a motion for reconsideration for an abuse of
discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685,
41 P.3d 1175 (2002). “An abuse of discretion occurs only when the decision of the court
is ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
7 No. 36916-1-III In re Parentage of J.C.N.
Prospective denial of relocation
Ms. Garrahan first argues that the trial court erred by prospectively denying her
right to relocate with J.C.N. She argues this denial is inconsistent with her statutory right
to relocate.
Under the “Child Relocation Act,” chapter 26.09.405-.560 RCW, when parents
share residential time, the parent with primary placement must provide notice of any
intention to relocate. RCW 26.09.430. By statute, there is a rebuttable presumption that a
custodial parent’s request to relocate will be allowed. RCW 26.09.520. The
nonrelocating party may object. RCW 26.09.560. “‘[T]he [Child Relocation Act] both
incorporates and gives substantial weight to the traditional presumption that a fit parent
will act in the best interests of [his or] her child.’” In re Marriage of Horner, 151 Wn.2d
884, 895, 93 P.3d 124 (2004) (quoting In re Custody of Osborne, 119 Wn. App. 133, 144,
79 P.3d 465 (2003)).
“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 [11 statutory
factors].” RCW 26.09.520. These factors are unweighted and none is more important
than the other. Id.; Marriage of Horner, 151 Wn.2d at 894.
8 No. 36916-1-III In re Parentage of J.C.N.
We disagree with Ms. Garrahan’s portrayal of the parenting plan. The parenting
plan does not prospectively deny her statutory right to relocate with J.C.N. Paragraph 13
of the parenting plan explicitly permits Ms. Garrahan the right to relocate with J.C.N. in
accordance with RCW 26.09.520.
In denying her reconsideration motion, the trial court expressly found that the
evidence presented at trial rebutted the statutory presumption that Ms. Garrahan’s desire
to relocate should be allowed. The trial court’s decision was based on the evidence
presented at trial. This decision is nonbinding in a subsequent request to relocate based
on new and additional evidence—especially if Ms. Garrahan presents substantial
evidence that relocation would not be harmful to J.C.N. The trial court’s oral and written
comments alert Ms. Garrahan of its legitimate concerns, which must be overcome in a
subsequent request to relocate.
Residential schedule
Ms. Garrahan contends the trial court erred by ordering a residential schedule that
awarded all school-year weekends to Mr. Nelson, including Monday holidays. She cites
no authority for her argument. We agree with the trial court: residential schedules do not
have to be equal under RCW 26.09.187. The trial court did not abuse its discretion by
denying reconsideration of the residential schedule.
9 No. 36916-1-III In re Parentage of J.C.N.
Abusive use of conflict
Ms. Garrahan contends the trial court erred by not imposing restrictions against
Mr. Nelson for abusive use of conflict. However, Ms. Garrahan has failed to provide us
with a transcript of any trial testimony and this failure prevents us from reviewing the
facts and addressing her contention.
A trial court’s decision is presumed to be correct and should be sustained absent an
affirmative showing of error. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999).
The party presenting an issue for review has the burden of providing an adequate record
to establish such error. RAP 9.2(b). Although an appellate court may supplement the
record on its own initiative, we may instead “ʻdecline to address a claimed error when
faced with a material omission in the record.’” State v. Sisouvanh, 175 Wn.2d 607, 619,
290 P.3d 942 (2012) (quoting Wade, 138 Wn.2d at 465). Ms. Garrahan’s failure to
provide a transcript of any trial testimony warrants us declining review of this claim of
error.
10 No. 36916-1-111 In re Parentage ofJ.C.N
Affirmed.
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.
WE CONCUR:
Q, JI /6 -.- ~ ' '--• .J. Pennell, C.J. Fearing, J.