Marycruz Villegas, V. Jonathan Ada

• Court: Court of Appeals of Washington
• Decided: June 20, 2023
• Docket: 84193-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARYCRUZ VILLEGAS, No. 84193-9-I

Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

JONATHAN ADA,

Respondent.

FELDMAN, J. — Marycruz Villegas (the mother) and Jonathan Ada (the

father) share a child in common. The mother appeals from superior court orders

entered after a trial on her petitions to relocate to California with the parties’ child

and to modify the parenting plan. The mother challenges the trial court’s

decision to allow relocation but primarily allocate residential time during school

holidays to the father. The mother also challenges the denial of her request to

modify child support. Because the court acted within its broad discretion as to

both issues, we affirm.

FACTS

The parties dissolved their marriage in 2020, and the trial court entered an

agreed parenting plan and child support order for their dependent child, Z.A. The

parenting plan’s residential provisions provided for Z.A. to live primarily with the No. 84193-9-I/2

mother but reside with the father on alternate weekends and allowed for liberal

additional visitation with the father during the week as his work schedule allowed.

The child support order required the father to pay monthly child support of $100

to the mother, an amount that deviated from the standard calculation under the

child support schedule, based on the father’s support for another child and his

significant residential time with Z.A. The child support also required the parties to

equally share expenses incurred for daycare, education, and sports. In an

accompanying declaration, the mother stated that her household had adequate

financial resources to support the child and that a $100 monthly payment from

the father was “sufficient.”

In May 2021, the father filed a motion for contempt alleging that, since the

beginning of the year, the mother had refused to follow the parenting plan, had

limited his contact with Z.A., and had coerced him into signing an agreement that

significantly reduced his residential time.

Approximately two weeks later, the mother filed a petition to modify the

parenting plan. The mother checked boilerplate language indicating that the

parenting plan had become “difficult to follow” because of changes in residence

and/or work schedule. The mother requested sole authority to make decisions

regarding education, alleging that the father was “not involved,” and expressly

declined to request adjustment of child support.

In July 2021, after a hearing on the father’s contempt motion, the court

found that the mother had not followed the parenting plan and that the agreement

limiting the father’s residential time was not approved by the court or enforceable,

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but declined to find the mother to be in contempt. The court directed the parties

to follow the parenting plan and awarded attorney fees to the father.

A week later, the mother filed an amended petition to “Change a Parenting

Plan, Residential Schedule or Custody Order.” The amended petition was

identical to the mother’s initial petition, except this time she checked a box to

indicate a request to “adjust or change” child support. In her accompanying

declaration, the mother stated that her monthly income had increased and that

she did not know whether the father’s income had likewise changed, and she

took the position that the child support deviation should account for the new child

that she and her fiancé were expecting. The mother filed child support

worksheets in conjunction with the amended petition reflecting that her monthly

income was slightly higher than the father’s and that his share of the support

obligation according to the standard calculation was $595.20.

In August 2021, when Z.A. was five years old, the mother provided

statutory notice of relocation stating her intent to relocate to Los Angeles. See

RCW 26.09.430 (the parent with whom the child resides a majority of the time is

required to provide notice of an intended relocation). The mother stated that both

she and her fiancé had the opportunity to transfer their employment to the Los

Angeles area. She proposed a new parenting plan that imposed parental

restrictions on the father, allocated sole decision-making authority to her, and

allowed the father to visit Z.A., but only in California and limited to eight hours per

month.

The father objected to the relocation, emphasizing Z.A.’s extensive family

connections in Washington and his inability to relocate to California. He -3- No. 84193-9-I/4

proposed that Z.A. should remain in Washington but spend most of the summer,

other school breaks, and one weekend per month with the mother in California.

The trial court entered an order allowing the mother to temporarily relocate

and an agreed order finding adequate cause to warrant a trial on modification. In

November 2021, the court entered a temporary parenting plan with provisions for

Z.A. to reside and attend school in California, allowing visitation with the father on

certain weekends if he travelled to California, visitation in Washington during

school breaks, and reserving the summer residential schedule for trial.

Trial on relocation and the petition to relocate and modify took place over

three days in May 2022. Z.A. was six years old and attending kindergarten at the

time of trial. The parents were the primary witnesses. At the conclusion of the

trial, based on the evidence presented and consideration of the statutory

relocation factors under RCW 26.09.520, the court allowed the mother to relocate

with Z.A. However, to compensate for the disruption of the father’s frequent

contact with Z.A. and in order to provide the “maximum amount of residential

time with [the father] within the scheduling constraints of the school year,” the

residential schedule provides for Z.A. to reside primarily with the father during the

summer and other school breaks, including those that occur over major holidays.

In particular, the parenting plan provides for Z.A. to spend every Thanksgiving

holiday and winter break in Washington. In alternate years, the plan allows the

mother an overnight visit with Z.A. on Christmas Eve in Washington. The

parenting plan requires the parties to equally share the cost of Z.A.’s travel

between Washington and California and to pay their own expenses to

accompany her on flights. -4- No. 84193-9-I/5

The court denied the mother’s request to modify or adjust child support,

citing three independent reasons: (1) the petition to relocate did not provide a

statutory basis to modify or adjust child support, (2) no party “properly noticed a

petition to change the child support order[,]” and (3) the evidence submitted did

not establish a basis to modify child support in the mother’s favor. The mother

appeals. 1

ANALYSIS

1. Residential Schedule

The mother argues that requiring virtually all school holidays to be spent

with the father in Washington does not serve the best interests of the child and

fails to recognize the importance of Z.A.’s relationships with the mother and her

maternal relatives. The mother characterizes the provision that allows her to

spend less than 48 hours with Z.A. at Christmas every other year in Washington

as a “restriction,” akin to those provided for under RCW 26.09.191 (authorizing

restrictions on parental rights based on specific findings). We disagree.

When considering “fact based domestic relations issues,” the Washington

Supreme Court has recognized that “a trial judge is in the best position to assign

the proper weight to each of the varied factors raised by the submitted affidavits

in a particular case.” In re Parentage of Jannot, 149 Wn.2d 123, 127, 65 P.3d

664 (2003) (emphasis omitted). In particular, a trial court has broad discretion in

structuring a parenting plan, guided by the applicable statutes. In re Marriage of

1 The court also retained the joint decision-making provisions of the 2020 plan. The mother does not challenge that aspect of the new parenting plan.

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Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012); RCW 26.09.187. We review

challenged provisions of a parenting plan for an abuse of discretion. In re

Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). A trial court

abuses its discretion when its decision is manifestly unreasonable, is based on

untenable grounds or reasons, or misapplies the law. Id.

The trial court did not abuse its discretion in deciding these issues.

Contrary to the mother’s assertion, the parenting plan’s requirement that each

parent must remain in the state where the child is located during visits of less

than two days is not a parental restriction under RCW 26.09.191. The provision

is simply protective of Z.A.’s well-being, given her age and developmental level.

But even if this requirement were a restriction, the mother’s argument that

consolidating the father’s residential time during school holidays “serves no

purpose” lacks merit, as the obvious purpose is “to maximize the amount of time

[Z.A.] can spend in Washington with [her father], her half-sister, and her

extended family.”

Nor are the residential provisions legally or factually untenable as required

to show an abuse of discretion. They are consistent with the statute governing

residential provisions. See RCW 26.09.187(3)(a) (residential provisions must

“encourage each parent to maintain a loving, stable, and nurturing relationship

with the child, consistent with the child’s developmental level and the family’s

social and economic circumstances”); RCW 26.09.187(3)(a)(i) (the “relative

strength, nature, and stability of the child’s relationship with each parent” is the

most significant consideration in crafting a residential schedule). Maximizing

time with the non-relocating parent is also consistent with the trial court’s -6- No. 84193-9-I/7

unchallenged findings that Z.A. has “an equally strong and stable relationship”

with each parent, has two “capable, loving parents” who are able to meet her

needs, and has strong relationships with extended family and half-siblings on

both sides. See In re Marriage of Knight, 75 Wn. App. 721, 732, 880 P.2d 71

(1994) (unchallenged findings are verities on appeal).

The essence of the mother’s claim is that the court should have prioritized

certain family relationships differently, but this contention fails to appreciate the

court’s findings, ignores the applicable legal standards, and misapprehends this

court’s role. Contrary to the mother’s apparent belief, we do not reweigh the

evidence to determine if we would reach a different conclusion from the trial

court. See In re Marriage of McNaught, 189 Wn. App. 545, 561, 359 P.3d 811

(2015). For this reason too, the mother fails to establish that the trial court

abused its discretion in formulating the residential provisions in the parenting

plan.

2. Child Support

Washington courts retain “general and equitable powers to modify any

order pertaining to child support payments when the child’s needs and parents’

financial ability so require.” In re Marriage of Schumacher, 100 Wn. App. 208,

213, 997 P.2d 399 (2000). The party seeking modification has the burden of

justifying a basis for modification. In re Marriage of Bucklin, 70 Wn. App. 837,

839, 855 P.2d 1197 (1993). Consistent with our review of residential provisions,

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we review decisions on modification of child support for an abuse of discretion. 2

Choate v. Choate, 143 Wn. App. 235, 240-41, 177 P.3d 175 (2008).

The mother contends that, contrary to the trial court’s determination, she

properly petitioned the court to modify child support by filing an amended petition

to modify the parenting plan that included a specific request to change the child

support amount, along with child support worksheets. And, she appears to claim

there was a factual basis to modify child support because (1) the parties agreed

below that child support should be modified, (2) the father did not submit all

financial documents required under the local rules or establish a substantial

reduction of income, and (3) the parties’ agreement to a $100 transfer payment

was premised on the father’s promise to provide additional tangible support,

which he subsequently failed to provide.

Even if we assume that modification of child support was properly before

the court based on the mother’s petition filed under RCW 26.09.260 (motions to

modify parenting plan or custody decree), none of the mother’s arguments is

persuasive.

• The father did not seek to modify child support below and

unequivocally asked the court to maintain the 2020 support order.

2 As a general rule, a court must find a substantial change of circumstances before modifying a support order. RCW 26.09.170(5)(a); Pippins v. Jankelson, 110 Wn.2d 475, 480, 754 P.2d 105 (1988). But, as the mother points out, this rule presumes that the court which imposed the existing support obligation independently examined the evidence after a contested hearing. Id. at 480-81. When, as appears to be the case here, the support order arises from an uncontested proceeding, we presume the court did not independently assess the evidence, and a substantial change of circumstances need not be shown unless a party rebuts the presumption. Id. at 481-82; Schumacher, 100 Wn. App. at 213. There is nothing in the record here to indicate that any party rebutted the presumption or that the trial court applied a substantial change of circumstances standard to the mother’s request. -8- No. 84193-9-I/9

Thus, there was no agreement to modify child support as the

mother claims.

• As to the father’s financial circumstances, uncontroverted evidence

established that, at the time of trial, the father had been

unemployed for two months due to a labor strike. The evidence

also showed that the father’s monthly unemployment income was

roughly equal to his income level in 2020 when the child support

order was entered. On the other hand, the evidence indicated that

the mother’s income at the time of the trial exceeded her income in

2020 by at least 30 percent, and the documentary evidence she

supplied did not substantiate some of her claimed major expenses.

• As the trier of fact, the trial court was not required to credit the

mother’s testimony about the parties’ verbal agreement that the

father would provide tangible necessities for Z.A., in addition to

child support, over the documentary evidence and the father’s

conflicting testimony.

In short, the trial court did not abuse its discretion in finding no factual or

equitable basis to modify support.

3. Attorney Fees

Both parties request an award of attorney fees on appeal. The father

contends that fees are warranted under RCW 26.09.140 and/or RCW 4.84.185.

While RCW 26.09.140 provides discretion to award fees based on consideration

of the arguable merits and the parties’ respective financial circumstances, the

father has not filed a financial declaration to establish his current financial need. -9- No. 84193-9-I/10

And this court has held that RCW 4.84.185, the frivolous lawsuit statute, does not

provide a basis for recovery of fees on appeal. Hanna v. Margitan, 193 Wn. App.

596, 614-15, 373 P.3d 300 (2016). In any event, although the mother does not

prevail, we do not view her appeal as so devoid of debatable issues as to be

frivolous. See Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr’gs

Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010) (appeal is frivolous if, on review

of the entire record, the appeal presents no debatable issues upon which

reasonable minds might differ and is so devoid of merit that there is no possibility

of reversal).

The mother alleges deficiencies in the father’s briefing and lack of

compliance with GR 14.1 (pertaining to citation of unpublished authority) but

identifies no specific statute or procedural rule in support of her request for fees,

as RAP 18.1 requires. Accordingly, we deny both parties’ requests for fees on

appeal.

Affirmed. 3

WE CONCUR:

3 The concluding sentence of the father’s brief references a stay of the trial court’s orders. But the father has made no motion to stay and, apart from this single reference, all of his arguments are directed toward affirming the trial court’s orders. We therefore disregard the reference. See Christian v. Tohmeh, 191 Wn. App. 709, 728, 366 P.3d 16 (2015) (passing treatment of an issue or lack of reasoned argument does not merit appellate review).

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