IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) No. 77836-6-1 ) SARAH MARIE VANDERLINDEN, ) DIVISION ONE ) Appellant, ) UNPUBLISHED OPINION ) v. ) ) NICOLAS GONZALEZ VANDERL1NDEN, ) ) Respondent. ) ) FILED: July 22, 2019
HAZELRIGG-HERNANDEZ, J. — Sarah VanDerlinden seeks reversal of a final
parenting plan, arguing that the trial court abused its discretion in imposing de facto
RCW 26.09.191 restrictions without a finding that limitations were warranted under
that statute. Because the trial court explicitly declined to find any circumstances
justifying RCW 26.09.191 restrictions and acted well within its broad discretion
under RCW 26.09.187, we affirm.
FACTS
Nicolas VanDerlinden and Sarah VanDerlinden1 married in 2014 and had
one child, B.C.G.V. For the early part of his life, Sarah was B.C.G.V.'s primary
caregiver. However, Sarah became ill around May 2016 and was no longer able
to care for B.C.G.V. unaided. The parties' relationship deteriorated and Nicolas
1 For clarity, the parties will be referred to by their first names. We intend no disrespect. No. 77836-6-112
filed a petition for dissolution of marriage in July 2016. The court entered
temporary orders placing B.C.G.V. with Nicolas and allowing Sarah supervised
visits. The guardian ad litem (GAL) recommended that B.C.G.V. reside with
Nicolas except for two overnights during the week and one overnight every other
weekend. Although she found that both parents had good relationships with
B.C.G.V., the GAL concluded that "[Tie current level of conflict, differences in
parenting styles and beliefs, and logistical considerations do not support a shared
residential schedule for a permanent parenting plan." The GAL's report included
the results of Sarah's psychological evaluation, which concluded that there was no
basis for limitations based on Sarah's mental health.
Nicolas testified at trial that he did not believe that he and Sarah could
successfully make medical decisions for B.C.G.V. jointly. The parties sought
allergy testing for B.C.G.V. in response to recurring gastrointestinal and skin
symptoms, but the record does not contain a definitive diagnosis of any food
allergies. Sarah and Nicolas disagree regarding the nature and severity of
B.C.G.V.'s sensitivities to certain foods. Nicolas testified that Sarah consistently
sends him text messages after picking up B.C.G.V. claiming that he is sick and
that Nicolas is "poisoning" him. She accuses Nicolas of "ruin[ing][B.C.G.V.'sj gut
for good" and "caus[ing] permanent damage to [B.C.G.V.'s] stomach all to help
[Nicolas] court case." Nicolas requested sole decision-making authority over
B.C.G.V.'s education and health care because of their strained relationship and
conflicting opinions on B.C.G.V.'s health. He expressed concern about the kind of
medical treatment that B.C.G.V. might receive under Sarah's care.
2 No. 77836-6-1/3
Sarah testified that Nicolas had never questioned B.C.G.V.'s alleged food
sensitivities until the divorce proceedings began. She felt that Nicolas was
"neglecting [B.C.G.V.'s] medical care and actually causing him to be sick." When
asked on cross-examination whether she thought she and Nicolas would be able
to make joint decisions regarding B.C.G.V.'s medical care, she responded,"[w]hen
1 know he's causing him to be sick, no, it's going to be really difficult."
After a trial, the court ordered that B.C.G.V. would reside primarily with
Nicolas and would have two to three overnights with Sarah per week. Sarah would
pick up B.C.G.V.from daycare at 3:00 p.m. every Tuesday and Thursday and drop
him off at daycare at 9:00 a.m. the following morning. She would also have
B.C.G.V. every other weekend from Saturday at noon to Sunday at 7:00 p.m. and
for six hours during Nicolas' Sunday soccer games. Nicolas was given sole
medical decision-making authority because of "toxic communication between
parents," but must inform Sarah of any medical decisions made. Although Nicolas
proposed a finding on Sarah's abusive use of conflict, the trial court crossed out
this provision of the proposed order and stated that it would not enter RCW
26.09.191 restrictions. The parenting plan included a written finding that Sarah
"does not suffer from any mental disability" but should continue to engage in
weekly therapy to address all issues raised by the psychological experts. The
court found that neither parent was mentally ill "[b]ut the fact that these charges
[were] leveled against each other[] shows the [level] of discord between the
parties." Sarah timely appealed.
3 No. 77836-6-1/4
DISCUSSION
I. Waiver
In her opening brief, Sarah argues that "[t]he trial court erred in imposing
parenting restrictions under RCW 26.09.191" and goes on to specify four
restrictions that she believes were not warranted by the evidence. In his response,
Nicolas correctly points out that the trial court did not impose restrictions under
RCW 26.09.191 in this case. He argues that we should decline to review the
alleged error because the issues on appeal are "all premised on the incorrect
assertion that the trial court imposed[RCW 26.09.1911 restrictions" and Sarah has
therefore waived review of the trial court's ruling under RCW 26.09.187. Sarah
replies that, although the court did not impose restrictions under RCW 26.09.191,
the provisions of the parenting plan included the type of restrictions that would
require evidentiary findings under RCW 26.09.191, and the trial court erred in
imposing those restrictions in the absence of those findings.
The Rules of Appellate Procedure (RAP) require that an appellant identify
each alleged error made by the trial court. RAP 10.3(a)(4). "It is well settled that a
party's failure to assign error to or provide argument and citation to authority in
support of an assignment of error, as required under RAP 10.3, precludes
appellate consideration of an alleged error." Escude ex rel. Escude v. King County
Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190, 69 P.3d 895 (2003)(citing Hollis
v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999); Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)). However,
courts are directed to construe the rules liberally to "facilitate the decision of cases
4 No. 77836-6-1/5 >
on the merits," except where justice demands otherwise. RAP 1.2(a). Even when
an appellant has not technically complied with the rules, the court should exercise
its discretion to consider a case on the merits when "the nature of the appeal is
clear and the relevant issues are argued in the body of the brief and citations are
supplied so that the court is not greatly inconvenienced and the respondent is not
prejudiced." State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995).
Here, although Sarah explicitly tied her assignment of error to the incorrect
assertion that the trial court had imposed restrictions under RCW 26.09.191, it was
sufficiently clear which portions of the parenting plan she was challenging. The
briefing was adequate to allow Nicolas to respond in defense of the provisions. He
was not prejudiced and the court was not greatly inconvenienced by the error. We
will review the merits of the appeal.
II. Judicial Estoppel
In her reply brief, Sarah argues that Nicolas should be judicially estopped
from arguing that the trial court was permitted to enter the challenged conditions
of the parenting plan without making evidentiary findings under RCW 26.09.191.
She contends that Nicolas argued below that the trial court could only grant his
request for sole decision-making authority if it found an evidentiary basis for RCW
26.09.191 restrictions.
Judicial estoppel prevents a party from "'asserting one position in a court
proceeding and later seeking an advantage by taking a clearly inconsistent
position." Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007)
(quoting Bartlev-Williams v. Kendall, 134 Wn. App. 95, 98, 138 P.3d 1103(2006)).
5 No. 77836-6-1/6
The purpose of the doctrine is to preserve respect for the courts and avoid
inconsistency, duplicity, and waste of time. Anfinson v. FedEx Ground Package
Sys., Inc., 174 Wn.2d 851, 861, 281 P.3d 289 (2012). Judicial estoppel exists to
protect the integrity of the judicial process, rather than the litigants. Am v. Riley,
192 Wn. App. 85, 91, 366 P.3d 946 (2015). The doctorine only applies when "a
litigant's prior inconsistent position benefited the litigant or was accepted by the
court." Johnson v. Si-Cor. Inc., 107 Wn. App. 902, 909, 28 P.3d 832(2001)(citing
Witzel v. Tena, 48 Wn.2d 628, 633, 295 P.2d 1115 (1956)).
When discussing the proposed parenting plans at a post-trial hearing, Sarah
objected to the following proposed section:
3. Reasons for putting limitations on a parent (under RCW 26.09.191)
b. Other problems that may harm the child's best interests:
A parent has one or more of these problems as follows:
Abusive use of conflict — Sarah VanDerlinden uses conflict in a way that endangers or damages the psychological development of[B.C.G.V.].
(emphasis removed). Nicolas responded that the court had to "find some reason
. . . under that section" to give him sole decision-making authority. The court
responded that it was not going to adopt the proposed finding, saying that one of
the reasons it was imposing sole decision-making authority was "to keep the
parties from going at each other." Nicolas asked if the court was going to make
any finding regarding why it was ordering sole decision-making and the court
indicated it was "because of parties' difficulty in communication and the fact that
the father is the sole custodian—is the primary custodian."
6 No. 77836-6-1/7
Sarah contends that Nicolas should be estopped from asserting, as he does
in his responsive brief, the "clearly inconsistent position" that the provisions of the
final parenting plan were within the court's broad discretion even without
evidentiary findings under RCW 26.09.191. However, the court did not accept
Nicolas' premise at trial that it needed to make evidentiary findings under RCW
26.09.191 to justify giving Nicolas sole decision-making authority. Because his
position at trial was not accepted by the court, judicial estoppel does not apply.
III. Parenting Plan
Sarah contends that the trial court erred in imposing four provisions of the
parenting plan: 1) giving Nicolas sole medical decision-making authority, 2) giving
Nicolas sole educational decision-making authority,2 3) making Nicolas the primary
residential parent, and 4) recommending that Sarah continue counseling.
We review decisions concerning the provisions of a parenting plan for abuse
of discretion. In re Marriage of Littlefield, 133 Wn.2d 39,46, 940 P.2d 1362(1997).
A trial court abuses its discretion when a decision is manifestly unreasonable or
based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482
P.2d 775 (1971). "A court's decision is manifestly unreasonable if it is outside the
range of acceptable choices, given the facts and the applicable legal standard; it
is based on untenable grounds if the factual findings are unsupported by the
record; it is based on untenable reasons if it is based on an incorrect standard or
the facts do not meet the requirements of the correct standard." Littlefield, 133
2 Although Sarah lists this provision when discussing the court's alleged errors, she does not argue against it separately from the issue of medical decision-making authority. Accordingly, we will address the two provisions together.
7 No. 77836-6-1/8
Wn.2d at 47. We will uphold a trial court's findings of fact if they are supported by
substantial evidence. Katare v. Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012).
"Substantial evidence is that which is sufficient to persuade a fair-minded person
of the truth of the matter asserted." Id.
A court's discretion in fashioning a parenting plan is guided by statute. In re
Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). We review the
meaning of a statute de novo. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146
Wn.2d 1, 9, 43 P.3d 4(2002). When interpreting the provisions of a statute, "[t]he
court's fundamental objective is to ascertain and carry out the Legislature's intent,
and if the statute's meaning is plain on its face, then the court must give effect to
that plain meaning as an expression of legislative intent." Id. at 9-10. We
construe an act as a whole and interpret related statutory provisions in relation to
each other, harmonizing all provisions. C.J.C. v. Corp. of Catholic Bishop of
Yakima, 138 Wn.2d 699, 708, 985 P.2d 262(1999).
A permanent parenting plan must contain residential provisions for the child
and assign decision-making authority regarding the child's education, healthcare,
and religious upbringing to one or both parents. RCW 26.09.184(2),(5). The court
shall protect the best interests of the child when imposing a parenting plan. RCW
26.09.002; RCW 26.09.184(1)(g). The court is required to limit residential time and
decision-making authority if it finds that a parent has engaged in willful
abandonment, abuse of a child, or domestic violence. RCW 26.09.191(1), (2)(a).
The court is permitted, but not required, to limit provisions of the parenting plan if
it finds that certain other circumstances exist, including a parent's neglect, long-
8 No. 77836-6-1/9
term impairment from substance abuse, or abusive use of conflict. RCW
26.09.191(3).
A. Decision-Making Authority
Sarah contends that the trial court erred in granting Nicolas sole decision-
making authority over B.C.G.V.'s heath care and education. In the absence of an
agreement between the parties, RCW 26.09.187(5) allows the court to allocate
mutual decision-making authority to both parents or sole decision-making authority
to one parent, even without findings justifying limitations under RCW
26.09.187(2)(b), (c):
(b) SOLE DECISION-MAKING AUTHORITY. The court shall order sole decision-making to one parent when it finds that: (i) A limitation on the other parent's decision-making authority is mandated by RCW 26.09.191; (ii) Both parents are opposed to mutual decision making; (iii) One parent is opposed to mutual decision making, and such opposition is reasonable based on the criteria in (c) of this subsection. (c) MUTUAL DECISION-MAKING AUTHORITY. Except as provided in (a) and (b) of this subsection, the court shall consider the following criteria in allocating decision-making authority: (i) The existence of a limitation under RCW 26.09.191; (ii) The history of participation of each parent in decision making in each of the areas in RCW 26.09.184(5)(a); (iii) Whether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW 26.09.184(5)(a); and (iv) The parents' geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.
Sarah accuses Nicolas of misstating the law and misleading this court by
reading RCW 26.09.187(2)(b) and (c) together because "[t]he two cannot just be
lumped together as one since (b) concerns sole decision-making authority, and (c)
concerns mutual decision-making authority[.]" But RCW 26.09.187(2)(b) explicitly
9 No. 77836-6-1/10
references the criteria in section (c) as factors for the court to consider when
deciding whether sole decision-making authority is appropriate. This accusation
has no merit.
Indeed, Sarah herself misstates the law by arguing repeatedly that the trial
court may not give one parent sole decision-making authority in the absence of
evidentiary findings under RCW 26.09.191. The plain language of RCW
26.09.187(2) gives the court discretion to impose sole decision-making authority
in certain circumstances. Although RCW 26.09.187(2)(b) includes neither a
disjunctive nor coordinating conjunction between its subsections, the only logical
reading of this statute is that each of the subsections can independently support
sole decision-making authority. The court cannot impose mutual decision-making
authority if a parent engages in conduct mandating limitations under RCW
26.09.191(1), regardless of parental opposition. Reading RCW 26.09.187(2)(b) to
impose additional requirements would create an impermissible inconsistency in
the statutory scheme.
In this case, the parenting plan gives decision-making authority for
educational and non-emergency health care decisions to Nicolas, with the
condition that he cooperate with and adhere to B.C.G.V.'s pediatrician's
recommendations and keep Sarah apprised on at least a monthly basis. The
parenting plan specifies that the reason for the limitation is that "[o]ne of the parents
does not want to share decisions-making [sic] and this is reasonable because of
the parents' inability to cooperate with each other in decision-making." There is
substantial evidence in the record that the parties had very different opinions about
10 No. 77836-6-1/11
what constituted appropriate medical care for B.C.G.V. Because the trial court
made appropriate findings under RCW 26.09.187(b) which were supported by
substantial evidence, it did not abuse its discretion in ordering sole decision-
making authority.
B. Residential Time
Sarah also contends that the court erred in appointing Nicolas as the
primary residential parent. The residential provisions in the parenting plan 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). When limitations under RCW
26.09.191 are not warranted, the court must consider the following factors to
determine the child's residential schedule:
(i) The relative strength, nature, and stability of the child's relationship with each parent; (ii) The agreements of the parties, provided they were entered into knowingly and voluntarily; (iii) Each parent's past and potential for future performance of parenting functions as defined in *RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child; (iv) The emotional needs and developmental level of the child; (v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities; (vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and (vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
RCW 26.09.187(3)(a). The first factor is the most important. Id. The court may
order that the child alternate his residence between the parents "for brief and
11 No. 77836-6-1/12
substantially equal intervals of time" if this is in the best interests of the child. RCW
26.09.187(3)(b).
In its oral ruling on the parenting plan, the court stated that it did not believe
that restrictions under RCW 26.09.191 were appropriate and stated, "[i]n the
absence of those, then we go to the regular criteria under[RCW]26.09.187." The
court then analyzed each of the factors enumerated in RCW 26.09.187(3)(a) on
the record and concluded that the criteria weighed in favor of Nicolas as the
primary residential parent. The court felt that a "50/50" residential schedule was
not appropriate because Sarah seemed to be "in transition right now, mentally,
physically, emotionally, and as it relates to her fiscal situation," while Nicolas had
more stability in those areas. Accordingly, the court imposed a residential
schedule nearly identical to the one recommended by the GAL, noting that this
schedule would "maintain[] the connection that the mom has with the child."
The trial court did not abuse its discretion in imposing the residential
provisions of the parenting plan. After finding no basis for limitations under RCW
26.09.191, the court properly considered the factors in RCW 26.09.187(3)(a) on
the record and determined that the GAL's recommended residential schedule was
appropriate. The court also addressed the reasons that equal parenting time was
not in the best interests of the child.
Sarah argues that these "harsh restrictions" on her parenting time could not
properly be imposed without RCW 26.09.191 findings. This argument is
unfounded. Simply put, there are no harsh restrictions on her parenting time. The
court has considerable discretion in fashioning a parenting plan and is not required
12 No. 77836-6-1/13
to order precisely equal parenting time when there is no basis for RCW 26.09.191
restrictions. Under the parenting plan, she has unsupervised parenting time with
B.C.G.V. on four to six days of every week and an equal share of holiday time.
This schedule is well within the trial court's broad discretion under RCW 26.09.187.
C. Counseling Provision
Finally, Sarah contends that the trial court erred in imposing the provision
that she "should continue to engage in weekly therapy... until treatment goals are
met." She argues that this provision "condition[s] her parental rights on continuing
to see a therapist based on factors outside of her decision-making authority."
However, when she challenged this proposed provision at a post-trial hearing, the
court struck the only language in the proposed parenting plan that expressly
conditioned any of her parenting time on compliance with this provision. The court
also reiterated that it wanted Sarah to continue to engage in counseling as directed
until treatment goals were met. In its partial oral ruling, the court made clear that
it was not going to grant Sarah additional residential time because "there needs to
be some intervention, some counseling, and some stability. And people need to
take care of themselves, really, before they spend too much time taking care of
others." The counseling provision was related to the court's assessment that
Sarah was "in transition" at the time, and her progress toward the experts'
treatment goals would be in B.C.G.V.'s best interests. The court did not abuse its
considerable discretion in imposing this provision.
13 No. 77836-6-1/14
IV. Attorney's Fees
In response to Sarah's argument, Nicolas contends this appeal is frivolous
and he should be awarded attorney's fees. Under RAP 18.9(a), we may award
attorney's fees incurred by a prevailing party in responding to a frivolous appeal.
Stiles v. Kearney, 168 Wn. App. 250, 267-68, 277 P.3d 9 (2012)(awarding fees
where the arguments "fail because they either lack merit, rely on a
misunderstanding of the record, require a consideration of evidence outside the
record, or are not adequately briefed."). An appeal is frivolous if it presents no
debatable issues on which reasonable minds could differ and is so lacking in merit
that there is no reasonable possibility of reversal. In re Marriage of Foley, 84 Wn.
App. 839, 847, 930 P.2d 929 (1997). Any doubts as to whether the appeal is
frivolous should be resolved in favor of the appellant. Public Emps. Mut. Ins. Co.
v. Rash, 48 Wn. App. 701, 706, 740 P.2d 370 (1987).
The issue that Sarah presented for appeal was whether the trial court erred
in imposing restrictions under RCW 26.09.191. There was no reasonable
possibility of reversal on this issue because the court did not impose restrictions
under that statute. When Nicolas pointed this out in his response, Sarah argued
in reply that the trial court erred because the provisions of the parenting plan could
not properly be imposed without evidentiary findings under RCW 26.09.191. As
discussed above, the trial court has broad discretion under the plain language of
RCW 26.09.187 to order sole decision-making authority, unequal residential time,
and other provisions in the best interests of the child. Even viewing this appeal in
14 No. 77836-6-1/15
the light most favorable to the appellant, there was no reasonable possibility of
reversal. The appeal was frivolous and Nicolas should be awarded attorney's fees.
Affirmed.
WE CONCUR: