FILED COURT OF APPEAL S DIVISION II 2014 AUG - 5 AM IQ. 40
STATE OF WASHINGTON
IN THE COURT OF APPEALS OF THE STATE OF 4 •
b e *. ON
DIVISION II
In re the Marriage of No. 44692 -8 -II
TODD R. BROOKS,
Appellant,
v.
ZEECHA L. BROOKS, UNPUBLISHED OPINION
Respondent.
HUNT, P. J. — Todd R. Brooks appeals the trial court' s order modifying a parenting plan.
He argues that the trial court erred in modifying the parenting plan after a relocation proceeding
because there was no finding or evidence at trial that his former wife' s relocation required the
modification. Holding that the trial court did not abuse its discretion in modifying the parenting
plan, we affirm.
FACTS
I. PARENTING PLANS
A. Original October 2010 Parenting Plan, Washington Brooks1
Todd and Zeecha dissolved their marriage on October 22, 2010. They entered
into an agreed parenting plan for their minor son. This original plan provided that their son
would reside with Todd on alternating weekends, from Friday evening to Sunday evening, and
1 We use the first names of the parties for clarity. We intend no disrespect. No. 44692 -8 -II
every Wednesday overnight, year -round. In addition to this year -round visitation schedule, Todd
had two, nonconsecutive weeks of extended time with their son during the summer. At the time
the original parenting plan was entered, both parties resided in Cowlitz County, Washington:
Todd, in Toutle, and Zeecha, in Kelso. Their son attended elementary school in Kelso.
B. Mother' s Relocation to Portland; Modified December 2010 Parenting Plan
On November 3, 2010, Zeecha filed notice of her intent to relocate their son from Kelso,
Washington, to Portland, Oregon. On December 15, the superior court entered an agreed order
modifying the parenting plan ( 2010 Modified Parenting Plan). This modified parenting plan ( 1)
explicitly contemplated their son' s attendance at Portland Public Schools; ( 2) continued Todd' s
year - ound residential time with their son on alternating weekends, from Friday evening to r
Sunday evening, but eliminated the Wednesday overnight time; ( 3) provided Todd the option of
2; ( visiting their son in Portland one evening per week ( Monday- Friday) 4) provided Todd four
3 additional weekends " per year and three Portland Public School in- service /planning days with
their son; and ( 5) increased Todd' s additional residential summer time with their son from two
weeks to approximately 30 days.
C. Mother' s Relocation to Kalama, WA; Temporary 2012 Parenting Plan
On May 21, 2012, Zeecha filed notice of her intent to relocate their son from Portland,
Oregon, to Kalama, Washington; she also filed a proposed modified parenting plan. Zeecha
planned to remarry and wanted to move in with her future husband, who owned a home in
Kalama. Zeecha' s relocation to Kalama would bring her son back to Cowlitz County and closer
to Todd.
2 This provision was intended to provide Todd with optional time to assist his son with homework or to participate in his mid - week activities.
3 Clerk' s Papers ( CP) at 30.
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On June 13, Todd filed an objection to Zeecha' s and their son' s relocation. He also filed
a proposed modified parenting plan, which he stated should apply in the event that the trial court
allowed modification of the existing parenting plan. At a hearing on August 24, the trial court
permitted the relocation. The trial court held a hearing for a temporary parenting plan on
September 14 and entered a temporary parenting plan on November 9.
II. PROCEDURE
Trial; 2013 Modified Parenting Plan
A trial was scheduled for December 10, 2012. By the time of trial, Todd no longer
contested Zeecha' s relocation and contested only her proposed modified parenting plan. Todd
and Zeecha agreed that that they would have the trial court determine only the following
modified parenting plan provisions: ( 1) Todd' s additional weekends with their son, ( 2) Todd' s
Wednesday visits with their son during the summer, and ( 3) their son' s summer residential
schedule.
Before trial, Todd filed a memorandum of law stating that the case presented a novel set
of facts for the trial court to consider and arguing that Zeecha' s relocation closer to Todd should
not allow her to reduce Todd' s residential time with their son significantly without a showing of
necessity. At trial, Todd contested Zeecha' s proposed modified parenting plan, arguing that ( 1)
it included a 30 percent reduction in his residential time with their son; ( 2) Zeecha was
attempting to use her relocation as " carte blanche to modify a Parenting Plan," because "[ i] t' s
one of the only times where you don' t have to bridge that hurdle of Adequate Cause "; and ( 3)
she " would never pass that hurdle but for her relocation." Verbatim Report of Proceedings
3 No. 44692 -8 -II
VRP) at 6. Todd asked the trial court to maintain the 2010 Modified Parenting Plan, except for 4 5 increasing his " additional weekends " from four to eight per year.
The trial court addressed Todd' s legal memorandum and his contention that Zeecha' s
relocation closer to Todd should not allow her to reduce Todd' s residential time significantly
without a showing of necessity:
Well, as I stated before, this case really is a case, I think, of first impression. This is a case that has been brought before the Court because of a relocation that has been granted on a temporary basis, which now has been acquiesced, but it' s a relocation, frankly, closer to the parties— brings the parties
closer, instead of making them further apart. In their relate —in the relocation setting, what the Court normally does is look at the existing Parenting Plan and determine what provisions in that Plan need to be altered, deleted, changed because of the reality of the distance resulting from the relocation, and what provisions no longer, just simply, are practical; or, frankly, become illogical. And that' s what I intend to do in this case. T] he basic premises is the Court leaves in place those provisions that are in existence and are not affected by the relocation; and, the Court doesn' t want to be involved in changing provision[ s in] a Parenting Plan if it' s not necessary. The purpose of a Parenting Plan is stability —stability for the childthe child is .. . who we' re talking about.
VRPat51 -53.
The trial court orally ruled that, consistent with the 2010 Modified Parenting Plan and the
November 9, 2012 temporary parenting plan, Todd would continue to have year - round
residential time with their son on alternating weekends from Friday evening to Sunday evening,
four " additional weekends" per year, and an additional 30 days during the summer. Clerk' s
4 VRP at10.
5 Todd presented the following argument in support of this modification request: The child' s school schedules from the Portland School District he was in, to the current schedule under the Kalama District, results in some other losses of time. There were initially a lot of in- service days in the Portland District that the father was given, now he doesn' t have those; so, he' s asking for, essentially, some period of time, and that equals four weekends to make up for that. VRP at 10 -11.
4 No. 44692 -8 -II
Papers ( CP) at 169. The trial court modified the 2010 Modified Parenting Plan by striking the
provision about the Portland Public School in- service days because it was " no longer even at
issue" and by granting Todd Wednesday residential time from 5: 30 p.m. to 8: 00 p.m. during only
the school year. VRP at 55.
The trial court explained that it did not grant Wednesday residential time during the
summer because, rather than giving Todd two weeks during the summer, as Zeecha proposed, it
gave Todd 30 days of residential time during the summer. The trial court stated: "[ I]n addition
to that, to have a Wednesday visit is simply too disruptive to what' s left of the Summer that
would be with [ Zeecha] "; and " in fact, the Parenting Plan that we' re looking at modifying
doesn' t specifically say he has them." VRP at 57 -58. Todd disagreed with the trial court' s
finding that the 2010 Modified Parenting Plan did not provide for Wednesday residential time
during the summer. Todd argued that he had been granted Wednesday residential time during
the summer under paragraph 3. 13 of the 2010 Modified Parenting Plan, which provided Todd
with the option of visiting their son one evening per week ( Monday through Friday) to interact
with him by helping with homework or participating in week activities. mid - The trial court did
not find this argument persuasive.
On January 28, 2013, the trial court entered a modified parenting plan, consistent with its
oral rulings set forth above. Todd appeals.
ANALYSIS
Todd contends that the trial court erred in modifying the parenting plan after the
relocation proceeding because there was no evidence at trial or trial court finding that Zeecha' s
relocation required the modification. He argues that when a relocation does not create a
substantial change in circumstances, the trial court cannot modify the parenting plan. No. 44692 -8 -II
Disagreeing, we hold that Todd' s argument contradicts the express statutory language of RCW
26. 09.260( 6) and that the trial court did not abuse its discretion in modifying the parenting plan.
I. STANDARD OF REVIEW
RCW 26. 09. 260 governs modifications of parenting plans. Subsection ( 6) provides that
the superior court may order adjustments to the residential portions of a parenting plan " pursuant
to a proceeding to permit or restrain a relocation of the child." RCW 26. 09. 260( 6). We review a
trial court' s rulings on a parenting plan for abuse of discretion. In re Marriage of Christel, 101
Wn. App. 13, 20 -21, 1 P. 3d 600 ( 2000) ( citing In re Marriage of Wicklund, 84 Wn. App. 763,
770, 932 P. 2d 652 ( 1996)). We do, not reverse a trial court' s decision to modify a parenting plan
under RCW 26. 09.260 unless the trial court exercised its discretion in an untenable or manifestly
unreasonable way. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P. 2d 1239 ( 1993). We
do not review credibility determinations or weigh evidence on appeal. In re Marriage of
Meredith, 148 Wn. App. 887, 891 n.1, 201 P. 3d 1056, review denied, 167 Wn.2d 1002 ( 2009).
II. 2013 MODIFIED PARENTING PLAN IN RESPONSE TO REQUESTED RELOCATION
Todd argues that the trial court erred in modifying the parenting plan because there was
no " substantial change" in circumstances, as required by RCW 26. 09. 260( 1). Br. of Appellant at
11. Todd is correct that for most modifications, RCW 26. 09.260( 1) generally requires a finding
that a substantial change has occurred or that modification is in the best interests of the child.
But Todd ignores RCW 26. 09. 440, which does not require a showing of substantial change in
circumstances or that modification is in the best interests of the child whose relocation is
intended. Rather, this statute automatically allows relocation of a child and confirmation of a
related proposed residential schedule unless the other parent moves to block the relocation or
6 No. 44692 -8 -II
opposes the proposed schedule within 30 days of receiving the relocation notice. 6 Consistent
with RCW 26. 09. 440, RCW 26. 09.260( 6) expressly does not require a hearing to determine
adequate cause in order to modify a parenting plan in response to a relocation request.? Todd' s
8 arguments fail.
6 RCW 26. 09.440( 2)( a) provides, in pertinent part: THE RELOCATION OF THE CHILD WILL BE PERMITTED AND THE PROPOSED REVISED RESIDENTIAL SCHEDULE MAY BE CONFIRMED UNLESS, WITHIN THIRTY DAYS, YOU FILE A PETITION AND MOTION WITH THE COURT TO BLOCK THE RELOCATION OR OBJECT TO THE PROPOSED REVISED RESIDENTIAL SCHEDULE AND SERVE THE PETITION AND MOTION ON THE PERSON PROPOSING RELOCATION AND ALL OTHER PERSONS ENTITLED BY COURT ORDER TO RESIDENTIAL TIME OR VISITATION WITH THE CHILD."
7 RCW 26. 09.260( 6) provides: The court may order adjustments to the residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation of the child. The
person objecting to the relocation of the child or the relocating person' s proposed revised residential schedule may file a petition to modify the parenting plan .. . without a showing of adequate cause other than the proposed relocation itself. A hearing to determine adequate cause for modification shall not be required so long as the request for relocation of the child is being pursued. In making a determination of a modification pursuant to relocation of the child, the court shall first determine whether to permit or restrain the relocation of the child using the procedures and standards provided in RCW 26. 09. 405 through 26. 09. 560. Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the parenting plan or custody order or visitation order. Emphasis added.) Under H.B. 2197, 63d Leg., Reg. Sess. ( Wash. 2014), changes to the language of RCW 26. 09.260( 6) have been proposed to require an " adequate cause" standard in relocation proceedings under RCW 26. 09. 260( 6).See also SUBSTITUTE H.B. 2197, 63d Leg., Reg. Sess. ( Wash. 2014). But these changes have not yet been adopted. More importantly, they were not in effect at the time of the modification at issue here.
8 Todd also cites cases holding that courts should view custodial changes as highly disruptive and that there is a strong presumption against modification. The modification at issue here, however, did not involve a custodial change; thus, this argument lacks merit.
7 No. 44692 -8 -II
A. " Adequate Cause," " Substantial Change in Circumstances," " Nexus" Not Required
Todd correctly concedes that "[ t]he statute waives the issue of adequate cause if a
relocation is pursued." Br. of Appellant at 11. Nevertheless, he argues that ( 1) the " analysis
does not and should not end there "; and ( 2) because "[ t] he court may make modifications
pursuant to the relocation," "[ t] he statute places a significant burden on the parent requesting the
change to show that that some practical change to the current parenting plan is necessitated by
the relocation of the child." Id. (citing RCW 26. 09. 260( 6)). In support of this contention, Todd
cites only RCW 26. 09. 260( 6). But, contrary to his argument, RCW 26. 09. 260( 6) neither requires
a showing of adequate cause nor places a significant burden on the parent requesting the change
to show that the relocation necessitates modifying the parenting plan.
Todd also relies on In re Marriage of Hoseth to support his contention that the trial court
was required to find a substantial change in circumstances before modifying the parenting plan
here. In re Marriage of Hoseth, 115 Wn. App. 563, 63 P. 3d 164 ( 2003). But his reliance on
Hoseth is misplaced because Hoseth involved a minor modification of a parenting plan under
RCW 26. 09. 260( 5), which requires " a substantial change of circumstances grounded upon facts
occurring since entry of the prior decree or plan or were unknown to the superior court at the
time it entered that prior decree or plan." Hoseth, 115 Wn. App. at 570 ( citing RCW
26. 09. 260( 1)). Unlike the minor residential time modification at issue in Hoseth under
subsection ( 5) of RCW 26. 09. 260, the modification at issue here occurred in connection with a
relocation proceeding under subsection ( 6), which does not require a showing of a substantial
change in circumstances. RCW 26. 09. 260.
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Acknowledging that RCW 26.09.260( 6) governs this modification, Todd contends that
1) the statute' s "` pursuant to relocation "' 9 language10 creates a requirement that the modification
be related to the relocation; ( 2) Zeecha' s proposed modified parenting plan represented her 11 unabashed desire to reduce [ his parenting] time " and was not ' pursuant to "' the relocation;
3) when a parenting plan is modified, there must be a " nexus" between the parties' practical
circumstances and the changes to the parenting plan; and ( 4) Zeecha' s requested modifications
lacked this " nexus." Reply Br. of Appellant at 8.
Todd relies on Zeecha' s proposed modified parenting plan and her requested changes to 12 support his argument that the modification lacked a sufficient " nexus. " Todd' s argument lacks
merit. RCW 26. 09. 260( 6) expressly provides that "[ t]he court may order adjustments to the
residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation
of the child." ( Emphasis added). This statute does not require that the modification be related to
13 or have a " nexus" with the requested relocation, and Todd provides no authority to support this
contention.
9 Br. of Appellant at 11 ( quoting RCW 26.09.260( 6)).
10 Pertinent portions of RCW 26. 09. 260( 6) provide: In making a determination of a modification pursuant to relocation of the child, . . Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the parenting plan or custody order or visitation order.
Emphasis added.)
11 Br. of Appellant at 13.
12 We note, however, that the trial court did not adopt Zeecha' s proposed parenting plan. 13 But even if the the trial court explicitly considered Zeecha' s statute required such a " nexus,"
requested relocation in modifying the parenting plan.
9 No. 44692 -841
B. Changes in Todd' s Residential Time
Although Todd argues that the trial court should not have modified the 2010 Modified
Parenting Plan, his own filings and requests at trial contradict this position. The record shows
that Todd filed his own proposed parenting plan, which deviated from the 2010 Modified
Parenting Plan, and that he asked the trial court to modify the 2010 Modified Parenting Plan to
provide four more " additional weekends" to make up for his lost Portland Public School District
In- Service days. VRP at 10.
Todd' s focus appears to be on the alleged reduction in his residential time with his son
resulting from the modified parenting plan: He argues that the trial court erred in eliminating
four of his " additional weekend" visits and his mid - week visits because the, relocation did not
necessitate a reduction in his residential time. But contrary to Todd' s assertion, the trial court
did not eliminate four of his " additional weekend" visits; rather, the trial court denied his request
to grant him four more " additional weekends." VRP at 10 ( emphasis added). Instead of
increasing to a total of eight " additional weekends," the trial court ruled that, consistent with the
2010 Modified Parenting Plan, Todd would continue to have four " additional weekends" per
year.
Todd may have lost some school in- service days with his son as a result of the relocation
and the change in school district. But it was not unreasonable for the trial court to decline to
14 provide extra weekends as " make up " days; and, in the modification, the trial court was not
required to grant Todd the same number of residential days as he had previously enjoyed. We
hold that Todd fails to show that the trial court abused its discretion when it struck the Portland
14VRP at11.
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Public School in- service residential provision of the parenting plan and maintained the 2010
Modified Parenting Plan " additional weekend" provision.
Todd also contends the trial court erred in eliminating his mid - week residential time
during the summer. As the trial court noted, the 2010 Modified Parenting Plan did not explicitly
provide Wednesday mid - week residential time. Rather, the 2010 Modified Parenting plan
contained a provision granting Todd an optional weekly visit, which provision was expressly
intended to give Todd the opportunity to assist the son with homework or other mid - eek w
activities. Based on this provision' s stated intent, it was not unreasonable for the trial court to
limit these midweek visits to the school year, particularly in light of its finding that these visits
would be disruptive to the limited days that Zeecha had with their son during the summer.
Again, we hold that Todd fails to show that the trial court abused its discretion in limiting Todd' s
Wednesday visitations to the school year.
C. Todd' s Policy Argument to Create New Statutory Requirement
Todd asserts that this is a case of first impression and expresses his concern that
parenting plan modifications that result from relocations should accommodate the relocation and
not create a " free for all" for the parties to modify parenting plans. Reply Br. of Appellant at 5.
He contends that ( 1) if we accept the argument that RCW 26. 09. 260( 6) does not require a
showing of adequate cause or substantial change in circumstances, " a move across the street
would open the door to a major modification of the parenting plan without any other basis for 15; ( doing so " 2) relocations should not automatically give rise to a modification of a parenting
plan; and ( 3) we should hold that there must be a reasonable nexus between the relocation and a
15 Reply Br. of Appellant at 5 -6.
11 No. 44692 -8 -II
modification of the parenting plan. We decline Todd' s request to read a new requirement into
relocation proceedings that the legislature has already prescribed.
RCW 26. 09. 260( 6) provides that, after determining whether to grant a relocation, the trial
court shall determine what modification " pursuant to relocation" should be made, if any, to the
parenting plan or custody order or visitation order. RCW 26. 09. 260( 6) does not automatically
require modifications of parenting plans after relocation; instead, the legislature has vested the
trial courts with discretion to determine whether such a modification is appropriate.
Here, the trial court exercised its discretion under RCW 26. 09. 260( 6), as contemplated by
the legislature. The trial court considered whether to modify the parenting plan after Zeecha' s
relocation with their son:
I]n the relocation setting, what the Court normally does is look at the existing Parenting Plan and determine what provisions in that Plan need to be altered, deleted, changed because of the reality of the distance resulting from the relocation, and what provisions no longer, just simply, are practical; or, frankly, become illogical. And that' s what I intend to do in this case.
VRP at 52. Again, Todd fails to show that the trial court abused its discretion in modifying the
parenting plan in response to the relocation.
III. ATTORNEY FEES
RAP 18. 1 authorizes attorney fees on appeal if provided by applicable law. After
considering the financial resources of both parties, we have discretion to award attorney fees to
the prevailing party. RCW 26. 09. 140. To receive attorney fees under RCW 26. 09. 140, however,
the requesting party must show his need. In re Marriage of Konzen, 103 Wn.2d 470, 478, 693
P. 2d 97 ( 1985). A party relying on a financial need theory for recovery of attorney fees must
submit an affidavit of need " no later than 10 days prior to the date the case is set for oral
argument or consideration on the merits." RAP 18. 1( c). •
12 No. 44692 -8 -I1
Todd requests attorney fees on appeal, relying on RCW 26. 09. 140, a financial need
theory. But he has failed to provide an affidavit of need, as required by RAP 18. 1( c). Hoseth,
115 Wn. App. at 575. Thus, we deny his request for attorney fees on appeal. RAP 18. 1( c).
Zeecha asserts that she is entitled to attorney fees on appeal under RAP 18. 9 because
Todd filed a frivolous appeal. We disagree that Todd' s appeal was frivolous. The trial court
stated that " this [ was] a case ... of first impression," expressing concern that there was no
guidance for the court on the particular facts of this case. VRP at 51 - 52. " An appeal is frivolous
if, considering the entire record, the court is convinced that the appeal presents no debatable
issues upon which reasonable minds might differ and that it is so devoid of merit that there is no
possibility of reversal." Lutz Tile, Inc. v. Kreck, 136 Wn. App. 899, 906, 151 P. 3d 219 ( 2007),
review denied, 162 Wn.2d 1009 ( 2008). Further, all doubts as to whether an appeal is frivolous
are resolved in favor of the appellant. Id. The trial court' s comments may have given Todd the
impression that modifications related to relocations that bring the parties geographically closer
present a debatable issue. Accordingly, we hold that Todd' s appeal is not frivolous, and we deny
13 No. 44692 -8 -II
Zeecha' s request for attorney fees on appeal on this basis.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Maxa, J.
Lee, J.