Case Number: 35027-4

Judge: Lawrence-Berry

Court: Court of Appeals of Washington, Division III

Plaintiff's Attorney: Marla Carey Hoskins and Kiley Jordan Andeson

Defendant's Attorney: Anna M.I. Cutler and Denisa Buljubasic

Description: The child relocation act (CRA), RCW 26.09.405-
.560, sets forth the procedure and standards for certain child relocation requests. One
standard gives the relocating parent a favorable presumption that relocation will be
permitted. But by its terms, the CRA applies only to relocation requests made by a person
�with whom the child resides a majority of the time.�

Here, substantial evidence supports the trial court�s finding that Ms. Clark, the
relocating parent, was not a person with whom the children resided a majority of the time.
In the published portion of this opinion, we affirm the trial court�s conclusion that Ms.
Clark was not entitled to a presumption that relocation would be permitted.
FACTS
Rhonda Clark and David Jackson are the parents of two young children, L.J. and
H.J. In April 2015, the parties finalized their divorce and filed their agreed parenting
plan. The agreed parenting plan designated Ms. Clark as the custodial parent,1 and
scheduled the children to reside with her a majority of the time. The parties however did
not follow the plan. Instead, the parties shared residential placement equally.
In January 2016, Ms. Clark obtained counsel and sought to change the terms of the
parenting plan. Ms. Clark�s attorney sent Mr. Jackson a proposed parenting plan. The
proposed plan generally followed the original plan, but required the parties to follow
certain procedures so as to better communicate with one another. Mr. Jackson did not
disagree with those procedures, but he marked the portion that set forth the children�s
residential schedule to reflect the shared schedule that he and Ms. Clark had. In addition,
1 Washington uses the term �custodial parent� solely for purposes of state and
federal statutes that require a designation or determination of custody. RCW 26.09.285.
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he crossed out that portion of the proposed plan that listed Ms. Clark as the custodial
parent. Mr. Jackson then returned the marked proposed plan to Ms. Clark�s attorney.
Ms. Clark�s attorney then sent a revised parenting plan to Mr. Jackson.
The revised plan changed the scheduled residential time as Mr. Jackson had requested,
but still designated Ms. Clark as the custodial parent. Mr. Jackson did not want to sign
the revised draft. He knew that Ms. Clark was dating a man who lived in Nevada and was
concerned that she might move to Nevada and try to take their children with her.
In response to his concerns, Ms. Clark sent Mr. Jackson a text message assuring
him that she would not move: �Also, I want [you] to know that I am not moving to Reno.
I could easily get a [school] principal job elsewhere. But I know the kids are rooted here
with school.� Clerk�s Papers (CP) at 78-80. Ms. Clark provided Mr. Jackson a further
assurance in a later text, �You can always go through with signing. We have 50/50.�
CP at 117. Mr. Jackson, along with Ms. Clark and her attorney, signed the revised
parenting plan. The parties presented the revised parenting plan to the county superior
court where they had filed their agreed parenting plan, but that court would not file the
revised plan.
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In May 2016, the parties attempted to mediate various parenting plan issues. The
mediation was unsuccessful. On June 9, 2016, Ms. Clark received an offer to become a
vice principal in Reno, Nevada. The vice principal job was a significant promotion for
her, with more scheduled days, an increase in pay, and with an opportunity for further
advancement.
On June 17, 2016, the parties transferred venue to the county superior court of
their residence, Spokane County, and registered their original parenting plan with that
court. However, Ms. Clark did not file the signed revised plan.
On June 27, 2016, Ms. Clark filed and served on Mr. Jackson a notice of intent to
relocate her children to Nevada. On July 26, 2016, a court commissioner held a hearing
for temporary orders. The commissioner found that Ms. Clark�s request to relocate the
children would likely not be granted, and denied Ms. Clark�s request for her children to
relocate prior to a fact-finding hearing.
On August 9, 2016, Ms. Clark accepted the job in Nevada. Ms. Clark moved to
revise the commissioner�s ruling, and the trial court denied her motion. The trial court
then scheduled a fact-finding hearing to begin October 24, 2016.
At the hearing, both parties presented witnesses who provided testimony both
supporting and opposing relocation. During the hearing, Mr. Jackson testified that he and
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Ms. Clark shared residential time with their children equally. Mr. Jackson also crossexamined
Ms. Clark with her prior deposition testimony. In that testimony, Ms. Clark
had admitted that the parenting schedule set forth in the revised and signed parenting plan
was the schedule that she and Mr. Jackson had generally followed since the divorce. In
addition, several of her text messages were admitted, including the text message where
she described the revised parenting plan as �50/50.� CP at 117.
At the conclusion of the fact-finding hearing, the trial court advised the parties that
it wished to review the trial transcript and scheduled its oral ruling for mid-November. In
its November ruling, the trial court meticulously set forth the background of the case, the
legal framework, and explained its resolution of the conflicting evidence. The trial court
found that the parties shared residential time with the children equally. The trial court
found Mr. Jackson�s testimony on this point credible, and noted it was consistent with
other evidence, such as the lack of a child support transfer payment, and Ms. Clark�s
various admissions. Based on its finding that the children did not reside with Ms. Clark a
majority of the time, the trial court concluded that Ms. Clark was not entitled to the
CRA�s presumption that relocation would be permitted.
The trial court then addressed whether the children would be permitted to relocate
with Ms. Clark to Nevada. In addressing this issue, the trial court discussed the 11 factors
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set forth in RCW 26.09.520. After discussing each factor, the trial court determined that
the detrimental effect of the relocation would outweigh the benefit of the change to the
children and Ms. Clark. The trial court also determined that the factors against relocating
the children weighed so heavy that it would have denied relocation even had Ms. Clark
been entitled to the CRA�s presumption. The trial court later entered an order consistent
with its oral ruling, together with supporting findings and conclusions.
Ms. Clark appealed.
ANALYSIS
A. APPLICABILITY OF THE CRA AND ITS PRESUMPTION
This court reviews a trial court�s relocation decision for abuse of discretion. In re
Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). A trial court abuses its
discretion when it makes a manifestly unreasonable decision or bases its decision on
untenable grounds or reasons. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942
(2012). This can occur when a trial court applies an incorrect legal standard, substantial
evidence does not support its findings, or the findings do not meet the requirements of the
correct standard. Horner, 151 Wn.2d at 894.
Ms. Clark contends that the trial court abused its discretion by applying the wrong
legal standard. She contends that the parenting plan�s designation of her as the custodial
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parent entitles her to a presumption that relocation will be permitted. She relies on In re
Marriage of Fahey, 164 Wn. App. 42, 262 P.3d 128 (2011). For the reasons explained
below, we agree with the dissent in Fahey that the CRA and its presumption apply only to
�a person with whom a child resides a majority of the time.� RCW 26.09.430.
1. Legal principles
The CRA is codified at RCW 26.09.405-.560. The CRA sets forth notice
requirements and standards applicable to certain child relocation requests.
RCW 26.09.430 provides: �[A] person with whom the child resides a majority of the 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.� If an interested person objects, the
trial court must then conduct a fact-finding hearing. RCW 26.09.520.
The CRA provides �a rebuttable presumption that the intended relocation of the
child will be permitted.� Id. At the fact-finding hearing, the objecting person may rebut
this presumption by showing that �the detrimental effect of the relocation outweighs the
benefit of the change to the child and the relocating person, based upon [10]2 factors.� Id.
The CRA permits the relocating parent�s interest to be considered because it recognizes
2 The 11th factor does not apply at the fact-finding hearing.
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the presumption that a fit parent acts in the best interest of his or her child. Horner, 151
Wn.2d at 895.
2. We disapprove of Fahey
In Fahey, the parties� parenting plan listed the mother as the custodial parent and
scheduled the children to live with her a majority of the time. Fahey, 164 Wn. App. at 47.
Seven years after the plan was entered, the mother provided notice to the father of her
intent to have the children relocate with her to Omak, Washington. Id. at 47-48. The
father, who lived in Edmonds, Washington, objected. Id. At the fact-finding hearing, the
father presented evidence that despite the terms of the parenting plan, the children
actually spent more time with him. Id. at 49-51. The majority noted that �the plain
language of the child relocation statutes� is triggered by the relocation of a person ��with
whom the child resides a majority of the time.�� Id. at 58 (quoting RCW 26.09.430).
Inexplicably, the majority then held that whether a child resides with the relocating person
a majority of the time is answered by the parenting plan�s designation of custodial parent,
not where the children actually reside. Id. at 59-60.
Judge Armstrong issued a strong dissent. Quoting RCW 26.09.430, he emphasized
that the relocation statutes and the presumption permitting relocation applied only to a
person ��with whom [a] child resides a majority of the time.�� Id. at 70 (Armstrong, J.,
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dissenting) (alteration in original). He noted that whether a parent has a child a majority
of the time is a factual question, and acknowledged that the designation of custodial
parent is a consideration in answering that question. Id. at 71.
[But] no case has held that the wording of a parenting plan controls
over the reality of where the children reside a majority of the time. And the
statute is clear that the presumption works in favor of the parent �with
whom the child resides a majority of the time,� not the parent with whom
the child is scheduled to reside a majority of the time. If the trial court and
the majority are correct, a parenting plan�s designation of the primary
residential parent would control even if the children actually spent 90
percent of their time with the nondesignated parent.
Id. at 71 (citation omitted).3
State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000) (footnotes omitted)
explains how we must determine the meaning of a statute:
To determine the meaning of a statute, courts apply the general rules
of statutory construction to ascertain and carry out the intent of the
Legislature. If the language of a statute is clear on its face, courts must give
effect to its plain meaning and should assume the Legislature means exactly
what it says. If a statue is unambiguous, its meaning must be derived from
the wording of the statute itself. A statute that is clear on its face is not
subject to judicial interpretation.
3 Because the CRA did not apply, Judge Armstrong concluded that the trial court
should have analyzed whether the existing plan should be modified under the criteria in
RCW 26.09.260. Fahey, 164 Wn. App. at 73 (Armstrong, J., dissenting); see In re
Marriage of Coy, 160 Wn. App. 797, 804, 248 P.3d 1101 (2011) (�After a trial court
enters a final parenting plan, and neither party appeals it, the plan can be modified only
under RCW 26.09.260.�).
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The CRA is clear. The CRA and its presumption permitting relocation apply only
when the person relocating is �a person with whom the child resides a majority of the
time.� RCW 26.09.430. This is consistent with the notion that a fit parent is presumed to
be acting in the best interest of his or her child: In situations where residential placement
is shared, both parents are presumptively fit, and neither would be entitled to a favorable
presumption. See In re Marriage of Worthley, 198 Wn. App. 419, 431, 393 P.3d 859
(2017) (Where �both parents are equally entrusted to act in the child�s best interests,� the
CRA presumption in favor of the relocating parent is inapplicable.).
We agree with Judge Armstrong. The CRA and the presumption permitting
relocation apply only to a person with whom the child resides a majority of the time. The
designation of custodial parent is a consideration in answering whether the child resides a
majority of the time with the relocating parent; but where the child resides, rather than is
scheduled to reside, is the factual question that must be answered.
3. Application of legal principles
Here, the parents had a final parenting plan in place that designated Ms. Clark as
the custodial parent with whom the children lived a majority of the time. The trial court,
however, was persuaded that the parties shared residential time with their children
equally. Although Ms. Clark assigns error to this finding, substantial evidence supports
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it. Here, Mr. Jackson testified that he and Ms. Clark shared residential time equally from
the very beginning. His testimony was consistent with the lack of a child support transfer
payment, Ms. Clark�s deposition testimony in which she admitted that the revised plan
was consistent with the parenting schedule they generally followed, and Ms. Clark�s text
message describing the plan as �50/50.� We conclude that the trial court properly denied
Ms. Clark the statutory presumption permitting relocation.
Affirmed.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Because the CRA does not apply, the trial court should have either dismissed Ms.
Clark�s CRA request or, because a fact-finding hearing had already occurred, analyzed
Ms. Clark�s request as one for a major modification of the parenting plan under
RCW 26.09.260. See Schuster v. Schuster, 90 Wn.2d 626, 628-29, 585 P.2d 130 (1978)
(A final parenting plan may be modified only in accordance with RCW 26.09.260.).
Either way, Ms. Clark�s contentions that the trial court erred in its weighing the
RCW 26.09.520 factors are moot. But should Ms. Clark ask the trial court to analyze her
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relocation request under RCW 26.09.260, the parties need to be able to know what
evidence was properly admitted or excluded at the hearing. For this reason, we address
the trial court�s contested evidentiary rulings.
B. THE TRIAL COURT�S CONTESTED EVIDENTIARY RULINGS
Ms. Clark challenges three trial court evidentiary rulings. All three involve
whether the evidence excluded or admitted consisted of offers of compromise,
inadmissible under ER 408. We review such rulings for abuse of discretion. Klotz v.
Dehkhoda, 134 Wn. App. 261, 271, 141 P.3d 67 (2006).
ER 408 provides:
In a civil case, evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept a valuable
consideration in compromising or attempting to compromise a claim which
was disputed as to either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is likewise not admissible. . . .
This rule also does not require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
More succinctly, the rule excludes evidence of conduct or statements made in
settlement negotiations to prove liability. Klotz, 134 Wn. App. at 271. It does not
exclude settlement evidence offered for another purpose if the evidence is otherwise
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admissible under the rules. Id.; see also Bulaich v. AT&T Info. Sys., 113 Wn.2d 254, 264,
778 P.2d 1031 (1989).
1. Exclusion of Mr. Jackson�s letter
Ms. Clark contends the trial court erred by refusing to admit a letter that Mr.
Jackson sent to her around the time of mediation. The letter was entitled, ��Jackson
. . . Modification/Mediation.�� Report of Proceedings (Oct. 24, 2016) at 60.
Ms. Clark argued for the letter�s admissibility at the hearing. She argued it was
relevant to contradict Mr. Jackson�s assertion at trial that he never proposed that one child
live in Washington while the other live in Nevada. Ms. Clark argued that she did not
receive, see, or read the letter until after the May 2016 mediation. The record does not
reflect when Mr. Jackson sent the letter to her. Mr. Jackson objected to the letter�s
admission under ER 408. The trial court sustained Mr. Jackson�s objection.
Ms. Clark did not have the letter pre-marked so as to be part of the record. For this
reason, we do not adequately know its contents. Nor did the parties clarify when Mr.
Jackson sent it. For these reasons, the record is inadequate for us to review the claimed
error. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988).
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2. Admission of exhibits 26 and 25
Ms. Clark next contends the trial court erred by admitting exhibit 26, which was
the draft parenting plan sent to Mr. Jackson on which he noted his comments. She also
contends the trial court erred by admitting exhibit 25, which was the revised and signed
parenting plan. We disagree with both contentions.
a. Exhibit 26
Exhibit 26 contains the same parenting schedule and custodial parent designation
as the parties� original parenting plan. It also shows that Mr. Jackson marked the
proposed plan to reflect the equally shared residential schedule and struck the plan�s
designation of Ms. Clark as the custodial parent.
Ms. Clark�s reiteration of the original parenting plan was not an admission of
liability. Nor were Mr. Jackson�s markings an admission of liability. Rather, Mr.
Jackson�s markings were relevant and admissible to show that his assertion the parties
equally shared residential placement was not a fabricated recent contention. We conclude
that the trial court did not abuse its discretion by admitting exhibit 26.
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b. Exhibit 25
Exhibit 25 is the revised parenting plan that was signed by the parties and Ms.
Clark�s attorney. It designates Ms. Clark as the custodial parent, but also provides for an
equally shared residential schedule. The trial court admitted the revised parenting plan
over Ms. Clark�s objection.
Mr. Jackson introduced the revised and signed parenting plan to prove that the
children did not reside with Ms. Clark a majority of the time. Although this claim was
disputed at the fact-finding hearing, there is no evidence it was disputed in January 2016
when the revised parenting plan was signed. Notably, Ms. Clark admitted in her
deposition that she and Mr. Jackson generally shared residential time with their children
equally. Because this fact had not been disputed prior to the agreement�s signing, this
aspect of exhibit 25 was not a compromise or an offer of compromise.4 We conclude that
the trial court did not abuse its discretion by admitting exhibit 25.
4 Ms. Clark inadvertently concedes this point in her brief: �She sought an amended
parenting plan because Mr. Jackson�s harassing behavior escalated and he attempted to
manipulate her time with the children and she felt that there needed to be restrictions
regarding communication. . . . The purpose of the amended parenting plan . . . was to add
other restrictions.� Appellant�s Br. at 43.
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In re Marriage of Jackson & Clark
C. ATTORNEY FEES
Mr. Jackson requests an award of attorney fees on appeal. He cites RAP 18.1 and
RCW 26.09.140. He fails to provide any argument supporting-his request. We therefore
deny it. Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012).

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: