In Re The Parentage Of: A.f.m.b., Jack Bryan Blake, Resp v. Leslie Marie Mackenzie, App
75368-1
| Wash. Ct. App. | Oct 30, 2017Background
- Mother (Leslie MacKenzie) and Father (Jack Blake) share one child, A.F.M.B.; trial court entered a final parenting plan in 2011 after a GAL reported concerns about the father’s controlling behavior and recommended mother have sole decision-making for major matters.
- The 2011 plan included a finding under RCW 26.09.191(3) (abusive use of conflict) and addressed residential schedule, exchanges, and parental conduct restrictions; a protective order was entered against Father in 2012 and renewed in 2013.
- Father sought modification beginning in 2013; after interim proceedings and a temporary plan, the court issued a final parenting plan in March 2016 (the 2016 plan) as a minor modification.
- The 2016 plan added an unlimited, uncapped first right of refusal (FRO) and altered decision-making and scheduling provisions; it also stated the 2011 RCW 26.09.191(3) finding “does not apply,” without explanation.
- Mother appealed, challenging the unlimited FRO as an improper minor modification, the deletion of the 191(3) finding, the court’s refusal to impose 191(2) stalking-related restrictions, denial of a new GAL, and inconsistent decision-making provisions in the 2016 plan.
Issues
| Issue | MacKenzie’s Argument | Blake’s Argument | Held |
|---|---|---|---|
| First right of refusal (FRO) | The unlimited, uncapped "any time" FRO is improper in a minor modification and could shift time to Father; needs caps/limits. | FRO is reciprocal and appropriate given Father’s flexible schedule and child’s daycare use. | Court abused discretion by imposing an unlimited, uncapped FRO in a minor modification absent findings or limits; remand required. |
| Deletion of RCW 26.09.191(3) abusive-use-of-conflict finding | Court erred by removing the 2011 191(3) restriction without explaining or making findings. | Implied argument that prior findings were considered or that modification superseded aspects of prior plan. | Deletion of the 191(3) finding was unexplained in the record; remand required to show how/why it was removed. |
| RCW 26.09.191(2) stalking/proxy-stalking | Court should have limited Father’s residential time under 191(2) because of evidence of proxy stalking. | Evidence did not show Father was complicit; credibility findings do not support 191(2) limits. | Court did not abuse discretion; it found insufficient evidence that Father was complicit and reasonably declined 191(2) restrictions. |
| Inconsistent decision-making clauses | 2016 plan assigns major education/health decisions to Mother but §4.3 grants sole decision-making to Father — contradiction requiring correction. | Father says §4.3 was a scrivener’s error and intended only narrow authority (school counseling). | Remand to reconcile and correct contradictory decision-making provisions. |
Key Cases Cited
- In re Marriage of Littlefield, 133 Wn.2d 39 (1997) (standard and policy considerations for custody/parenting-plan modifications)
- Ferree v. Doric Co., 62 Wn.2d 561 (1963) (general principles on appellate review and discretion)
- In re Marriage of Stern, 57 Wn. App. 707 (1990) (considerations in joint custody and parental cooperation)
- In re Marriage of Murphy, 48 Wn. App. 196 (1987) (joint custodial environment and detriment analysis)
- State v. Drum, 168 Wn.2d 23 (2010) (deference to trial-court credibility determinations)
- In re Marriage of Wilson, 117 Wn. App. 40 (2003) (attorney-fee considerations in family-law proceedings)