Jesse Finken v. Brianne Finken
73824-1
| Wash. Ct. App. | Mar 13, 2017Background
- Jesse Finken and Brianne Finken (now Sherman) separated in 2012; they have one son, C.F., born 2011.
- In 2013 Finken filed for dissolution; Sherman filed a notice to relocate with C.F. to Arizona. A court commissioner issued a temporary order permitting relocation and gave Finken 10 days' visitation per month; each party was to handle half of transport costs.
- Sherman did not seek revision of the commissioner's temporary order.
- At the 2015 trial the superior court applied the parenting-plan factors (RCW 26.09.187(3)), found limiting factors (principally Sherman's alcohol abuse and related incidents), concluded C.F. should reside with Finken the majority of the time, awarded Finken decision-making authority for major nonemergency decisions, and entered judgment against Sherman for $2,506.55 in unreimbursed pretrial transportation costs.
- The written parenting plan contained a clerical inconsistency: the form checked a box indicating a "long-term emotional or physical impairment," but the court's oral ruling and another plan paragraph expressly relied on Sherman’s alcohol-related impairment. Sherman appealed challenging (1) the limiting-factor/residential-time findings, (2) the court's use of parenting-plan factors vs. relocation statute, and (3) the transportation-cost award.
Issues
| Issue | Plaintiff's Argument (Sherman) | Defendant's Argument (Finken) | Held |
|---|---|---|---|
| Whether the parenting plan improperly limited Sherman's residential time based on a physical impairment box checked in the plan | The checked box for "long-term emotional or physical impairment" is unsupported and thus invalidates the residential restriction | The apparent checkbox error is clerical; the court expressly found alcohol-related impairment in its oral ruling and para. 3.10, which supports restrictions | Affirmed — any checkbox error was likely clerical and immaterial because the court relied on alcohol-related findings elsewhere |
| Whether the trial court should have applied the relocation statute (RCW 26.09.520) and its rebuttable presumption rather than parenting-plan factors (RCW 26.09.187) | Court erred by using only parenting-plan factors and not the relocation factors/presumption | Court was resolving the parenting-plan residential schedule (which rendered the prior relocation order moot); it effectively considered relocation-type concerns in the parenting-plan analysis | Affirmed — relocation argument was not preserved and, in any event, the court’s parenting-plan analysis subsumed relocation considerations |
| Whether the trial court abused discretion in applying parenting-plan/residential factors | The court misapplied factors and relied on unsupported findings (physical impairment) | Court considered statutory factors, credibility, extended-family ties, alcohol incidents, and violations of the temporary plan; substantial evidence supports the plan | Affirmed — no abuse of discretion; limiting-factor (alcohol) and family-connection evidence support outcome |
| Whether the court erred in awarding Finken $2,506.55 for pretrial transportation costs | Commissioner’s order conflicted with statute requiring transport costs be shared per support proportions; commissioner should have allocated differently | Sherman did not move to revise the commissioner’s order; absent revision the order became final and enforceable; issues were not preserved for appeal | Affirmed — Sherman failed to seek revision below so arguments are forfeited; judgment stands |
Key Cases Cited
- In re Marriage of Littlefield, 133 Wn.2d 39 (1997) (trial court has broad discretion in adopting parenting plans)
- In re Marriage of Katare, 175 Wn.2d 23 (2012) (standard of review for parenting plans)
- In re Marriage of McDole, 122 Wn.2d 604 (1993) (substantial-evidence review of findings of fact)
- In re Marriage of Murray, 28 Wn. App. 187 (1981) (appellate deference to trial court's opportunity to observe parties in custody matters)
- In re Marriage of Kim, 179 Wn. App. 232 (2014) (distinguishing relocation analysis where residential schedule remains with relocating parent)
- State v. Mollichi, 132 Wn.2d 80 (1997) (effect of failing to seek revision of a commissioner’s order)