106 Wash. App. 343 | Wash. Ct. App. | 2001
Douglas Brester appeals the denial of his motion to modify a parenting plan to grant him custody of his now 12-year-old daughter, Ashley. Douglas based his motion below on the ground that the child’s mother, Tracy Bollenbacher, had been found in contempt at least twice within the preceding three years for interfering with his visitation rights. The court again found Tracy in contempt, and awarded Douglas $2,000 in attorney fees and no costs, but declined to modify the plan and award custody
FACTS
Douglas Brester, the appellant, and Tracy Bollenbacher,
In late 1991 to early 1992, Douglas’s parents made two referrals to Child Protective Services and accused Tracy of letting someone molest Ashley. Tracy believed Douglas had molested Ashley. Because Ashley, then about four years old, was very angry and acting out, she was taken to a counselor, Debbie Kylie Gibson. Despite the fact that no clear evidence of molestation was found, Tracy continued to believe that Douglas had molested Ashley and refused to allow visitation. Tracy also believed that the real parties
In 1996, Douglas filed a petition to enforce his visitation rights. The GAL report noted that as of August 1996, Ashley did not actually know Douglas. After two years of wrangling, during which time Tracy resisted Douglas’s visitation rights, a court entered a parenting plan in November 1998, granting custody of Ashley to Tracy and allowing Douglas generous visitation rights. Neither party appealed this order, but the court found Tracy in contempt for violating it less than one month later.
Tracy, Douglas, and their parents continued to fight over Ashley. Ashley became increasingly difficult and effective at manipulating her parents.
The commissioner took the matter under advisement. At the insistence of Douglas’s attorney, the court entered a letter ruling on August 12, 1999. On November 18, 1999, the court entered a formal order without benefit of a transcript of its earlier oral ruling. The commissioner’s formal order differed somewhat from its earlier oral announcements but still refused to modify the parenting plan or find that a change in custody would be in Ashley’s best interest. The commissioner found Tracy in contempt and ordered her to pay Douglas $2,000 in attorney fees. He granted Douglas 13 additional days of visitation to account for the days Tracy had prevented Ashley from visiting Douglas and his family.
The superior court, on review of this order, apparently confirmed the commissioner’s ruling in all aspects.
ANALYSIS
Modification of Parenting Plan
Douglas contends the trial court abused its discretion when it refused to modify the parenting plan and award custody of Ashley to Douglas.
In Washington, “the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities.” RCW 26.09-.002. While courts also should encourage the involvement of both parents, this is a secondary goal and courts should never sacrifice the best interests of the child to allow both parents to be involved. In re Marriage of Littlefield, 133 Wn.2d 39, 52-53, 940 P.2d 1362 (1997).
The appellate court reviews the trial court’s rulings on residential provisions in a parenting plan for an abuse of discretion. Littlefield, 133 Wn.2d at 46. A trial court abuses its discretion only if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Littlefield, 133 Wn.2d at 46-47. A decision is manifestly unreasonable if, based on the facts and the applicable legal standard, the decision is outside the range of acceptable choices. Littlefield, 133 Wn.2d at 47. A decision is based on untenable grounds if the findings are not supported by the record. Littlefield, 133 Wn.2d at 47. Finally, a decision is based on untenable reasons if the court applies the wrong legal standard or the facts do not establish the legal requirements of the correct standard. Littlefield, 133 Wn.2d at 47. Because of the trial court’s unique opportunity to observe the parties, the appellate court should be “extremely reluctant to disturb child placement dispositions.” In re Marriage of Schneider, 82 Wn. App. 471, 476, 918 P.2d 543 (1996), overruled on other grounds by Littlefield, 133 Wn.2d at 57.
A substantial change has occurred when “[t]he court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan.” RCW 26.09.260(2)(d). Thus, when one parent prevents another from having contact with a child in violation of the parenting plan, a court may justify a change of custody based on that action. See, e.g., McDole, 122 Wn.2d at 610-11; In re Marriage of Velickoff, 95 Wn. App. 346, 357-58, 968 P.2d 20 (1998). This type of violation is contrary to the policy of encouraging contact with both parents. Velickoff, 95 Wn. App. at 357 (citing RCW 26.09.002).
Here, Douglas asserts that based on Tracy’s continued campaign to prevent his right to visitation, in violation of the parenting plan and in contempt of the court’s orders, the trial court was required to modify the parenting plan and grant him custody of Ashley.
Before the 1989 amendments to RCW 26.09.260,
After the 1989 amendments to the custody modification statute, parenting plan violations remain a factor that can justify the change of custody, see Velickoff, 95 Wn. App. at 354, but absent a finding that modification is in the best interests of a child, the mere violation of the parenting plan cannot, per se, require a change in custody when such change is contrary to the best interests of the child. The amendment furthers the legislative policy to allow both parents to have contact with the child, see RCW 26.09.002, and was part of a larger act to protect against custodial interference, see Laws of 1989, ch. 318 (codified in varied sections of Title 26 RCW), but nothing in the act affects section one of RCW 26.09.260, which dictates that the best interests of the child control. Parental involvement remains a secondary objective to the court’s duty to decide parenting issues with the best interests of the child in mind. See Littlefield, 133 Wn.2d at 52-53.
Here, the court did not find that giving Douglas custody
Despite Douglas’s claims, the holdings in McDole and Velickoff are not contrary to our position. Although the appellate courts in both cases upheld the trial courts’ rulings transferring custody because of one parent’s attempt to prevent the other from visitation, the trial courts in both cases found that the current custody arrangements were detrimental to the children’s best interests, a fact both appellate courts emphasized. See McDole, 122 Wn.2d at 611; Velickoff, 95 Wn. App. at 355-56. As noted, there is no such finding in this case. The trial court did not abuse its discretion when it refused to modify the parenting plan and grant custody of Ashley to Douglas.
Modification of the Parenting Plan by the GAL
Douglas contends the trial court erred when it gave the GAL unilateral authority to modify the visitation conditions in the parenting plan.
Any modification of a parenting plan, “no matter how slight,” requires the court to conduct an independent inquiry. In re Parentage of Smith-Bartlett, 95 Wn. App. 633, 640, 976 P.2d 173 (1999) (holding the trial court erred by granting an arbitrator authority to revise the parenting
Here, the trial court ruled that “[the GAL’s] calendar [for visitation] supercedes the parenting plan.” Clerk’s Papers at 182. It did not provide that it would review the GAL’s actions. This was a modification of the plan, and it was error for the court to give this authority to the GAL without providing for court review.
Attorney Fees and Costs on Order of Contempt
Douglas asserts that the trial court erred when it ordered Tracy to pay only $2,000 in attorney fees and no costs after it found Tracy in contempt for the second time.
Under RCW 26.09.160(3), when a court finds a parent in contempt for a second time, the court must order the contemnor to pay reasonable attorney fees and all court costs:
[T]he court shall order:
(b) The noncomplying parent to pay, to the other parent or party, all court costs and reasonable attorneys’ fees incurred as a result of the noncompliance, and any reasonable expenses incurred in locating or returning a child; and
(c) The noncomplying parent to pay, to the moving party, a civil penalty of not less than two hundred fifty dollars.
The dictates in RCW 26.09.160 are mandatory; the trial court, after finding a party in contempt, must order that party to pay reasonable attorney fees and all court costs. In re Marriage of Wolk, 65 Wn. App. 356, 359, 828 P.2d 634 (1992). The amount of attorney fees, however, is within the trial court’s discretion. Wolk, 65 Wn. App. at 359 n.3. Any attorney fees must relate to the costs of bringing the current contempt proceedings, not some prior proceeding.
Here, Tracy has been held in contempt two times.
Douglas also requests attorney fees on appeal. Because the trial court should have awarded him all court costs and a civil penalty of not less than $250 relating to the contempt, Douglas is entitled to the attorney fees he incurred on this appeal for pursuing the contempt claim only insofar as he prevailed in recovering court costs and the minimum statutory civil penalty.
We remand to the trial court for computation of court costs, imposition of a civil penalty of not less than $250, and deletion of that portion of the order providing that the GAL’s calendar supersedes the parenting plan.
Armstrong, C.J., and Bridgewater, J., concur.
The first names of the parties are used for the ease and clarity of the reader. We mean no disrespect.
The GAL reports and statements from the court are replete with references to “Mr. Brester and his parents’ ” ability to provide care. See, e.g., Clerk’s Papers at 30-31.
At the hearing before the commissioner, the GAL stated, “This is perhaps one of the more extreme cases where a child is in control of both of these parents and she’s manipulating both of them.” Clerk’s Papers at 167.
At the hearing, the GAL told the court:
I’m not going to stand here and recommend that the primary care of this child change. I think to do that, while it may satisfy Mr. Brester and he may feel to some extent he’s in control then, and Ashley won’t — or Tracy Bollenbecher [sic] will not be able to manipulate this anymore — I’m not sure it’s all Tracy Bollenbecher [sic], I think a large part of this happens to be this child.
I cannot stand here and say that we’re going to solve the issues with these*348 parents and with this child transferring primary care. I don’t believe it will happen. It will make things worse unless first there is intervention by a therapist.
. .. I’m not the one to do the intervention. That needs to take place. I can’t make Tracy and Doug be responsible parents. I can’t make them do the right thing with regard to Ashley.
Clerk’s Papers at 163-65. The court then asked, “It’s your opinion that [Ashley] then takes advantage of the facts and the hard feelings between these two people and then just kind of sets these people up for a fall. Is that what she’s doing?” Clerk’s Papers at 165. The GAL responded, “Well, I think to some extent, yes.... I think if the Court were to move Ashley at this point, [Douglas] will have lost her emotionally or psychologically forever. It doesn’t matter whether they live in the same house or not.” Clerk’s Papers at 165, 171.
The order has a slash across a portion of the proposed order. It is unclear whether the immediate commitment to jail or the 30 days and the immediate commitment to jail have been removed. The written portion states that the lower courts’ ruling is affirmed in all respects, but given the slash, that statement is not supported by the record. Douglas has not provided a transcript of the superior court proceedings.
See Laws of 1989, ch. 318, § 3 (codified at RCW 26.09.260(2)(d)).
See supra note 4.
In contrast, the trial court can delegate interpretation of the parenting plan, see Smith-Bartlett, 95 Wn. App. at 640, or accept an expert’s recommendations for modifications. See George, 62 Wn. App. at 385.
The original contempt order is not part of the record, but it is evidenced in Douglas’s May 25, 1999, declaration and in the second contempt order.
Douglas notes that he paid his former attorney approximately $10,000. But he incurred these fees before the parenting plan was entered and thus they were not related to the contempt proceedings.
Upon compliance with RAP 18.1.
We note that there is no evidence in the record before us that a change in