Opinion
No. 25811-4-III.
June 26, 2008.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 05-3-02675-6, Michael P. Price, J., entered December 15, 2006.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Brown, J., and Thompson, J. Pro Tem.
Kristen Sherwood-Johnson appeals the trial court's decision naming her former husband, James Johnson, as the primary residential parent of the couple's two children. Both parents had effective parenting skills and strong ties to their children; but, ultimately, the court concluded that the father should be the primary residential parent. There was substantial evidence in the record to support the court's findings. And the findings support the court's conclusion to place the children with the father. The court did not abuse its discretion and, therefore, we affirm.
FACTS
James Johnson and Kristen Sherwood-Johnson were married on August 5, 1995, in Reardan, Washington. The parties are the parents of two children, twins Emily and Tyler, born on October 4, 1996. On November 28, 2005, Mr. Johnson filed a petition for dissolution of the marriage, but the couple continued to reside in the family home in Reardan. The parties physically separated on February 10, 2006, when Ms. Sherwood-Johnson moved out of the home by court order. At that point, Ms. Sherwood-Johnson relocated to Maple Valley, Washington.
After the parties separated, the children continued to live with their father in Reardan. Approximately two weekends per month, Ms. Sherwood-Johnson had residential time with the children in Maple Valley. The parties, however, could not reach an agreement regarding a permanent parenting plan or primary residential placement. At trial, both parents sought primary residential placement of the children, who were then 10 years old.
The children attend school in Reardan and have been in the same school district since kindergarten. Since the separation, the children have continued to do well in school. Testimony was presented at trial that the children have a close relationship with their grandmother, Patricia Johnson, who also lives in Reardan. Patricia Johnson sees the children on an almost daily basis, and regularly provides care for them after school and during the summer. Kathleen Hutton, Mr. Johnson's sister, testified that the children have a close relationship with her family and their cousins. The families get together at special events and spend time together on occasional weekends.
Mr. Johnson testified that when the children were four to four and one-half years old, he assumed greater responsibility for the parenting duties. At that time, Ms. Sherwood-Johnson was attending courses for her master's program two to three evenings per week. She also began increasing her use of alcohol. Mr. Johnson continued performing the primary parenting duties, even during a period of time when Ms. Sherwood-Johnson was unemployed. During the marriage, Mr. Johnson had also been responsible for most or all of the household duties. Mr. Johnson's family testified that he took care of the children the majority of the time.
A substantial amount of testimony was presented at trial both on behalf of the father as well as the mother regarding her alcohol use. While some testimony was presented of Mr. Johnson's alcohol use, an alcohol evaluation revealed that Mr. Johnson did not have an alcohol problem.
In November 2004, Ms. Sherwood-Johnson began working for Boeing as a financial analyst. From November 2004 until she moved from the home in February 2006, Ms. Sherwood-Johnson maintained a schedule of working in Reardan on Mondays and Fridays and commuting to Renton, where she worked Tuesday through Thursday. Ms. Sherwood-Johnson acknowledged that while she was out of town, Mr. Johnson was the children's primary caregiver. However, Ms. Sherwood-Johnson considered herself the primary caregiver when she was in Reardan.
Ms. Sherwood-Johnson testified as to her involvement with the parenting and described how, for many years, she and Mr. Johnson had to coordinate the care of the children around each other's work schedules. Ms. Sherwood-Johnson testified that she was pressured to relocate to the Renton area in order to keep her job at Boeing. She further testified as to the housing and school arrangements that would be provided in Maple Valley for the children. Ms. Sherwood-Johnson testified that she last used alcohol in October 2005 and had not relapsed since then.
The court appointed Carol Thomas to conduct an evaluation and make recommendations to the court concerning residential placement. Ms. Thomas was not specifically identified as a guardian ad litem (GAL), but rather was asked to help the court determine what residential placement was in the children's best interest. Ms. Thomas recommended that the children reside primarily with their mother and have substantial residential time with their father, conditioned on the mother maintaining her sobriety and following through with the treatment recommendations of her therapist.
Ms. Thomas testified at trial that her decision was based on her determination that the children "had a greater need for their mother and the emotional stability that they identified her to be the source of . . . than they did for the continuity and the care [provided by the father]." Report of Proceedings (RP) (Dec. 5-6, 2006) at 81. During her evaluation Ms. Thomas observed that Emily was negotiating developmental tasks with her mother, which children generally do with their "primary attachment figure." RP (Dec. 5-6, 2006) at 81. With regard to Tyler, Ms. Thomas found that "[h]e used both parents to facilitate what he's achieved in terms of his development" but utilized his mother as his primary source of emotional stability and support. RP (Dec. 5-6, 2006) at 82.
Ms. Thomas testified that this was one of the most difficult cases on which she had ever had to make a recommendation. Ms. Thomas acknowledged the stability and the care provided by Mr. Johnson. She noted that Mr. Johnson had been the primary caregiver to the children for the past few years.
Ms. Thomas also made observations of the parties as parents. She observed both parents' interactions with the children and found that both demonstrated great parenting skills. Ms. Thomas further found that the children had a "very strong, significant social emotional connection with both parents." RP (Dec. 5-6, 2006) at 92. She described the social interactions as "very healthy, very positive." RP (Dec. 5-6, 2006) at 92. Ms. Thomas found that "it would be very hard for these kids to be separated from either of their parents. There will be distress either way." RP (Dec. 5-6, 2006) at 88.
After hearing all of the testimony, the trial court entered its oral ruling on December 6, 2006. The trial court briefly summarized the testimony provided and stated that it had in mind the applicable Washington statutory authority and case law, counsels' respective arguments, and the testimony of all concerned regarding the placement of the children. The trial court ultimately designated Mr. Johnson as the children's primary residential parent.
On December 15, 2006, the court entered findings of fact and conclusions of law, a decree of dissolution, and a final parenting plan. The decree of dissolution and findings of fact and conclusions of law incorporated the court's final parenting plan but did not include any specific findings from the evidence presented at trial. This appeal followed.
ANALYSIS
A trial court's determination regarding the primary residential placement of a child in a marriage dissolution proceeding is reviewed for an abuse of discretion. In re Marriage of Combs, 105 Wn. App. 168, 173, 19 P.3d 469 (2001). Our Supreme Court places "strong reliance on the trial judge's determination of what course of action will be in the best interests of children." Dykes v. Dykes, 69 Wn.2d 874, 876, 420 P.2d 861 (1966). Accordingly, in matters dealing with the welfare of children, trial courts are given broad discretion. In re Custody of S.H.B., 118 Wn. App. 71, 78, 74 P.3d 674 (2003), aff'd, 153 Wn.2d 646, 105 P.3d 991 (2005).
Under an abuse of discretion standard, the trial court's child placement decision will not be reversed unless the decision was manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). A court's decision is based on untenable reasons "if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard." In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997) (citing State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)). In addition, the reviewing court must determine whether findings of fact are supported by substantial evidence and whether the trial court made an error of law. Brandli v. Talley, 98 Wn. App. 521, 523, 991 P.2d 94 (1999).
Ms. Sherwood-Johnson contends that the trial court erred by placing the children in the primary care of the father without proper consideration of the factors set forth in RCW 26.09.187(3). She argues that while the trial court appears to have addressed two of the statutory factors, it failed to consider the other five factors in RCW 26.09.187(3). Further, she asserts that the trial court did not address the factor which is statutorily given the greatest weight, RCW 26.09.187(3)(a)(i), the relative strength, nature, and stability of the child's relationship with each parent.
Ms. Sherwood-Johnson also argues that the trial court did not make any finding as to the reasons for failing to follow Ms. Thomas's recommendation that the mother receive primary placement of the children. Relying on Combs, Ms. Sherwood-Johnson contends that the trial court's failure to properly address the factors in RCW 26.09.187(3)(a) constitutes an abuse of discretion.
RCW 26.09.187 sets forth the criteria for establishing a permanent parenting plan. In fashioning a parenting plan, the trial court must provide for the residential schedule or placement of the child. Kovacs, 121 Wn.2d at 801. The court considers seven factors when establishing the residential schedule:
(i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Former RCW 26.09.187(3)(a) (1989). The court must give the greatest weight to the first factor. RCW 26.09.187(3)(a).
The trial court is given "broad discretion" in fashioning a parenting plan based upon the child's best interests at the time of trial and the factors set forth in RCW 26.09.187(3). In re Marriage of Jacobson, 90 Wn. App. 738, 745, 954 P.2d 297 (1998). Significantly, the trial court is not required to enter written findings on each factor. However, it must be evident from the court's ruling that the court considered the factors. Combs, 105 Wn. App. at 176-77; Jacobson, 90 Wn. App. at 745.
While the trial court did not expressly state that it was addressing each factor individually, the oral ruling shows that the trial court did consider the RCW 26.09.187(3)(a) factors. With respect to the second factor, the court briefly discussed the schedule put in place as a result of Ms. Sherwood-Johnson's relocation in February 2006, and there was no evidence of any other agreement between the parties. Ms. Sherwood-Johnson concedes that the court addressed the third and fifth factors. Concerning the sixth factor, there was no dispute that the parties each sought primary residential placement of the children. The court also discussed Ms. Sherwood-Johnson's job at Boeing, which triggered the necessity that she move from the family home in Reardan, and the complications this job presented in crafting a permanent parenting plan. Accordingly, the oral ruling demonstrates that the trial court considered testimony supporting the seventh factor.
The trial court's ruling also demonstrates that it considered the remaining statutory factors, the first and fourth. The court found that "both these parents are good parents. They're both loving parents and loving caregivers to the children." RP (Dec. 6, 2006) at 7. The court noted that Ms. Thomas's testimony indicated that both these parents are superb caregivers and reiterated that this was not a good parent-bad parent case. The court also found that since Ms. Sherwood-Johnson's relocation, the children were thriving and their grades had not been affected. The court further noted that visitation was going well and that the children appeared to have settled into their schedule. The court concluded that primary placement with the father would provide "the most stable scenario for the children and would impose upon them the least amount of disruption." RP (Dec. 6, 2006) at 9.
Most significantly, the trial court stated in its oral ruling that it considered the necessary factors set out in RCW 26.09.187(3)(a) when it awarded primary residential placement of the children to Mr. Johnson. After summarizing the evidence presented at trial the court stated:
The Court does have in mind in this instance applicable Washington statutory authority and case law. I do have in mind counsels' respective arguments. I have in mind testimony of all concerned regarding placement of the children.
RP (Dec. 6, 2006) at 8 (emphasis added). This statement demonstrates that the trial court was aware of the statutory factors and considered them in relation to the evidence presented. "When evidence of [the statutory] factors is before the court and its oral opinion and written findings reflect consideration of the statutory elements, specific findings are not required on each factor." In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981). Here, substantial evidence provides a basis for analysis of the statutory factors, particularly the "relative strength, nature, and stability of the child's relationship with each parent." RCW 26.09.187(3)(a)(i). And the court made its placement decision by applying those factors. Accordingly, Ms. Sherwood-Johnson's argument that the court failed to properly consider the statutory factors in RCW 26.09.187(3)(a) is not persuasive.
The trial court also did not err by rejecting Ms. Thomas's recommendation. It is well established that trial courts have broad discretion in the primary residential placement of a child and are not bound by a GAL's recommendations. In re Marriage of Swanson, 88 Wn. App. 128, 138, 944 P.2d 6 (1997). In its ruling, the trial court noted Ms. Thomas's recommendation that the children be placed primarily with their mother. However, the court went on to note that Ms. Thomas had testified that her recommendation was, perhaps, the most difficult she has ever made. The court further noted that Ms. Thomas found both parents to be superb caregivers. In this case, the trial court considered the testimony of Ms. Thomas and was not required to make any findings as to the reasons for deviating from her recommendation.
Next, Ms. Sherwood-Johnson contends that the trial court erred by improperly applying a presumption in favor of Mr. Johnson because he was the temporary residential parent. She concludes that the court's reasoning is contrary to the holdings in Kovacs, 121 Wn.2d at 809 and Combs, 105 Wn. App. at 177 and, therefore, constitutes an abuse of discretion. We are not persuaded by Ms. Sherwood-Johnson's argument.
Former RCW 26.09.191(4) (2004) provides: "In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan." This statute reflects the legislature's concern that "the parent who had been awarded temporary residential placement of the child not be given unfair advantage when the permanent parenting plan was entered." Kovacs, 121 Wn.2d at 808. In Kovacs, our Supreme Court concluded the Parenting Act of 1987 (chapter 26.09 RCW) "did not intend to create any presumption in favor of the primary caregiver but, to the contrary, intended to reject any such presumption." Id. at 809. Therefore, in determining the primary residential placement of a child, the trial court cannot draw a presumption in favor of placement with the primary caregiver or in favor of the temporary primary caregiver. Former RCW 26.09.191(4); Kovacs, 121 Wn.2d at 809.
The trial court incorporated the final parenting plan as part of the written findings of fact. We review challenged findings of fact for substantial evidence. In re Marriage of Vander Veen, 62 Wn. App. 861, 865, 815 P.2d 843 (1991). Substantial evidence exists if there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the declared premise. Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 (1963).
As an appellate court, we are reluctant to disturb a child custody disposition because of the trial court's unique advantage of personally observing the parties. In re Marriage of Timmons, 94 Wn.2d 594, 600, 617 P.2d 1032 (1980). Furthermore, this court "may not substitute its findings for those of the trial court where there is ample evidence in the record to support the trial court's determination." Kovacs, 121 Wn.2d at 810.
Here, there is substantial evidence in the record to support the trial judge's residential placement determination. While Mr. Johnson had been the temporary residential parent after Ms. Sherwood-Johnson moved to Maple Valley, the record reflects that the court's decision was based on all of the evidence presented and was not impermissibly based on a presumption in favor of the status quo.
Testimony presented showed that Mr. Johnson had a significant social emotional connection with the children and a strong parent-child caregiving bond existed between Mr. Johnson and the children. The children used their father as a source of care, comfort, security, and reassurance. Mr. Johnson demonstrated great parenting skills. He was sensitive, responsive to his children, and available physically as well as emotionally. The record further established that Mr. Johnson had for many years taken greater responsibility for performing parenting functions related to the daily needs of the children. Ms. Thomas testified that continuity and care of the children by their father was important.
The record established that the children were involved in sports and community activities in Reardan. The court heard testimony that the children also have close relationships with family in the area. In particular, the children have enjoyed frequent contact with their grandmother, who provides care for them on an almost daily basis. The children have attended the same school since kindergarten and have continued to do well after the separation. Testimony also suggested that if the children were to be placed with their mother, they would lose their sense of community, their friends, their school, their family home, and what they had established their whole life in Reardan.
In contrast, Ms. Thomas conditioned her placement recommendation on Ms. Sherwood-Johnson maintaining her sobriety and following through with treatment recommendations. Ms. Sherwood-Johnson testified that she last used alcohol in October 2005 and had not relapsed. Ms. Thomas did not make any recommendations regarding restrictions on Mr. Johnson.
Ultimately, Ms. Thomas testified that her placement decision was a very difficult one. She concluded that the children would be distressed by separation from either parent, as both parents are crucial in the children's lives.
As noted above, the trial court expressly stated in its ruling that it had in mind the applicable legal authority, counsels' respective arguments, and the testimony of each witness regarding the placement of the children. The record reflects that the decision of the trial court was based on a consideration of the statutory factors in RCW 26.09.187(3)(a) and on the evidence presented at trial. The trial court's decision was not impermissibly based on a presumption in favor of placement with the father, who was the temporary residential parent.
In conclusion, the trial court did not abuse its discretion by awarding primary residential placement of the children to Mr. Johnson. Accordingly, we affirm the trial court's order designating Mr. Johnson as primary residential parent.
Attorney Fees. RAP 18.1(c) requires a party seeking an award of attorney fees and expenses to submit a financial affidavit at least 10 days prior to the date the case is set for oral argument or consideration on the merits. Failing to do so precludes an attorney fees award. In re Marriage of Spreen, 107 Wn. App. 341, 351, 28 P.3d 769 (2001). The parties have not filed affidavits pursuant to RAP 18.1(c). Accordingly, we do not award attorney fees.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and THOMPSON, J. Pro Tem., concur.