Opinion
No. 22242-0-III
Filed: April 12, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 01-3-00711-7. Judgment or order under review. Date filed: 06/13/2003. Judge signing: Hon. Michael W. Leavitt.
Counsel for Appellant(s), Tammar Breitenfeldt (ALLISON) (Appearing Pro Se), 210 S 69th Ave, Yakima, WA 98908.
Counsel for Respondent(s), Robert George Velikanje, Law Ofc of Robert G Velikanje, 132 N 1st Ave, Yakima, WA 98902.
The court awarded Todd Breitenfeldt primary custody of the two children in this family following a hearing. But we cannot isolate the reasons for that decision from this record, nor can we determine whether the appropriate legislatively mandated factors were considered in the process. We therefore reverse and remand for consideration of these factors (RCW 26.09.187(3)(a)) and entry of appropriate findings of fact and conclusions of law.
FACTS
Tammara and Todd Breitenfeldt married on May 4, 1989. They moved to Poulsbo and then Yakima to escape their alcohol-related problems. They lived in Yakima for three years before they separated on August 3, 2001. Their marriage resulted in two children — a son Trevor and a daughter Tess. Trevor was 12 and Tess was 6 when they separated.
Ms. Breitenfeldt continued to live in the family home with the children. Mr. Breitenfeldt moved in with his father. The parties later signed a separation agreement. As part of the agreement, Mr. Breitenfeldt paid Ms. Breitenfeldt $5,000 to move out of the family home.
Mr. Breitenfeldt now lives in their Yakima home with the children. He has worked for his current employer for almost five years. Mr. Breitenfeldt works from 7:00 a.m. to 3:30 p.m. He takes Tess to Latchkey in the morning before school and Trevor catches the bus in front of the house. Tess then goes to Latchkey after school if Mr. Breitenfeldt is unable to pick her up. She stays there between half an hour and an hour. Ms. Breitenfeldt lives on the west side of the state with her boyfriend Alfred `AJ' Charles Allison. She has lived in a total of six different residences since the separation. Ms. Breitenfeldt and AJ are in the process of buying the house they live in. And Ms. Breitenfeldt plans to marry AJ after her dissolution is final.
Ms. Breitenfeldt moved to the west side of the state to take a full-time job as an operations manager for a telephone answering service. The job paid more and offered more hours than her previous position. But she was laid off after a couple of months. And she currently works as a part-time bartender. She works on Saturday and Sunday evenings from 5:00 p.m. to close. AJ takes care of the children after 5:00 p.m. when she goes to work. The children do not mind AJ.
Ms. Breitenfeldt says that the court told her to get a job even if it was a lesser job than what she was used to. And she says this is exactly what she did when she took the job as a bartender. Ms. Breitenfeldt has an eighth grade education and has tried to get back into school. She was in school at one point during the separation, but had to quit to get a job to support herself. She is not qualified for many jobs. She was also unable to hire an attorney to represent her in the dissolution proceeding.
Ms. Breitenfeldt had primary responsibility for child care during the marriage. After they separated, Mr. and Ms. Breitenfeldt shared custody of the children for a period of time. Mr. Breitenfeldt originally did not ask for custody. The court gave him primary custody in October 2001 after an incident with Ms. Breitenfeldt. Mr. Breitenfeldt tried to return Tess to Ms. Breitenfeldt, but Ms. Breitenfeldt was at a bar. Mr. Breitenfeldt took Tess home with him. Later he refused to allow Ms. Breitenfeldt to take Tess to her home because he thought Ms. Breitenfeldt was drunk. Ms. Breitenfeldt called Mr. Breitenfeldt several times and accused him of kidnapping their daughter. Later that evening her car broke down. This prompted her to `give up' and she relinquished custody of the children to Mr. Breitenfeldt. Mr. Breitenfeldt then asked that the court place the children in his care and the court so ordered.
The court investigator testified that the children were comfortable living with their father and visiting their mother. The only complaint she received was that the children had to share a room at their mother's house. Ms. Breitenfeldt has a two bedroom house. The court investigator also felt that the children were currently doing well in school. Ms. Breitenfeldt argued that Trevor's grades went down after he went to live with his father because his father did not make him do his homework. But the court investigator did not feel Trevor's grades were a good indicator of his performance in school because he had recently been diagnosed with attention deficit disorder and was being treated for it. Tess was also diagnosed with a learning problem after these parties separated.
Mr. and Ms. Breitenfeldt have both abused alcohol. Both have received treatment. And both claim they do not have a problem. But both have used alcohol since they separated. Trevor has also reported to the court investigator that his mother and AJ have had a few drinks while he has been there. The court investigator has indicated a strong concern that the mother might relapse since her boyfriend drinks and has been convicted twice for driving under the influence.
The court investigator has heard arguments from Ms. Breitenfeldt throughout the separation that Mr. Breitenfeldt has not adequately cared for the children. Mr. Breitenfeldt has allowed Trevor to hang inappropriate material on his wall and Trevor has done poorly in school. Mr. Breitenfeldt has driven the children in a car without seatbelts even though he has another car with adequate seatbelts. Ms. Breitenfeldt also argued that the children were allowed to have friends at the house without adult supervision.
Ms. Breitenfeldt has accused Mr. Breitenfeldt in the past of domestic violence. She once filed a domestic violence petition. The petition was dismissed about the same time the dissolution petition was filed. Ms. Breitenfeldt did not pursue the petition because she wanted the children to be able to see their father and because the State would automatically attach his wages, which would deepen the conflict.
The court investigator considered all of these circumstances and first recommended that the children reside with Ms. Breitenfeldt during the week and with Mr. Breitenfeldt on the weekend. Her original recommendation was based on Ms. Breitenfeldt's allegations that Mr. Breitenfeldt was not able to care for the children. But she now recommends that the children continue to reside primarily with Mr. Breitenfeldt.
The court dissolved the marriage by decree dated June 13, 2003. As part of the dissolution decree the court entered a final parenting plan. The court granted primary residential custody of both children to Mr. Breitenfeldt. Ms. Breitenfeldt has residential time with the children every other weekend. The court denied Ms. Breitenfeldt's motion for reconsideration.
DISCUSSION
Ms. Breitenfeldt argues on appeal that the trial court incorrectly applied the law. RCW 26.09.187 requires the court to give the greatest weight to `[t]he 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.' RCW 26.09.187(3)(a)(i). Also the court cannot presume primary custody from a temporary parenting plan. RCW 26.09.191(4). In addition, `[t]he parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct: (i) . . . substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1).' RCW 26.09.191(2)(a).
The court investigator noted that Ms. Breitenfeldt had been the primary care giver. She noted other pertinent facts: there exists `some form of domestic violence and verbal abuse . . . between the parents,' and Mr. Breitenfeldt `has had a long-term alcohol problem and is in denial.' Clerk's Papers (CP) at 167-68. She also had `ongoing concerns about both parents which involve the possibility that the mother may relapse, that the father is actually drinking alcohol to excess and that the daily needs of the children regarding their health, hygiene, diet and safety are not being adequately addressed by the father.' CP at 138 (emphasis added). She suggested `that the mother care for the children from Sunday evenings to Friday afternoons in order to help resolve the issue of daily care.' CP at 138. `My recommendation had to do with the care of the children.' CP at 80.
Ms. Breitenfeldt argues the trial court failed to adequately take this report into consideration. She also argues the court failed to take into consideration other evidence of Mr. Breitenfeldt's abusive behavior, especially when drinking, and his inability to parent the children. Mr. Breitenfeldt has not addressed the fact that Trevor has been failing several classes since he has had primary custody of Trevor. He allows the children to view inappropriate material and has admitted to driving the children in a vehicle without seatbelts. In addition, Mr. Breitenfeldt `still has had no treatment for his alcohol problem or his domestic violence.' Appellant's Br. at 12.
The question before us is whether the trial court failed to consider the necessary factors set out in RCW 26.09.187(3)(a) when it granted primary residential custody of these two children to Mr. Breitenfeldt. We review a trial court's custody decisions for abuse of discretion. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). Abuse of discretion requires a showing that the discretionary decision is based on untenable grounds or untenable reasons or is a manifestly unreasonable decision. In re Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001). Untenable reasons mean `the court applie[d] the wrong legal standard or the facts do not establish the legal requirements of the correct legal standard.' Id.
And of special importance here — the trial court must enter findings of fact and conclusions of law supporting its decision. In re Marriage of Lawrence, 105 Wn. App. 683, 686, 20 P.3d 972 (2001); In re Marriage of Combs, 105 Wn. App. 168, 176-77, 19 P.3d 469 (2001). Without those findings and conclusions there is nothing for us to review. The trial court's oral ruling may be used to supplement its written findings of fact where the written findings are inadequate, but it serves only to supplement. Lawrence, 105 Wn. App. at 686.
The legislature has intruded into these judicial decisions in a big way. RCW 26.09.187(3)(a); RCW 26.09.191(4). RCW 26.09.187(3)(a) requires the court to consider seven factors before it makes a decision as to the residential placement of a child:
(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.
The court is to give the greatest weight to the first factor. RCW 26.09.187(3)(a). Again, however, the trial court cannot draw a presumption in favor of the primary care giver. Kovacs, 121 Wn.2d at 809. The trial court is also not to draw a presumption in favor of the temporary primary care giver. RCW 26.09.191(4); Kovacs, 121 Wn.2d at 809.
RCW 26.09.187(3)(a) does not require that the court list each factor. But it must be evident from the court's ruling that the court considered these factors. Combs, 105 Wn. App. at 176-77; In re Marriage of Jacobson, 90 Wn. App. 738, 745, 954 P.2d 297 (1998). And we do not find that consideration here, at least on the record.
The trial court does not indicate in its written findings of fact or in its oral ruling that it considered any of the statutory factors in RCW 26.09.187(3)(a). Nor do its comments adequately reflect that consideration: `These kids love both of you,' and `[i]t may very well change if I could be comfortable that the alcohol concern that I have and some of these other things that I've mentioned are addressed.' Report of Proceedings (May 7, 2003) at 161, 165. `Other things' may refer to the judge's concern that Ms. Breitenfeldt works only on the weekends in the evening. She is scheduled to have the children on the weekends. And if that is correct, her work schedule is also governed by a statutory factor. The court must consider `[e]ach parent's employment schedule, and shall make accommodations consistent with those schedules.' RCW 26.09.187(3)(a)(vii) (emphasis added).
Based on this record we cannot find consideration of the `relative strength, nature, and stability of the child[ren]'s relationship with each parent,' — the most important factor. RCW 26.09.187(3)(a)(i).
We might infer consideration of some of the factors from the court's oral ruling, but we would be speculating. And we cannot tell from the record whether the court indulged in the prohibited presumption in favor of the primary care giver or the temporary primary care giver. Our review is of the statutory factors in RCW 26.09.187(3)(a). And again the failure to address them renders review impossible.
We reverse and remand for consideration of the required legislatively mandated factors and entry of appropriate findings and conclusions.
A majority of the panel has determined that 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.
SCHULTHEIS, J. and KURTZ, J., Concur.