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State v. Ezell

November 26, 1996

STATE OF WASHINGTON EX REL. JARED J. MIDDLETON PETITIONERS, AND MERLA-DEE MIDDLETON, APPELLANT,
v.
JAMES R. EZELL, RESPONDENT.



Appeal from Superior Court of Benton County. Docket No: 90-5-00178-2. Date filed: 09/01/95. Judge signing: Hon. Carolyn A. Brown.

Authored by Dennis J. Sweeney, C.j. Concurring: Philip J. Thompson, J., John A. Schultheis, J.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. In 1990, following a paternity action started by the State, a court concluded that James R. Ezell was Jared J. Middleton's father. In a permanent residential plan, it placed primary residential care with Jared's mother, Merla-Dee Middleton, and gave Mr. Ezell visitation rights. In 1994, Mr. Ezell petitioned for "Modification of Custody Decree/Parenting Plan" and moved ex parte for a temporary order approving of his proposed parenting plan. The court granted Mr. Ezell's motion, held a show cause hearing on October 26, 1994, and ordered the child to remain with Mr. Ezell pending a full custody hearing. The court held that hearing on September 1, 1995. During the hearing, Mr. Ezell requested a change of the child's last name. That request was not included in his petition. The court modified the parenting plan. It permanently transferred primary residential care to Mr. Ezell. It granted his request for a name change. And it granted sole decision-making authority to Mr. Ezell. It also awarded Ms. Middleton visitation rights subject to a restriction that she not use alcohol before or during any visitation.

Ms. Middleton appeals.

Discussion

Failure to have an adequate cause hearing. Ms. Middleton first contends that the court failed to conduct an "adequate cause" hearing before modifying custody. She is mistaken.

A court may modify a parenting plan or residential provisions adopted under the "Uniform Parentage Act" in accordance with RCW 26.09. RCW 26.26.130(6); .160(3). A modification of a custody decree or parenting plan requires a showing of "adequate cause." RCW 26.09.270. The determination of adequate cause is made on affidavits. RCW 26.09.270. If adequate cause is demonstrated, the case is then set for hearing "to show cause why the requested order or modification should not be granted." RCW 26.09.270.

Here, the hearing took place on October 26, 1994. The nature of the proceeding is clear from Ms. Middleton's argument: "Your Honor, I think if you feel there is adequate cause to modify a custody petition in this matter that the temporary order should have custody remain with mom who has been the primary residential care giver . . . ." An adequate cause hearing occurred.

Failure to making findings of substantial change of circumstances. Ms. Middleton next contends the court failed to find a substantial change of circumstances.

We review a trial court's decision in matters dealing with the welfare of children for an abuse of discretion. In re McDole, 122 Wash. 2d 604, 610, 859 P.2d 1239 (1993). Modification of custody is a two-part determination. First, RCW 26.09.260(1) provides in part that the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. Second, in applying these standards, the court must retain the original decree's residential schedule unless the parents agree to modification, the child has integrated into the petitioner's family, the child's present environment is detrimental, or the nonmoving party has been in contempt of court. See RCW 26.09.260(2). Compliance with the criteria in RCW 26.09.260 is mandatory. In re Shryock, 76 Wash. App. 848, 852, 888 P.2d 750 (1995).

Here, the court made no finding of a substantial change in the circumstances of the child or Ms. Middleton. The order of modification addresses only the second statutory requirement. Even then, it is on its face contradictory:

The custody decree/parenting plan should not be modified because none of the statutory reasons set forth in RCW 26.09.260(1) and (2) apply.

The child(ren)'s present environment is detrimental to the child(ren)'s physical, mental or emotional health and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the children. (Emphasis added.) While the court's finding of a detrimental environment may support a finding of a substantial change in circumstances, we will not presume the court considered the first statutory element. See Shryock, 76 Wash. App. at 852 (stating rule); In re Murray, 28 Wash. App. 187, 189-90, 622 P.2d 1288 (1981) (presumption of considering statutory factors rebutted by failing in written findings or oral opinion to reflect applying statutory elements). We remand for the entry of appropriate findings of fact. In re Raugust, 29 Wash. App. 53, 54, 627 P.2d 558 (1981).

Granting of name change. Ms. Middleton also contends the court lacked authority to change Jared's name. We agree. Mr. Ezell neither petitioned for a name change nor did he attempt to amend his petition to request a change of name. Daves v. Nastos, 105 Wash. 2d 24, 32, 711 P.2d 314 (1985) (vacating name ...


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