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In re Marriage of Kim

Court of Appeals of Washington, Division 3

January 30, 2014

In the Matter of the Marriage of Elizabeth Kim, Respondent, and Anatole Kim, Appellant

Oral Argument December 3, 2013.

Page 556

[Copyrighted Material Omitted]

Page 557

Appeal from Yakima Superior Court. Docket No: 10-3-00708-6. Date filed: 01/25/2013. Judge signing: Honorable David a Elofson.

Howard N. Schwartz ; and Gregory M. Miller (of Carney Badley Spellman PS ), for appellant.

Peter S. Lineberger, for respondent.

AUTHOR: Teresa C. Kulik, J. WE CONCUR: Kevin M. Korsmo, C.J., Laurel H. Siddoway, J.

OPINION

Page 558

Kulik, J.

[179 Wn.App. 235] ¶ 1 This is a bitterly contested dissolution and custody case following a marriage of 25 years. The [179 Wn.App. 236] father, Anatole Kim, appeals the trial court's order granting the mother's, Elizabeth Kim's, petition to relocate their children to California. Mr. Kim contends the trial court abused its discretion by failing to follow the correct legal standard and erred by disregarding cultural factors in evaluating relocation. He also maintains that the 60 percent/40 percent property division was inequitable and that the trial court erred by failing to include maintenance in the child support worksheets.

¶ 2 We conclude that the trial court did not err and did not abuse its considerable discretion. Finally, the findings made by the court are supported by substantial evidence. Accordingly, we affirm the trial court.

FACTS

¶ 3 Anatole Kim and Elizabeth Shizuoko Kim are both physicians. Mr. Kim is a cardiologist and Ms. Kim is a pathologist who, at the time of separation, had not practiced medicine for 14 years. The Kims met as students at Brown University during the 1982-83 school year and were married on August 3, 1985, in Los Angeles, California. After numerous moves around the country for residency programs and Mr. Kim's work, the family settled in Yakima in 2002.

¶ 4 The Kims have three children: E.K. (date of birth April 19, 1995), L.K. (date of birth June 26, 1998), and C.K. (date of birth December 11, 2000). The parties played different roles in raising the children. When E.K. turned two years old, Ms. Kim, who had been reducing her part time hours as a pathologist, resigned from her job and became a full-time, stay-at-home mother. Mr. Kim was the primary wage earner and worked long hours, while Ms. Kim performed the majority of parenting duties, including supervising the children's extensive activities and social networks.

¶ 5 Ms. Kim filed a petition for dissolution in July 2010. Upon separation, Ms. Kim was awarded temporary primary [179 Wn.App. 237] residential placement of the children. In April 2011, Ms. Kim filed a notice of intent to relocate to Los Angeles in order to update her skills in pathology. The University of California at Los Angeles (UCLA) had offered her a surgical pathology fellowship beginning July 1, 2011. Because Ms. Kim had been out of the work force for well over two years, she was not eligible for a medical license in Washington State. In May 2011, a Yakima County court commissioner denied Ms. Kim's motion to relocate.

¶ 6 The parties' dissolution trial took place over several days in June 2012 and resumed in September 2012. The trial was bifurcated due to the guardian ad litem's (GAL's) failure to complete his report for the June trial. The court heard testimony from a number of witnesses on Ms. Kim's relocation request. At the conclusion of the trial, the court acknowledged that while it had considered the testimony of all the witnesses, it found the testimony of the parents the most significant.

¶ 7 Ms. Kim testified that she was working part time for a pathology group in San Antonio, Texas, when E.K. was born in 1995. She stated that she did 98 percent of the hands-on work of parenting and that when E.K. turned two, she resigned from her job. During that time, Mr. Kim was working about 80 to 100 hours per week, and Ms. Kim performed the majority of the childcare. This pattern continued after L.K. was born. She recalled that Mr. Kim could not remember holding L.K. because he was working well over 100 hours per week. When asked to describe her early caretaking of C.K., she answered that she did " [p]retty mach everything. [C.K.] nursed for two years and [Mr. Kim] was not home." Report of Proceedings (RP) (Sept. 4, 2012) at 35.

¶ 8 Ms. Kim continued to have primary responsibility for the day-to-day care of the children as they grew older. Ms. Kim described a typical preseparation school day as follows:

Page 559

I would wake up first. I would prepare breakfast and I always make their lunch, so I would get that out because I make it the [179 Wn.App. 238] night before. I would make sure the children got out of bed. I would make sure Anatole got--was awake. I'd prepare him what he usually had in the mornings. The children and I would have breakfast together. Anatole would usually walk through the kitchen.

RP (Sept. 4, 2012) at 46. Ms. Kim could not recall Mr. Kim ever taking the children to school or picking them up. Ms. Kim also testified that she volunteered in the children's school, drove them to their extracurricular activities, prepared dinner, and helped with homework.

¶ 9 Mr. Kim's testimony centered on the differences in the parents' respective parenting styles. He testified that he was more direct and that Ms. Kim tended to be more indulgent. He testified, " I do tend to suggest to the children and try and explain if I have a suggestion or advice. I think if [Ms. Kim] wants the children to do something, she mentions it in kind of an oblique way and then that's about it." RP (Sept. 5, 2012) at 206. He testified that Ms. Kim designated him the disciplinarian and deferred to him when the children misbehaved.

¶ 10 Mr. Kim testified that the parties had conflict over some of the children's extracurricular activities and that Ms. Kim would disallow some activities if she found them " inconvenient." RP (Sept. 5, 2012) at 207. For example, Mr. Kim believed it was important to get the boys involved in Boy Scouts, but Ms. Kim refused to meaningfully participate. Mr. Kim also testified that he thought the children should be given more responsibility but that Ms. Kim found it easier to do household chores herself.

¶ 11 Mr. Kim asked for primary residential placement, stating that he alone was concerned about the children's best interests. Mr. Kim described his preseparation relationship with E.K. as " [v]ery close" and his current relationship with L.K. and C.K. as " stable" and " very warm," but noted that both were exhibiting some teenage rebellion. RP (Sept. 6, 2012) at 321-22. He also expressed his concern that [179 Wn.App. 239] Ms. Kim's move to California would effectively eliminate him as a parent.

¶ 12 The court appointed a GAL to evaluate residential placement provisions. The GAL recommended that the mother be awarded primary residential placement. However, as to relocation, the GAL concluded:

[A] move by the mother is not best for the children. The mother would have to demonstrate an overwhelming need for her to do so. The issue here is the mother's occupational benefit of a move versus the needs of the children. The children need the involvement and balance of both parents, the benefit of both attachment and limits.

Clerk's Papers (CP) at 340.

¶ 13 The court also appointed Dr. Richard Adler, a child and adolescent psychiatrist, to conduct a forensic evaluation of E.K., who had experienced some serious psychiatric problems in December 2010. Dr. Adler concluded that relocation was " ill-advised" as it related to E.K.'s best interest, noting, " [t]his has been high-conflict divorce, marked by contested custody issues and prominent father-son alienation. [A] disposition that would only further hamper the likelihood of repairing the father-son relationship seems contraindicated." CP at 363.

¶ 14 After considering the appropriate statutorily mandated relocation factors and entering detailed findings of fact for each, the court granted Ms. Kim's petition to relocate. The court's findings of fact will be discussed in detail below as they relate to Mr. Kim's assignments of error.

ANALYSIS

Relocation.

¶ 15 Mr. Kim appeals the trial court's grant of Ms. Kim's petition to relocate the children to California. He contends the trial court abused its discretion because it applied an incorrect legal standard in analyzing the relocation issue.

[179 Wn.App. 240] ¶ 16 We review the trial court's decision to grant or deny a petition for relocation for an abuse of discretion. In re Marriage of Horner, 151 Wn.2d 884, 893,

Page 560

93 P.3d 124 (2004); Bay v. Jensen, 147 Wn.App. 641, 651, 196 P.3d 753 (2008). A court abuses its discretion where the court applies an incorrect standard, the record does not support the court's findings, or the facts do not meet the requirements of the correct standard. Horner, 151 Wn.2d at 894 (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)). We emphasize that trial court decisions in dissolution actions will be affirmed unless no reasonable judge would have reached the same conclusion. In re Marriage of Landry, 103 Wn.2d 807, 809-10, 699 P.2d 214 (1985). " The emotional and financial interests affected by such decisions are best served by finality. The spouse who challenges such decisions bears the heavy burden of showing a manifest abuse of discretion on the part of the trial court." Id. at 809.

¶ 17 In 2000, the legislature passed the child relocation act, RCW 26.09.405-.560 (relocation act or the act), which shifts the analysis away from the best interests of the child to an analysis focusing on the best interests of the child and the relocating person. Laws of 2000, ch. 21, § § 1, 14; Horner, 151 Wn.2d at 886-87. RCW 26.09.520 provides the legal standard for determining a relocation issue. Horner, 151 Wn.2d at 895. The trial court must consider the 11 factors listed in the relocation statute on the record to determine whether the detrimental effect of the proposed relocation outweighs its benefits. Id. at 894-95. The act creates a rebuttable presumption that the relocation will be allowed, which may be rebutted when the objecting party proves that " the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, based upon the [11 child relocation] factors." RCW 26.09.520. The factors are:

(1) The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
[179 Wn.App. 241] (2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking ...

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