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In re Marriage of Jackson

Court of Appeals of Washington, Division 3

June 28, 2018

In re the Marriage of: DAVID WILLIAM JACKSON, Respondent, and RHONDA LYN CLARK, Appellant.

          LAWRENCE-BERREY, C.J.

         The child relocation act (CRA), RCW 26.09.405-.560, sets forth the procedure and standards for certain child relocation requests. One standard gives the relocating parent a favorable presumption that relocation will be permitted. But by its terms, the CRA applies only to relocation requests made by a person "with whom the child resides a majority of the time."

         Here, substantial evidence supports the trial court's finding that Ms. Clark, the relocating parent, was not a person with whom the children resided a majority of the time. In the published portion of this opinion, we affirm the trial court's conclusion that Ms. Clark was not entitled to a presumption that relocation would be permitted.

         FACTS

         Rhonda Clark and David Jackson are the parents of two young children, L.J. and H.J. In April 2015, the parties finalized their divorce and filed their agreed parenting plan. The agreed parenting plan designated Ms. Clark as the custodial parent, [1] and scheduled the children to reside with her a majority of the time. The parties however did not follow the plan. Instead, the parties shared residential placement equally.

         In January 2016, Ms. Clark obtained counsel and sought to change the terms of the parenting plan. Ms. Clark's attorney sent Mr. Jackson a proposed parenting plan. The proposed plan generally followed the original plan, but required the parties to follow certain procedures so as to better communicate with one another. Mr. Jackson did not disagree with those procedures, but he marked the portion that set forth the children's residential schedule to reflect the shared schedule that he and Ms. Clark had. In addition, he crossed out that portion of the proposed plan that listed Ms. Clark as the custodial parent. Mr. Jackson then returned the marked proposed plan to Ms. Clark's attorney.

         Ms. Clark's attorney then sent a revised parenting plan to Mr. Jackson. The revised plan changed the scheduled residential time as Mr. Jackson had requested, but still designated Ms. Clark as the custodial parent. Mr. Jackson did not want to sign the revised draft. He knew that Ms. Clark was dating a man who lived in Nevada and was concerned that she might move to Nevada and try to take their children with her.

         In response to his concerns, Ms. Clark sent Mr. Jackson a text message assuring him that she would not move: "Also, I want [you] to know that I am not moving to Reno. I could easily get a [school] principal job elsewhere. But I know the kids are rooted here with school." Clerk's Papers (CP) at 78-80. Ms. Clark provided Mr. Jackson a further assurance in a later text, "You can always go through with signing. We have 50/50." CP at 117. Mr. Jackson, along with Ms. Clark and her attorney, signed the revised parenting plan. The parties presented the revised parenting plan to the county superior court where they had filed their agreed parenting plan, but that court would not file the revised plan.

         In May 2016, the parties attempted to mediate various parenting plan issues. The mediation was unsuccessful. On June 9, 2016, Ms. Clark received an offer to become a vice principal in Reno, Nevada. The vice principal job was a significant promotion for her, with more scheduled days, an increase in pay, and with an opportunity for further advancement.

         On June 17, 2016, the parties transferred venue to the county superior court of their residence, Spokane County, and registered their original parenting plan with that court. However, Ms. Clark did not file the signed revised plan.

         On June 27, 2016, Ms. Clark filed and served on Mr. Jackson a notice of intent to relocate her children to Nevada. On July 26, 2016, a court commissioner held a hearing for temporary orders. The commissioner found that Ms. Clark's request to relocate the children would likely not be granted, and denied Ms. Clark's request for her children to relocate prior to a fact-finding hearing.

         On August 9, 2016, Ms. Clark accepted the job in Nevada. Ms. Clark moved to revise the commissioner's ruling, and the trial court denied her motion. The trial court then scheduled a fact-finding hearing to begin October 24, 2016.

         At the hearing, both parties presented witnesses who provided testimony both supporting and opposing relocation. During the hearing, Mr. Jackson testified that he and Ms. Clark shared residential time with their children equally. Mr. Jackson also cross-examined Ms. Clark with her prior deposition testimony. In that testimony, Ms. Clark had admitted that the parenting schedule set forth in the revised and signed parenting plan was the schedule that she and Mr. Jackson had generally followed since the divorce. In addition, several of her text messages were admitted, including the text message where she described the revised parenting plan as "50/50." CP at 117.

         At the conclusion of the fact-finding hearing, the trial court advised the parties that it wished to review the trial transcript and scheduled its oral ruling for mid-November. In its November ruling, the trial court meticulously set forth the background of the case, the legal framework, and explained its resolution of the conflicting evidence. The trial court found that the parties shared residential time with the children equally. The trial court found Mr. Jackson's testimony on this point credible, and noted it was consistent with other evidence, such as the lack of a child support transfer payment, and Ms. Clark's various admissions. Based on its finding that the children did not reside with Ms. Clark a majority of the time, the trial court concluded that Ms. Clark was not entitled to the CRA's presumption that relocation would be permitted.

         The trial court then addressed whether the children would be permitted to relocate with Ms. Clark to Nevada. In addressing this issue, the trial court discussed the 11 factors set forth in RCW 26.09.520. After discussing each factor, the trial court determined that the detrimental effect of the relocation would outweigh the benefit of the change to the children and Ms. Clark. The trial court also determined that the factors against relocating the children weighed so heavy that it would have denied relocation even had Ms. Clark been entitled to the CRA's presumption. The trial court later entered an order consistent with its oral ruling, together with supporting findings and conclusions.

         Ms. Clark appealed.

         ANALYSIS

         A. Applicability of the CRA and its presumption

         This court reviews a trial court's relocation decision for abuse of discretion. In re Marriage of Homer, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). A trial court abuses its discretion when it makes a manifestly unreasonable decision or bases its decision on untenable grounds or reasons. State v. Sisouvanh,175 Wn.2d 607, 623, 290 P.3d 942 (2012). This can occur when a trial court applies an incorrect legal standard, substantial evidence does not ...


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