In re the Marriage of: DAVID WILLIAM JACKSON, Respondent, and RHONDA LYN CLARK, Appellant.
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."
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.
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,  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
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.
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
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
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.
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.
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.
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.
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.
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.
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.
Applicability of the CRA and its presumption
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