IN RE: the Marriage of Gary PAPE (1997)

Gary Pape appeals the trial court's summary modification of a parenting plan.   Without conducting a hearing, the trial court eliminated the requirement that his former wife, Margaret Johnson-Pape, reside with their children within 10 miles of Pierce County and made major modifications to the children's residential schedule to accommodate their move 100 miles away.

We remand for a hearing to determine:  (1) whether Johnson-Pape's move was substantially detrimental to the children beyond the distress typically associated with relocation, as recently articulated by the Supreme Court in In re Marriage of Littlefield, 133 Wash.2d 39, 55, 940 P.2d 1362 (1997);  and (2) if the Littlefield test is not met, what modifications of the parenting plan and adjustments to the residential schedule are necessary to accommodate Johnson-Pape's move.

FACTS

A. Original Decree

Margaret Johnson-Pape and Gary Pape agreed to a permanent parenting plan for their two children when they separated in 1992.   The plan designated Johnson-Pape as the primary residential parent and provided substantial residential time with Pape. The plan also provided:

1. ․ The parents will make a mutual effort to maintain an open, ongoing communication concerning the development, needs and interests of the children and will discuss together any major decisions which have to be made about or for the children.

1.1 ․ major decisions concerning the children's welfare shall be made by both parties.

2. Major decisions are the following:

․

2.2.  Change of school not mandated by authorities.

2.3 Moving the children or daycare outside of an area including all of Pierce County and a ten-mile driving radius outside of the borders of Pierce County.

This parenting plan was incorporated into their dissolution decree.

At the time of their dissolution, the parties were living in Gig Harbor, Pierce County.   According to Pape, the “children's participation with [him] in the YMCA's Indian Princesses program” and his participation in after-school extra-curricular activities was an important part of the parenting plan.   But, these activities were not specifically mentioned in the permanent parenting plan.

B. Post-Decree Modification

Shortly after the divorce trial and after an extensive job search, Johnson-Pape accepted a teaching position with the Camas school district ¹ and moved with the children to Lewis County.   She petitioned for temporary modification of the permanent parenting plan to allow the children to move outside the 10-mile boundary for the 1994-95 school year.   Without conducting a hearing and without determining whether modification would be harmful or in the children's best interests, the trial court summarily granted Johnson-Pape's petition on October 7, 1994.   This “temporary” modification resulted in a significant permanent reduction in the children's residential time with their father, eliminating participation with him in the YMCA's Indian Princesses program and after-school activities.   The trial court relied on the parties' affidavits and RCW 26.09.260(4)(b) as the basis for modification.

In September 1995, Johnson-Pape sought a second, similar, temporary modification of the parenting plan, citing RCW 26.09.260(4) as the basis for modification.   Again, without a hearing or finding that the modification would be either harmful or in the children's best interests, the trial court granted the modification, effective pending final resolution of the case.

C. Appellate Procedure

We granted Pape discretionary review of the 1994 and 1995 parenting plan modifications.²  He argues that the trial court acted without statutory authority in summarily entering the 1994 and 1995 post-decree orders and temporarily modifying the parenting plan with neither consent of both parents nor a hearing.³

This court cannot grant relief with respect to the 1994 order because it was superceded by the 1995 order and is therefore no longer effective.   Thus, Pape's appeal of the 1994 order is moot.  In re Detention of Cross, 99 Wash.2d 373, 376-77, 662 P.2d 828 (1983).

Johnson-Pape argues that the 1995 order is not subject to review because Pape failed to file proper notice of appeal as to that order.   But a Court of Appeals commissioner has deemed Pape's notice of appeal amended under RAP 5.3(h) to include the 1995 order and thus properly subject to review.

ANALYSIS

A. Travel Restriction

The trial court did not explain the basis for its 1995 temporary parenting plan modification, in which it allowed Johnson-Pape to move the children more than 10 miles from Pierce County and substantially altered the residential schedule to reduce the children's time with Pape. Johnson-Pape cited RCW 26.09.260(4) as the basis for “temporary” modification in her petition, as well as for the trial court's 1994 modification order.   We therefore assume that the trial court purported to proceed under RCW 26.09.260(4).   Nevertheless, as Pape asserts, there is no statutory authority for the trial court to enter such temporary post-decree modification without a hearing and entry of statutorily required findings.⁴

 It is clear from the introductory language of subsection RCW 26.09.260(4) ⁵ that the Legislature allowed “only” specified limited “adjustments” where the proposed modification is “minor.”   More significant changes or “major modifications” must meet the criteria set forth in subsection(2).⁶  The trial court's failure to make findings that reflect the application of each relevant factor is error.  In re Marriage of Raugust, 29 Wash.App. 53, 627 P.2d 558 (1981);  Murray v. Murray, 28 Wash.App. 187, 622 P.2d 1288 (1981);  Anderson v. Anderson, 14 Wash.App. 366, 368, 541 P.2d 996 (1975).   As Pape correctly demonstrates, Johnson-Pape has failed to meet the statutory criteria for either minor or major modification.

RCW 26.09.260(4) does not provide for modifications of travel restrictions.   Rather it allows only “[m]inor modification in the residential schedule that ․ [i]s based on a change of residence ․ which makes the residential schedule in the parenting plan impractical to follow.”  RCW 26.09.260(4)(b)(iii).⁷  Yet the 1995 order not only modified portions of the decree relating to travel restrictions, but also substantially reduced the children's residential time with Pape beyond both “the extent necessitated” ⁸ by Johnson-Pape's move and the minor residential schedule adjustments allowed under (4)(b)(iii).   Nor does RCW 26.09.260(4) provide authority for the trial court's summary major modification of the permanent parenting plan, which bypassed RCW 26.09.260(1) and (2) criteria without a hearing.

 Littlefield

Nevertheless, the Washington State Supreme Court's recent Littlefield decision may provide an alternative basis for affirming the trial court's elimination of the 10-mile residence restriction.   Disallowing a similar residential/travel restriction in establishing a permanent parenting plan, the court ruled, “the Legislature has not placed a statutory restriction on the ability of either parent to move and has not even required notification before a change of residence.”  Littlefield, 133 Wash.2d at 49, 940 P.2d 1362.

The case before us differs from Littlefield.  Littlefield involved establishment ⁹ of an original parenting plan and residential schedule, whereas Pape involves modification of an existing permanent parenting plan and residential schedule.   Moreover, the trial court in Littlefield rendered its decision following a full trial, whereas the trial court in Pape did not conduct any hearing, but rather relied on affidavits.

Although generally disallowing parenting plan restrictions on a parent's right to travel or move, the Littlefield court recognized an exception:

Where justified by the facts, RCW 25.09.191(3)(f) or (g) permits a trial court to find that the primary residential parent's relocation would harm the child.   We interpret RCW 26.09.191(3) to require more than the normal distress suffered by a child because of travel, infrequent contact of a parent, or other hardships which predictably result from a dissolution of marriage.   Cf. [In re Marriage of] Wicklund, 84 Wash.App. 763[,] 770-71, 932 P.2d 652 [ (1996) ]․

Littlefield, 133 Wash.2d at 55, 940 P.2d 1362.

 The trial court here did not have the benefit of the Littlefield decision.   Nonetheless it failed to conduct a hearing to determine whether relocation by Johnson-Pape, the primary residential parent, would harm the children.   If on remand such showing cannot be made, the trial court may strike the travel restriction in the original parenting plan,¹⁰ even though such a major modification would not otherwise be authorized by statute.¹¹  If Johnson-Pape's move is shown to distress the children to an abnormal extent as noted in Littlefield, then the trial court must either give Johnson-Pape the opportunity to return to Pierce County or reconsider her designation as primary residential parent.

B. Residential Schedule

[3] The trial court's alteration of the residential schedule to accommodate Johnson-Pape's move resulted in the children's loss of significant residential time with their father.   The record contains no finding that residency with their father was in any way detrimental to the children.   Although some rearrangement of the children's residential schedule was arguably necessary to accommodate Johnson-Pape's move, there has been no showing that substantial diminution of the children's time with their father was necessary and in the children's best interests.¹²

When Johnson-Pape moved, the parents did not agree on a new residential schedule.   Elimination of the travel restriction and Johnson-Pape's move constituted “major decisions” under the terms of the decree;  the trial court's consequent modification of the residential schedule constituted a “major” modification.   The trial court acted outside its statutory authority in approving such major modification of the permanent parenting plan and residential schedule without a hearing and without ascertaining that the statutory criteria were met.   Such summary modification was particularly egregious here, where the “temporary modification” became essentially permanent when extended a second year.

CONCLUSION

For these reasons, we remand to the trial court to conduct a hearing to determine:  (1) whether Johnson-Pape's relocation with the children is harmful to the children beyond the “normal distress suffered by a child because of travel, infrequent contact of a parent, or other hardships which predictably result from a dissolution of marriage.”   Littlefield, 133 Wash.2d at 55, 940 P.2d 1362;  (2) if so, whether Pape should be named the primary residential parent, especially if Johnson-Pape is unwilling or unable to move back to Pierce County;  and (3) if not, to what extent are adjustments to the residential schedule necessitated by her move, altering the original permanent parenting plan as little as possible, rearranging while preserving as much as possible, the children's residential time with their father, Pape, as allocated in the permanent parenting plan.

Reversed, pending revision of the residential schedule and parenting plan on remand.¹³

FOOTNOTES

1.   The Camas teaching position was apparently the only job offer she received.

2.   Discretionary review was first denied by a commissioner of this court, then granted by this court on a motion to modify the commissioner's ruling.

3.   Under extreme circumstances the court might be justified in entering a temporary order for a short period of time until a full hearing can be conducted.   But this is not the situation here.   As Pape correctly argues, the trial court should have left intact the existing parenting plan until such time as it conducted a full hearing on Johnson-Pape's petition to modify.

4.   Statutes like Washington's RCW 26.09.260, modeled on the Uniform Model Dissolution Act (UMDA), are designed to deter relitigation and to promote stability in post-dissolution parenting arrangements by limiting the court's post-decree discretion, particularly on grounds of changed circumstances.   C. Gail Vasterling, UMDA Child Custody Modifications Under the Uniform Marriage and Divorce Act:  A Statute to End the Tug-of-War?, 67 Wash. U. L.Q. 923, 930 (1989).   Like the UMDA, Washington's statute looks to a change in circumstances of the child or the “nonmoving party” as a prerequisite to major modification;  thus “[l]imiting the number of parties whose circumstances affect the decision reduces the frequency of modification.”   Vasterling, supra, at 932.

5.   RCW 26.09.260(4) provides:(4) The court may order adjustments to a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in subsection (2), if the proposed modification is only a:(a) Modification in the dispute resolution process;  or(b) Minor modification in the residential schedule that:(i) Does not change the residence the child is scheduled to reside in the majority of the time;  and(ii) Does not exceed twenty-four full days in a calendar year or five full days in a calendar month;  or(iii) Is based on a change of residence or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow.

6.   RCW 26.09.260(1) and (2) provide:(1) Except as otherwise provided in subsection (4) of this section, 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 interest of the child.(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:(a) The parents agree to the modification;(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is out-weighed by the advantage of a change to the child;  or(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provision in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.050 or 9A.40.070.Compliance with the statutory criteria for a major modification is mandatory under RCW 26.09.260(1) and (2).   See In re Marriage of Stern, 57 Wash.App. 707, 789 P.2d 807 (1990).

7.   Allowing only minor adjustments of the residential schedule under subsection (4) is consistent with Parenting Act policy of minimizing changes to established parenting plans and residential schedules.  RCW 26.09.002.   Minor residential schedule adjustments are statutorily and philosophically distinct from major custodial or parenting plan changes, which are viewed as highly disruptive to children;  there is a strong presumption in favor of custodial continuity and against modification.   See In re Marriage of McDole, 122 Wash.2d 604, 859 P.2d 1239 (1993);  Stern, 57 Wash.App. at 712, 789 P.2d 807;  Anderson, 14 Wash.App. 366, 541 P.2d 996.

8.   “[T]he best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.”   RCW 26.09.002 (emphasis added.).

9.   The Littlefield court discusses at length the trial court's broad discretion in establishing parenting plans that allow frequent movement of the children back and forth between parents' households.   Littlefield, 133 Wash.2d at 53-53, 940 P.2d 1362.

10.   The Littlefield court overruled in part two Court of Appeals decisions that had upheld such travel restrictions:   In re Marriage of Sheley, 78 Wash.App., 494, 895 P.2d 850 (1995), review denied, 128 Wash.2d 1009, 910 P.2d 481 (1996), and In re Marriage of Schneider, 82 Wash.App. 471, 918 P.2d 543, review granted sub nom Sheppard, 130 Wash.2d 1001, 925 P.2d 988 (1996).

11.   If a major modification had been permitted under RCW 26.09.260(1) and (2), the court would also have been required to determine whether such modification was “necessary to serve the best interests of the child.”   But again, under the plain language of subsection (2), Johnson-Pape's move cannot qualify as a “changed circumstance” warranting major modification because she is not the “nonmoving party.”

12.   Rather the changes in residential schedule were intended simply to mitigate difficulties in alternating between parents' residences, now miles and hours apart.

13.   To minimize further disruption to the children, we leave to the trial court's discretion whether to maintain the existing “temporary” modification pending the outcome of the remand hearing.

HUNT, Judge.

BRIDGEWATER, Acting C.J., and ARMSTRONG, J., concur.