IN RE: the Marriage of NOELLE LYNN BARRETT nka NOELLE WOIT (2011)

BACKGROUND

DISCUSSION

When an appeal is taken from an order denying revision of a court commissioner's decision, appellate courts review the decision of the judge, not the commissioner.³

The original parenting plan gave the court discretion to set the school year residential schedule for the child once she started kindergarten, and the parties agree this determination is not a modification of their parenting plan.   Daniel does not now contend he established adequate cause to modify.   His arguments on appeal concern the school year residential schedule.

Daniel makes several procedural arguments.   He contends the court should not have determined the school year residential schedule without an evidentiary hearing, the judge erred by delegating final signature on the new parenting plan to the commissioner, and the new school-year provisions exceed the scope of those authorized by the original plan, thereby constituting a modification.

As to whether Daniel should have been to able to cross-examine Noelle at an evidentiary hearing, his claim is that the court “determined disputed facts ․ without Noelle being subjected to a credibility determination.” ⁴  Daniel does not specify what the credibility issues may be, but appears to refer to the same unsupported allegations that led the court to reject his petition to modify.   This is essentially an attempt to circumvent the threshold requirements for a modification.   Had Daniel submitted admissible evidence to support allegations justifying modification, a trial would presumably have ensued.

Daniel appears to contend that every disputed allegation in affidavits triggers an evidentiary proceeding.   This is incorrect.   The final parenting plan provided that if the parties could not agree, a school year residential schedule would be set by a motion in the family law motions department.   Motions before that department are governed by King County Local Family Law Rule 6, which provides that a party may submit a written request to present live testimony.⁵  Daniel does not claim to have made such a request, nor is there anything in the record to indicate he did so.   Daniel was not entitled to an evidentiary hearing.

Daniel further contends the judge committed “egregious error” by instructing the commissioner to implement the judge's rulings.   He characterizes this as “instructing the commissioner to perform as his law clerk.” ⁶  He does not provide supporting citations to the record, but it appears he refers to the judge's determination that the commissioner could sign and enter the final parenting plan reflecting the commissioner's decision but with the minor revision ordered by the judge (the Wednesday visits).   Daniel provides no relevant authority for his contention that the court's procedure was improper and does not argue that it prejudiced him in any way.

Daniel's remaining arguments challenge the court's discretionary decisions regarding the parenting plan.   We thus review these decisions for abuse of discretion.⁷

Daniel argues the commissioner erred when, in setting a residential schedule for the child, she considered the criteria offered by RCW 26.09.260 (which governs modification of parenting plans), and failed to adhere to RCW 26.09.187 (which provides criteria for establishing a permanent parenting plan).   He contends the judge perpetuated this error by failing to revise the commissioner's decision.Whether to apply criteria enumerated in RCW 26.09.187 and/or RCW 26.09.260 is within the court's broad equitable power to protect the best interests of the child.⁸  Daniel has not described how the court abused this discretion, nor enumerated any prejudice from this claimed error.

Daniel also argues the added provisions for transportation arrangements exceed the scope of the parties' agreement and amount to a modification.   But the parties agreed the court would establish a school year residential schedule.   Transportation arrangements are a necessary part of such a schedule.

Noelle requests attorney fees under RCW 26.09.140 based on need and ability to pay and the lack of merit of this appeal.⁹  An appeal is without merit when it presents no debatable issues upon which reasonable minds might differ, and thus no possibility of reversal.¹⁰  Such is the case here.   There was no reasonable possibility of reversal.¹¹  We thus award attorney fees to Noelle.

Affirmed.

WE CONCUR:

FOOTNOTES

FOOTNOTE.  

FOOTNOTE.  

FN3. Williams v. Williams, 156 Wn.App. 22, 27, 232 P.3d 573 (2010)..  FN3. Williams v. Williams, 156 Wn.App. 22, 27, 232 P.3d 573 (2010).

FN4. Br. of Resp't at 10..  FN4. Br. of Resp't at 10.

FN5. LFLR(6)(g)(2)..  FN5. LFLR(6)(g)(2).

FN6. Br. of Resp't. at 4..  FN6. Br. of Resp't. at 4.

FN7. In re Marriage of Possinger, 105 Wn.App. 326, 336, 19 P.3d 1109 (2001) (court has broad discretion when making residential placements)..  FN7. In re Marriage of Possinger, 105 Wn.App. 326, 336, 19 P.3d 1109 (2001) (court has broad discretion when making residential placements).

FN8. In re Marriage of Adler, 131 Wn.App. 717, 725, 129 P.3d 293 (2006)..  FN8. In re Marriage of Adler, 131 Wn.App. 717, 725, 129 P.3d 293 (2006).

FN9. In re Marriage of Muhammed, 153 Wn.2d 795, 807, 108 P.3d 779 (2005);  see also RAP 18.9(a) (sanctions for frivolous appeal)..  FN9. In re Marriage of Muhammed, 153 Wn.2d 795, 807, 108 P.3d 779 (2005);  see also RAP 18.9(a) (sanctions for frivolous appeal).

FN10. Adler, 131 Wn.App. at 729..  FN10. Adler, 131 Wn.App. at 729.

FN11. See Yurtis v. Phipps, 143 Wn.App. 680, 697, 181 P.3d 849 (2008)..  FN11. See Yurtis v. Phipps, 143 Wn.App. 680, 697, 181 P.3d 849 (2008).

Ellington, J.-In this appeal from entry of a residential schedule, we affirm and award fees to respondent Noel Barrett.   Daniel and Noelle Barrett (now Noelle Woitt) dissolved their marriage in 2003 and agreed upon a parenting plan for their child.   Section 3.2 of the plan left open the school year residential schedule after their child started kindergarten:  3.2. Upon enrollment in school, the child shall reside with the mother, except for the following days and times when the child will reside with or be with the father at times to be worked out by agreement or in mediation prior to the child entering school.   If an agreement cannot be reached and mediation fails, either party may bring a motion before the Family Law Motions Department of this court to establish the schedule for the school year, and vacation periods.[1]No agreement was reached regarding a new schedule.   In July 2009, just before the child was about to start second grade, Daniel filed a petition to modify the parenting plan.   He requested establishment of a school year residential schedule and several other changes based upon allegations that Noelle was an inadequate parent.   Commissioner Jacqueline Jeske found Daniel's allegations about Noelle's parenting to be based upon hearsay and unsupported by admissible evidence and denied the petition to modify for failure to show adequate cause.2  She ruled, however, that the court had discretion to set a residential schedule for the school year under section 3.2 of the parenting plan.   She adopted the preschool residential schedule as the school year residential schedule, with slight changes to accommodate school hours and bedtimes and provisions for school vacations and transportation arrangements during the school year.   Daniel sought revision of the commissioner's decision.   Judge George Mattson denied revision, but reinstated weekly Wednesday visits between the child and her father.   Daniel's motion for reconsideration was denied.   The final agreed parenting plan was entered on January 5, 2010 by Commissioner Jeske. FN1. Clerk's Papers at 447. FN2. See RCW 26.09.260, .270.