Here are the Flynn case studies that are being written up here in Washington State that my appeal chances depend on. Of course I have to file an appeal within 30 days, and Friday, November 19th is when I have to file by. Notice that my lawyer happens to be the lawyer for the father in the Flynn case as well. I would hate to not be able to be able to retain her for my appeal if I can't come up with the money through donations. I have had my lawyer from the beginning in 1995, while my ex has had 4 different lawyers.
In re the Marriage of MATTHEW A. FLYNN, Respondent, and BRENDA L. MANIS, (f/k/a/ FLYNN) Appellant.
No. 16675-9-III, No. 16971-5-III
COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL FIVE
94 Wash. App. 185; 972 P.2d 500; 1999 Wash. App. LEXIS 313
February 18, 1999, Filed
SUBSEQUENT HISTORY: [***1]
As Corrected April 22, 1999.
PRIOR HISTORY: Appeal from SUPERIOR COURT SPOKANE COUNTY.
Superior Court No. 92-3-03344-3. Date filed in Superior Court: 5/23/97 (No.
16675-9-III); 9/11/97 (No. 16971-5-III). Superior Court Judge signing: KENNETH
KATO (No. 16675-9-III); JAMES MURPHY (No. 16971-5-III).
DISPOSITION: Reversed and remanded.
COUNSEL: For Appellant: SHAWN D. PRICE-SLADICH, Attorney at Law, Spokane, WA.
For Respondent: FRANCESCA D'ANGELO, HUPPIN, EWING, ANDERSON, Spokane, WA.
JUDGES: STEPHEN M. BROWN, J. WE CONCUR: JOHN A. SCHULTHEIS, C.J., FRANK L. KURTZ, A.C.J.
OPINION: [**501][*187] OPINION
BROWN, J.--Brenda Manis and Matthew Flynn are parties to a final parenting plan that Ms. Manis sought to modify based upon her relocation to California. The dispositive issue is whether the trial court erred, by failing to decide adequate cause existed to modify the petition. Recent cases interpreting the minor modification provisions of RCW 26.09.260(4)(b)(iii) are significant to the outcome. Bower v. Reich, 89 Wash. App. 9, 964 P.2d 359 (1998) and In re the Marriage of Littlefield, 133 Wash. 2d 39, 940 P.2d 1362 (1997). Because the affidavits supporting the petition contain facts showing a prima facie case of adequate grounds to modify on [***2] the basis of a minor modification if the facts are proven at an evidentiary hearing, we conclude the court erred. We reverse and remand for an evidentiary hearing.
An agreed final parenting plan was entered in October 1994 for Matthew Flynn and Brenda Manis, and their two children. The plan essentially split residential time evenly by alternating weeks except for two additional days given [*188] to Ms. Manis, who was designated the primary parent for legal purposes. Ms. Manis filed for modification of the parenting plan in January 1996 alleging a major modification due to a substantial change of circumstances under RCW 26.09.260(1) and (2). The proposed parenting plan filed with the modification petition changed the residential provisions from alternating weeks to every other weekend and alternating holidays. Underlying reasons for the modification were Ms. Manis's remarriage and relocation with her serviceman husband to more distant housing in the Spokane area.
Additional allegations prompted the court to initiate a Guardian Ad Litem (GAL) investigation. Commissioner Valente made a limited finding of adequate cause to facilitate the investigation and obtain the GAL report to aid [***3] the court's decision making on whether a substantial change of circumstances was present. No written report was filed. Instead, the GAL informed the parties, through counsel, that she did not believe a substantial change supporting a major modification existed, although under specified conditions she would consider a minor modification. No other relevant action related to the modification is part of our record until 1997.
Ms. Manis filed an amended summons and modification petition on February 21, 1997. She continued to allege a major change in the parenting plan and a substantial change in the circumstances of the children. Supporting her claim of adequate cause, she now alleged her father's recent diagnosis of terminal cancer and her intent to move with Mr. Manis, their daughter, Dakota, and the children to California to be with her father by March 31, 1997, when the California school term began. Further, her husband had obtained a permanent humanitarian transfer to a California station to facilitate the move.
Mr. Flynn received formal notice of the amendment on February 21, 1997. He filed a response denying adequate cause, requesting restraining orders and counter petitioning [***4] for primary residential placement on the day of the adequate [*189] cause hearing, March 25, 1997. That day, Commissioner Valente found Ms. Manis had not established adequate cause for modification, and entered an order March 28, 1997 denying modification. Ms. Manis was permitted to take Brittany to California with Mr. Manis and Dakota. However, she was restrained from taking the parties' children. Judge Kato denied revision. Ms. Manis then moved to California leaving the children with Mr. Flynn, and filed her first appeal of the adequate cause decisions.
Ms. Manis next filed for relief from the prior orders under CR 60 in August 1997 relying on In re the Marriage of Littlefield, 133 Wash. 2d 39, 940 P.2d 1362 (Aug. 1997) (court may not order geographical restrictions in initial parenting plan to facilitate frequent contact with non-primary parent). Judge Murphy denied her motion. Ms. Manis then filed a second appeal based on Judge Murphy's order. We now consider the consolidated appeals.
The dispositive issue is whether the Commissioner erred when deciding adequate cause did not exist for a show cause hearing on the merits of the petition for modification, which [***5] alleged Ms. Manis's need to relocate with the children under the circumstances presented in the affidavits.
B. Standard of Review
Trial court decisions relating to custody changes are reviewed using an abuse of discretion standard, whether the "court exercised its discretion in an untenable or manifestly unreasonable way." In re Marriage of McDole, 122 Wash. 2d 604, 610, 859 P.2d 1239 (1993). RCW 26.09.260 provides standards for modification of a custody decree. RCW 26.09.270 provides in part "the court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which [*190] case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted." Statutory construction is a matter of law reviewed de novo. Marriage of Hansen, 81 Wash. App. 494, 498, 914 P.2d 799 (1996). When the trial court's decision is decided on the affidavits of the parties, we are in the same position as the trial court and decide the question as a matter of law. In re Marriage of Roorda, 25 Wash. App. 849, 853, 611 P.2d 794 (1980).
C. Adequate Cause
In fairness to the parties, their counsel, [***6] and the courts below struggling with this difficult relocation problem, we note the legal landscape has changed significantly since the modification proceedings were decided. Indeed, the first sign of change was Littlefield striking a geographical restriction in an initial parenting plan designed to facilitate frequent contact with the other parent. Mr. Flynn's contention that Littlefield principles do not apply to modifications is mortally wounded if we agree with Division One when it decided otherwise in its reconsidered and amended opinion. Bower v. Reich, 89 Wash. App. 9, 964 P.2d 359 (Feb. 1998), published just prior to argument. Mr. Flynn attempts here to distinguish Bower previously found at 89 Wash. App. 9, 946 P.2d 1216 (Nov. 1997) (Reconsideration Granted Jan. 29, 1998).
To begin, Mr. Flynn incorrectly argues Ms. Manis failed to assign error to the written findings of fact, making them verities on appeal. Contrary to Mr. Flynn's assertion, there were no written findings and conclusions entered in this case. He confuses the transcript of proceedings with written findings and conclusions. Furthermore, since Ms. Manis never got past the adequate cause phase [***7] of the modification process, there was no requirement for the trial court to enter written findings and conclusions. The transcript is useful, however, in discerning the court's reasoning on the legal issues presented for review.
A first step for a court when deciding whether adequate [*191] cause exists for modification of a parenting plan is to examine the affidavits submitted in support of the request to determine if they show a prima facie case. Roorda, 25 Wash. App. at 852. A prima facie case for modification requires the facts in the supporting affidavits, if proven, be "relevant to the grounds for modification" and "not merely cumulative or impeaching." Id. A party is entitled to a full evidentiary hearing when adequate cause is shown. Bower, 964 P.2d at 362. The hearing and show cause procedure is described in RCW 29.09.270. The relevant facts contained in this opinion are not disputed. The relevant grounds are found in RCW 26.09.260. The parties argued section 1 to the Commissioner. It provides:
(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 [***8] 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 interests of the child and is necessary to serve the best interests of the child. [**503]When a major modification is sought the relevant part of section 2 of RCW 26.09.260 provides a preference for retention of the existing plan unless:
(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 outweighed by the advantage of a change to the child;...The parties and the trial court viewed this matter exclusively as a major modification. However, section 4(b)(iii) provides an exception when a "minor" modification exists:
We believe the test applying to these facts comes within section 4(b)(iii), not sections (1) and (2), the approach used by the trial court. The choice of test to be used, its interpretation, and application are matters of law reviewed de novo. Department of Ecology v. Grimes, 121 Wash. 2d 459, 466, 852 P.2d 1044 (1993).
(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) of this section, if the proposed modification is only a:
. . .
[*192] (b) [***9] Minor modification in the residential schedule that:
. . .
(iii) Is based upon 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.
Although a move out of state and away from the non-residential parent is undoubtedly a major event in a young child's life, the statute contemplates that a "substantial change in circumstances of either parent or of the child" can, [*193] in the circumstances defined by subsection (4)(b), be addressed through a minor modification of the parenting plan. And the statute expressly provides that one of the circumstances permitting a minor modification to a parenting plan is a "change of residence . . . which makes the residential schedule in the parenting plan impractical to follow."
Barbara Bower proposed a modification of the parenting plan based on a "change of residence . . . which makes the residential schedule in the parenting plan impractical to follow." She thereby satisfied the statutory requirements to have her petition heard as a minor modification. She did not have to allege a substantial change in the circumstances of either Erica or Erica's father, as would have been required if she proceeded under RCW 26.09.260(1); it was enough that she showed a substantial change in her own circumstances . . . . And she did not have to allege that Erica's present environment was detrimental, or that the harm likely to be caused by the move was outweighed by the advantages of the move to Erica, as would have been required if RCW 26.09.260(2) were applicable.