No. 25885-8-III.The Court of Appeals of Washington, Division Three.
June 3, 2008.
Appeal from a judgment of the Superior Court for Adams County, No. 03-3-00057-1, Richard W. Miller, J., entered August 29, 2006.
Affirmed by unpublished opinion per Thompson, J. Pro Term., concurred in by Sweeney and Korsmo, JJ.
THOMPSON, J.[*]
Channin L. Hedrick appeals the trial court’s decision in the final parenting plan to designate Timothy Hedrick as the primary residential parent for their children. She contends that placement of the children with their father is not in their best interests and the trial court erred in bifurcating jurisdiction of the proceedings. We conclude the trial court properly exercised its discretion in awarding residential placement of the children with their father. We therefore affirm.
FACTS
Channin and Timothy Hedrick married in Montana in 1989. They have two children, James and Timothy, who were 16 and 13 years old at the time of trial. The parties lived in Montana until August 2002 when Ms. Hedrick moved to Othello, Washington with the boys. At that time, the parties agreed that the children would reside with Ms. Hedrick during the school year and spend summers with Mr. Hedrick in Montana. In September 2003, Ms. Hedrick filed a petition for dissolution of the marriage in Adams County, Washington. She also filed a proposed parenting plan designating her as the primary custodial parent. The dissolution was not finalized at that time.
Mr. Hedrick discovered in the summer of 2005 that the divorce was not final. That July, he filed a petition for dissolution of the marriage in Montana. He also requested placement of the children with him.
In response, Ms. Hedrick requested a restraining order enjoining Mr. Hedrick from keeping the children in Montana. She believed that the children would be harmed by living away from the home environment they had known for the last three years and was concerned that placement with their father would adversely affect their school performance. She alleged that Mr. Hedrick drank around the children and refused to allow Timothy to attend summer school. She also requested that Adams County Superior Court exercise its home state jurisdiction pursuant to the Uniform Child CustodyJurisdiction and Enforcement Act, chapter 26.27 RCW, because most of the evidence regarding the children was in Adams County.
In early September 2005, the Adams County trial court concluded that Washington was the children’s home state and therefore the proper forum for child placement decisions. The court appointed a guardian ad litem (GAL) to conduct a parenting study and make recommendations for a final parenting plan.
The children returned to their mother’s home for the 2005-06 school year. Ms. Hedrick had difficulty providing a structured environment for the children during this school year due to cancer treatments. But by the time of trial she was cancer free.
The trial occurred on August 29, 2006. The GAL recommended Mr. Hedrick as the primary residential parent. His primary concern was the mother’s failure to adequately discipline the boys. He interviewed teachers and school counselors who indicated that both boys were consistently unprepared for school and had poor work habits and inconsistent school attendance. He also testified that James had essentially failed all but one class during the last school year and that Timothy, who would be entering the eighth grade, was reading at a third grade level. The boys also had discipline issues. James had been suspended and they were rude to teachers and destructive of school property.
The GAL testified that Ms. Hedrick failed to enforce homework discipline and that one teacher believed Ms. Hedrick spoiled Timothy. When Timothy was asked who helped him with his homework, he answered that his grandfather did. He did not mention his mother. When the GAL asked Ms. Hedrick about James’s school problems, she told him that James was old enough to make his own decisions about his school work. The GAL believed Ms. Hedrick’s failure to discipline the boys contributed significantly to their school problems.
The GAL was also concerned that Ms. Hedrick was unable to control the physical fights between the boys, noting that during one such fight Timothy threw a screwdriver at James, requiring a trip to the emergency room to remove it from his leg. The GAL also believed that Ms. Hedrick was unable to separate her needs from those of her sons. He was particularly concerned that Timothy regularly shared a bed with his mother even though he was 13.
Finally, the GAL noted Ms. Hedrick’s attempt to alienate the boys from their father, citing evidence that she obstructed the boys’ visits with their father. He testified that at one point, Mr. Hedrick was forced to get a court order to see the boys because Ms. Hedrick had not told the boys Mr. Hedrick wanted to see them. She also did not allow the boys to visit their father during Christmas. The GAL also testified about an incident Page 5 where Ms. Hedrick told Timothy he did not have to listen to Brenda Cox, the father’s girl friend.
The GAL believed that Mr. Hedrick provided the stability and discipline the boys needed. He testified that Mr. Hedrick was able to de-escalate the boys’ physical aggression with each other. The GAL also testified that Mr. Hedrick and Ms. Cox were proactive in addressing the boys’ poor school performance. During the summer of 2005, Mr. Hedrick took Timothy to work with him and helped him with phonics. He and Ms. Cox obtained homework assignments from a teacher friend and enforced completion of the assignments. In fact, Timothy complained to the GAL that Ms. Cox made him finish his homework before he could play. Timothy told the GAL that he thought Ms. Cox should stay out of his homework issues and that his mother told him he did not have to listen to Ms. Cox.
The GAL reported that James wanted to live with his father, but Timothy preferred to live with his mother. He ultimately concluded:
There is no doubt that Channin is a loving and caring mother and will do anything for her children, however, because of the fighting between the boys and inactivity at the school, there appears to be a lack of discipline and guidance. A portion of this, I believe, can be attributed to Channin’s treatment for cancer this past year.
Recommendation:
Tim Hedrick should be the custodial parent of Timothy A. and James A.D.
Clerk’s Papers at 56-57.
At trial, Ms. Hedrick testified that the boys did fine in school until their father filed for custody in 2005. During cross-examination, Ms. Hedrick conceded that the boys were struggling in school, but believed that now that she was cancer free she would be able to help them more.
Mr. Hedrick testified that he has been in a stable relationship with Ms. Cox since 2003. He stated that at the beginning of the summer visits the boys were unruly, but they improved by the end of the summer. He explained that he was asking for placement of the boys because they expressed an interest in living with him at the end of the 2005 summer vacation.
The trial court ultimately designated Mr. Hedrick as the primary residential parent. It did not enter written findings and conclusions, but orally noted that it had considered the testimony of the witnesses and the GAL’s report and accepted the GAL’s recommendation. The court emphasized that it was not making a finding about who was the best parent, but was solely evaluating the best interests of the children. The final parenting plan was entered on October 9, 2006.
The court also entered an order, at Ms. Hedrick’s request, bifurcating jurisdiction of dissolution issues. The order provided that Adams County was the proper forum forthe parenting decisions and Montana retained jurisdiction over the remaining dissolution issues.
Ms. Hedrick soon violated the terms of the parenting plan. In January 2007, she was found in contempt for failing to return the boys to their father after Christmas vacation. She claimed it was the children’s choice not to return to their father’s, but the record shows that when she picked up the boys for Christmas vacation, she removed all of their belongings from their father’s home. By the time she was found in contempt, the boys had missed three weeks of school.
Ms. Hedrick appeals the final parenting plan.
ANALYSIS Parenting Plan: Allocation of Children’s Residential Time
In matters dealing with the welfare of children and the provisions of parenting plans, trial courts are given broad discretion. In re Marriage of Cabalquinto, 100 Wn.2d 325, 327, 669 P.2d 886 (1983); In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). This broad discretion is due to the trial court’s unique opportunity to observe the parties, determine their credibility, and sort out conflicting evidence In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219
(1982). The appellate court is “`extremely reluctant to disturb child placement dispositions.'” In re Parentage f Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001) (quoting In re Marriage of Schneider, 82 Wn. App. 471, 476, 918 P.2d 543 (1996), overruled on other grounds by Littlefield, 133 Wn.2d 39).
The decision regarding residential placement must be made with the best interests of the child in mind after considering the factors found in RCW 26.09.187(3). In re Parentage of J.H., 112 Wn. App. 486, 492-93, 49 P.3d 154 (2002). These statutory factors include: (1) the relative strength and stability of the child’s relationship with each parent, including who has taken greater responsibility for performing parenting functions; (2) agreements of the parties; (3) each parent’s past and future parental performance; (4) the needs of the child; (5) the child’s relationship with siblings and with other adults, as well as his or her involvement with school or other activities; (6) the wishes of the parents and a sufficiently mature child as to the residential schedule; and (7) each parent’s employment schedule. Former RCW 26.09.187(3)(a)(i)-(vii) (1989). The first factor is given the greatest weight, but it does not create a presumption in favor of the primary caregiver. In re Marriage of Kovacs, 121 Wn.2d 795, 809, 854 P.2d 629
(1993) (rejecting a presumption in favor of primary care giving parent).
Although the trial court did not make explicit findings as to the seven statutory factors, the trial court indicated that it considered the testimony of the witnesses and theGAL’s report. We conclude that this evidence supports the trial court’s conclusion that it is in the children’s best interests to have their father designated as their primary residential parent.
As to the relative strength of the children’s relationship with each parent and each parent’s parental performance, the evidence demonstrated that although Ms. Hedrick had taken the greater responsibility for the daily care of the children in the four years prior to trial, she had failed to adequately discipline them. She was unable to control their fighting, the children were unruly and undisciplined, and the oldest was failing school. The court also had evidence before it of Ms. Hedrick’s purposeful alienation of the children from their father. In contrast, the evidence showed that Mr. Hedrick provided stricter discipline and was able to manage the boys’ fighting.
Ms. Hedrick argues that a change in care is generally not in the best interests of the children and points to language in Washington’s Parenting Act of 1987, chapter 26.09 RCW, that states: “[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. She also claims that now that she is cancer free, she can provide the structure and discipline the children need.
Ms. Hedrick is correct that the best interests of the children are ordinarily served by maintaining the existing parenting arrangements. However, in this case, the trial court did not abuse its discretion in determining the best interests of the children are better served by the structure and discipline their father provides. The trial court saw, heard, and evaluated the witnesses, their testimony, and their demeanor. We will not second guess the trial court’s credibility determinations. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). We conclude that the trial court’s decision was based on tenable grounds.
Bifurcation of Dissolution Proceedings
Ms. Hedrick next asserts that the trial court erred in splitting jurisdiction of this case between Adams County, Washington and Toole County, Montana. Our analysis of Ms. Hedrick’s argument is limited because she fails to provide any reasoning or authority to support her position. She does not appear to contest any Montana decisions or explain why Montana should not have jurisdiction of matters unrelated to parenting issues. Further, she initiated the bifurcation of proceedings. Her bare assertion that Montana lacks jurisdiction is insufficient for our review. RAP 10.3(a)(6).
Attorney Fees
In his supplemental brief, Mr. Hedrick asks for attorney fees on appeal pursuant to RAP 14.2. Ms. Hedrick asks this court to reject the brief and deny his requests for attorney fees. Exercising our discretion, we deny Mr. Hedrick’s request for attorney fees. But as the substantially prevailing party, Mr. Hedrick is entitled to costs under RAP 14.2
CONCLUSION
The trial court did not abuse its discretion in designating Mr. Hedrick as the primary custodian of the children. Accordingly, we affirm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J., and Korsmo, J., concur.