IN RE S.T.J., 142 Wn. App. 1039 (2008)

No. 59927-5-I.The Court of Appeals of Washington, Division One.
January 22, 2008.

Appeal from a judgment of the Superior Court for Snohomish County, No. 93-5-01259-3, Kenneth L. Cowsert, J., entered March 30, 2007.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

In order to establish adequate cause for a hearing on a petition to modify a parenting plan, the moving party must present evidence sufficient to support all findings necessary for the modification. Because appellant Jennifer Jenkins failed to submit evidence suggesting that modification was in the best interests of the child, the trial court did not abuse its discretion in denying Jenkins’ petition. Nor has Jenkins demonstrated any error or abuse of discretion in the judgment for her share of extraordinary health care expenses or in the trial court’s refusal to find the child’s father in contempt. Accordingly, we affirm the trial court’s decisions.

FACTS
Jennifer Jenkins and Michael Grimes are the parents of S.T.J., who is now 14. Under the provisions of a 2002 King County parenting plan, S.T.J. was to reside a majority of the time with Jenkins and alternating weekends with Grimes. In July 2003, Child Protective Services (CPS) temporarily removed S.T.J. from Jenkins’ home following allegations that she had hit him with a wrench. After CPS returned S.T.J. to Jenkins, his school attendance continued to decline, his academic performance deteriorated, and he exhibited increased aggressive behavior. The juvenile court placed S.T.J. into Grimes’ care in February 2004.

In June 2004, Grimes petitioned for modification of the 2002 parenting plan, seeking, among other things, a change in S.T.J.’s residential schedule. Grimes filed the modification petition in Snohomish County, where both parents and S.T.J. were currently living.

Following a lengthy trial, the court granted Grimes’ petition and modified the parenting plan. Acknowledging the complex history of the case and the fact that the truth of allegations of physical and sexual abuse would never be known, the court found that S.T.J. was much happier and less stressed since he began living with his father. S.T.J.’s behavior and academic performance also improved sufficiently so that he no longer required special education classes. The court found that with counseling and proper medical treatment for ADHD (attention deficit hyperactivity disorder), S.T.J. was “flourishing” under Grimes’ care. The court further determined that S.T.J.’s return to Jenkins’ care would be detrimental to his physical, mental, and emotional health, in part because of Jenkins’ psychological problems, her failure to pursue recommended counseling, and her inability to understand the effect of her behavior on S.T.J.

On September 2, 2005, the trial court entered the order granting Grimes’ petition for modification and a final parenting plan. Among other things, the parenting plan directed that S.T.J. reside with Grimes and conditioned Jenkins’ limited residential time on her active participation in psychiatric treatment. Any residential time that S.T.J. spent with Jenkins required professional supervision. This court affirmed the modification order. See Ruling Terminating Review, In re Parentage of S.T.J., No. 57057-9-I (Wash.Ct.App. Oct. 19, 2006), review denied, No. 79914-8 (Wash.Sup.Ct. Dec. 5, 2007).

In March 2007, Grimes and Jenkins filed several motions that are the subject of this appeal. Jenkins petitioned for modification of the 2005 parenting plan, alleging that S.T.J. was being physically and mentally abused by adults in the Grimes’ home and that he was failing in school. Jenkins requested that the current residential schedule be changed to require that S.T.J. live with her. Grimes moved for a judgment for back child support and reimbursement for extraordinary health care expenses. Both parties filed motions for contempt, alleging violations of the parenting plan.

The court considered all of the parties’ motions on March 30, 2007. The court denied Jenkins’ petition for modification of the parenting plan, concluding that she had failed to demonstrate adequate cause for a hearing. The court found that Jenkins’ claim that S.T.G. had been integrated into her home was an “acknowledged misstatement” and that the evidence failed to support her allegation that Grimes’ home provided a detrimental environment. The court also awarded Grimes $2,500 in attorney fees based on the “patently incorrect allegation” in Jenkins’ petition. Additionally, the court found that Jenkins owed $1,760 for back child support and extraordinary health care expenses and that Grimes owed Jenkins $1,460 for a prior unpaid judgment and entered a judgment of $300 against Jenkins. Finally, the court found that both parties had violated terms of the parenting plan, but declined to find either parent in contempt.

DECISION
In her notice of appeal, Jenkins indicated she was challenging all three trial court rulings entered on March 30, 2007: (1) the adequate cause determination and attorney fee award; (2) the judgment for back child support and extraordinary health care expenses; and (3) the denial of her motion for contempt. But Jenkins’ appellate brief contains no assignments of error or related issue statements as required by RAP 10.3(a)(4). Moreover, Jenkins has devoted much of her appellate brief to challenging the 2005 parenting plan, a decision that was the subject of Jenkins’ prior appeal and is not before us on review. Nonetheless, to the extent that we can identify claims that are properly raised and argued on appeal, we will address them. See State v. Olson, 126 Wn.2d 315, 320, 893 P.2d 629 (1995).

Jenkins’ primary contention is that the trial court erred in determining that her petition for modification of the 2005 parenting plan failed to establish adequate cause. Under RCW 26.09.270, a party seeking to modify a parenting plan must submit with the motion “an affidavit setting forth facts supporting the . . . modification.” The court “shall deny” the motion without a hearing unless the affidavit establishes “adequate cause” to set a hearing. RCW 26.09.270. At a minimum, “`adequate cause’ means evidence sufficient to support a finding on each fact that the movant must prove in order to modify; otherwise, a movant could harass a nonmovant by obtaining a useless hearing.” In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 (2004). We will overturn the trial court’s adequate cause determination under RCW 26.09.270 only for an abuse of discretion. In re Parentage of Jannot, 149 Wn.2d 123, 126, 65 P.3d 664 (2003).

Jenkins supported her modification petition primarily with allegations that Grimes’ family was abusing S.T.J. physically and mentally and that S.T.J. was failing in school. In particular, Jenkins pointed to an incident involving a bruise on S.T.J.’s nose and the fact that he had run away on two occasions in early 2007. But Jenkins’ claim that these incidents demonstrated a detrimental environment in Grimes’ household was, at best, disputed. Moreover, in order to establish adequate cause, Jenkins was also required to submit evidence that the proposed modification was “in the best interest of the child and is necessary to serve the best interests of the child.” RCW 26.09.260. Jenkins submitted no evidence that would support such findings.

On the contrary, the trial court had before it a lengthy declaration from William Singer, S.T.J.’s mental health counselor since June 2004. Singer described in detail Jenkins’ attempts to manipulate S.T.J. in an effort to persuade the court to change the residential schedule and how her longstanding “abusive use of conflict” continued to have a damaging effect on S.T.J.’s emotional health. Based on information provided by S.T.J., Singer concluded that the bruise on S.T.J.’s nose was the result of an accident, not abuse, and that S.T.J. had run away on two occasions because of appropriate discipline in the Grimes’ household and because of Jenkins’ manipulative behavior.

In summary, because Jenkins failed to submit evidence suggesting the existence of all facts necessary to support a modification of the parenting plan, the trial court did not abuse its discretion in concluding that she failed to establish adequate cause.

Nor has Jenkins cited any relevant authority to support her conclusory allegation that the adequate cause determination infringed upon her constitutional rights to rear her children without State interference. Where, as here, there is a dispute between parents, such rights are not absolute and necessarily involve a balancing of the competing interests, including the child’s. See Mecum v. Pomiak, 119 Wn. App. 415, 421, 81 P.3d 154
(2003); see also In re Custody of Shields, 157 Wn.2d 126, 142, 136 P.3d 117 (2006).

Jenkins also challenges the trial court’s award of attorney fees. But her sole argument is that the award “should be reversed simply because the Judge went against his own ruling that court action was the only remedy for action.” Brief of Appellant at 36. This argument apparently rests on the provision in the current parenting plan requiring the parties to pursue “court action” rather than dispute resolution if there is a disagreement about the parenting plan. But this provision does not authorize baseless court filings. If a party acts in bad faith when filing a petition to modify a parenting plan, the trial court is required to assess costs and attorney fees against the moving party. RCW 26.09.260(11).

Jenkins next contends the judgment for extraordinary health care costs must be reversed because she did not receive the pay stub she requested from Grimes’ wife and because the evidence established that S.T.J. had health insurance. But Jenkins has made no showing that either assertion, if true, affected her obligation to pay one-half of S.T.J.’s extraordinary health care costs. The mere existence of health insurance does not support an inference that all health care expenses will be reimbursed, and Jenkins made no showing that Grimes’ evidence of extraordinary health care expenses was inaccurate or that S.T.J.’s insurance covered any of the expenses. Under the circumstances, she has not demonstrated any error in the judgment.

Jenkins alleges that the trial court erred when it excluded certain documents and failed to consider others. But she has not clearly identified which documents were excluded or indicated how she was prejudiced by the trial court’s ruling. Nor has she provided any record of the trial court’s evidentiary rulings. Under the circumstances, the record is insufficient to permit appellate review. See Bulzomi v. Dep’t of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (party seeking review has the burden of providing an adequate record).

Finally, Jenkins appears to challenge the trial court’s refusal to find Grimes in contempt. But because she has not supported the challenge with any legal argument or citation to relevant authority, we do not consider it. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

Grimes requests an award of attorney fees for a frivolous appeal under RAP 18.9(a). An appeal is frivolous “if the appellate court is convinced that the appeal presents no debatable issues upon which reasonable minds could differ and is so lacking in merit that there is no possibility of reversal.” In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929
(1997). That standard is satisfied here. In fashioning an appropriate award under RAP 18.9(a), we recognize the need to deter the filing of baseless appeals. But we are also mindful of the specific circumstances of this case and of the parties. Accordingly, we award Grimes $1,500 for attorney fees on appeal.

The trial court’s decisions are affirmed; Grimes is awarded $1,500 for attorney fees on appeal.