No. 60711-1-I.The Court of Appeals of Washington, Division One.
March 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 02-3-07049-7, Mary E. Roberts, J., entered September 18, 2007.
Affirmed
by unpublished per curiam opinion.
PER CURIAM.
In this second appeal from proceedings involving the relocation of a parent with equal residential time, David Spring contends the superior court erred when, following our remand, it granted his motion for summary judgment but failed to grant him all the relief requested in his motion. Specifically, he contends the court on remand should have granted his requests for an order restraining Michelle Spring from relocating her residence and for attorney fees. We affirm.
FACTS
The underlying facts are set forth in our June 4, 2007 opinion resolving the initial appeal. There, we held that Michelle could not utilize the notice provisions of the child relocation act, chapter 26.09
RCW, and was not entitled to benefit from the act’s rebuttable presumption in favor of relocation. Accordingly, we directed the superior court to grant David’s motion for summary judgment dismissing her notice under the act. We expressly limited our holding “to the circumstances and procedural posture of this case” and declined to decide whether the child relocation act applies in any other respect to a 50-50 parenting plan. We noted that several interpretations of the act had been urged upon us, including “that in 50-50 plans the act does not apply and either parent may relocate without court approval,” and “that in 50-50 plans the act does not apply and any relocation requires a major modification of the plan[.]”
On remand, David argued that our decision required the superior court to restrain Michelle from relocating her residence until authorized to do so. Michelle countered that nothing in the decision indicated whether her relocation was authorized by law or contrary to the parties’ parenting plan and that the decision only addressed whether she could use the notice provisions of the child relocation act. Therefore, Michelle argued, the superior court was only required to grant David’s motion for summary judgment. The superior court agreed with Michelle, ruling in pertinent part as follows:
this court interprets the court of appeals reversal to require entry of summary judgment in the father’s favor rejecting the mother’s form of initiation to relocation, but not to require an order granting the father’s requested relief to restrain the move. This court will leave it to the parties to argue which legal avenues are now open to them.
The court then granted summary judgment, struck Michelle’s notice under the act, and canceled the trial date. The court also denied both parties’ requests for attorney fees.
DECISION
Citing our prior decision in this case, David argues that the superior court was required on remand to grant his requests for an order restraining Michelle from relocating her residence and for attorney fees. But nothing in our prior decision required the court to grant that relief. The decision did not mention David’s request for a restraining order. Nor did it resolve the parties’ dispute as to the lawfulness of Michelle’s relocation. In fact, we expressly noted that one of the interpretations advanced in that appeal was that the child relocation act does not apply to 50-50 plans at all and that 50-50 parents can relocate without court approval. Our decision thus made it clear that while David was entitled to summary judgment dismissing Michelle’s notice under the act, Michelle’s relocation might nonetheless be lawful. Accordingly, the superior court correctly interpreted our decision as not requiring it to grant a restraining order or attorney fees.
David also argues that even if he was not entitled to a restraining order under the express terms of our prior decision, that decision implicitly required the superior court to vacate a prior temporary order permitting Michelle to relocate pending trial. He contends that once the temporary order is vacated, “Michelle no longer has the right to relocate the child even `temporarily'” and “should have been required to return the child to North Bend immediately as a matter of law and thereby restore the legal status quo. . . .” We disagree.
Prior to his motion for summary judgment and our decision directing the court to grant that motion, David moved for a restraining order under RCW 26.09.510, the temporary order provision of the child relocation act. That statute authorizes “a temporary order restraining relocation of the child, or ordering return of the child if the child’s relocation has occurred[.]” In denying the motion, a superior court commissioner stated that “[t]he mother is permitted to relocate to Redmond pending trial of this matter.” On revision, the superior court affirmed the commissioner and noted that “[t]he Relocation Statute applies in this matter.” David argues that because these orders were based on a procedural provision of the child relocation act and because this court held that “Michelle was not entitled to benefit from the procedures provided in the act,”[1]
our decision logically requires vacation of those orders.
But our prior decision was expressly limited to the applicability of particular procedures in the act and did not purport to rule on the applicability of any other provision, including the temporary order provision. And even assuming the temporary orders have expired or are no longer in effect, it does not follow that Michelle’s relocation is unlawful or that the court must require her to return to North Bend. As discussed above, our prior decision recognized the possibility that the act does not apply at all in this situation and that the parties might be able to relocate without approval of the court. That issue and others relating to the relocation of 50-50 parents were left unresolved by this court. The superior court correctly and expressly invited the parties to litigate those issues in its summary judgment order. David’s attempt to litigate those issues in this court without first litigating them in the proceedings below is misplaced and beyond the scope of our review.[2]
David contends the superior court erred in denying his request for attorney fees due to “Michelle’s refusal to comply with the parenting plan.” As neither this court nor the superior court has ruled that Michelle is currently in violation of the parenting plan or any law, his request is premature and was properly denied.
David’s request for attorney fees, sanctions, and compensatory damages on appeal are denied. The clerk is directed, however, to set a single hearing under cause numbers 60711-1 and 59711-6 for a court’s motion to determine whether additional sanctions should be imposed against attorney Kevin Gibbs under RAP 18.9.
Affirmed.