No. 25492-5-III.The Court of Appeals of Washington, Division Three.
November 15, 2007.
Appeal from a judgment of the Superior Court for Asotin County, No. 05-5-00059-3, David Frazier, J., entered August 31, 2006.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kulik, JJ.
SCHULTHEIS, A.C.J.
Nicole Thompson and William Pitcher decided to separate after living together for 11 years. The trial court awarded permanent primary residential placement of the couple’s two children to Mr. Pitcher, finding his household the more stable of the two. Ms. Thompson appeals the trial court’s residential placement order, contending she has the stronger bond with the children and that the trial court failed to consider certain statutory factors regarding residential placement of children. We affirm.
FACTS
Nicole Thompson and William Pitcher were involved in a marital-like relationship for 11 years. They had two children during that time. Mr. Pitcher also has custody of a 12-year-old boy from a previous relationship. During the relationship, Ms. Thompson generally stayed at home to care for the children while Mr. Pitcher worked outside the home. When the parties separated, the temporary parenting plan designated Ms. Thompson as the primary residential parent.
Within three weeks of the parties’ separation, Ms. Thompson moved her boyfriend, David Cone, into her home with the children. Mr. Cone has a history of serious emotional problems. His wife at the time of trial, Teresa Cone, testified that she was seeking a divorce because of his anger issues. Ms. Cone testified that Mr. Cone belittled their two children, kicked them, and on one occasion hit one of them on the head with enough force to knock him down. Mr. Cone’s father-in-law also observed Mr. Cone’s uncontrollable anger and saw him kick one of the children with excessive force.
Mr. Cone admits that he has a history of emotional breakdowns and suicidal thinking. At the time of trial, he was on disability for his emotional problems. Although Ms. Thompson does not believe that Mr. Cone poses a risk to the children, Mr. Pitcher has grave concerns about Mr. Cone’s instability. At trial, he asked for primary residential placement of the children because he did not believe they were safe with Mr. Cone.
Dr. Gregory Wilson conducted a child custody evaluation of Mr. Cone pertaining to the custody dispute between Mr. and Ms. Cone. Dr. Wilson was concerned about the frequency of Mr. Cone’s suicidal thoughts and his history of violent behavior, which included pushing, shoving, and throwing things. Extensive psychological testing revealed above average scores for hypochondria, hysteria, psychopathic deviancy, narcissism, and paranoia.
Despite these serious emotional problems, Dr. Wilson noted that Mr. Cone was attentive and positive with his own children. Dr. Wilson opined that Mr. Cone’s presence in Ms. Thompson’s house was not optimal for the Pitcher/Thompson children, but that it should not necessarily preclude residential placement of the children with their mother.
In the final parenting plan, the trial court awarded permanent primary residential placement of the children to Mr. Pitcher, finding Mr. Cone’s severe emotional problems would create a destabilizing home environment for the children. The trial judge also questioned Ms. Thompson’s judgment in bringing an emotionally disturbed man into the home within three weeks of the parties’ separation. The trial court concluded that the best interests of the children were served by designating Mr. Pitcher the primary residential parent because his home was comparatively more stable than the mother’s.
ANALYSIS
The sole issue on appeal is whether the trial court properly awarded primary residential placement of the children to Mr. Pitcher. Ms. Thompson claims that by focusing on Mr. Cone’s deficiencies, the trial court failed to properly consider the relevant statutory criteria in determining residential provisions for the children. See
RCW 26.09.187(3)(a)(i)-(vii).
It is well settled that the trial court has broad discretion to fashion residential provisions for the parenting plan as long as it considers the child’s best interest and the statutory factors. In re Marriage of Possinger, 105 Wn. App. 326, 335, 19 P.3d 1109 (2001); In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). A trial court’s ruling dealing with the placement of children is reviewed for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). Discretion is abused only when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Kovacs, 121 Wn.2d at 801. A trial court’s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and applicable legal standard. In re Marriage of Horner, 151 Wn.2d 884, 894, 93 P.3d 124 (2004).
Determining the credibility of witnesses and the weight to assign conflicting testimony is for the trial judge, whose findings are reviewed only to determine whether they are supported by substantial evidence. In re Pennington, 142 Wn.2d 592, 602-03, 14 P.3d 764 (2000); In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981) (appellate courts are reluctant to disturb child placement dispositions because of the trial court’s unique opportunity to personally observe the parties).
The best interests and welfare of the children are paramount in placement decisions. RCW 26.09.002; In re Guardianship of Palmer, 81 Wn.2d 604, 503 P.2d 464 (1972); Kovacs, 121 Wn.2d at 801. In evaluating the best interest of the child, the Parenting Act of 1987 requires the trial court to consider the seven factors found in RCW 26.09.187(3). These include the strength, nature, and stability of the child’s relationship with each parent (factor i); any agreements between the parties (factor ii); each parent’s past performance and potential for future performance as a parent (factor iii); the child’s emotional needs and developmental level (factor iv); the child’s relationship with siblings (factor v); the parents’ and child’s preferences (factor vi); and each parent’s employment schedule (factor vii). RCW 26.09.187(3)(a)(i)-(vii). The first factor is given the greatest weight. RCW 26.09.187(3)(a).
These guidelines must be applied in conjunction with RCW 26.09.184 (setting forth objectives of parenting plan), RCW 26.09.002 (policy of the parenting act), and RCW 26.09.191
(setting forth limiting factors upon a parent’s involvement with a child). In re Marriage of Katare, 125 Wn. App. 813, 105 P.3d 44 (2004).
Contrary to Ms. Thompson’s contention, it is evident from the trial court’s oral opinion and written findings that it considered the required statutory factors. It evaluated the nature of the relationship of the children with both parents and found that although Ms. Thompson had been the primary caretaker, both parents substantially participated in the raising of the children. The court found that Mr. Pitcher was stable, a hard worker, and a caring father. It also noted that the children were closely bonded with Mr. Pitcher’s son from another relationship.
Although the court found that both parties were good parents, it was troubled by Ms. Thompson’s decision to move a severely emotionally disturbed man into the children’s home soon after the parties’ separation. In its written decision, the trial judge noted:
Both parents are fit, but comparing the parents and their living environment, it is in the best interest of the children to be placed with their father as he is the more stable of the parties. The mother moving another man into the home within three weeks of having the father removed showed poor judgment and a lack of concern for the effect it might have on the children, placing her needs or wants before that of the children.
Clerk’s Papers at 22. Although the trial court did not find that Mr. Cone presented a physical danger to the children, it did find that his serious physical and emotional problems were not conducive to a stable and happy environment.
Substantial evidence supports the trial court’s findings. It is undisputed that Mr. Cone suffers from debilitating and destabilizing emotional and physical problems, including recurring major depression, severe chronic pain from migraines, suicidal thinking, emotional instability, and uncontrollable anger. Mr. Cone admits that the pain from migraines makes him suicidal and that he has emotionally broken down in front of his children and at work. He also admits that on one occasion he was so despondent he left an emotional telephone message for his children, telling them goodbye while crying. Dr. Wilson was concerned about the frequency of Mr. Cone’s suicidal thoughts, noting that his suicidal ideation suggested less than average functioning for a person completing a child custody psychological evaluation. Furthermore, at the time of trial, Mr. Cone had been on disability for emotional dysfunction since January 2006.
As already discussed, psychological testing of Mr. Cone revealed above average scores for hypochondria, hysteria, psychopathic deviancy, and paranoia. Dr. Wilson explained that Mr. Cone’s score of 64 on the psychopathic deviant scale means “having had problems with anger, irresponsibility, immaturity, being hedonistic, self-centered.” Vol. G Report of Proceedings at 350. Personality testing revealed narcissistic features, including anger, intolerance, and resentment at perceived injustice or unfairness.
Dr. Wilson’s primary concern about Mr. Cone’s parenting ability related to the deterioration of his functioning due to chronic pain. He explained that chronic pain makes it difficult to parent in a “warm and emphatic way to children, because you are kind of run out of resources for yourself.” Id. at 353. Dr. Wilson was also concerned about Mr. Cone’s dishonesty regarding his anger problem, noting that he learned about Mr. Cone’s anger problems from Mr. Cone’s therapist — Mr. Cone denied discussing anger issues with his therapist.
In view of this record, the court’s placement decision was based on tenable grounds. Because the court considered the factors of RCW 26.09.187(3)(a), applied the best interests of the child standard, and considered the objectives of the parenting act, it did not abuse its discretion in awarding primary residential placement of the children to Mr. Pitcher.
CONCLUSION
Substantial evidence supports the trial court’s primary residential placement of the children with Mr. Pitcher. 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.
Brown, J. and Kulik, J. concur.
Page 1034