No. 21406-1-IIIThe Court of Appeals of Washington, Division Three. Panel One.
Filed: September 4, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Whitman County Docket No: 02-3-00058-6 Judgment or order under review Date filed: 06/25/2002
Counsel for Appellant(s), Mark Mumford, Mabbutt Mumford, 111 E 1st St, P.O. Box 9303, Moscow, ID 83843.
Counsel for Respondent(s), Jennifer A. Ewers, Attorney at Law, 609 S Washington St. Ste 206, Moscow, ID 83843-3064.
BROWN, C.J.
Eric J. Smith appeals the trial court’s denial of his request to modify a prior child custody order. He contends the court abused its discretion in finding adequate cause did not exist for a full hearing to modify custody of Mr. Smith’s and Cheryl Johnson’s sixteen year-old son. We affirm.
FACTS
Mr. Smith and Ms. Johnson were married in 1980 and divorced in September 1996 in Latah County, Idaho. They have five children — Andrea, Christian, Jonathan, Nathaniel `Nathan’, and Eric Michael. Andrea and Christian are emancipated, Jonathan resides with Mr. Smith, and Nathan and Eric Michael reside with Ms. Johnson. Nathan is the subject of this appeal.
The year following the parties’ dissolution, Mr. Smith requested modification of the parties’ custody order, asking for primary residential custody of Nathan and Eric Michael. He argued the boys’ behavioral problems necessitated a change in residential placement. Following the filing of Mr. Smith’s petition, Ms. Johnson remarried and relocated to Whitman County.
The Idaho judge appointed Gregory Wilson as a custody evaluator. Dr. Wilson opined that custody be changed based primarily on information from a third party that Ms. Johnson’s home was `chaotic.’ Clerk’s Papers (CP) at 113. However, the third party Dr. Wilson relied upon for his report testified at the modification hearing, and did not validate Dr. Wilson’s conclusion that the two boys should reside with Mr. Smith. In his 1999 Memorandum Opinion, the judge found a substantial change in circumstances based on Ms. Johnson’s remarriage and move to Whitman County. The judge next addressed the boys’ best interest in light of their `disorders’ and their need for professional help from the school district and the mental health community. CP at 113. The judge ruled it would be in the boys’ best interest for Ms. Johnson to remain residential custodian.
In December 2001, following a family disturbance, Nathan was arrested and charged with fourth degree assault for injuring his younger brother, and third degree assault for hitting a police officer. He pleaded guilty to the fourth degree assault charge and was sentenced to community supervision.
Five months later, Mr. Smith requested another custody modification, alleging a substantial change in circumstances based on Nathan’s arrest and his behavioral problems. Nathan was diagnosed with Oppositional Defiant Disorder; however, a school district evaluation report notes, `the behaviors that are being exhibited now have been present in some manner for at least five years.’ CP at 138.
Mr. Smith further alleged Nathan had asked to live with him. Ms. Johnson objected to this statement as inadmissible hearsay. Mr. Smith also filed an unsigned letter from Keith Haley, a certified child specialist counselor. He recommended Nathan stay with his father from the date of the letter, March 19, 2001, until the end of the school year. Mr. Smith’s request for modification was made in the Whitman County Superior Court based on Ms. Johnson’s relocation to Whitman County. Mr. Smith currently resides in Nevada. The Whitman County Superior Court judge ruled there was `not adequate cause to schedule this matter for a custody hearing’ and dismissed the petition to modify. Report of Proceedings (RP) at 9. In his oral ruling, the judge noted Nathan’s behavioral problems were considered by the Idaho judge during Mr. Smith’s prior request for modification. Further, the allegation that Ms. Johnson’s home was chaotic was previously considered. The judge stated the only new instances that could amount to a substantial change in circumstances were Nathan’s alleged request to live with his father and his criminal arrest. The judge ruled the arrest was `a manifestation of the behavioral problems that were noted three years ago’ and not a substantial change in circumstances. RP at 7. While the judge did not analyze Nathan’s request to live with his father, he did note there was no showing a change in custody `would in fact have any positive effects in Nathan’s behaviors.’ RP at 7.
Ms. Johnson was granted attorney fees. The judge ruled Mr. Smith came back `in a different court and [tried] to rehash and re-litigate everything again.’ RP at 8-9. Moreover, the judge noted Mr. Smith made a weak argument for modification and should be responsible for the failed proceedings. In his order concerning adequate cause, the judge specifically stated Mr. Smith’s petition was filed in bad faith.
Mr. Smith unsuccessfully requested reconsideration. The judge discussed Nathan’s alleged desire to live with his father and ruled Mr. Smith `presented no evidence, other than his own inadmissible hearsay statement, as to the child’s desire to live with his father.’ CP at 172. Regarding attorney fees, the judge ruled:
Petitioner is basing his action on the same allegations that have previously been raised, litigated, and determined. Given this fact, together with the long history of conflict, animosity, and lack of cooperation between the parties, the court can arrive at no other conclusion but that Petitioner’s action has been brought in bad faith. CP at 174. This appeal followed.
ANALYSIS
A. Adequate Cause
The issue is whether the trial court erred by abusing its discretion in ruling adequate cause did not exist for a full hearing on Mr. Smith’s request to modify custody.
A strong presumption exists against modification of a parenting plan because changes in residences are highly disruptive to children. In re Parentage of Schroeder, 106 Wn. App. 343, 350, 22 P.3d 1280 (2001). It is the petitioner’s burden to establish adequate cause for hearing a modification petition. RCW 26.09.270; In re Marriage of Mangiola, 46 Wn. App. 574, 577, 732 P.2d 163 (1987); Roorda v. Roorda, 25 Wn. App. 849, 851, 611 P.2d 794 (1980). “Adequate cause” has been defined as “something more than prima facie allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change.” Mangiola, 46 Wn. App. at 577 (quoting Roorda, 25 Wn. App. at 852). We review a trial court’s determination of whether adequate cause exists for a full hearing on a petition for major modification for an abuse of discretion. In re Parentage of Jannot, 149 Wn.2d 123, 126, 65 P.3d 664 (2003).
Mr. Smith had the burden to produce sufficient evidence that (1) there has been a substantial change in the circumstances of the child or the non-moving party; (2) modification is necessary to serve the child’s best interests; (3) the child’s present environment is detrimental to his physical, mental, or emotional health; and (4) the advantages of the proposed change outweigh the likely harmful effects of the change in environment. RCW 26.09.260(1), (2); Roorda, 25 Wn. App. at 852. Mr. Smith contends he provided prima facie evidence of the above four elements.
In support of his petition, Mr. Smith filed an affidavit setting forth Nathan’s behavioral problems, his recent arrest, and his alleged request to reside with his father. He also filed an unsigned letter from Keith Haley, a certified child specialist counselor. Mr. Haley merely recommended Nathan stay with his father from the date of the letter, March 19, 2001, until the end of the school year to give Ms. Johnson and Nathan some time apart. Notably, Mr. Haley did not allege a substantial change in circumstances. Nor did he opine that a custody modification was necessary to serve Nathan’s best interests, that Nathan’s present environment was detrimental to his health, or that the advantages of a permanent change of residential placement would outweigh the harmful effects of the change in environment.
Nathan has exhibited behavioral problems for several years. These problems were considered in length by the Idaho court and, therefore, do not amount to a substantial change in circumstances. More troubling is Nathan’s recent arrest. While an arrest is an unfortunate event in a juvenile’s life, it appears this incident, which stemmed from a family disturbance, is a manifestation of Nathan’s behavioral problems and not in itself a substantial change in circumstances. Regarding Nathan’s alleged desire to live with his father, the trial court stated Mr. Smith `presented no evidence, other than his own inadmissible hearsay statement [in his affidavit], as to the child’s desire to live with his father.’ CP at 172. While Mr. Smith acknowledges hearsay statements are inadmissible at a trial or hearing under ER 801(c), he alleges such statements are admissible in affidavits. However, this court has clearly held ‘[h]earsay evidence in affidavits is inadmissible and may not be considered by the court.’ In re Marriage of Morrison, 26 Wn. App. 571, 575 n. 2, 613 P.2d 557 (1980) (citing 2 S. Gard, Jones on Evidence sec. 8:2 (1972 Supp. 1979)).
In sum, Mr. Smith has mainly reiterated the Idaho allegations, and his `new’ allegations do not differ significantly in kind or degree; he failed to provide adequate cause for a modification hearing. Therefore, the trial court did not abuse its discretion in dismissing Mr. Smith’s petition for modification.
B. Attorney Fees
The next issue is whether the trial court erred by awarding attorney fees to Ms. Johnson and concluding the petition was filed in bad faith under RCW 26.09.260(11).
RCW 26.09.260(11) allows the trial court to assess attorney fees when a motion to modify a prior parenting plan is brought in bad faith. Mr. Smith alleges the trial court did not make a finding of bad faith as required under the statute.
In its adequate cause order, the trial court expressly stated, ‘[t]he Petition was filed in bad faith, and an award of attorney fees is therefore appropriate.’ CP at 182. Counsel for Mr. Smith signed without objection. The trial court also stated in its order denying Mr. Smith’s request for reconsideration that `the court can arrive at no other conclusion but that Petitioner’s action has been brought in bad faith.’ CP at 174. While the court’s order on adequate cause was filed after the court’s order denying Mr. Smith’s request for reconsideration, the two clearly show the court’s intent to make a finding of bad faith. Accordingly, the court’s award of attorney fees to Ms. Johnson complies with RCW 26.09.260(11).
Ms. Johnson requests attorney fees and costs on appeal in the last line of her conclusion in her brief. RAP 18.1(b) requires a party to devote a special section of his or her brief to the request for fees. Such requirement is mandatory. Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998) (citing Phillips Bldg. Co. v. An, 81 Wn. App. 696, 705, 915 P.2d 1146 (1996)). A request for attorney fees and costs in the last line of the conclusion in a brief is not sufficient. Wilson Court, 134 Wn.2d at 710. Thus, Ms. Johnson is not entitled to fees on appeal.
Affirmed.
A majority of the panel has determined 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 and KATO, JJ., concur.