No. 19926-6-III.The Court of Appeals of Washington, Division Three. Panel Seven.
Filed: November 29, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Asotin County, No. 98-5-00030-5, Hon. John M. Lyden, January 5, 2001, Judgment or order under review.
Counsel for Appellant(s), Charles H. Webb, 924 5th St, P.O. Box 337, Clarkston, WA 99403.
Counsel for Respondent(s), Tina L. Kernan, P.O. Box 285, 1229 Main St, Lewiston, ID 83501.
KURTZ, C.J.
Jesse Jacobs moved to modify the parenting plan and custody decree for his son, Mason. Mason’s mother, Velvet Shoemaker, was personally served with the summons and petition, but she failed to respond within the allotted time. Consequently, an order of default was entered and, without a hearing, an order was subsequently entered changing primary residential custody of Mason from the mother to the father. Thereafter, the superior court denied Ms. Shoemaker’s motion to vacate the modification and she appeals contending that the court abused its discretion in denying her motion to vacate. We hold that the superior court abused its discretion by denying the motion to vacate because the court modified the parenting plan and changed primary residential custody of Mason without a hearing.
FACTS
Mason T. Jacobs is the son of Velvet Shoemaker and Jesse T. Jacobs. Mason was born on May 16, 1997, and is four years old. On March 29, 1999, a judgment determining parentage and approving a parenting plan was entered in the Asotin County Superior Court. The parenting plan provided that Mason would reside with his mother and delineated Mr. Jacobs visitation rights.
After the entry of the paternity judgment, Ms. Shoemaker moved with Mason to Coeur d’Alene, Idaho. Thereafter, she made visitation with Mason difficult for his father. She frequently moved and she did not always provide Mr. Jacobs with her address or telephone number. She refused to share the responsibility for transporting Mason to and from visitation. And, on occasion, she denied Mr. Jacobs his visitation rights.
Concerned about these problems and the stability of the environment in which Mason was living, Mr. Jacobs filed a petition for modification of the custody decree and parenting plan. In the petition, he requested the court to change primary residential custody of Mason from his mother to his father. Mr. Jacobs supported this petition with an affidavit which stated his concerns about visitation and Mason’s home environment.
The petition for the modification of the custody decree and parenting plan, along with a summons, affidavit, and proposed temporary parenting plan were all served on Ms. Shoemaker at her residence in Coeur d’Alene on May 2, 2000. In relevant part, the summons stated that if Ms. Shoemaker failed to serve a written response within 60 days after the service of the summons upon her, `the court may enter an order of default against you, and the court may, without further notice to you, enter an order regarding adequate cause and a decree to modify the custody decree or parenting plan and providing for other relief requested in the petition.’ Clerk’s Papers (CP) at 71. She did not respond to the summons and petition within 60 days and, as a result, an order of default was entered on July 10, 2000.
On July 24, without further hearing, an order modifying the custody decree and parenting plan was granted. The modified parenting plan was identical to the proposed temporary parenting plan that was attached to the petition for modification. It incorrectly states that there are no children of preschool age (Mason was almost 3 years old at the time) and, consequently, it does not state with whom Mason should reside until he enrolls in school. This problem was corrected with the entry of an ex parte order on July 28, which amended the parenting plan to provide that Mason should reside with his father prior to enrollment in school. These documents were subsequently mailed to Ms. Shoemaker.
On September 29, 2000, Ms. Shoemaker filed her first pleadings in the modification action. She requested that the court vacate the order regarding modification of the custody decree or parenting plan entered on July 24. Her motion was based upon CR 60(b).
The trial court denied Ms. Shoemaker’s motion to vacate finding that Ms. Shoemaker provided no good excuse or rationale as to why she did not respond or appear within the time required, and that she has not established any defense to the petition for modification of the custody decree/parenting plan. Ms. Shoemaker appeals.
ANALYSIS
Ms. Shoemaker contends the court abused its discretion by denying her motion to vacate the default judgment. She argues that under RCW 26.09.270
if the court found adequate cause for the custody modification, it should have directed an order to show cause to her and had a hearing, not entered a default judgment.
CR 60(b)(1) allows a party to seek relief from a judgment for `{m}istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.’ Ms. Shoemaker asserts that Mr. Jacobs obtained the modification of custody through an irregularity in the proceedings, namely, a violation of RCW 26.09.270 which states:
A party seeking a temporary custody order or a temporary parenting plan or modification of a custody decree or parenting plan shall submit together with his motion, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceedings, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.
An appellate court will generally not disturb the trial court’s disposition of a motion to vacate unless that court abused its discretion. Pederson’s Fryer Farms, Inc. v. Transamerica Ins. Co., 83 Wn. App. 432, 454, 922 P.2d 126 (1996).
Because custodial changes are viewed as highly disruptive to children, there is a strong presumption in favor of custodial continuity and against modification. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). Chapter 26.09 RCW furthers this concept by establishing rigorous substantive and procedural requirements that the petitioner must satisfy before a court will order a modification. 20 Kenneth W. Weber, Washington Practice, Family and Community Property Law, § 33.36 at 302 (1997); see In re Marriage of Shryock, 76 Wn. App. 848, 851-52, 888 P.2d 750 (1995).
Some of those procedural requirements are set forth in RCW 26.09.270, which requires a party seeking modification to file a motion supported by an affidavit or declaration setting forth facts supporting the requested modification. Weber, supra, § 33.38, at 304. The court must make an adequate cause determination before conducting any further hearing or trial and deny the motion unless it finds that the affidavits or declarations establish adequate cause to hold a hearing. RCW 26.09.270; Weber, supra, § 33.38, at 305. Once adequate cause is shown, a party is entitled to a full evidentiary hearing. Bower v. Reich, 89 Wn. App. 9, 14, 964 P.2d 359 (1997).
Here, the only evidence considered by the court was the affidavit of Jesse Jacobs, which he submitted in support of his request for a hearing.
In that affidavit, he states that since Ms. Shoemaker had moved to Coeur d’Alene, he had experienced difficulties in exercising visitation with his son. He further states his concerns about the caregiving that Mason was receiving from his mother. These concerns are stated in a vague and conclusory manner. For instance, he states, `I do not believe that the mother is providing a stable environment for Mason to live.’ CP at 73. Elsewhere, he states, `I also believe that Velvet is neglecting our child. I have witnessed the fact that he has been bruised and/or injured at times when I have seen him.’ CP at 74. In short, the affidavit is barely sufficient to commence a hearing and is not sufficient to support modification of the parenting plan.
The statutory procedure for modification of a parenting plan clearly envisions an independent hearing by the court before the parenting plan can be modified. Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 807, 929 P.2d 1204 (1997). At that hearing, the party seeking a custody modification must demonstrate that a substantial change of circumstances has occurred that requires a modification to protect the best interest of the child. Without a hearing, the trial court cannot determine whether the proposed modifications to the parenting plan are in the best interest of the child.
In this case, the trial court erred by modifying the parenting plan without a hearing.
The order denying the motion to vacate is reversed and this case is remanded for hearing as required by RCW 26.09.270. Because changes in residential status are harmful to the child, we order that there shall be no change in Mason’s current residential status until the modification hearing.
The 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.
WE CONCUR: SCHULTHEIS, J., KATO, J.