                                                           UOURT OF APPEAL5 OW
                                                            STATE OF WASIINGTOH

                                                            2018 JUN 18 MI 9:147


     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

 IN RE THE MARRIAGE OF                                  No. 77864-1-1

 MICHAEL P. BATEMAN                                     DIVISION ONE

                       Respondent
                                                        UNPUBLISHED OPINION
               V.

 MINA K. BATEMAN,

                       Appellant.                       FILED: June 18, 2018'

       SPEARMAN, J. — After the mother failed to appear for a readiness hearing and
then did not appear for trial in this dissolution proceeding, the trial court proceeded to

trial. Following trial, the court entered final orders, including a final parenting plan for

the parties' three children. Thereafter, the court denied the mother's motion to vacate.

The court's decision reflects its consideration of the factors outlined by statute when it

adopted the residential provisions of the parenting plan. The court did not abuse its

discretion when it concluded there was no irregularity in the trial proceeding or other

basis to warrant vacating the final orders. We affirm.

                                           FACTS

       Mina and Michael Bateman married in 2004 and had three children during the

marriage. The family had been living in Oak Harbor, Washington for a year when the

couple separated in June 2016. For a brief period immediately after the parties
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separated, the mother struggled with a substance abuse issue and was temporarily

unable to care for the children. During this time, the children lived with the father and

saw the mother, who was staying in Gig Harbor with family, on weekends.

        In July 2017, the father filed a petition to dissolve the marriage. The father initially

retained counsel, but at some point early on in the case, he began representing himself.

In September 2016, three months after the separation, the mother returned to Oak

Harbor and rented an apartment. The court entered a temporary parenting plan

providing for the children to live with the mother on weekdays and with the father on

weekends. This plan remained in place for almost a year and during that time, the

mother successfully completed an outpatient substance abuse treatment program.

        In July 2017, over the father's objection, the court allowed the mother to relocate

to Seattle. In conjunction with this ruling, the court entered a temporary parenting plan

proposed by the mother that provided for the children to live primarily with her and

provided for residential time with the father in Oak Harbor three weekends per month.

        By early August, the dates for the trial readiness hearing and the dissolution trial

were set for October 30, 2017 and November 28, 2017, respectively. Around the same

time, because the mother could no longer afford her services, her attorney withdrew

from the case. The attorney filed a notice of intent to withdraw which informed the

mother of the November 28, 2017 trial date.1 The mother's attorney sent the notice to

the mother's Seattle home address by certified and regular mail on August 29, 2017.

        The mother did not appear at the readiness hearing on October 30 nor did she

appear for trial a month later on November 28. The father appeared and informed the


       1 The notice to withdraw did not include the date of the readiness hearing and there is no
evidence in the record to indicate that the mother had notice of the date.


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court that he had no specific discussions with the mother about her intent to attend trial.

At the court's request, the father placed a telephone call to the mother. The mother did

not answer and the father left a voicemail message. After confirming that the father was

prepared for trial, the court observed that it would be unfair to "penalize" the father for

the mother's lack of compliance with the court schedule and proceeded to trial.

Verbatim Report of Proceedings(VRP)at 4-5.

        At the time of trial, the children were ages 10, 7, and 4. The father testified in a

narrative fashion and the court also examined him extensively. The father testified that

shortly after the mother's move to Seattle, the oldest child was unhappy and "was acting

out." VRP at 10. The child alleged an incident of abuse at the hands of her mother. This

allegation led to the involvement of Child Protective Services(CPS)and to the parties'

agreement that the oldest child should return to Oak Harbor to live with the father full-

time.

        The father testified that his daughter had adjusted well to living with him and that

her behavior,problems had abated. The father said that when the younger daughters

visited on the weekends, with increasing frequency, they expressed a preference to live

with him full-time in Oak Harbor.

        The father said that, until shortly before trial, he believed that it was in the

children's best interests to maintain the current living arrangements. But, he changed

his mind because he observed that living apart was negatively affecting the children's

relationships. The father also believed that the mother was unable to provide sufficient

structure for the children. Therefore, the father proposed that all three children live with

him in Oak Harbor during the school week and reside with the mother on weekends.




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The father described his work schedule and the arrangements he had made to care for

his oldest daughter and discussed the additional arrangements he would make for the

younger children if they were to live with him during the week.

       After the noon recess, the court announced that the mother called the court's

administrative office during the recess. The mother informed court personnel that she

was not aware of the trial date and inquired about appearing telephonically. The court

directed court staff to tell the mother that the "trial was scheduled for today and that we

are conducting the trial." VRP at 67. The father continued to testify, the court took

another recess and then reconvened to orally announce its decision.

       The court observed that it was "regrettable" that the mother did not appear for

trial after she was "duly notified" of the trial date. VRP at 75-76. Based on the evidence,

the court determined that the children should live together, with the father, during the

week and with the mother on weekends (except for the first weekend of the month). In

making this decision, the court expressly considered the best interest of the children,

the objectives of a permanent parenting plan under RCW 26.09.184, and the statutory

considerations relating to residential provisions under RCW 26.09.187.

       The court found that both parents had strong relationships with the children, that

the mother had historically taken a greater role in the day-to-day caretaking, and that

she had "by and large" provided good care. VRP at 80. On the other hand, the court

noted that the mother's ability to care for the children had been compromised for a time

because of a substance abuse issue and that her relationship with the oldest child

suffered after the move to Seattle. The court observed that, as a general matter, it is

preferable for siblings to live together, and that according to the evidence, while the




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children were young, this was apparently their preference. The court also found that the

mother's failure to prepare and appear for trial was concerning and further supported

the court's decision. The court entered a parenting plan that essentially reversed the

residential schedule imposed in the July 2017 temporary parenting plan and made it

effective as of January 1,2018, after the school winter break.

       Approximately a week after the entry of the final orders, the mother retained new

counsel and filed a motion to vacate. In a declaration submitted in support of her

motion, the mother stated that she was not aware of the November 28 trial date nor did

she know that a readiness hearing had previously occurred. On the day of trial, the

mother was working at a Seattle High School. She said she only became aware that the

trial was underway in Island County when she checked her voicemail at 1:30 p.m.

during her lunch break. According to the mother, she then immediately called the clerk's

office and asked if she could appear by telephone, or alternatively, if she could send a

message to the trial judge explaining that she did not know about the court date. The

mother reported that the clerk's office staff said there was "nothing they could do" other

than notify her of the outcome. Clerk's Papers(CP)at 11. The mother claimed that the

final parenting plan entered by the court was not in the children's best interest because

she had been the primary caretaker for most of the children's lives and because the

new plan would require the children to change schools and leave friends and

enrichment activities. The mother failed to mention that the oldest child was already

attending school in Oak Harbor and the youngest child was not yet enrolled in school.

       In response, the father submitted evidence to refute the mother's claim that she

did not receive his voicemail message until the afternoon. The evidence supplied by the



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father indicted that the mother sent several text messages to the father asking for

information about the trial starting at 10:48 a.m.

        At the hearing on the mother's motion, the trial court confirmed that the address

to which the mother's attorney's sent the notice of her intent to withdraw, by both regular

and certified mail, was correct. The court recounted the attempt to contact the mother

before the trial began and noted that, by the time the mother called the court in the

afternoon, the evidentiary hearing was nearly complete. The court also noted that the

father testified with regard to the statutory factors related to residential provisions and

that the court found compelling evidence that the youngest children should reside with

the oldest, who was already living by agreement with the father. The court rejected the

mother's claim that her unawareness of the trial date provided a basis to vacate the

orders. The court entered an order denying the motion to vacate. The mother appeals.2

                                               ANALYSIS

        The mother challenges the final parenting plan. She contends that the trial court

(1)failed to enter required written findings of fact and conclusions of law in support of

the plan, and (2)failed to consider the best interests of the children or apply the

statutory factors under RCW 26.09.187(3) with regard to the residential provisions.

        We review a trial court's fashioning of a final parenting plan for an abuse of

discretion; the trial court's discretion in this area is "broad." In re Marriage of Katare, 175

Wn.2d 23, 35, 283 P.3d 546 (2012). A court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds or untenable reasons. In re

Custody of Halls, 126 Wn. App. 599, 606, 109 P.3d 15 (2005). A decision is manifestly


        2 After the mother filed her notice of appeal, a commissioner of this court granted the mother's
motion to stay the implementation of the permanent parenting plan.


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No. 77864-1-1/7

unreasonable if the decision is outside the range of acceptable choices based on the

facts and applicable legal standard. In re Halls, 126 Wn. App. at 606. We do not

reweigh the evidence to determine whether we would reach a different conclusion. In re

Marriage of McNaught, 189 Wn. App. 545, 561, 359 P.3d 811 (2015), review denied,

185 Wn.2d 1005, 366 P.3d 1243(2016).

       "The trial court must make a residential placement decision in the best interests

of the child and only after considering the factors found in RCW 26.09.187(3)." In re

Parentage of J.H., 112 Wn. App. 486, 492-93, 49 P.3d 154 (2002). RCW 26.09.187(3)

sets forth the following criteria:

       (a) The court shall make residential provisions for each child which encourage
       each parent to maintain a loving, stable, and nurturing relationship with the child,
       consistent with the child's developmental level and the family's social and
       economic circumstances. The child's residential schedule shall be consistent with
       RCW 26.09.191. Where the limitations of RCW 26.09.191 are not dispositive of
       the child's residential schedule, the court shall consider the following factors:

       (i) The relative strength, nature, and stability of the child's relationship with each
       parent;

       (ii) The agreements of the parties, provided they were entered into knowingly and
       voluntarily;

       (iii) Each parent's past and potential for future performance of parenting functions
       as defined in[RCW 26.09.004(2)] including whether a parent has taken greater
       responsibility for performing parenting functions relating to the daily needs of the
       child;

       (iv) The emotional needs and developmental level of the child;

       (v) The child's relationship with siblings and with other significant adults, as well
       as the child's involvement with his or her physical surroundings, school, or other
       significant activities;

       (vi) The wishes of the parents and the wishes of a child who is sufficiently mature
       to express reasoned and independent preferences as to his or her residential
       schedule; and



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       (vii) Each parent's employment schedule, and shall make accommodations
       consistent with those schedules.

       Factor (i) shall be given the greatest weight.

       A trial court may not draw presumptions from the temporary parenting plan.

RCW 26.09.191(5). Thus, a trial court cannot establish a permanent parenting plan

solely on the basis of the temporary parenting plan provisions or presume that

maintaining the same primary residential provisions is in the child's best interest. In re

Marriage of Kovacs, 121 Wn.2d 795, 808-09, 854 P.2d 629(1993). Nor is a

presumption based on the temporary parenting plan warranted when the analysis of the

factors in RCW 26.09.187(3)(a) results in a "tie." In re Marriage of Combs, 105 Wn. App.

168, 176-77, 19 P.3d 469(2001).

       A trial court is not required to enter written findings on each of the RCW

26.09.187(3)(a)factors. In re Marriage of Magnuson, 141 Wn. App. 347, 351, 170 P.3d

65 (2007). In the absence of written findings, we may look to the court's oral ruling.

Young v. Thomas, 193 Wn. App. 427, 443, 378 P.3d 183(2016).

       The final parenting plan entered in this case includes all the components required

by RCW 26.09.184(2). And contrary to the mother's argument, the court expressly

concluded that the plan is in the best interests of the children. Although the preprinted

form provided space for the court to enter findings of fact to support limitations under

RCW 26.09.191, which were not imposed here, or other findings, the court did not enter

additional written factual findings. Nevertheless, read in its entirety, the trial court's oral

ruling addresses all of the RCW 26.09.187(3)factors and explicitly provides its reasons

for reversing the residential provisions of the July 2017 temporary plan and placing the

children in the care of their father for the majority of the time.


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       The mother suggests that without her testimony, the court could not adequately

address the factors in RCW 26.09.187(3), such as the nature and relative strength of

the children's relationships with each parent. Undoubtedly, it would have been

preferable if the mother had attended the trial and testified. In determining the

provisions of a parenting plan, it is not only the interests of the parents at stake. In light

of the court's responsibility to protect the best interests of the children, RCW

26.09.184(g), the court would have acted within its discretion by handling the matter

differently when the mother belatedly attempted to participate. Nevertheless, that the

court could have continued the matter or allowed the mother to testify by telephone in

these circumstances does not mean that it was an abuse of discretion to decline to do

SO.

       As explained, the court considered evidence related to each of the factors set

forth in RCW 26.09.187(3)(a). The father testified about the children's past and current

circumstances, their relationships with each other and with each parent, the children's

preferences, and their developmental levels. As the mother acknowledged, both parents

had been before the court on several occasions during the course of the dissolution

proceeding and the court was well aware of the history and prior rulings. In sum, the

mother's absence from trial did not prevent the court from fashioning a parenting plan in

the best interests of the children in consideration of the relevant statutory factors.

       The mother next contends that the trial court abused its discretion by failing to

analyze the factors under RCW 26.09.520 and failing to enter a final order on relocation.

But this was a trial on the father's petition for dissolution, focusing on the orders

necessary to dissolve the marriage and provide for the care and support of the children.



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The court's decision with regard to the residential provisions of the parenting plan

rendered a decision on the mother's relocation moot.

       Finally, the mother contends that the court erred by failing to grant her motion to

vacate. The mother sought relief under CR 59 and CR 60. CR 59(a)(1) permits a trial

court to grant a new trial on the grounds of irregularity in the proceedings of the court, or

any order of the court, or abuse of discretion, which prevented a party from having a fair

trial. CR 60(b)(1) permits a court to grant a motion for relief from judgment or order on

the grounds of: mistakes, inadvertence, surprise, excusable neglect or irregularity in

obtaining a judgment or order. CR 60(b)(11) allows a trial court to vacate an order for

"[a]ny other reason justifying relief from the operation of the judgment." An irregularity in

obtaining an order exists where there is a failure to adhere to a prescribed rule or mode

of proceeding, such as when a procedural matter that is necessary for the orderly

conduct of trial is omitted or done at an unreasonable time or in an improper manner.

Lane v. Brown & Haley, 81 Wn. App. 102, 106, 912 P.2d 1040(1996). CR 60(b)(11)

applies sparingly to situations involving extraordinary circumstances which relate to

irregularities extraneous to the action of the court. In re Marriage of Knutson. 114 Wn.

App. 866, 872-73, 60 P.3d 681 (2003).

       The standard of review for denial of a motion for a new trial or a motion to vacate

is abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517,

537, 998 P.2d 856 (2000); Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn. App.

803, 821, 225 P.3d 280 (2009). Again, the trial court abuses its discretion if the exercise

of discretion was manifestly unreasonable, based on untenable grounds, or based on

untenable reasons. Mitchell, 153 Wn. App. 821. Therefore, we may overturn a trial



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court's decision if the decision rests on unsupported facts, if the court adopted a view

that no reasonable person would take, or arrived at a decision that is outside the range

of acceptable choices. Mitchell, 153 Wn. App. at 822.

       The mother takes the position that her right to relief under CR 60(b) should be

determined under the relatively liberal standard for relief from a default judgment. See

Lane, 81 Wn. App. at 105-06 (the law favors resolution of cases on their merits and

appellate courts review vacation of default judgments more leniently than vacation of

judgments on the merits). But the final orders entered in this case were not default

orders in substance. Under CR 55, a judgment of default may not be obtained against

any party who initially appears and defends. In re Marriage of Daley, 77 Wn. App. 29,

31, 888 P.2d 1194(1994)(where husband failed to appear for dissolution trial, wife was

not entitled to default, but was entitled to proceed to trial in his absence); see also

Stanley v. Cole, 157 Wn. App. 873, 880, 239 P.3d 611(2010)("When a tribunal

considers evidence, the resulting judgment is not a default judgment even if one party is

absent."). The authority the mother relies on involving the vacation of default judgments

is, therefore, inapplicable.

       The mother contends that her lack of notice of the trial date was an irregularity in

the proceedings. At the hearing on the motion to vacate, she acknowledged that her

attorney's notice of intent to withdraw included notice of the trial date and that the

document was sent to the correct physical address. Nonetheless, she maintained that

"[t]here was never a notice sent to me personally." CP at 11

       The trial court rejected the claim of irregularity in the proceedings. We cannot

conclude that finding was an abuse of discretion. The asserted irregularity does not



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implicate any court process. Nor was the court required to credit the mother's testimony

that she did not receive the notice sent to her address by her attorney. There were

reasons to question the mother's credibility, as she claimed to be unaware that the trial

was underway until 1:30 p.m. but sent text messages to the father hours earlier that

were clearly responsive to the father's 9:30 a.m. voicemail message. And to the extent

the mother alleged that her attorney failed to apprise her of future court dates before

she withdrew, neglect or even incompetence of a party's attorney is generally not

sufficient grounds for relief from judgment. Lane, 81 Wn. App. at 107.

       We affirm the parenting plan and the denial of the mother's motion to vacate.




WE CONCUR:



       Itric Q.f




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