                                                                          FILED
                                                                       MARCH 12, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

IN RE THE MATTER OF THE                       )
MARRIAGE OF PATRICK THOMAS                    )         No. 35656-6-III
CRAIN,                                        )
                                              )
                     Appellant,               )
                                              )
       and                                    )         UNPUBLISHED OPINION
                                              )
SIRI ANN CRAIN,                               )
                                              )
                     Respondent.              )

       FEARING, J. — This appeal raises the question of whether Washington’s child

relocation act or the parenting plan modification act applies when the father and mother

share residential time and one parent wishes to relocate. This appeal also raises the

question of whether the parents must with precision and to the minute equally share

residential time for the parenting plan modification act to apply. We hold that, under the

facts of this appeal, the superior court should not have applied the child relocation act and

we reverse the court’s approval of relocation.
No. 35656-6-III
In re Marriage of Crain


                                          FACTS

       Patrick and Siri Crain married in 2007. Four years later, the couple bore a

daughter, Mary. Mary is a fictitious name to afford the daughter privacy. Patrick

previously fathered another daughter.

       In 2014, when Mary was three years old, Patrick and Siri Crain divorced and

established a parenting plan. The agreed parenting plan provided each parent with

“approximately” equal residential time. Section 3.12 of the plan declared:

              The child named in this parenting plan is scheduled to spend
       approximately equal time with her parents. Siri Crain shall be designated
       as the custodian of the child solely for purposes of all other state and
       federal statutes which require a designation or determination of custody.
       This designation shall not affect either parent’s rights and responsibilities
       under this parenting plan nor be construed against or in favor of either
       parent.

Clerk’s Papers (CP) at 140 (emphasis added). The parenting plan also granted joint

decision-making with respect to education, all nonemergent medical care, and spiritual-

religious training of Mary. The plan required notification to the other parent if a parent

desired to take Mary on vacation or from the Spokane vicinity for more than a week.

       Thereafter Patrick Crain enjoyed substantial time with Mary in fulfillment of the

parenting plan. Patrick’s household consisted of a new wife and his older daughter,

Mary’s half-sister. Patrick tasked Mary with chores as a regular member of the

household, which chores included caring for animals. Mary occupied her own room.



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In re Marriage of Crain


       Pursuant to the parenting plan, Mary resided with Patrick Crain three days a week

from Sunday afternoon until Tuesday evening the first week, and four days a week the

second week from Saturday afternoon until Tuesday evening. Thus, over a two-week

period, Mary spent seven days with her father and seven days with her mother. If

measured by overnight stays, Patrick’s three days equated to two overnight stopovers one

week and three overnight residencies the next week for a total of five overnight stays in a

fourteen-day time period. Siri enjoyed nine of fourteen overnight stays. In April 2016,

Patrick and Siri Crain orally agreed to modify the parenting plan to add an extra

overnight stay for Mary with her father every two weeks.

       From 2014 to 2016, Patrick and Siri Crain lived in close proximity north of

Spokane. Patrick resided in Deer Park and later north Spokane, while Siri lived in

Chattaroy and later Elk. In December 2016, a fire next to Siri’s home caused her home to

lose electricity. Siri’s landlord secured power through a generator to a trailer, and the

landlord moved into the trailer. Siri, however, never requested that her landlord supply a

generator or otherwise restore power to her dwelling. Siri believed that her home could

not be restored power because of frozen underground electrical lines and the inability of a

generator to power a home. Siri’s parents lived twenty minutes from her Elk home, but

she did not seek to temporarily reside with them.

       In December 2016, Siri Crain relocated to Hayden, Idaho to dwell with her

boyfriend Brandon Reed and his two daughters in Reed’s apartment. Siri took Mary with

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No. 35656-6-III
In re Marriage of Crain


her and did not notify Patrick of the change in residence. The two parents continued to

share equal time with Mary. Patrick learned of the change in Siri’s residence in January

2017.

                                       PROCEDURE

        On February 9, 2017, Patrick Crain filed an objection to Siri’s and Mary’s

relocation due to the lack of notice and the circumstances surrounding the relocation.

Thereafter Siri refused Patrick the extra overnight stay with Mary.

        On March 31, 2017, Siri Crain responded to Patrick’s objection by stating that

Patrick filed the objection before she had decided to relocate. Siri asserted that, until late

March, her furniture remained in her Elk abode and she temporarily stayed with her

boyfriend expecting to return to her Washington home on completion of repairs. Siri

further explained that later she learned of no progress in the repairs and, on March 31, she

finally determined to permanently reside in Hayden, Idaho. According to Siri, her

residing in Idaho with Mary from December 2016 until March 2017 did not constitute a

relocation. The trial court found her explanation credible and held that Siri need not have

afforded notice of relocation before Patrick’s objection in February 2017.

        On May 18, 2017, the family law commissioner entertained Siri Crain’s motion to

relocate and Patrick’s objection. The court commissioner concluded that In re Marriage

of Worthley, 198 Wn. App. 419, 393 P.3d 859 (2017) controlled the cross-motions such

that the Washington relocation act did not apply because, under the agreed parenting

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No. 35656-6-III
In re Marriage of Crain


plan, the parents intended equal time with Mary. The court commissioner further

concluded that the residential placement modification act applied and Siri must file an

adequate cause motion before any change to the parenting plan. The court commissioner

dismissed both parties’ motions.

       On May 26, 2017, Siri Crain sought revision from a superior court judge of the

court commissioner’s ruling. The superior court judge overruled the court commissioner,

ruled that the relocation act applies, and remanded for further proceedings under the act.

       On August 14, 2017, a trial occurred under the relocation act before a superior

court judge, rather than a court commissioner, despite the remand. The superior court

applied the presumption in favor of relocation on Siri Crain’s behalf, analyzed the

statutory relocation factors, and approved Siri’s relocation. Patrick lost equal residential

time. The trial court afforded Patrick visitation with Mary every other weekend under an

amended parenting plan. The updated parenting plan retained the joint decision-making

authority for both parties.

                                   LAW AND ANALYSIS

       Issue 1: Should this court accept review of Patrick Crain’s challenge to the

relocation ruling?

       Answer 1: Yes.

       On appeal, Patrick Crain seeks reversal of the superior court’s determination to

review Siri’s petition for relocation under the Washington relocation act. He claims that

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No. 35656-6-III
In re Marriage of Crain


the parenting plan’s grant of equal residential time with Mary removes Siri’s petition

from the coverage of the relocation act. As a preliminary matter, Siri Crain argues that

Patrick’s failure to seek discretionary review of the superior court judge’s May 26, 2017

revision order, wherein the superior court ruled that the relocation act controlled,

precludes Patrick from seeking posttrial relief.

       In advancing her argument in favor of dismissing the appeal, Siri Crain

emphasizes Lincoln v. Transamerica Investment Corp., 89 Wn.2d 571, 573 P.2d 1316

(1978), wherein the Supreme Court addressed a party’s failure to seek discretionary

review of a pretrial ruling regarding venue. After trial, the party appealed the venue

ruling. In dicta, the court stated that the proper remedy would have been to seek review

by certiorari following the trial court’s denial of the motion for change of venue instead

of waiting until trial concluded and then asking an appellate court to reverse an

unfavorable judgment. Nevertheless, the court did not foreclose the posttrial review of a

venue ruling. Instead, the Supreme Court held that, if a party brings a posttrial challenge

to venue, the party must show prejudice by the denial of a change of venue.

       The Lincoln v. Transamerica Investment Corp. analysis bears no relevance to

Patrick Crain’s appeal. The party in Lincoln challenged a ruling concerning the identity

of the decision-maker without any showing that a change in the decision-maker would

impact the substantive decision. In contrast, Patrick appeals a decision that affects

substantive decisions concerning placement of his daughter. He shows prejudice in

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No. 35656-6-III
In re Marriage of Crain


substantive rulings.

       Discretionary review by Patrick Crain under RAP 2.3 would not have guaranteed

that this appeals court would accept early review. Crain permissibly awaited the superior

court’s final relocation order and amendment to the parenting plan. RAP 2.2(1) and (13)

entitle Patrick to this appeal.

       Issue 2: Whether the Washington relocation act controls Siri Crain’s request to

relocate to Hayden, Idaho?

       Answer 2: No.

       We now reach the merits of the appeal. Patrick Crain argues the superior court

judge erred when applying the relocation act at trial, by analyzing the relocation factors,

and by granting Siri Crain the presumption in favor of relocation with Mary. He

contends that, under In re Marriage of Worthley, 198 Wn. App. 419 (2017), the parties’

parenting plan that provided for substantially equal residential time with Mary did not

permit application of the act. We agree.

       Washington’s child relocation act is codified at RCW 26.09.405-.560. The act

imposes notice requirements and sets standards for relocating children who are the

subject of court orders regarding residential time. In re Custody of Osborne, 119 Wn.

App. 133, 140, 79 P.3d 465 (2003). The act provides:

              a person with whom the child resides a majority of the time shall
       notify every other person entitled to residential time or visitation with the
       child under a court order if the person intends to relocate.

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No. 35656-6-III
In re Marriage of Crain


RCW 26.09.430 (emphasis added). We must determine whether Mary Crain resided a

majority of the time with Siri. If a person entitled to residential time objects, the person

seeking to relocate the child may not relocate without a court order. RCW 26.09.480(2).

       In In re Marriage of Worthley, 198 Wn. App. 419 (2017), the parties’ parenting

plan allowed for the minor child to reside equally or substantially equally with both

parents on an alternating weekly schedule. The plan designated the parties as joint legal

and physical custodians with equal decision-making authority. The father filed a notice

of intended relocation with the minor child. One trial court judge held the relocation act

did not apply and set a hearing for a determination of adequate cause under the residential

placement modification statute, while another judge concluded the act applied and set an

evidentiary hearing to determine which parent was the primary parent. This court granted

discretionary review for the sole issue of whether the relocation act applies to parenting

plans that provide for children to reside substantially equally with both parents.

       In Worthley, this court held that the child relocation act’s language does not extend

to proposed relocations that would modify joint and equal residential time under a joint

parenting plan to something other than joint and equal residential time. We recognized

the disruptive nature of relocating children and changing their residential time patterns,

and we fulfilled the policy of furthering the continuity of established relationships for

children. We further held that a parent with an equal time parenting plan must prove

adequate cause under the modification statute when the proposed relocation would alter a

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In re Marriage of Crain


parent’s equal residential time to less than equal. We wrote:

               The high burden of adequate cause fulfills the policy to maintain the
       existing pattern of the parent-child relationship to protect the best interest
       of the child. The modification procedures were set up specifically to
       “protect stability by making it more difficult to challenge the status quo.”
       Parents who are parties to a joint parenting agreement have entered into a
       serious commitment to parent their children together. This commitment
       should not lightly be undone. The modification statute protects the status
       quo in the parent-child relationship and that protection is no less important
       in the joint parenting context.

In re Marriage of Worthley, 198 Wn. App. at 429-30 (emphasis added) (citation omitted).

       Siri Crain does not argue against the application of Worthley. Instead she factually

disputes that the parenting plan with Patrick affords equal and joint parenting. Siri

underscores that the plan designated her as legal custodian and the plan afforded her more

overnights stays. Additional case law rejects these arguments.

       In a recent decision, this court held that the designation of custodian listed on the

parenting plan does not control the status as primary parent under RCW 26.09.430. In re

Marriage of Jackson, 4 Wn. App. 2d 212, 421 P.3d 477 (2018). Instead, we held that

actual residential time controls. Patrick and Siri Crain’s parenting plan even read that the

custody designation should not be construed for or against either parent.

       We also reject any emphasis on overnight time. We do not wish for an assessment

of equal residential time to rely on the time of day of placement or the allocation of

placement minutes to the parents. We desire no mathematical calculation. Instead, we

look to the parties’ intent to share child rearing and spend nearly equal time with their

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In re Marriage of Crain


child and the fulfillment of that intent. Patrick and Siri Crain's parenting plan shows an
                                                                                                 I
intent to afford each parent "approximately equal time" with Mary, and the two followed

that intent until the relocation. CP at 140.

                                      CONCLUSION

        We reverse the superior court's application of the child relocation act and dismiss
                                                                                                 l
Siri Crain's petition for relocation of Mary. If Siri wishes to live in Idaho, she should file

a petition to modify the parenting plan and show adequate cause for modification of the

plan.

        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.



                                               Fearing, J.

WE CONCUR:




             ~
Pennell, A.CJ.  --- '


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