                                                                      FILED
                                                                  OCTOBER 24, 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 III
    In the Matter of the Marriage of:                                No. 36221-3-III

    KEVIN O’CONNELL
                                                               UNPUBLISHED OPINION
                                  Respondent,

           and

    AMY O’CONNELL

                                  Appellant.



          MAXA, J. – Amy O’Connell appeals the superior court’s order ruling that there was not

adequate cause to modify the parenting plan entered in the dissolution of her marriage to her

former husband, Kevin O’Connell. The parenting plan related to their four minor children.

          The parties’ parenting plan provided for a shared schedule that equally allocated

residential time. For over a year after their marriage was dissolved, Amy1 and Kevin had an

informal arrangement not contained in the parenting plan under which Amy would provide care

and transportation for the children between school, activities, and home when Kevin was at work

or was unavailable on the days the children resided with him. When Kevin decided to make




1
  Because the parties share the same last name, this opinion uses the parties’ first names for
clarity. No offense is intended.
No. 36221-3-III


other plans for child care and transportation, Amy filed a motion to modify the parenting plan to

incorporate the previous arrangement.

       We hold that (1) the superior court did not abuse its discretion in finding under RCW

26.09.260(10) that Amy had not made a showing of adequate cause to modify the parenting plan;

and (2) the superior court did not rule on the merits of her petition for modification, but instead

determined that there was not adequate cause to hold an evidentiary hearing.

       Accordingly, we affirm the superior court’s order ruling that Amy had not shown

adequate cause to modify the parenting plan.

                                               FACTS

       Amy and Kevin dissolved their marriage in July 2016. They had four minor children at

the time. The parties drafted an agreed parenting plan, which provided that the children would

reside roughly 50 percent of the time with Amy and roughly 50 percent of the time with Kevin,

moving between parents every few days. The parenting plan required joint decisions regarding

education, health care, and religion, but allowed the residential parent to make day-to-day

decisions for the children. The parenting plan did not memorialize any agreement between the

parties regarding child care.

       Since their separation in April 2016, the parties had an informal arrangement regarding

child care. They agreed that Amy would continue to provide care for their youngest daughter,

who was not yet in school, while Kevin was at work during his residential days. The parties also

agreed that Amy could drop off and pick up the children from school and provide after-school

care for the children on Kevin’s residential days, occasionally caring for them in Kevin’s home.

However, this arrangement was not memorialized in the parenting plan.




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       In the fall of 2016, Amy began bringing other children she was babysitting to Kevin’s

home and caring for both them and the parties’ children there on his residential days. Kevin

allowed Amy to do this for a time, then asked her not to care for all the children in his home.

Amy apparently continued to care for the children in Kevin’s home for a period of time after he

had withdrawn his permission for her to do so.

       In September 2017, without consulting Amy, Kevin put the parties’ youngest daughter in

daycare on Thursdays (a day the children always lived with him) during his work day instead of

allowing Amy to provide care. Kevin also arranged for Amy’s father, with whom Amy had a

strained relationship, to drop off and pick up the children from school on Thursdays and to take

the parties’ oldest daughter to her dance class on Thursday evenings. Kevin hired a babysitter to

watch the other children from the time Amy’s father dropped them off at Kevin’s house until the

time Kevin returned from work.

       Amy objected to these changes and the parties went to mediation on September 27, but

did not reach an agreement. The parties apparently continued attempts to resolve their dispute

without litigation for the next several months without success.

       In May 2018, Amy filed a petition to change the parenting plan. She requested a

modification to the parenting plan under RCW 26.09.260(10) based on a substantial change of

circumstances. 2 Amy asked the superior court to adjust the parenting plan to “allow an available

parent to provide work-related daycare for an unavailable parent in keeping with the parties’

previous agreements and practice/performance” and to “allow an available parent to provide




2
 In her petition, Amy also requested a modification to the parenting schedule under RCW
26.09.260(5), (7), and (9). However, she subsequently limited her request to RCW
26.09.260(10). And on appeal she relies only on RCW 26.09.260(10).

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No. 36221-3-III


transportation with respect to picking children up from school and activities and dropping them

off when one parent is unavailable.” Clerk’s Papers at 4.

       A superior court commissioner found there was not adequate cause for a modification of

the parenting plan. Amy filed a motion to revise the commissioner’s ruling. She argued that the

commissioner improperly considered whether there had been a substantial change in

circumstances from the time of the parties’ unsuccessful mediation instead of from the time

when the parties entered the original parenting plan. Kevin argued that Amy’s request

essentially amounted to a residential change because she was asking to provide care during

Kevin’s residential time.

       The superior court denied the motion to revise the commissioner’s ruling. Regarding a

substantial change of circumstances, the court stated that although parties could agree to do

something other than what was explicitly written in the parenting plan, the written parenting plan

controlled once the parties no longer could agree. Regarding the children’s bests interests, the

court found that the parenting plan as written had been in place since September 2017 and

acknowledged that some time had passed since then. The superior court concluded that it was

not in the best interests of the children, who were doing well in the new routine, to have their

routine changed a second time.

       Amy appeals the superior court’s order ruling that there was not adequate cause to

modify the parenting plan.

                                           ANALYSIS

A.     REVISION OF COURT COMMISSIONER’S RULING

       Amy seems to base her arguments in part on the commissioner’s oral ruling. But all

rulings of court commissioners are subject to revision by the superior court, RCW 2.24.050, and




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Amy filed a motion for revision regarding the commissioner’s ruling. On a motion for revision,

the superior court reviews the commissioner’s rulings de novo based on the evidence presented

to the commissioner. In re Marriage of Goodell, 130 Wn. App. 381, 388-89, 122 P.3d 929

(2005).

          Further, once the superior court rules on a motion for revision, we review the superior

court’s decision, not the commissioner’s decision. In re Marriage of Lyle, 199 Wn. App. 629,

633, 398 P.3d 1225 (2017). Accordingly, we address only the superior court’s order and the

superior court’s incorporated oral ruling.

B.        NO ADEQUATE CAUSE FOR MODIFICATION

          Amy argues that the superior court abused its discretion by finding there was not

adequate cause for a hearing on her motion to modify the parenting plan. We disagree.

          1.    Statutory Process for Modification

          RCW 26.09.270 provides:

          A party seeking a . . . modification of a . . . parenting plan shall submit together
          with his or her motion, an affidavit setting forth facts supporting the requested order
          or modification and shall give notice, together with a copy of his or her 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.

(Emphasis added).

          Under this statute, the party moving to modify a parenting plan must submit affidavits

showing adequate cause for modification. In re Marriage of Zigler, 154 Wn. App. 803, 809, 226

P.3d 202 (2010). The superior court will allow a hearing on the motion only if the affidavits

establish adequate cause. RCW 26.09.270; In re Custody of T.L., 165 Wn. App. 268, 275, 268

P.3d 963 (2011).




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No. 36221-3-III


       The petitioner must do more than assert unsupported allegations that would support

modification if proved. In re Marriage of MacLaren, 8 Wn. App. 2d 751, 771, 440 P.3d 1055

(2019). “[T]he moving party must set forth facts and provide supporting evidence – not self-

serving or conclusory statements – to establish adequate cause.” Id. at 774. At a minimum,

“adequate cause” requires evidence sufficient to support a finding on each fact the moving party

must prove to modify the parenting plan. Id. at 772-73.

       RCW 26.09.260 addresses the grounds for modifying a parenting plan. Amy relies on

RCW 26.09.260(10), which states, “The court may order adjustments to any of the nonresidential

aspects of a parenting plan upon a showing of a substantial change of circumstances of either

parent or of a child, and the adjustment is in the best interest of the child.” Under this statute, the

court may modify a parenting plan where both (1) the movant demonstrates a substantial change

of circumstances and (2) the adjustment is in the best interests of the children. In re Marriage of

Kinnan, 131 Wn. App. 738, 747, 129 P.3d 807 (2006).

       These statutes reflect a “strong statutory presumption in favor of custodial continuity and

against modification.” MacLaren, 8 Wn. App. at 771. The adequate cause requirement places a

very heavy burden on the petitioner, with the goal of providing stability for the children. Id.

       We review a superior court’s determination of adequate cause for a proposed parenting

plan modification for abuse of discretion. In re Parentage of Jannot, 149 Wn.2d 123, 128, 65

P.3d 664 (2003). A superior court abuses its discretion where its decision is manifestly

unreasonable or based upon untenable grounds or reasons. In re Marriage of Black, 188 Wn.2d

114, 127, 392 P.3d 1041 (2017). More specifically, “the procedures and criteria set forth in

RCW 26.09.260 limit the superior court’s range of discretion.” In re Marriage of Hoseth, 115




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No. 36221-3-III


Wn. App. 563, 569, 63 P.3d 164 (2003). Therefore, the superior court abuses its discretion if it

fails to base its modification ruling on the statutory criteria. Id.

        2.   Superior Court Application of Modification Statutes

        Initially, Amy argues that the court failed to follow the procedure outlined in RCW

26.09.270. She claims that the superior court summarily dismissed her petition without

determining whether she had established adequate cause to hold a hearing on her petition. We

disagree.

        The superior court did not mention adequate cause in either its oral ruling or its order

denying the motion for revision. Instead, in its oral ruling the court addressed the two

requirements for a modification under RCW 26.09.260(10) – substantial change in circumstances

and best interests of the children.

        The court could have been more clear that it was making a determination regarding

adequate cause under RCW 26.09.270. However, the commissioner expressly ruled that there

was no adequate cause to hold a hearing on Amy’s petition. At oral argument on the motion for

revision, Amy’s attorney referenced adequate cause to hold a hearing. When asked by the court

about adequate cause, Kevin’s counsel expressly denied that he agreed that there was adequate

cause. And the court specifically ruled that the commissioner’s order – which found no adequate

cause – would stand.

        We conclude that in denying the motion for revision, the superior court ruled that there

was not adequate cause to hold a hearing on Amy’s petition.

        3.   No Adequate Cause

        Amy argues that the superior court erred in ruling that there had not been a substantial

change in circumstances. We disagree.




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No. 36221-3-III


       The circumstances that had existed since the parenting plan was entered did change in

September 2017. Amy showed that the parties had an arrangement for over a year after the

parenting plan was entered under which Amy provided care to the children when Kevin was

unavailable, and Kevin ended that arrangement. The question here is whether those changed

circumstances were substantial enough under RCW 26.09.260(10) to require a finding of

adequate cause for a hearing on the petition for modification.

       Amy argues that the superior court erred because it found (as the commissioner

suggested) that there was a change of circumstances in September 2017, but that change of

circumstances no longer existed once the new routine had continued for several months. To the

extent that the superior court suggested that a change of circumstances could dissipate with the

passage of time, we agree with Amy that such a finding would be incorrect. The fact that

changed circumstances had continued for a period of time should not affect whether there was a

“substantial change in circumstances” under RCW 26.09.260(10).

       However, the passage of time was not the superior court’s reason for finding no

substantial change of circumstances. At the hearing on the motion for revision, the superior

court stated,

       [W]hat we had here was a parenting plan was put in effect. My position has always
       been that the parties can agree to make changes in that plan, act differently, do
       things differently, but at the point where they can no longer agree then the order
       controls.

       And that’s exactly what happened here. They agreed for a while. Then the father
       no longer agreed, said we’ll go back to the parenting plan, and that’s what they did.
       He withdrew his agreement. . . . The plan as written has been in place since
       September [2017].

Report of Proceedings (June 14, 2018) at 22-23. The court essentially found that the termination

of the parties’ voluntary arrangement and return to the written terms of the parenting plan could




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No. 36221-3-III


not constitute a substantial change in circumstances because that arrangement was not required

in the parenting plan.

       We agree with this reasoning. The parenting plan contained no provision allowing Amy

to provide child care or transportation during Kevin’s residential days and allowed the residential

parent to make all day-to-day decisions for the children. Kevin was merely following the

parenting plan. One parent should not be allowed to modify a parenting plan simply because the

other parent for a time voluntarily agreed to an arrangement not required under that parenting

plan. Amy has provided no authority supporting such a proposition.

       In addition, the changes that Kevin made to the children’s routine in September 2017 –

placing the youngest child in day care, hiring a babysitter to watch the children and having

Amy’s father transport the children – were relatively minor, affecting them only one day a week

and only during Kevin’s residential time. These changes in no way affected Amy’s residential

time or her other rights under the parenting plan.

       Ultimately, the superior court has broad discretion in determining whether there is a

substantial change of circumstances. In re Marriage of Tomsovic, 118 Wn. App. 96, 106, 74

P.3d 692 (2003). We will not second guess the superior court’s conclusion here that the change

of circumstances that merely reapplied the provisions of the parenting plan was not substantial

enough to warrant relief under RCW 26.09.260(10).

       We hold that the superior court did not abuse its discretion in finding Amy did not

produce sufficient evidence to demonstrate adequate cause on the issue of a substantial change of

circumstances. 3




3
 Because of our holding, we need not address whether there was not adequate cause for a
hearing because Amy’s proposed modification was not in the best interests of the children.

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No. 36221-3-III


C.     RULING ON MERITS OF PETITION TO MODIFY

       Amy contends that the superior court erred by ruling on the merits of her petition for

modification without making an adequate cause determination or holding an evidentiary hearing.

We disagree that the superior court ruled on the merits.

       As outlined above, the superior court must deny a motion for modification unless it finds

adequate cause for hearing the motion as established by the affidavits. RCW 26.09.270. A

hearing must be scheduled only if the superior court finds adequate cause. RCW 26.09.270.

       Here, the superior court did not rule on the merits of Amy’s motion to modify. Instead,

the court found that Amy had not demonstrated adequate cause for a modification of the

parenting plan under RCW 26.09.260(10) because she had not made the threshold showing of a

substantial change in circumstances or that the proposed adjustment was in the best interests of

the children. Therefore, Amy was not entitled to an evidentiary hearing. As discussed above, we

affirm this finding.

       Accordingly, we hold that the superior court did not err by dismissing Amy’s petition on

the merits without holding an evidentiary hearing.

D.     ATTORNEY FEES ON APPEAL

       Amy requests attorney fees on appeal under RCW 26.09.140 and RAP 18.1. RCW

26.09.140 gives this court discretion to award reasonable attorney fees to either party on appeal

“after considering the financial resources of both parties.” After considering Amy’s financial

declaration, we decline to award attorney fees to her.

                                         CONCLUSION

       We affirm the superior court’s order ruling that Amy had not shown adequate cause to

modify the parenting plan.




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         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




    We concur:



(KORSMO,}jl



                                                                                                     I
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4
 The Honorable Bradley Maxa is a judge on the Court of Appeals, Division Two, sitting in
Division Three under CAR 21(a).


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