                                                                                                          FILED
                                                                                           COURT OF APPEAL S
                                                                                                 DIVISION II
                                                                                          2014 AUG - 5 AM IQ. 40

                                                                                          STATE OF WASHINGTON

       IN THE COURT OF APPEALS OF THE STATE OF                                                      4 •

                                                                                                          b
                                                                                                              e *.      ON


                                                         DIVISION II

In re the Marriage of                                                                  No. 44692 -8 -II


TODD R. BROOKS,


                                         Appellant,


          v.




ZEECHA L. BROOKS,                                                            UNPUBLISHED OPINION


                                         Respondent.


          HUNT, P. J. —         Todd R. Brooks appeals the trial court' s order modifying a parenting plan.

He argues that the trial court erred in modifying the parenting plan after a relocation proceeding

because there was no finding or evidence at trial that his former wife' s relocation required the

modification. Holding that the trial court did not abuse its discretion in modifying the parenting

plan, we affirm.



                                                             FACTS


                                                        I. PARENTING PLANS


                               A. Original October 2010 Parenting Plan, Washington
                                      Brooks1

           Todd      and     Zeecha               dissolved their   marriage on       October 22, 2010.              They entered

into     an agreed      parenting     plan    for their   minor   son.   This original plan provided that their son


would reside with Todd on alternating weekends, from Friday evening to Sunday evening, and


1
    We   use   the   first   names of   the   parties   for clarity. We intend   no   disrespect.
No. 44692 -8 -II




every Wednesday overnight, year -round. In addition to this year -round visitation schedule, Todd

had two,   nonconsecutive     weeks    of extended        time    with   their   son   during    the    summer.   At the time


the original parenting plan was entered, both parties resided in Cowlitz County, Washington:

Todd, in Toutle, and Zeecha, in Kelso. Their son attended elementary school in Kelso.

             B. Mother' s Relocation to Portland; Modified December 2010 Parenting Plan

         On November 3, 2010, Zeecha filed notice of her intent to relocate their son from Kelso,

Washington, to Portland, Oregon.             On December 15, the superior court entered an agreed order


modifying the parenting      plan ( 2010     Modified      Parenting       Plan).      This modified parenting plan ( 1)

explicitly   contemplated    their   son' s attendance at         Portland Public Schools; ( 2) continued Todd' s


year - ound residential time with their son on alternating weekends, from Friday evening to
     r

Sunday   evening, but     eliminated   the   Wednesday        overnight      time; ( 3) provided Todd the option of

                                                                                                2; (
visiting their   son   in Portland   one   evening    per week (         Monday- Friday)               4) provided Todd four

                      3
 additional weekends "       per year and three Portland Public School in- service /planning days with

their son; and ( 5) increased Todd' s additional residential summer time with their son from two


weeks to approximately 30 days.

               C. Mother' s Relocation to Kalama, WA; Temporary 2012 Parenting Plan

         On May 21, 2012, Zeecha filed notice of her intent to relocate their son from Portland,

Oregon, to Kalama, Washington;               she   also   filed   a proposed modified              parenting   plan.   Zeecha


planned to remarry and wanted to move in with her future husband, who owned a home in

Kalama. Zeecha' s relocation to Kalama would bring her son back to Cowlitz County and closer

to Todd.



2 This provision was intended to provide Todd with optional time to assist his son with
homework or to participate in his mid -
                                      week activities.


3 Clerk' s Papers ( CP) at 30.


                                                              2
No. 44692 -8 -II



         On June 13, Todd filed          an objection    to Zeecha' s       and   their   son' s relocation.       He also filed


a proposed modified parenting plan, which he stated should apply in the event that the trial court

allowed modification of          the existing parenting        plan.     At a hearing on August 24, the trial court

permitted    the relocation.        The trial court held a hearing for a temporary parenting plan on

September 14 and entered a temporary parenting plan on November 9.

                                                     II. PROCEDURE


                                         Trial; 2013 Modified Parenting Plan

         A trial   was     scheduled     for December 10, 2012.              By the time of trial, Todd no longer

contested    Zeecha'     s relocation and contested           only her   proposed modified           parenting      plan.   Todd


and Zeecha agreed that that they would have the trial court determine only the following

modified    parenting     plan provisions: (       1) Todd' s       additional weekends with          their   son, (   2) Todd' s


Wednesday      visits    with    their   son   during   the    summer,      and (   3) their son' s summer residential


schedule.




         Before trial, Todd filed a memorandum of law stating that the case presented a novel set

of facts for the trial court to consider and arguing that Zeecha' s relocation closer to Todd should

not allow her to reduce Todd' s residential time with their son significantly without a showing of

necessity.    At trial, Todd contested Zeecha' s proposed modified parenting plan, arguing that ( 1)

it included    a   30    percent    reduction      in his     residential    time    with    their   son; (   2)    Zeecha was


attempting to      use   her   relocation as " carte    blanche to modify           a   Parenting    Plan," because "[ i] t' s


one of   the only times        where you       don' t have to bridge that hurdle            of   Adequate Cause "; and ( 3)


she " would never         pass   that hurdle but for her            relocation."     Verbatim Report of Proceedings




                                                                3
No. 44692 -8 -II



VRP)     at   6.   Todd asked the trial court to maintain the 2010 Modified Parenting Plan, except for
                                             4                                                5
increasing     his "    additional weekends "         from four to        eight per year.



         The trial court addressed Todd' s legal memorandum and his contention that Zeecha' s

relocation closer to Todd should not allow her to reduce Todd' s residential time significantly

without a showing of necessity:


                        Well,   as   I   stated   before, this        case   really is    a       case,   I think, of first
         impression.            This is a case that has been brought before the Court because of a
         relocation that has been granted on a temporary basis, which now has been
         acquiesced, but it' s a relocation, frankly, closer to the parties— brings the parties


         closer, instead of making them further apart.
                  In their relate —in the relocation setting, what the Court normally does is
         look at the existing Parenting Plan and determine what provisions in that Plan
         need to be altered, deleted, changed because of the reality of the distance resulting
         from the relocation, and what provisions no longer, just simply, are practical; or,
         frankly, become illogical. And that' s what I intend to do in this case.
          T] he basic premises is the Court leaves in place those provisions that are in
         existence and are not affected by the relocation; and, the Court doesn' t want to be
         involved in changing              provision[ s     in]   a   Parenting    Plan if it' s     not   necessary.   The
         purpose of a           Parenting    Plan is stability —stability          for the childthe child is .. .
         who we' re talking about.

VRPat51 -53.


          The trial court orally ruled that, consistent with the 2010 Modified Parenting Plan and the

November           9,   2012     temporary        parenting       plan,   Todd would continue                to have year -
                                                                                                                          round


residential time with their son on alternating weekends from Friday evening to Sunday evening,

four "   additional       weekends"        per    year,   and   an    additional   30 days         during   the   summer.     Clerk' s



4 VRP at10.

5 Todd presented the following argument in support of this modification request:
          The child' s school schedules from the Portland School District he was in, to the
          current schedule under the Kalama District, results in some other losses of time.
          There were initially a lot of in- service days in the Portland District that the father
          was given, now he doesn' t have those; so, he' s asking for, essentially, some
          period of time, and that equals four weekends to make up for that.
VRP at 10 -11.




                                                                      4
No. 44692 -8 -II



Papers ( CP)     at   169.    The trial court modified the 2010 Modified Parenting Plan by striking the

provision      about   the Portland Public School in- service days because it                    was "   no longer even at


issue" and by granting Todd Wednesday residential time from 5: 30 p.m. to 8: 00 p.m. during only

the school year. VRP at 55.


         The trial court explained that it did not grant Wednesday residential time during the

summer because, rather than giving Todd two weeks during the summer, as Zeecha proposed, it

gave   Todd 30 days          of residential   time   during     the   summer.     The trial   court stated: "[   I]n addition


to that, to have a Wednesday visit is simply too disruptive to what' s left of the Summer that

would    be    with [   Zeecha] ";    and "   in fact, the Parenting Plan that we' re looking at modifying

doesn' t specifically say he has them."                   VRP    at   57 -58.    Todd disagreed with the trial court' s


finding that the 2010 Modified Parenting Plan did not provide for Wednesday residential time

during   the    summer.       Todd argued that he had been granted Wednesday residential time during

the summer under paragraph 3. 13 of the 2010 Modified Parenting Plan, which provided Todd

with the option of visiting their son one evening per week ( Monday through Friday) to interact

with him      by helping      with   homework        or   participating in          week activities.
                                                                                mid -                    The trial court did


not find this argument persuasive.


         On January 28, 2013, the trial court entered a modified parenting plan, consistent with its

oral rulings set forth above. Todd appeals.


                                                           ANALYSIS


         Todd contends that the trial court erred in modifying the parenting plan after the

relocation proceeding because there was no evidence at trial or trial court finding that Zeecha' s

relocation      required      the   modification.         He argues that when a relocation does not create a


substantial      change       in    circumstances,        the   trial   court     cannot   modify     the   parenting   plan.
No. 44692 -8 -II



Disagreeing, we hold that Todd' s argument contradicts the express statutory language of RCW

26. 09.260( 6) and that the trial court did not abuse its discretion in modifying the parenting plan.

                                                I. STANDARD OF REVIEW


               RCW 26. 09. 260   governs modifications of              parenting   plans.     Subsection ( 6) provides that


the superior court may order adjustments to the residential portions of a parenting plan " pursuant

to   a   proceeding to    permit or restrain a relocation of           the   child."    RCW 26. 09. 260( 6).   We review a


trial    court' s rulings on a      parenting   plan   for   abuse of     discretion.     In re Marriage of Christel, 101

Wn.       App.    13, 20 -21, 1 P. 3d 600 ( 2000) (      citing In re Marriage of Wicklund, 84 Wn. App. 763,

770, 932 P. 2d 652 ( 1996)).           We do, not reverse a trial court' s decision to modify a parenting plan

under RCW 26. 09.260 unless the trial court exercised its discretion in an untenable or manifestly

unreasonable         way. In   re   Marriage of McDole, 122 Wn.2d 604, 610, 859 P. 2d 1239 ( 1993).                    We


do       not   review   credibility determinations           or   weigh      evidence    on   appeal.   In re Marriage of

Meredith, 148 Wn. App. 887, 891 n.1, 201 P. 3d 1056, review denied, 167 Wn.2d 1002 ( 2009).

                II. 2013 MODIFIED PARENTING PLAN IN RESPONSE TO REQUESTED RELOCATION


               Todd argues that the trial court erred in modifying the parenting plan because there was

no " substantial change"         in   circumstances, as required           by   RCW 26. 09. 260( 1).    Br. of Appellant at


11.      Todd is correct that for most modifications, RCW 26. 09.260( 1) generally requires a finding

that a substantial change has occurred or that modification is in the best interests of the child.

But Todd ignores RCW 26. 09. 440, which does not require a showing of substantial change in

circumstances or that modification is in the best interests of the child whose relocation is

intended.         Rather, this statute automatically allows relocation of a child and confirmation of a

related proposed residential schedule unless the other parent moves to block the relocation or




                                                                   6
No. 44692 -8 -II



opposes    the   proposed schedule within                30 days     of   receiving the    relocation notice.         6 Consistent

with RCW 26. 09. 440, RCW 26. 09.260( 6) expressly does not require a hearing to determine

adequate cause           in   order    to modify   a   parenting   plan   in   response   to   a relocation request.?         Todd' s

                     8
arguments    fail.




6
    RCW 26. 09.440( 2)( a) provides, in pertinent part:
         THE RELOCATION OF THE CHILD WILL BE PERMITTED AND THE
         PROPOSED REVISED RESIDENTIAL SCHEDULE MAY BE CONFIRMED
         UNLESS, WITHIN THIRTY DAYS, YOU FILE A PETITION AND MOTION
         WITH THE COURT TO BLOCK THE RELOCATION OR OBJECT TO THE
         PROPOSED                     REVISED      RESIDENTIAL             SCHEDULE            AND      SERVE          THE
         PETITION AND MOTION ON THE PERSON PROPOSING RELOCATION
         AND         ALL              OTHER     PERSONS         ENTITLED           BY     COURT          ORDER          TO
         RESIDENTIAL TIME OR VISITATION WITH THE CHILD."


7 RCW 26. 09.260( 6) provides:
          The court may order adjustments to the residential aspects of a parenting plan
          pursuant        to      a   proceeding to    permit   or   restrain    a relocation     of   the   child.     The

          person objecting to the relocation of the child or the relocating person' s proposed
          revised residential schedule may file a petition to modify the parenting plan .. .
          without a showing of adequate cause other than the proposed relocation itself. A
          hearing to determine adequate cause for modification shall not be required so
          long as the request for relocation of the child is being pursued.      In making a
          determination of a modification pursuant to relocation of the child, the court shall
          first determine whether to permit or restrain the relocation of the child using the
          procedures and    standards provided in RCW 26. 09. 405 through 26. 09. 560.
         Following that determination, the court shall determine what modification
         pursuant to relocation should be made, if any, to the parenting plan or custody
         order or visitation order.
    Emphasis added.)    Under H.B. 2197, 63d Leg., Reg. Sess. ( Wash. 2014), changes                                           to the
language of RCW 26. 09.260( 6) have been proposed to require an " adequate cause" standard in
relocation proceedings                 under   RCW 26. 09. 260( 6).See also SUBSTITUTE H.B. 2197, 63d Leg.,
Reg.    Sess. ( Wash. 2014).               But these changes have not yet been adopted. More importantly, they
were not in effect at the time of the modification at issue here.


8 Todd also cites cases holding that courts should view custodial changes as highly disruptive
and    that there        is   a   strong   presumption     against modification.          The modification at issue here,
however, did not involve a custodial change; thus, this argument lacks merit.




                                                                     7
No. 44692 -8 -II



        A. " Adequate Cause," " Substantial Change in Circumstances," " Nexus" Not Required


          Todd correctly           concedes       that "[   t]he statute waives the issue of adequate cause if a

relocation       is   pursued."     Br.   of   Appellant      at   11.       Nevertheless, he     argues   that ( 1)    the "   analysis




does    not     and     should    not   end    there ";   and (    2) because "[      t] he court may make modifications

pursuant       to the   relocation," "[    t] he statute places a significant burden on the parent requesting the

change to show that that some practical change to the current parenting plan is necessitated by

the   relocation of      the   child."    Id. (citing RCW 26. 09. 260( 6)).                In support of this contention, Todd


cites   only RCW 26. 09. 260( 6).              But, contrary to his argument, RCW 26. 09. 260( 6) neither requires

a showing of adequate cause nor places a significant burden on the parent requesting the change

to show that the relocation necessitates modifying the parenting plan.

              Todd also relies on In re Marriage of Hoseth to support his contention that the trial court

was required to find a substantial change in circumstances before modifying the parenting plan

here.    In     re    Marriage of Hoseth, 115 Wn.                  App.      563, 63 P. 3d 164 ( 2003).         But his reliance on


Hoseth is misplaced because Hoseth involved a minor modification of a parenting plan under

RCW 26. 09. 260( 5),           which requires "       a substantial change of circumstances grounded upon facts


occurring since entry of the prior decree or plan or were unknown to the superior court at the

time     it    entered    that    prior   decree     or     plan."        Hoseth,    115    Wn.    App.    at   570 (    citing RCW

26. 09. 260( 1)).         Unlike the minor residential time modification at issue in Hoseth under

subsection ( 5) of RCW 26. 09. 260, the modification at issue here occurred in connection with a

relocation       proceeding       under subsection (         6), which does not require a showing of a substantial


change in circumstances. RCW 26. 09. 260.




                                                                         8
No. 44692 -8 -II




            Acknowledging that RCW 26.09.260( 6) governs this modification, Todd contends that

 1) the     statute' s "` pursuant        to   relocation "'   9 language10 creates a requirement that the modification

be    related      to the    relocation; (      2) Zeecha' s proposed modified parenting plan represented her
                                                                          11
 unabashed          desire to   reduce [       his parenting] time "           and was not '      pursuant   to "'   the relocation;


 3)    when a      parenting     plan     is   modified,   there    must       be   a " nexus"   between the parties' practical


circumstances and the changes to the parenting plan; and ( 4) Zeecha' s requested modifications

lacked this " nexus."           Reply Br. of Appellant at 8.

             Todd relies on Zeecha' s proposed modified parenting plan and her requested changes to
                                                                                                     12
support      his   argument     that the       modification     lacked    a sufficient " nexus. "         Todd' s argument lacks


merit.       RCW 26. 09. 260( 6) expressly               provides     that "[       t]he court may order adjustments to the

residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation

of    the   child." (   Emphasis      added).       This statute does not require that the modification be related to

                                                                     13
or    have   a " nexus"      with   the   requested relocation,           and Todd provides no authority to support this

contention.




9
    Br. of Appellant at 11 ( quoting RCW 26.09.260( 6)).

10 Pertinent portions of RCW 26. 09. 260( 6) provide:
        In making a determination of a modification pursuant to relocation of the child, . .
           Following that determination, the court shall determine what modification
        pursuant to relocation should be made, if any, to the parenting plan or custody
             order or visitation order.

    Emphasis added.)

11
      Br. of Appellant at 13.


 12 We note, however, that the trial court did not adopt Zeecha' s proposed parenting plan.
 13
      But    even   if the                          the trial court explicitly considered Zeecha' s
                             statute required such a " nexus,"

requested relocation in modifying the parenting plan.



                                                                      9
No. 44692 -841



                                          B. Changes in Todd' s Residential Time


         Although Todd argues that the trial court should not have modified the 2010 Modified


Parenting      Plan, his       own   filings   and requests at          trial   contradict      this   position.   The record shows


that Todd filed his own proposed parenting plan, which deviated from the 2010 Modified

Parenting Plan, and that he asked the trial court to modify the 2010 Modified Parenting Plan to

provide four more " additional weekends" to make up for his lost Portland Public School District

In- Service days. VRP at 10.


             Todd' s focus appears to be on the alleged reduction in his residential time with his son


resulting from the             modified   parenting    plan:        He argues that the trial court erred in eliminating

four    of   his " additional weekend" visits and his mid -
                                                          week visits because the, relocation did not


necessitate a reduction            in his   residential         time.   But contrary to Todd' s assertion, the trial court

did not eliminate four of his " additional weekend" visits; rather, the trial court denied his request

to   grant     him four        more " additional       weekends."               VRP   at   10 (   emphasis     added).    Instead of


increasing      to   a   total of eight "   additional weekends,"               the trial court ruled that, consistent with the


2010 Modified             Parenting     Plan, Todd     would        continue       to have four "        additional   weekends"   per




year.




             Todd may have lost some school in- service days with his son as a result of the relocation

and    the    change      in   school   district.   But it was not unreasonable for the trial court to decline to

                                                           14
provide extra weekends as " make                    up "        days; and, in the modification, the trial court was not


required      to   grant   Todd the      same number of residential                days    as    he had previously     enjoyed.   We


hold that Todd fails to show that the trial court abused its discretion when it struck the Portland




14VRP at11.


                                                                        10
No. 44692 -8 -II




Public School in- service residential provision of the parenting plan and maintained the 2010

Modified Parenting Plan " additional weekend" provision.

          Todd also contends the trial court erred in eliminating his mid -
                                                                          week residential time

during the summer. As the trial court noted, the 2010 Modified Parenting Plan did not explicitly

provide     Wednesday                mid -
                                         week         residential   time.    Rather, the 2010 Modified Parenting plan

contained a provision granting Todd an optional weekly visit, which provision was expressly

intended to give Todd the opportunity to assist the son with homework or other mid - eek
                                                                                   w

activities.       Based on this provision' s stated intent, it was not unreasonable for the trial court to


limit these midweek visits to the school year, particularly in light of its finding that these visits

would be disruptive to the limited days that Zeecha had with their son during the summer.

Again, we hold that Todd fails to show that the trial court abused its discretion in limiting Todd' s

Wednesday visitations to the school year.

                          C. Todd' s Policy Argument to Create New Statutory Requirement

           Todd asserts that this is a case of first impression and expresses his concern that

parenting plan modifications that result from relocations should accommodate the relocation and

not create a "           free for    all"   for the    parties   to modify parenting    plans.   Reply Br. of Appellant at 5.

He     contends          that ( 1)    if    we   accept    the   argument    that RCW 26. 09. 260( 6) does not require a



showing       of adequate             cause      or   substantial   change   in   circumstances, "   a move across the street



would open the door to a major modification of the parenting plan without any other basis for
                 15; (
doing     so "           2) relocations should not automatically give rise to a modification of a parenting

plan; and ( 3) we should hold that there must be a reasonable nexus between the relocation and a




 15
      Reply Br. of Appellant at 5 -6.


                                                                       11
No. 44692 -8 -II



modification of       the parenting      plan.   We decline Todd' s request to read a new requirement into


relocation proceedings that the legislature has already prescribed.

         RCW 26. 09. 260( 6) provides that, after determining whether to grant a relocation, the trial

court shall determine what modification " pursuant to relocation" should be made, if any, to the

parenting       plan or   custody   order or visitation order.        RCW 26. 09. 260( 6) does not automatically

require modifications of parenting plans after relocation; instead, the legislature has vested the

trial courts with discretion to determine whether such a modification is appropriate.

         Here, the trial     court exercised     its discretion    under    RCW 26. 09. 260( 6),     as contemplated by

the legislature.      The trial court considered whether to modify the parenting plan after Zeecha' s

relocation with their son:


           I]n the relocation setting, what the Court normally does is look at the existing Parenting
           Plan and determine what provisions in that Plan need to be altered, deleted, changed
           because of the reality of the distance resulting from the relocation, and what provisions
           no   longer, just simply,      are practical;    or,    frankly,      become illogical.   And that' s what I
           intend to do in this case.


VRP   at   52.    Again, Todd fails to show that the trial court abused its discretion in modifying the

parenting plan in response to the relocation.

                                                  III. ATTORNEY FEES


           RAP 18. 1       authorizes    attorney fees     on     appeal    if   provided   by   applicable   law.   After


considering the financial resources of both parties, we have discretion to award attorney fees to

the prevailing party. RCW 26. 09. 140. To receive attorney fees under RCW 26. 09. 140, however,

the requesting party         must show     his   need.   In re Marriage of Konzen, 103 Wn.2d 470, 478, 693

P. 2d 97 ( 1985).         A party relying on a financial need theory for recovery of attorney fees must

submit     an    affidavit   of need "   no later than 10 days prior to the date the case is set for oral


argument or consideration on            the   merits."   RAP 18. 1( c). •




                                                              12
No. 44692 -8 -I1




         Todd requests attorney fees on appeal, relying on RCW 26. 09. 140, a financial need

theory. But he has failed           to   provide an affidavit of need, as required                by   RAP 18. 1(   c).   Hoseth,


115 Wn.    App.    at   575.    Thus, we deny his request for attorney fees on appeal. RAP 18. 1( c).

         Zeecha asserts that she is entitled to attorney fees on appeal under RAP 18. 9 because

Todd filed    a   frivolous     appeal.       We disagree that Todd'          s   appeal was     frivolous.   The trial court


stated   that " this [   was]    a case ...      of   first impression," expressing concern that there was no


guidance    for the     court on   the   particular   facts   of   this   case.   VRP   at   51 - 52. " An appeal is frivolous


if, considering the entire record, the court is convinced that the appeal presents no debatable

issues upon which reasonable minds might differ and that it is so devoid of merit that there is no


possibility   of reversal."        Lutz Tile, Inc. v. Kreck, 136 Wn. App. 899, 906, 151 P. 3d 219 ( 2007),

review   denied, 162 Wn.2d 1009 ( 2008).                Further, all doubts as to whether an appeal is frivolous


are resolved in favor of the appellant. Id. The trial court' s comments may have given Todd the

impression that modifications related to relocations that bring the parties geographically closer

present a debatable issue. Accordingly, we hold that Todd' s appeal is not frivolous, and we deny




                                                                   13
No. 44692 -8 -II




Zeecha' s request for attorney fees on appeal on this basis.

          We affirm.


          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:




Maxa, J.




Lee, J.




                                                  14
