 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of
                                                  No. 76403-9-1
ERIN D. FARRELL-MILOSAVLJEVIC,
                                                  DIVISION ONE
                      Respondent,
                                                  UNPUBLISHED OPINION
              and

ZMAJKO MILOSAVLJEVIC,

                      Appellant.                  FILED: July 16, 2018


       TRICKEY, J. — Zmajko Milosavljevic and Erin Farrell-Milosavljevic (Farrell)

had a contentious dissolution of their marriage. After several days of trial, the court

issued a permanent parenting plan allowing Farrell to relocate to Toronto, Ontario,

Canada with the children and restricting Milosavljevic's contact with the children

due to abusive use of conflict and parental alienation. The trial court committed

numerous errors in establishing the permanent parenting plan and the financial

obligations. Therefore, we reverse and remand for a new trial.

                                       FACTS

       Milosavljevic and Farrell met in 2000. Farrell was a law student working in

Notre Dame's immigration law clinic. Milosavljevic was a Serbian refugee seeking

political asylum. They moved to New Jersey so that Farrell could work as an

immigration lawyer.

       They married in October 2000. Their son, Z.M., was born in 2002. The

family moved several times for Farrell's employment. Their daughter, S.M., was
No. 76403-9-1 / 2

born in Massachusetts in 2006. Milosavljevic primarily cared for the children and

the family's home, while Farrell worked at a law firm. He started his own carpentry

business in Massachusetts.

       In 2009,the family relocated to Washington so that Farrell could work as an

Immigration lawyer with Microsoft. Milosavljevic was forced to close his carpentry

business. Farrell's early years at Microsoft were "grueling," and she worked

extremely long hours.' Milosavljevic took care of the children and managed the

family's home. He was the primary caregiver between 2009 and 2012, including

driving the children to school and activities. In 2012, Milosavljevic began working

as a field carpenter for a construction firm.

       Farrell made all the decisions concerning the children's education, mostly

without consulting Milosavljevic. These decisions included sending Z.M. and S.M.

to private schools. Both Z.M. and S.M. were diagnosed with Attention Deficit

Hyperactivity Disorder(ADHD)and struggled in school. Z.M.'s ADHD and whether

to medicate him became a significant point of contention between Milosavljevic

and Farrell, and Farrell and Z.M.

       In mid-2012, Milosavljevic and Farrell's marriage began to deteriorate.

Farrell filed for dissolution of the marriage in June 2015. The trial court issued a

temporary order, which required Farrell to pay $1,000 in monthly maintenance to

Milosavljevic. The trial court also Issued a temporary parenting plan under which

the children would reside with Farrell, and Milosavljevic would have them for




'Ex. 322 at 14; Report of Proceedings(RP)(Dec. 21, 2016)at 588.
                                          2
No. 76403-9-1/3

overnights on Wednesdays and every other weekend.               Farrell obtained a

temporary restraining order against Milosavljevic.

       Milosavljevic and Farrell both alleged that the other suffered from mental

health issues and had committed domestic violence. The trial court appointed a

Guardian Ad Litem (GAL) to investigate and report on all issues relating to the

development of a permanent parenting plan. The court also ordered the GAL to

Inquire into the allegations of domestic violence and mental health issues against

both Farrell and Milosavljevic, as well as Milosavljevic's substance abuse, abusive

use of conflict, and refusal to seek needed services for the children.

       In November 2015, the GAL issued her first report which noted the

complexity of the case. During her investigation, the GAL found insufficient

evidence to restrict Milosavljevic's time with the children based on substance

abuse, but recommended that he undergo a chemical dependency evaluation.

       She found that Milosavljevic's allegations of domestic violence against

Farrell were not credible. She Identified isolated incidents of Milosavljevic using

physical violence and his frequent loss of temper but was not concerned about

physical harm to the children. She thought Milosavljevic's anger issues should be

addressed as a mental health or abusive use of conflict concern.

       The GAL also investigated both Farrell's and Milosavljevic's mental health.

She found that Farrell had been diagnosed with depression and ADHD,which were

adequately addressed through medication and therapy. She encountered variable

information about Milosavljevic's mental health. His current therapist opined that

Milosavljevic had an adjustment disorder that was well managed. An earlier


                                         3
No. 76403-9-1/4

therapist alleged that Milosavljevic suffered from significant personality disorders

and posed a risk of harm to himself or others.2 The GAL believed the prior

therapist's claims were exaggerated but recommended a psychological evaluation

to resolve the inconsistent opinions.

       Finally, the GAL explored Milosavljevic's alleged abusive use of conflict and

parental alienation. Specifically, the GAL stated that Milosavljevic had "engaged.

.. In a campaign to turn [Z.M] against [Farrell], in a manner that could have long-

term damaging effects on [Z.M.'s] psychological and emotional development, and

his relationship with [Farrell]."3 The GAL opined that some of Z.M.'s preferences

for Milosavljevic were due to neutral factors, such as a teenage boy's tendency to

seek out his father, Farrell's unavailability due to long work hours, and a general

preference for Milosavljevic's parenting style.           But Milosavljevic's behavior

reinforced those factors. The GAL also found that Z.M. was too involved in the

conflict between his parents. Additionally, Milosavljevic and Z.M. openly spoke

negatively about Farrell, which in turn negatively impacted S.M.

       As a result of Milosavljevic's behavior, the GAL recommended that his

contact with the children be restricted until a neutral psychological evaluation was

conducted. She also recommended counseling for the children and Milosavljevic

In order to address Z.M.'s alienation from Farrell. Significantly, the GAL also


2 Dr. Thomas Carter was originally Milosavljevic's therapist. He then began counseling
Milosavljevic and Farrell together. Eventually, he became Farrell's individual therapist and
no longer treated Milosavljevic. He provided a letter to the trial court that alleged that
Milosavljevic suffered from significant mental health issues and committed domestic
violence. In her second report, the GAL noted that'Mt is unfortunate that many of the
mental health issues were clouded by the involvement of Dr. Carter, who has aligned with
[Farrell] and contributed to the conflict between the parties? Ex. 339 at 38.
3 Clerk's Papers(CP)at 73.

                                             4
No. 76403-9-1 /5

recommended that the "final parenting plan" restrict Milosavljevic's contact with the

children due to his abusive use of conflict?'

         Subsequently, the court issued a temporary parenting plan implementing

the GAL's recommendations by replacing Milosavljevic's residential time with four

supervised visits. After these four visits, his residential time would resume. In

addition, the trial court ordered Milosavljevic to undergo a psychological

evaluation.

         In April 2016, Dr. Mamee Milner conducted Milosavljevic's psychological

evaluation and submitted a report of her conclusions. She concluded that

Milosavljevic suffered from an adjustment disorder and mild ADHD, but did not

exhibit the severe personality disorders alleged by his previous therapist. Dr.

Milner noted that Milosavljevic could have problems with impulsivity, poor decision-

making, and insight into his own emotional and psychological well-being. She also

opined that Milosavljevic's perception that Farrell had been emotionally and

financially abusive could indicate delusions about the relationship that would make

him quick to speak negatively about Farrell.

         In May 2016, before the dissolution trial then set in July, Farrell obtained

employment in Toronto, Ontario, Canada and petitioned the trial court to allow Z.M.

and S.M. to relocate with her. Milosavljevic objected to the relocation. Neither

Z.M. nor S.M. wanted to leave Seattle. The trial court issued temporary orders

allowing the children to reside with Milosavljevic while Farrell moved to Toronto.

The court continued the trial date to October and then to December.



4   CP at 18.
                                          5
No. 76403-94 /6

       The GAL submitted a second report in July 2016.5 She did not find any

reasons to restrict Milosavljevic's contact with the children based on substance

abuse, domestic violence, or mental health concerns.                   She no longer

recommended restrictions against Milosavljevic due to his abusive use of conflict.

She noted that Milosavljevic had "gained some skills in this area" with parent

coaching and therapy.°        She also acknowledged many positive aspects of

Milosavljevic's relationship with Z.M. and that it was natural for a boy of Z.M.'s age

to gravitate toward his father.

       The GAL did find, however, that Milosavljevic continued to engage in

abusive use of conflict and parental alienation.            The GAL opined, "[T]he

relationship between [Z.M.] and [Farrell] continues to deteriorate in an unhealthy

manner. [Milosavljevic] is not solely to blame, of course, but his allowing [Z.M.]to

continue to 'tattle' on [Farrell] contributes to [Z.M.'s] rejection of her."7

       The GAL also addressed Farrell's relocation in the second report. She

mentioned Milosavljevic's abusive use of conflict in her analysis of the statutory

factors governing child relocation that consider whether either parent is subject to

restrictions on contact with the children. The GAL wrote, "[a]s noted in the earlier

report, there should be a finding of abusive use of conflict against [Milosavljevic],

based on parental alienation." But she also opined that Z.M.'s relationship with

Farrell had deteriorated due to both natural factors and Milosavljevic's influence.




5 The second report was titled the'FINAL GAL REPORT." CP at 242.
° CP at 284.
7 CP at 284.
° CP at 286.
                                            6
No. 76403-9-1 /7

       After weighing the statutory factors, the GAL concluded that S.M. should

relocate to Toronto with Farrell, while Z.M. should remain in Washington with

Milosavljevic. The GAL noted that "[t]he relationship between [Farrell] and (Z.M.]

has deteriorated to the point where it is not In [Z.M.'s] best interest to relocate with

[Farrell] at this time."9 The GAL concluded that "[g]iven their ages and the complex

relationship between [Z.M.] and his parents, it is hoped that allowing each child to

develop healthy relationships with both parents without the conflict that has arisen

between [Z.M.] and [Farrell] will support their well-being."19

       Pending trial and entry of the permanent parenting plan, the children

remained in Washington and lived with Milosavljevic. In December 2016,the GAL

met with Z.M. and S.M. and submitted a supplemental third report the trial court

had ordered. The GAL found that S.M. had adjusted well to being in Milosavljevic's

primary care and had benefitted from spending time with Milosavljevic and Z.M.

But S.M. had begun to withdraw from Farrell, and the GAL remarked that S.M. had

absorbed some of Milosavljevic's arguments against Farrell. During the meeting,

S.M. Independently expressed her desire to stay in Washington.

       The GAL found that Z.M. still held negative views of Farrell, focusing on her

perceived faults and her role in the dissolution. Z.M. had not made any effort to

reconcile their relationship. The GAL expressed significant concern about Z.M.'s

ability to cope if he were "'forced"' to relocate with Farrell." The GAL specifically

noted that "all the blame for [Z.M.'s] rejection of [Farrell] should not be placed on



9 CP at 286.
I° CP at 288.
"CP at 528.
                                           7
No. 76403-9-1 /8

[Milosavljevic], but he should accept some responsibility for his alienating

behaviors."12 The GAL again recommended that Z.M. remain In Washington with

Milosavljevic, and that S.M. relocate to Toronto with Farrell.

       The parties' dissolution trial took place over several days in late December

2016. The GAL was one of the witnesses who testified. The court ordered that

S.M.and Z.M. relocate to Toronto with Farrell. In oral remarks,the trial court stated

that this decision would enable the children to have a positive relationship with

both Farrell and Milosavljevic. The trial court believed that Farrell was more likely

to ensure that both parents had a positive relationship with the children. The court

stated,"1 just made the decision that 1 think that the mother is the one that is more

capable, more likely, more willing to do that."13

       The trial court also restricted Milosavljevic's contact with the children based

on his abusive use of conflict and "long term pattern of alienation of the children,

causing damage to their relationship with (Farrell]?" The court appointed a case

manager to establish and enforce communication guidelines between

Milosavljevic and the children. The court directed the case manager to make and

Implement recommendations as to the appropriate residential schedule for the

children, subject to the trial court's review.

       The trial court ordered Milosavljevic to pay $836.20 in monthly child support

and 32 percent of additional expenses,including uninsured medical expenses,day

care, private school tuition and tutoring, flights for visitation, and extracurricular



12 CP at 527.
13 RP (Dec. 23, 2016) at 890.
14 CP at 406.

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No. 76403-9-1 /9

activities. Farrell was responsible for the remaining 68 percent of these additional

expenses. The trial court denied Milosavljevic's request for maintenance. Farrell

received a restraining order for one year against Milosavljevic.

       Milosavljevic appeals.

                                      ANALYSIS

                                    Parenting Plan

       Milosavljevic argues that the trial court erred by addressing the child

relocation act (CRA), ROW 26.09.405-.560, factors without applying the best

Interests of the child factors and establishing a permanent parenting plan under

RCW 26.09.187. Farrell responds that the trial court properly applied the correct

legal standard to the relocation issue.15

       The trial court must fashion a permanent parenting plan that includes a

residential provision that encourages each parent to maintain a loving, stable, and

nurturing relationship with the child. ROW 26.09.187(3)(a). In order to achieve

this, the trial court considers the best interests ofthe child to determine and allocate

parenting responsibilities between the parties. In re Marriage of Possinger, 105



15 Farrell also argues that Milosavljevic agreed to the application of the CRA In the case
and cannot raise this issue for the first time on appeal. See RAP 2.5(a). Farrell's claim
that Milosavljevic agreed to the application of the CRA does not accurately describe his
position. During a discussion with the trial court, Milosavljevic noted that °there hasn't
been a prior determination as to who the primary parent was because the parties weren't
divorced, and the Relocation Act more or less contemplates that there's already been a
determination as to who the primary parent Is." RP(Dec. 22,2016)at 793. The trial court
stated that the CRA applied to any parenting plan, whether temporary or permanent.
Milosavljevic was not comfortable with this conclusion because he felt the temporary
parenting plan was improperly decided. Thus, Milosavljevic expressed concern about the
trial court's premature application of the CRA at the time of the dissolution proceedings.
Therefore,the issue is properly raised on appeal. See Lunsford v. Saberhanen Holdings,
Iric., 139 Wn. App. 334, 338, 160 P.3d 1089(2007), affd, 166 Wn.2d 264,208 P.3d 1092
(2009).
                                            9
No. 76403-9-1 / 10

Wn. App. 326, 335, 19 P.3d 1109 (2001). The best interests of the child are

analyzed through the seven factors the trial court must consider when establishing

a residential schedule. RCW 26.09.187(3)(a)(i)-(vii).16 The trial court must make

a residential placement decision that advances the best interests of the child 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).

       A child's residential time with a parent must be limited when the parent's

conduct meets certain statutorily defined circumstances due to adverse effects on

the child. RCW 26.09.191(2). In other situations, the trial court has the discretion

to impose limitations. RCW 26.09.191(3). A child's residential schedule must be

consistent with      restrictions imposed         under RCW 26.09.191.                   RCW

26.09.187(3)(a). Limitations imposed under RCW 26.09.191 may be dispositive

of a child's residential schedule. RCW 26.09.187(3)(b).




1° The seven factors of RCW 26.09.187(3)(a) are
       (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(3)1, 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
       (vii) Each parent's employment schedule, and shall make accommodations
       consistent with those schedules.
                                             10
No. 76403-9-1 /11


       Under the CRA, when residential time is shared between parents, the

parent with whom the child resides the majority of the time must provide notice of

any intention to relocate. RCW 26.09.430. When there is no parenting plan in

place, with whom the child principally resides is a question of fact. In re Marriage

of Fahey, 164 Wn. App. 42, 57, 262 P.3d 128(2011).

       If the non-relocating party objects, the trial court must consider eleven

factors to determine whether to permit the proposed relocation. RCW 26.09.520.1
                                                                            '

"The CFtA shifts the analysis away from only the best interests of the child to an

analysis that focuses on both the child and the relocating person.'" In re Marriage


17 The eleven factors of RCW   26.09.520 are
      (1)The relative strength, nature, quality, extent of involvement, and stability
      of the child's relationship with each parent, siblings, and other significant
      persons in the child's life;
      (2) Prior agreements of the parties;
      (3) Whether disrupting the contact between the child and the person with
      whom the child resides a majority of the time would be more detrimental to
      the child than disrupting contact between the child and the person objecting
      to the relocation;
      (4) Whether either parent or a person entitled to residential time with the
      child is subject to limitations under RCW 26.09.191;
      (5)The reasons of each person for seeking or opposing the relocation and
      the good faith of each of the parties in requesting or opposing the
      relocation;
      (6) The age, developmental stage, and needs of the child, and the likely
      impact the relocation or its prevention will have on the child's physical,
      educational, and emotional development, taking into consideration any
      special needs of the child;
      (7) The quality of life, resources, and opportunities available to the child
       and to the relocating party in the current and proposed geographic
       locations;
      (8) The availability of alternative arrangements to foster and continue the
      child's relationship with and access to the other parent;
      (9) The alternatives to relocation and whether it is feasible and desirable
      for the other party to relocate also;
      (10) The financial impact and logistics of the relocation or its prevention;
       and
      (11) For a temporary order, the amount of time before a final decision can
       be made at trial.

                                            11
No. 76403-9-1/12

of McNaught, 189 Wn.App.545,553,359 P.3d 811(2015)(quoting In re Marriage

of Homer, 151 Wn.2d 884,887,93 P.3d 124(2004)). The CRA presumes that the

intended relocation of the child will be permitted. RCW 26.09.520. "A person

entitled to object to the intended relocation of the child may rebut the presumption

by demonstrating that the detrimental effect of the relocation outweighs the benefit

of the change to the child and the relocating person, based upon the [eleven]

factors." RCW 26.09.520. The trial court has the discretion to grant or deny a

relocation after considering the relocation factors and the interests of the children

and their parents. Fahey, 164 Wn. App. at 56-57.

       The CRA applies when the person with whom the child resides a majority

of the time wants to relocate. RCW 26.09.520. As such, the CRA assumes that

the parties have a residential schedule in place that establishes the parent with

whom the child resides a majority of the time. This residential schedule is part of

the permanent parenting plan determined through consideration of the best

interests of the child." RCW 26.09.187. Therefore, the CRA factors are generally

assessed after the best interest of the child factors have been applied and the

residential schedule is in place.

       During an ongoing dissolution proceeding, a trial court may be required to

determine the permanent parenting plan and whether relocation is appropriate at

the same time. When establishing the permanent parenting plan, the trial court



18We note that a residential schedule in a temporary parenting plan is also subject to the
CRA. RCW 26.09.410(1). When establishing a temporary parenting plan, the trial court
considers the best Interests of the child factors to determine residential provisions. RCW
26.09.197. Therefore, the CRA factors would apply after the best interest factors have
been considered for a residential schedule under a temporary parenting plan.
                                           12
No. 76403-9-1/13

may not draw presumptions from the temporary parenting plan.                    RCW

26.09.191(5). As a result, the parent with the majority of the residential time is not

defined by the temporary parenting plan in later proceedings.

       Until a parent with whom the child resides a majority of the time is identified,

the CRA factors do not apply. This parent is identified by the residential schedule

in the parenting plan or through factual inquiry if required. See Fahey, 164 Wn.

App. at 57. Therefore, when the permanent parenting plan and relocation are

determined in the same proceeding, the trial court must first establish a parenting

plan and residential schedule before turning to a CRA analysis.

       While establishing the residential schedule in a permanent parenting plan

generally requires consideration of the best interests of the child factors, RCW

26.09.191 restrictions may be dispositive of the child's residence without

examination of the best interests of the child factors. RCW 26.09.187(3)(a). In

such cases, the RCW 26.09.187(3) best interests of the child factors are

essentially unnecessary and the trial court may proceed directly to consideration

of the CRA factors under RCW 26.09.520.

       In this case, the trial court imposed discretionary RCW 26.09.191(3)

restrictions on Milosavljevic's contact with Z.M. and S.M. If properly imposed,

these restrictions are dispositive of Farrell's role as the parent with whom the

children principally reside.    Based on the above analysis, the trial court's

examination of the CRA factors without first addressing the child's best interests

was not legal error if the RCW 26.09.191(3) limitations were properly imposed on

Milosavljevic's contact with the children.


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No. 76403-9-1/ 14

      Discretionary limitations may be imposed for abusive use of conflict "which

creates the danger of serious damage to the child's psychological development?

RCW 26.09.191(3)(e). Restrictions may also be imposed for other factors or

conduct that "the court expressly finds averse to the best interests of the child."

RCW 26.09.191(3)(g). Before imposing restrictions under RCW 26.09.191(3)(g),

the trial court must find "'more than normal... hardships which predictably result

from a dissolution of marriage.'" In re Marriage of Katare, 175 Wn.2d 23, 36, 283

P.3d 546(2012)(quoting In re Marriage of Littlefield, 133 Wn.2d 39, 55, 940 P.2d

1362(1997)). The court may impose restrictions only where substantial evidence

shows the existence of a danger of damage. In re Marriage of Chandola, 180

Wn.2d 632, 645, 327 P.3d 644 (2014). The restrictions must be reasonably

calculated to prevent the kind of harm involved. Chandola, 180 Wn.2d at 653.

Restrictions are reviewed for abuse of discretion. See Chandola 180 Wn.2d at

642-43.

       A trial court's parenting plan is also reviewed for abuse of discretion, which

occurs when a decision is manifestly unreasonably or based on untenable grounds

or untenable reasons. Chandola, 180 Wn.2d at 642. The trial court's findings of

fact are treated as verities on appeal, as long as they are supported by substantial

evidence. Chandola, 180 Wn.2d at 642. "'Substantial evidence' is evidence

sufficient to persuade a fair-minded person of the truth of the matter asserted?

Chandola, 180 Wn.2d at 642. The appellate court reviews errors of law de novo.

Fahey, 164 Wn. App. at 55.




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No. 76403-9-1 /15

       Here, the trial court included restrictions on Milosavljevic's contact with his

children based on RCW 26.09.191(3)(e) for abusive use of conduct, and RCW

26.09.191(3)(g) for a long term pattern of alienation of the children, causing

damage to their relationship with Farrell. In establishing these restrictions the court

stated, "[Milosavljevic] acts and speaks loudly and in a demanding manner to and

regarding [Farrell], and undermines and alienates the children from their mother,

which interferes with any reasonable expectation that the parties can engage in

joint decision making.'19 Additionally, the trial court noted, "[Milosavljevic] has

engaged in undermining [Farrell's] parenting resulting in alienation of the

children."2° The trial court cited the GAL's recommendation as the reasoning

behind the RCW 26.09.191(3) restrictions, finding, u[t]he GAL has recommended

restrictions against[Milosavljevic] throughout this action due to his abusive use of

conflict which has caused serious damage to the children's psychological

development, plus his behavior of undermining [Fame111'121

       The trial court cited the GAL's recommendation of restrictions in the first

report and adopted those restrictions. However, the court failed to acknowledge

that the GAL,in her two subsequent reports and her trial testimony, did not renew

this recommendation. In fact, the GAL recommended that Z.M. remain in

Washington with Milosavljevic rather than relocate to Toronto.                     The

recommendation that Z.M. reside with Milosavljevic fundamentally conflicts with a

recommendation of restrictions under RCW 26.09.191(3).



19 CP at 383.
2° CP at 383.
21 CP at 385.

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No. 76403-9-1/ 16

      The GAL clearly states that Milosavljevic played an undeniable role in

undermining the relationship between Z.M. and Farrell. But the GAL also noted

that benign, developmental reasons contributed to the schism between Z.M. and

Farrell. Moreover,the GAL found that Milosavljevic's behavior improved over time.

By her second report, the GAL noted that Milosavljevic still engaged in abusive

use of conflict but did not renew her explicit recommendation for restrictions.

      Therefore, the GAL's reports do not support the trial court's imposition of

restrictions under RCW 26.09.191(3).

      The trial court relied solely on the GAL's initial reports to impose restrictions

on Milosavljevic. The trial court did not cite other evidence or make additional

findings to support restrictions on Milosavljevic's contact with his children. As a

result, the trial court's determination that restrictions were required was not

supported by substantial evidence. The restrictions were imposed on untenable

grounds and amount to an abuse of the trial court's discretion.

       The trial court determined the parenting plan and residential schedule

based on these improperly imposed RCW 26.09.191(3) restrictions. This resulted

in legal error. Because the record does not support restrictions that effectively

determine residence, the trial court was required to assess the best interests of the

children to formulate the residential schedule for the permanent parenting plan.

Only after arriving at a permanent parenting plan and establishing the parent with

the majority of the residential time can the court consider the CRA factors.

       In addition to premature application of the CRA factors, the trial court

Improperly applied the friendly parent concept to decide relocation and establish


                                         16
No. 76403-94 117

the permanent parenting plan. "Under the 'friendly parent' concept, primary

residential placement is awarded to the parent most likely to foster the child's

relationship with the other parent." In re Marriage of Lawrence, 105 Wn.App.683,

687, 20 P.3d 972(2001). Washington law does not recognize the friendly parent

concept. Lawrence, 105 Wn. App. at 688. Therefore, "a trial court's use of the

concept in a custody determination would be an abuse of discretion." Lawrence,

105 Wn.App. at 688.

       Here, the trial court repeatedly stated that Farrell was best suited to help

the children have a positive relationship with both parents. Further, the permanent

parenting plan found that residing primarily with Farrell would "provide the children

with the best opportunity to foster and continue their relationship with both

parents."22 The trial court also explicitly based its permanent parenting plan

decisions on its assessment of Farrell's willingness to maintain positive

relationships, stating, "I just made[the] decision that I think that [Farrell] is the one

that is more capable, more likely, more willing to do that."23

       The trial court's repeated statements emphasizing Farrell's ability to foster

relationships with both parents show that the friendly parent concept played a

significant role in determining the permanent parenting plan and relocation

request. This was an additional abuse of the trial court's discretion.

       In light of the trial court's improper use of the friendly parent concept,

premature application of the CRA,and lack of substantial evidence supporting the

restrictions, we reverse and remand for a new trial.


22 CP at 386.
23 RP (Dec. 23, 2016)at 890.

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No. 76403-9-1/ 18

                                   Maintenance

       Milosavljevic requested maintenance based on Farrell's substantially higher

Income and the negative impacts on his career and earning potential as a result of

relocations for Farrell's employment. He argues that the trial court erred by

denying his maintenance request without evidence of consideration of the relevant

statutory factors. We agree.

      The trial court can award maintenance to either party after consideration of

all relevant statutory factors. In re Marriage of Zahm, 138 Wn.2d 213, 227, 978

P.2d 498 (1999). The statutory factors for maintenance include the financial

resources of the party seeking maintenance,time necessary to obtain the skills for

employment, the parties' standard of living during the marriage, duration of the

marriage, the age, physical and emotional condition, and financial obligations of

the seeking party, and the ability to pay of the other party. RCW 26.09.090(1)(a)-

(0.
      "Nothing in RCW 26.09.090 requires the trial court to make specific factual

findings on each of the factors listed in RCW 26.09.090(1). The statute merely

requires the court to consider the listed factors." In re Marriage of Mansour, 126

Wn. App. 1, 16, 106 P.3d 768 (2004). But "[am n award that does not evidence a

fair consideration of the statutory factors results from an abuse of discretion." In

re Marriage of Soreen, 107 Wn.App. 341,349,28 P.3d 769(2001). The appellate

court reviews maintenance awards for abuse of discretion. Zahm, 138 Wn.2d at

226-27.




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       Here, the trial court did not provide factual findings, discussion, or analysis

of the factors to support its denial of Milosavljevic's request for maintenance. The

trial court merely marked the box on the order on findings and conclusions about

a marriage, indicating that RCW 26.09.090 did not support an award of

maintenance to either party.        Thus, the trial court failed to demonstrate

consideration of any of the statutory factors prior to denying Milosavljevic's request

for maintenance. While RCW 26.09.090 does not require the trial court to make

specific factual findings on each of the factors, the court must show fair

consideration of the factors. See Soreen, 107 Wn. App. at 349. Therefore, the

trial court's decision to deny maintenance was an abuse of discretion.

       Farrell cites Mansour to support her claim that the court was not required to

make findings of fact about the maintenance factors. 126 Wn. App. at 16. But

Mansour states that the trial court need not provide findings for each factor. 126

Wn. App. at 16. Mansour does not stand for the idea that the trial court may make

a decision on maintenance without demonstrating consideration of any statutory

factors. In fact,the trial court in Mansour clearly considered several of the statutory

factors, including the parties' postdissolution economic conditions and living

expenses. 126 Wn. App. at 16. This differs significantly from the case at hand,

where the trial court evinced no consideration of the factors. Therefore, Farrell's

reliance on Mansour is misplaced.

       By failing to provide evidence that it considered any of the statutory

maintenance factors, the trial court abused its discretion in denying Milosavljevic's




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maintenance request. We reverse the court's denial of maintenance and remand

for consideration of the factors.

                                    Child Support

       Milosavljevic claims that the trial court erred by setting his child support

obligations based on erroneous income information.              Farrell argues that

Milosavljevic made contradictory statements about his income and that the trial

court properly assessed his income based on these statements. The trial court

employed an income figure unsupported by substantial evidence in the record.

Therefore, we reverse the trial court's determination of Milosavljevic's child support

obligation and remand for recalculation.

       Child support is intended to be equitably apportioned between the parents.

RCW 26.19.001. The trial court allocates support between the parents based on

their shares of the combined monthly net income. RCW 26.19.080(1). Prior to

assigning child support, the trial court must calculate the parents' monthly income.

RCW 26.19.071; State ex rel. Taylor v. Dorsey, 81 Wn. App. 414, 423, 914 P.2d

773(1996).

       Child support orders are reviewed for abuse of discretion. In re Marriage of

Schnurman, 178 Wn. App. 634, 638, 316 P.3d 514 (2013). "A trial court abuses

its discretion if its decision rests on unreasonable or untenable grounds."

Schnurman, 178 Wn.App. at 638.

       "[T]he trial court's findings of fact must be supported by substantial

evidence." In re Parentage of Goude, 152 Wn. App. 784, 790, 219 P.3d 717

(2009). "'Substantial evidence'is that which is sufficient to persuade a fair-minded


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No. 76403-9-1 /21

person of the declared premise." Goude, 152 Wn. App. at 790. This court will not

substitute its judgment for that of the trial court if the record shows the court

considered all relevant factors and the award is not unreasonable under the

circumstances. In re Parentage of 0.A.J., 190 Wn. App. 826, 830, 363 P.3d 1

(2015).

      Here,the trial court's child support worksheet calculated Milosavljevic's total

gross monthly income as $6,208.34. Milosavljevic contends that the trial court

erroneously arrived at this total by including $1,000 in temporary maintenance,

which he no longer receives. According to Milosavljevic, his gross monthly income

Is only $5,208.34.

      The financial evidence in the record is contradictory. On the child support

worksheet for the agreed temporary child support order that he prepared and

signed, Milosavljevic listed a monthly wage of $6,208.34 and $1,000 in temporary

monthly maintenance for a total gross monthly income of $7,208.34. This would

support the trial court's use of $6,208.34 as his total gross monthly income, not

including maintenance,for the purposes of the final child support order calculation.

       In contrast, Milosavljevic's July 2016 financial declaration to the trial court

lists monthly wage income as $5,208.34 plus $1,000 temporary maintenance for a

total gross monthly income of $6,208.34. This monthly wage income of $5,208.34

Is supported by additional evidence in the record. As of June 2016, Milosavljevic's

yearly salary of $62,500 was confirmed by his employer. This breaks down to a

monthly salary of $5,208.34. Biweekly paychecks submitted by Milosavljevic to

the court show a gross income of $2,403.85.


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No. 76403-9-1/ 22

       Other evidence in the record supports additional income figures.

Milosavljevic's 2015 W-2 form shows wages of $68,773.84, which corresponds to

a monthly wage of $5,731.15. Milosavljevic testified to a salary of $61,000 per

year, which breaks down to a monthly wage of $5,083.33.24 He also told the court

he had just received a $500 bonus two days before trial.

       While the figures of Milosavljevic's monthly income vary, the majority of the

evidence shows that Milosavljevic's income was below the $6,208.34 used by the

trial court to calculate his final child support obligation. Only the temporary child

support order worksheet lists $6,208.34 as Milosavljevic's gross monthly income.

All other evidence supports a monthly wage between $5,731.15 and $5,208.34,

without temporary maintenance. Furthermore, the $6,208.34 used by the trial

court is exactly equal to Milosavljevic's claimed salary plus the prior maintenance

award. This suggests that Milosavljevic made an error when he completed the

child support worksheet for the agreed temporary child support order.

       Given the evidence of Milosavljevic's income in the record, the trial court's

factual finding of Milosavljevic's gross monthly income as $6,208.34 is not

supported by substantial evidence. The trial court abused its discretion by relying

on this figure to calculate Milosavljevic's child support payments. We reverse and

remand for recalculation of Milosavljevic's final child support obligation.25



24Milosavljevic also testified to an annual Income of $61,450.
25 Milosavljevic also argues that his child support obligations, including his share of the
additional expenses, exceed the 45 percent of net Income limit established by RCW
26.19.065(1). In this case, the trial court did not provide calculations or estimates of the
additional expenses and Milosavljevic has not provided any Information on the extent of
these costs. Without this information, we cannot assess whether Milosavljevic's total
support obligations exceed 45 percent of his net income.
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No. 76403-9-1/23

                                  Fees on Appeal

       Milosavljevic requests fees on appeal under RCW 26.09.140. This court

has discretion to order a party to pay fees and costs in a dissolution proceeding.

RCW 26.09.140. In determining whether to award fees on appeal, this court

balances the needs of one party against the other's ability to pay. In re Marriage

•of Lilly, 75 Wn. App. 715, 720, 880 P.2d 40(1994). We must consider the parties'

relative ability to pay and the arguable merit of the issues raised on appeal. Leslie

v. Verhey,90 Wn. App. 796, 807,954 P.2d 330(1998).

       Milosavljevic has substantially prevailed on appeal, as we reverse and

remand for a new trial. Furthermore, Farrell's net monthly income is approximately

double Milosavljevic's net monthly income.26 Farrell has not submitted an affidavit

proving inability to pay. Therefore, we grant Milosavljevic's request for reasonable

attorney fees and costs on appeal. See Mansour, 126 Wn.App. at 17.

       Reversed and remanded for new trial.



                                                         les‘cd<

WE CONCUR:




                                                   irthee-4f
25 Evidence in the record shows Milosavljevic's monthly wage between $5,731.15 and
$5,208.34. Milosavljevic subsequently submitted a financial declaration identifying his
total net monthly expenses as $4,062.34 and his total monthly expenses and debt
payments as $7,199.00. Farrell's previously identified net monthly income was
$10,608.50.
                                          23
