                                                                                                                 FILED
                                                                                                           COURT OF APPEALS
                                                                                                               DIVISION Ii

                                                                                                          2015 JUL - 7   AN 8., 45

                                                                                                          STATI' AS 1 1uTGir

                                                                                                           VY_
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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II


    In Re the Matter of the Marriage of                                                No. 45835 -7 -II


    JOHN ARTHUR MASON,


                                      Respondent,


            and



    TATYANA IVANOVNA MASON,                                                   UNPUBLISHED OPINION




          JOHANSON, C. J. —        Tatyana Mason appeals from a trial court order modifying a parenting

plan in which the trial court ordered that John Mason assume responsibility as the primary parent

ofthe parties' children. Tatyanal argues that (1) the trial court' s ruling was not based on substantial

evidence, (2) the trial court erred by denying her motion for reconsideration based on the existence

of new evidence, (      3) this court should reverse the trial court' s entry of the restraining order, and

    4) this court should award her attorney fees. We hold that substantial evidence supports the trial

court' s ruling, the trial court did not err by denying Tatyana' s motion for reconsideration nor by

entering the restraining order, and neither party is awarded attorney fees. We affirm.




1
    We   refer   to the Masons   by their   first   names   for clarity,   intending   no   disrespect.
No. 45835 -7 -II



                                                   FACTS


                                             I. BACKGROUND


           John and Tatyana married in 1999. They had two children, G.M. and D.M. John filed for

divorce in 2007, and the parties engaged in mediation, agreeing upon final orders including a

parenting plan. The orders specified that John and Tatyana would share custody of their children.

Contemporaneously with John' s 2007 dissolution filing, Tatyana filed a petition for a domestic

violence protection order. A court commissioner granted the petition.


           After the dissolution, G.M. and D. M. participated in counseling with social worker Stephen

Wilson. During this time, John became concerned about Wilson' s treatment of G.M. following an

incident in    which   G. M. hit his   younger   brother.    When the parties could not agree on a new


counselor, John filed a motion to the trial court to appoint one. The court appointed Sandra Hurd


to   assume   responsibility for the Mason    family' s    counseling   needs.   The court also ordered both


John and Tatyana to undergo counseling with Hurd, which they each did initially.

           In February 2011, G.M. made disclosures to John alleging physical and emotional abuse

by Tatyana. D.M. corroborated G.M.' s allegations. John responded by taking the children to Hurd

and   by   contacting Child Protective Services ( CPS).       The Mason children again made disclosures


of abuse. G.M. and D.M. also expressed fear about returning to their mother' s care.

           John then filed a petition to modify the parenting plan, obtaining an emergency order

granting custody of G.M. and D.M. in his favor in the meantime. The order limited Tatyana' s time

with   the children to professionally    supervised visits.    The trial court also. appointed Ralph Smith


to serve as guardian ad litem (GAL).




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          Smith conducted an investigation into the children' s allegations and generated a report of


his findings. Smith concluded that Tatyana used fear and physical force against G.M. and that her


actions rose to the level of abuse. Smith recommended that the children remain with John and that


Tatyana     maintain       her   supervised visitation.      Smith also recommended that Tatyana undergo a


parenting      evaluation    regarding her " tendency for       violence."   Ex. 12 at 9.


          Tatyana initially complied with the supervised visit requirement, but later ceased attending

the   visits   for   extended periods        of   time.   Following a number of reported incidents during the

visitations, Hurd composed a recommendation letter in which she determined that the visits were


stressful      for G. M.   and    D. M.     Smith then filed a motion urging the court to suspend Tatyana' s

visitation rights until she obtained the recommended parenting evaluation.

          Rather than suspending Tatyana' s visitation rights entirely, the trial court ordered that

Tatyana' s visits be therapeutic in nature, but Tatyana never arranged or coordinated such visits.


Tatyana claimed she could not afford to pay for the therapeutic visits or other supervised visitation

time because she had lost her home and she had no income.2

          Tatyana also failed to obtain the recommended parenting evaluation, instead filing a motion

asking the trial      court      to   order an evaluation   for both   parents.   Tatyana and John agreed that Dr.


Loren McCollom would conduct the evaluation, but Tatyana did not inform John when she began


the   evaluation process.             In light of Tatyana' s domestic violence allegations and when he became




2 Tatyana was generally uncooperative when asked about her finances or her living arrangement
at                 hearing. She admitted that she was living with a person with whom she was in
     the time of the

a relationship, but refused to tell the court where she was living.

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No. 45835 -7 -II



aware of the court' s order to evaluate both parents, Dr. McCollom suspended the evaluation


process.




                                               II. PROCEDURE


         The parties proceeded to trial on the modification petition absent Dr. McCollom' s report.


There, John urged the court to adopt a modified parenting plan according to which he would have

sole custody of the children with therapeutic visitation sessions for Tatyana. The basis of John' s

proposed modification was Tatyana' s physical and emotional abuse of G. M. and D.M.


         Tatyana opposed the modification at least insofar as the trial court would grant John' s


request without first obtaining Dr. McCollom' s evaluation report. The trial court heard testimony

from John, Tatyana, Hurd, Dr. McCollom, and Smith, among others. The trial court found credible

the   testimony regarding Tatyana' s       abuse of   the      children.   Notwithstanding that determination,

however, the trial court granted Tatyana' s request to continue the hearing so that the parties could

complete the parenting evaluation with Dr. McCollom. The trial court ordered.John and Tatyana

to share the cost of the evaluation.



         Dr. McCollom conducted the parenting evaluation. John complied with the court' s order

and paid his portion of the evaluation cost, but because Tatyana did not do so, Dr. McCollom


would not release the report, so the trial court again continued. the hearing on two additional

occasions. By October 2013, Tatyana still had not remitted payment, but the trial court refused to

continue the matter further.


         The trial court heard additional testimony and considered new evidence, including a CPS

report   finding   that the   allegations of abuse   by   Tatyana    were "   founded."   The court made an oral


ruling during which it noted that there had been a previous finding of domestic violence against


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No. 45835 -7 -II



John, but concluded that there was no evidence to support an additional finding to that effect and,

in the court' s view, there were no concerns about future domestic violence from John.


         The trial court entered findings of abuse by Tatyana pursuant to RCW 26. 09. 191 and

granted John' s request to modify the parenting plan under RCW 26. 09.260. The court expressed

concern that Tatyana had not exercised all of her visitation rights pursuant to the former court


orders and that at one time, she let nearly one year pass without contacting the children.

         As part of its order, the court also remarked that the goal of the modified final orders was


to establish a system whereby Tatyana and the children can develop a healthy relationship through

the   development      and   implementation        of a reunification plan with a new counselor.       The court


assigned a case coordinator to make sure that the reunification plan progressed satisfactorily. The

trial court also entered a restraining order, enjoining Tatyana from contacting G.M. and D.M. at

their school or day care.

         Following the entry of the modified parenting plan, Tatyana entered into a payment

agreement with        Dr. McCollom     so   that   she could obtain   the parenting   evaluation report.   Tatyana


then   filed   a   motion for   reconsideration.     The trial court declined to reconsider its earlier ruling.

Tatyana appeals the trial court' s order modifying the parenting plan and its order denying

Tatyana' s motion for reconsideration.




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No. 45835 -7 -II



                                                  ANALYSIS


          I. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT' S MODIFICATION ORDER


          Tatyana contends that the trial court erred by entering the order granting John' s motion to

modify the parenting plan because the trial court' s findings of fact were not supported by

substantial    evidence    and   because the    court    did       not rule   on " sufficient    information."    Br. of


Appellant at 20- 23. Because the trial court heard ample testimony, which it.found credible, from

various    professionals       who   determined that Tatyana            abused     G. M.   and    D.M.,   we   conclude




substantial evidence supports the trial court' s parenting plan decision.

          Generally, 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 ofMcDole, 122 Wn.2d 604, 610,

859 P. 2d 1239 ( 1993).

          Specifically, we review a trial court' s findings of fact to determine whether substantial

evidence supports the findings and whether those findings of fact support the conclusions of law.


Scott' s Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wn. App. 335, 341, 308 P. 3d

791 ( 2013),    review    denied, 179 Wn. 2d 1011 ( 2014). " Substantial evidence" is the quantum of


evidence " sufficient     to   persuade   a rational   fair- minded      person    the premise     is true."   Sunnyside


Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P. 3d 369 ( 2003).

          We make all reasonable inferences from the facts in John' s favor as the prevailing party

below.     Scott' s   Excavating,    176 Wn.    App.     at   342.     And    we   do   not "   disturb findings of fact



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No. 45835 -7 -II


supported   by   substantial evidence even        if there is conflicting     evidence."     Merriman v. Cokeley,

168 Wn.2d 627, 631, 230 P. 3d 162 ( 2010).                We defer to the trial judge on issues of witness


credibility and persuasiveness of the evidence. Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P. 3d

793 ( 2002).


         RCW 26. 09.260 governs modifications of parenting plans. It provides in pertinent part,

          1) Except   as otherwise provided        in   subsections (   4), ( 5), ( 6), ( 8), and ( 10) of this
         section, the court shall not modify a prior custody decree or parenting plan unless
         it finds, upon the basis of facts that have arisen since the prior decree or plan or that
         were unknown to the court at the time of the prior decree or plan, that a substantial
         change has occurred in the circumstances of the child or the nonmoving party and
         that the modification is in the best interest of the child and is necessary to serve the
         best interests of the child....
                  2) In applying these standards, the court shall retain the residential schedule
         established by the decree or parenting plan unless:

                   c) The child' s present environment is detrimental to the child' s physical,
         mental, or emotional health and the harm likely to be caused by a change of
         environment is outweighed by the advantage of a change to the child.

         Here, in support of its decision that modification of the parenting plan was in the children' s

best interest, the trial court found that the children' s environment under the then -existing plan was

detrimental to their physical, mental, or emotional health. The court found further that CPS had


conducted an     investigation resulting in   a   determination that      abuse was "    founded." Clerk' s Papers


at 207


         The trial court heard testimony from Hurd, who discussed G.M.' s disclosures that Tatyana

had been abusing him physically for an extended period of time and that she did not always feed

him   enough.    Hurd found these disclosures           credible.   Hurd   also observed     bruises   on   G.M. And


D.M. made disclosures that corroborated G.M.' s version of the events.




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No. 45835 -7 -II



         The trial    court also   heard testimony from Smith in his            role as   the GAL. Smith agreed that


Tatyana' s action instilled a fear of harm in the children and noted that although G.M. and D.M.

wanted    to   see   their   mother,   they only   wished      to do    so   with supervised visits.     Smith had no


concerns about the children living with John and recommended that they continue to do so. The

trial court found these aspects of Hurd' s and Smith' s testimony credible.

         Tatyana takes issue with the trial court' s reference to the findings and recommendations of .


a previous GAL in 2008 in support of what appears to be a claim that the trial court erred by relying

on an outdated report. But the trial court simply mentioned that it had also reviewed [ the GAL' S]

report   from 2008. Tatyana cites no authority to support the proposition that a trial court cannot,


on its own initiative, look into related material filed by an officer of the court in an earlier stage of

a concomitant proceeding. And as described above, the evidence absent any mention of the earlier

GAL report supports the trial court' s findings.


         Accordingly, we hold that substantial evidence supports the trial court' s findings that

modification of the parenting plan was in the best interests of the children because the existing

arrangement      was    detrimental to their health.               Therefore, we hold further that the trial court


necessarily did not abuse its discretion by ordering modification.

                                                II. RECONSIDERATION


          Tatyana asserts that the trial court abused its discretion by denying her motion for

reconsideration because she obtained Dr. McCollom' s evaluation report, which constitutes new


evidence for the purpose of a CR 59 motion. But with reasonable diligence, Tatyana could have

produced       the McCollom      report at   trial, thus   it is   not new evidence.      Therefore, the trial court did


not abuse its discretion in denying the reconsideration motion.


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No. 45835 -7 -II



            We review a trial court' s decision granting or denying a motion for reconsideration for

abuse of      discretion.      City of Longview v. Wallin, 174 Wn. App. 763, 776, 301 P. 3d 45, review

denied, 178 Wn.2d 1020 ( 2013).             CR 59 governs motions for reconsideration and provides in


relevant part,



                      a)   Grounds for New Trial          or   Reconsideration.                On the motion of the

            party aggrieved, a verdict may be vacated and a new trial granted to all or any of
            the parties, and on all issues, or on some of the issues when such issues are clearly
            and fairly separable and distinct, or any other decision or order may be vacated and
            reconsideration granted. Such motion may be granted for any one of the following
            causes materially affecting the substantial rights of such parties:

                      4)   Newly discovered        evidence,       material for the party making the
            application, which the party could not with reasonable diligence have discovered
            and produced at the trial.


 Emphasis added.)


            Here, Tatyana contends that the trial court abused its discretion because the McCollom


report was newly discovered evidence previously unavailable at the time the court made its

decision.         But to the extent that the report was unavailable before the presentation of the final


orders, this was so only because of Tatyana' s failure to contribute to the cost of the evaluation per

the earlier court order.


            The parties were well aware that the evaluation report existed at the time of trial and the


court continued the matter for nearly a year to allow Dr. McCollom to complete the evaluation and

to   give   the   parties an   opportunity to   present   their   case   in light   of   its   conclusions.   Tatyana would


have been able to present the evaluation report had she used reasonable diligence to satisfy her




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No. 45835 -7 -II



payment obligations in the months before the hearing concluded. Moreover, any argument to the

contrary is undermined by the fact that Tatyana ostensibly secured some kind of agreeable payment

arrangement almost immediately following the entry of final orders, such that she could file a

timely motion for reconsideration.

        Significantly, Tatyana failed to inform the trial court in her motion for reconsideration how

the McCollom report would change the trial court' s determination that modification of the


parenting plan was warranted in light of substantially changed circumstances. Nor does she make
                                      3
such an argument      to this   court.    See Fishburn   v.   Pierce   County Planning & Land Servs. Dep' t,

161 Wn.   App.     452, 473, 250 P. 3d 146 ( 2011).      Accordingly, we hold that the trial court did not

abuse. its discretion by denying Tatyana' s motion for reconsideration.4
                                              III. ATTORNEY FEES


        RCW 26. 09. 140 permits this court to award appellate attorney fees on a discretionary basis.

Based on the record here, we decline to award fees to either party.




3 The McCollom report' s conclusions and recommendations are markedly similar to the conditions
contained in the trial court' s modified orders. There is nothing in the report that would cast doubt
on the relief that the trial court granted John or that is particularly favorable to Tatyana.

4 Tatyana also argues that this court should vacate the restraining order entered against her in
conjunction with the modified parenting plan. But as explained, there was substantial evidence to
support the court' s ruling modifying the parenting plan. The restraining order precludes Tatyana
from contacting G.M. and D.M. at their schools or home, which is entirely consistent with the
parenting plan' s requirement that Tatyana have only supervised visits.
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No. 45835 -7 -II



        Affirmed.


        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.




                                                      14NSON, C. J.
 We concur:




 MAXX, J.




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