                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 22, 2015
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

    In Re the Marriage of:                                           No. 45612-5-II

    JODI HESLIP nka VINES,

                                 Respondent,

           and

    FREDERICK J. HESLIP,                                       UNPUBLISHED OPINION

                                 Appellant.

          SUTTON, J. — Frederick Heslip appeals the trial court’ s order modifying the parties’

parenting plan and awarding primary custody of the minor child, MH1 to the mother, Jodi Heslip.

Frederick2 argues that the trial court (1) erred in applying RCW 26.09.260 to the facts because the

evidence favored him as the primary custodial parent, ( 2) erred in not applying the relocation

factors under RCW 26.09.520, and (3) abused its discretion in limiting the evidence at trial to the

facts that occurred after its December 2011 order awarding temporary custody of MH to Jodi,

pending trial.

          We hold that the trial court did not err in applying RCW 26.09.260 to the facts and in

modifying the parenting plan. Applying RCW 26.09.260(2)(c), the trial court’ s unchallenged

findings of fact found that there was a substantial change in MH’ s circumstances since entry of the

May 21, 2010 parenting plan, that MH was fully integrated into Jodi’ s new family and her home

provided him stability, and that continued placement with Frederick would be detrimental to MH’ s



1
    We refer to MH by his initials to protect his privacy.
2
    To avoid confusion, we refer to the parties by their first names. We mean no disrespect.
No. 45612-5-II


mental and emotional health. We hold that the trial court’ s findings support the court’ s conclusion

that it was in MH’ s best interests to award primary custody to Jodi. We also hold that, because

Frederick did not object to the trial court’ s ruling limiting the evidence at trial to facts since the

December 30, 2011 temporary order,3 and because he agreed that the relocation issue was moot,

he waived these issues on appeal under RAP 2.5(c). Accordingly, we affirm the trial court’ s

October 14, 2013 order modifying the parenting plan.4

                                               FACTS

                                 I. THE MAY 2010 PARENTING PLAN

       Frederick and Jodi Heslip married in August 2005. In November 2007, Frederick was

convicted of a misdemeanor assault against Jodi. Their son, MH, was born in December 2007.

Due to his criminal conviction, Frederick lost his job, then worked various jobs, had difficulty

paying bills, and moved five to seven times during the first 18 months after MH was born.

Frederick and Jodi divorced in May 2010. On May 21, 2010, the superior court entered a final

parenting plan awarding primary residential placement of MH, age three, to Frederick. At the time

the court entered the final parenting plan, Jodi was in the process of relocating to North Carolina,

but she had not yet relocated.

            II. JODI’ S PETITION TO MODIFY AND FREDERICK’ S MOTION TO RELOCATE

       On October 13, 2011, Jodi filed a petition to modify the May 2010 parenting plan, seeking

primary custody of MH. She alleged that, under RCW 26.09.260(2)(c), MH’ s environment was




3
Order on Hearing (December 30, 2011 temporary order).
4
Order Re: Modification/Adjustment of Custody Decree/Parenting Plan/Residential Schedule
October 14, 2013 order).


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No. 45612-5-II


detrimental to his physical, mental or emotional health and that the advantages of the change in

MH’ s environment outweighed any potential harm to MH. Jodi also filed a motion for temporary

custody of MH so he could live with her temporarily in North Carolina pending trial and a motion

to enjoin Frederick from taking MH out of Washington State. In response, Frederick filed a motion

to relocate to Utah with MH; Jodi objected.

       The trial court, finding adequate cause for Jodi to proceed on her petition to modify

custody, set an evidentiary hearing. After three days of testimony, the trial court found that

Frederick showed a pattern of domestic violence and moved several times within an 18 month

period of time, that he was currently unemployed, and that he stopped communicating with MH

and Jodi after she filed her pleadings. The trial court also found that Jodi was married and

employed, that she had a consistent schedule and a plan for MH in North Carolina, and that while

she had been treated for a prior mental health issue, she no longer required medication. The trial

court further found that Frederick’ s instability created a substantial change in MH’ s circumstances,

and that it was in MH’ s best interests to live with Jodi in North Carolina until the Cowlitz County

Family Court completed a full investigation.

       The trial court (1) granted Jodi’ s motion for temporary custody on December 30, 2011, and

entered a temporary parenting plan on January 6, 2012, (2) ordered Frederick to exchange the child

at the Salt Lake City Airport no later than January 6, 2012, and ( 3) referred the matter to the

Cowlitz County Family Court for investigation. After granting Jodi’ s motion for temporary

custody and entering the temporary parenting plan, the trial court stated that Frederick’ s motion

for relocation was “ moot.” Verbatim Report of Proceedings ( VRP) (December 1, 2011) at 58.




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No. 45612-5-II


Both parties agreed with the trial court. MH subsequently moved to North Carolina to temporarily

live with Jodi.

       In accordance with the trial court’ s orders, the Cowlitz County Family Court investigated

and filed a report recommending that (1) Jodi be designated as MH’s primary custodial parent,

2) Frederick’ s residential time be limited until he successfully completed a certified program for

domestic violence perpetrators, ( 3) Jodi directly supervise any telephone or computer contact

between MH and Frederick, and ( 4) Jodi seek professional services or medication as needed to

maintain her mental health.

       Before the modification trial began in August 2013, the trial court ruled that the evidence

would be limited to the facts occurring after the December 30, 2011 temporary order because

Frederick had not appealed that order. The trial court treated those findings of fact and conclusions

of law as verities. Frederick did not object. After a three-day trial, the trial court granted Jodi’ s

petition to modify custody and awarded her primary custody of MH.

       The trial court found that ( 1) Frederick failed to participate in the family court’ s

investigation, (2) his testimony about his failure to participate in the investigation was not credible

and his allegation that he was discriminated against by the family court due to his race and religion

was not supported by evidence, (3) Frederick was held in contempt for failing to return MH to Jodi

after summer vacation in August 2012, ( 4) Frederick failed to participate in selecting MH’s

counselor, and (5) Jodi’ s home was stable, she had a job, and was in school.

       The trial court also found a substantial change in MH’s circumstances since the initial

parenting plan in May 2010, that MH “ was fully integrated into Jodi’ s household, and, under




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No. 45612-5-II


RCW 26.09.260(2)(c),5 that continued placement with Frederick would be detrimental to MH’s

mental and emotional health. The trial court concluded that it was in MH’s best interest to award

Jodi primary custody.

         On October 14, 2013, the trial court entered its findings and order modifying the May 2010

parenting plan. Frederick appeals the October 14, 2013 order and the October 14, 2013 modified

parenting plan.

                                              ANALYSIS

         Frederick argues that the trial court ( 1) erred in applying RCW 26.09.260 to the facts

because the evidence favored him as the primary custodial parent, ( 2) erred in not applying the

relocation factors under RCW 26.09.520, and (3) abused its discretion in limiting the evidence at

trial to the facts after the December 30, 2011 temporary order. We hold that the trial court did not

err or abuse its discretion. The trial court’ s unchallenged findings of fact in its temporary and final

orders support its conclusion to award primary custody of MH to Jodi under RCW 26.09.260(2)(c).



5
    RCW 26.09.260 provides, in relevant part:
                  1) Except as otherwise provided . . . the court shall not modify a prior
         custody decree or a 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:

                 b) The child has been integrated into the family of the petitioner with the
         consent of the other parent in substantial deviation from the parenting plan;
                 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.


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No. 45612-5-II


Because Frederick did not object to the trial court’ s ruling limiting the evidence at trial, and

because he agreed that the relocation issue was moot, he waived these issues on appeal under

RAP 2.5(a).

                                       I. STANDARD OF REVIEW

         We review a trial court’ s decision to modify a parenting plan for abuse of discretion. In re

Marriage of Zigler, 154 Wn. App. 803, 808, 226 P.3d 202 (2010). We will not reverse the decision

unless the trial court’ s reasons are untenable. 154 Wn. App. at 808.

         A court’ s decision is manifestly unreasonable if it is outside the range of acceptable
         choices, given the facts and the applicable legal standard; it is based on untenable
         grounds if the factual findings are unsupported by the record; [ and] it is based on
         untenable reasons if it is based on an incorrect standard or the facts do not meet the
         requirements of the correct standard.

154 Wn. App. at 808 (alteration in original) (quoting In re Marriage of Fiorito, 112 Wn. App. 657,

664, 50 P.3d 298 (2002)). We look at the evidence and draw reasonable inferences in the light

most favorable to the non-moving party. 154 Wn. App. at 812. On appeal, we do not reweigh the

evidence or evaluate a witness’ s credibility. Bale v. Allison, 173 Wn. App. 435, 458, 294 P.3d 789

2013).

         We will uphold the trial court’ s findings of fact if those findings are supported by

substantial evidence. In re Marriage of Raskob, 183 Wn. App. 503, 510, 334 P.3d 30 (2014). We

review de novo whether the trial court’ s conclusions of law flow from its findings. 183 Wn. App.

at 510.     Unchallenged factual findings are verities on appeal.            183 Wn. App. at 510.




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No. 45612-5-II


                   II. PARENTING PLAN MODIFICATION UNDER RCW 26.09.260

       Frederick argues that the trial court erred in applying the facts to RCW 26.09.260 because

the evidence favored him as the primary custodial parent. He argues that because he had steady

employment and stable housing, there were no issues of domestic violence, and MH’ s was never

harmed, that, under RCW 26.09.260(2)(c), the trial court erred in determining that it was in MH’s

best interests to award primary custody to Jodi. We disagree.

       RCW 26.09.260(1) permits a court to modify a parenting plan if there has been a substantial

change in the circumstances of the child or the nonmoving party. In determining whether a

substantial change has occurred, the court looks to the factors in RCW 26.09.260(2), one of which

is whether “[ t]he 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.” RCW 26.09.260(2)(c).

       In its December 30, 2011 temporary order, the trial court found that (1) Frederick showed

a pattern of domestic violence and controlling behavior, (2) he had moved between five and seven

times in the first 18 months of MH’s life, (3) he was not employed in Utah, and (4) he prevented

Jodi from communicating with MH after she filed her petition to modify. In contrast, the trial

court found that Jodi was married, in school and employed, and had a plan for MH to reside with

her in North Carolina. The trial court found that while both parents had a strong connection to

MH, because of the substantial change in MH’ s circumstances due to Frederick’ s instability, it was

in MH’s best interests to temporarily reside with Jodi in North Carolina pending a full family court

investigation and trial.




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No. 45612-5-II


          In August 2013,        after   hearing the     testimony and      evidence,    and based      on

RCW 26.09.260(2)(c), the trial court found that MH’s environment with Frederick was detrimental

to MH’s mental and emotional health and that the benefits of changing MH’s primary residential

placement to Jodi outweighed any potential harm.              In reaching its decision, the trial court

considered ( 1) the findings from its December 30, 2011 temporary order which were verities,

2) the evidence presented since entry of that order, including Frederick’ s testimony, Frederick’ s

failure to comply with the procedures in the temporary parenting plan filed January 6, 2012, and

the family court’ s report and recommendation, ( 3) the evidence regarding MH’s integration into

Jodi’ s household, and ( 4) the evidence regarding the effect that placement at that time with

Frederick would have on MH’ s development.

          To the extent, Frederick asks us to reweigh the trial court’ s credibility findings in either the

December 30, 2011 temporary order or the August 13, 2013 ruling,6 we decline to do so. See Bale,

173 Wn. App. at 458. Frederick failed to appeal the trial court’ s December 30, 2011 temporary

order, its January 2012 temporary parenting plan, or its August 13, 2013 ruling; thus, we treat the

findings of fact and conclusions of law in those orders as verities on appeal. Raskob, 183 Wn.

App. at 510. Because the trial court’ s unchallenged factual findings support its conclusion and

decision to grant custody of MH to Jodi, we find no error.




6
    Court’ s Ruling on Trial (August 13, 2011 ruling).


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No. 45612-5-II


                            III. RELOCATION UNDER RCW 26.09.520

       Frederick argues that the trial court erred in failing to apply the 11 factor test in

RCW 26.09.5207 when evaluating his motion to relocate MH. Frederick filed his motion to

relocate after Jodi filed her petition to modify the parenting plan. In an evidentiary hearing on

December 1, 2011, the trial court first decided Jodi’ s petition to modify the parenting plan, ruling

that she would receive primary custody of MH. The trial court also stated that, in light of its

decision on the petition to modify, “ the motion for relocation is really kind of moot.”

VRP (Dec. 1, 2011) at 58. Both parties agreed that the motion for relocation was moot. In its


7
 There are 11 factors for the trial court to weigh when it is considering modification of a parenting
plan to relocate the child and those factors are not weighted. The factors 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.
RCW 26.09.520.


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No. 45612-5-II


December 9, 2011 written order,8 the trial court denied Frederick’ s motion for temporary

relocation; he did not appeal this denial.

         Frederick argues that the trial court was required to make findings on each of the

11 relocation factors under RCW 26.09.520. But because he agreed that the relocation issue was

moot, he waived this argument on appeal. RAP 2.5(a) (“ The appellate court may refuse to review

any claim of error which was not raised in the trial court."); Hernandez v. Stender, 182 Wn.

App. 52, 61, 321 P.3d 1230 (2014). We decline to address his argument.

                                 IV. LIMITING EVIDENCE AT TRIAL

         Frederick argues that the trial court erred when it limited the evidence at the modification

trial to facts after entry of the December 30, 2011 temporary order rather than allowing facts since

entry of the May 2010 parenting plan. We hold that Frederick failed to preserve this issue for

review, and affirm the trial court’ s order.

         A party must object at trial in order to preserve an evidentiary issue for appellate review.

Hernandez, 182 Wn. App. at 61; See RAP 2.5(a). In order to preserve an argument for appeal that

a trial court erred in excluding evidence, a party must make a contemporaneous offer of proof

setting out the substance of that excluded evidence and its relevance in the proceeding. See

ER 103(a); see State v. Benn, 161 Wn.2d 256, 268, 165 P.3d 1232 ( 2007). Because Frederick

failed to object or make an offer of proof, he waived this issue on appeal under RAP 2.5(a).

Accordingly, we affirm the trial court’ s order modifying the parties’ parenting plan and awarding

primary custody of MH to Jodi Heslip.




8
    Order re: Adequate Cause (December 9, 2011 written order).


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No. 45612-5-II


                                              CONCLUSION

        We hold that the trial court did not err in applying RCW 26.09.260 to the facts and in

modifying the parenting plan. Applying RCW 26.09.260(2)(c), the trial court’ s unchallenged

findings of fact found that there was a substantial change in MH’s circumstances since entry of the

May 2010 parenting plan, that MH was fully integrated into Jodi’ s new family and her home

provided him stability, and that continued placement with Frederick would be detrimental to MH’s

mental and emotional health. We hold that the trial court’ s findings support the court’ s conclusion

that it was in MH’s best interests to award primary custody to Jodi. We also hold that, because

Frederick did not object to the trial court’ s ruling limiting the evidence at trial to facts since the

December 30, 2011 temporary order, and because he agreed that the relocation issue was moot, he

waived these issues on appeal under RAP 2.5(c).           Accordingly, we affirm the trial court’ s

October 14, 2013 order modifying the parenting plan.

        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.




                                                       SUTTON, J.
 We concur:



 MAXA, P.J.




 LEE, J.



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No. 45612-5-II




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