                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         March 13, 2018




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    In the Matter of the Marriage of                                No. 49439-6-II

    DESIREE PEACOCK f/k/a PECK,

                                  Petitioner,

           and
                                                              UNPUBLISHED OPINION
    THEODORE PECK,

                                  Respondent.

          JOHANSON, J. — Desiree Peacock, formerly known as Desiree Peck, and Theodore Peck’s

agreed parenting plan for their two minor children designated Peacock as the primary residential

parent. When Peacock filed a “Child Relocation Act” (CRA)1 petition, Peck filed a modification

petition seeking primary residential placement. After obtaining a temporary relocation order,

Peacock moved with the children. However, after trial the court denied Peacock’s petition for

relocation. The trial court then provided Peacock an opportunity to move back. But when she did

not do so within the time allotted, the trial court granted Peck’s modification petition for primary

residential placement.




1
    RCW 26.09.405-.560.
No. 49439-6-II


       Regarding the trial court’s order denying relocation, Peacock argues that (1) the trial court

improperly relied on the guardian ad litem’s (GAL) report, (2) the trial court abused its discretion

when it failed to apply the presumption in favor of relocation, and (3) the trial court’s findings of

fact are not supported by substantial evidence and the findings fail to support its conclusions.

Regarding Peck’s modification petition, Peacock argues that the trial court’s findings of fact

related to “detriment” are unsupported, and thus the parenting plan modification was improper.

We affirm.

                                              FACTS

                                         I. BACKGROUND

       Peacock and Peck divorced in 2013. Their agreed parenting plan designated Peacock as

the primary residential parent for their two minor children. Peck had residential time with the

children on Wednesday evenings and every other weekend. Peacock and her current husband lived

in Yelm, and Peck lived approximately 7.6 miles away in Roy. In April 2015, Peacock and her

husband sold their home and purchased a new home in the Centralia area.

       Peacock filed a notice of relocation and a motion to modify the parenting plan. Peck filed

a modification petition, seeking primary residential placement. A court commissioner entered a

temporary order allowing Peacock to move with the children to Centralia, approximately 30 miles

away from Peck.

                                     II. GUARDIAN AD LITEM

       A GAL was initially appointed to investigate an allegation by Peacock that Peck was

abusive towards the children. After reviewing Child Protective Services’ (CPS) records and

interviewing the children and the parents, the GAL found Peacock’s abuse claims were


                                                 2
No. 49439-6-II


unsubstantiated and not credible. She also found that Peacock’s claim that she could not get into

contact with CPS despite numerous efforts over several months was not credible.

       The GAL also investigated whether “relocation of the children [is] more detrimental or less

detrimental than changing the primary residential parent.” Clerk’s Papers (CP) at 4. She analyzed

the relevant relocation and modification factors and recommended that the trial court designate

Peck as the primary residential parent. She recommended that the children return to the Yelm area

and that Peck should have primary residential placement.

                                             III. TRIAL

       From June 14 through 16, 2016, the trial court considered the relocation petition and the

motion and petition to modify the parenting plan. The trial court entered exhibits, including the

GAL’s report. In addition, the trial court heard testimony from 13 witnesses, including the parents,

the GAL, several relatives, the children’s therapist, and Peacock’s real estate agent.

                                         IV. ORAL RULING

       On June 29, 2016, the trial court orally denied Peacock’s relocation petition. The trial court

incorporated this oral ruling by reference in its written order. The trial court found that the GAL

“did a thorough, helpful, and complete investigation, including an in-depth analysis of all the

relocation factors.” Verbatim Report of Proceedings (VRP) (June 29, 2016) at 344. The trial court

considered all 11 statutory relocation factors. The trial court’s discussion of these factors included

concerns regarding Peacock’s failure to encourage a positive relationship between Peck and the

children, Peacock’s frequent moves requiring Peck to move to maintain a relationship with the

children, Peacock’s failure to consider her children’s well-being in moving to Centralia, the




                                                  3
No. 49439-6-II


move’s negative impact on Peck’s residential time, and Peacock’s lack of flexibility in

coordinating residential time with Peck.

        The trial court declined to rule on the modification petition at the same time as the

relocation petition because the trial court provided Peacock an opportunity to move back to Yelm.

                                     V. POSTTRIAL HEARINGS

        On July 7, Peacock told the trial court that she intended to move closer to Peck so that she

could remain the primary residential placement for the children. However, she said that she may

not be able to move for another 90 days. The trial court stated that if the children were not moved

back to the Yelm School District by the time school started, the court would grant Peck’s

modification. The court scheduled a follow-up hearing for August 18.

        At the August 18 hearing, Peacock’s counsel informed the trial court that Peacock had not

yet moved back to the Yelm School District with the children. However, counsel stated that

Peacock had submitted two applications for rental houses in the Yelm area and would be enrolling

the children in the Yelm School District once the district offices reopened after summer break.

        The trial court ruled that the girls needed to be enrolled in the Yelm School District before

the upcoming school year began, which was beginning in a couple of weeks, and that Peacock had

failed to move the children back to Yelm in compliance with the trial court’s order. The trial court

stated that allowing Peacock to retain primary residential placement would “defeat[] the entire

relocation process.” VRP (Aug. 18, 2016) at 12. The trial court granted Peck’s modification

petition.




                                                 4
No. 49439-6-II


                 VI. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER

       On August 18, the trial court entered combined “Findings of Fact and Conclusions of Law

Re: Relocation and Modifications to the Parenting Plan.” In addition, the trial court entered a

“Final Order and Findings on Petition to Change a Parenting Plan, Residential Schedule or Custody

Order” (Final Modification Order). The relevant portions of each document are stated below.

                                       A. FINDINGS OF FACT

       The trial court’s written findings of fact state, in relevant part,

               7. In her report, the [GAL] addressed the factors of the modification statute
       that encompass the statutory factors for relocation. The issue of whether or not the
       relocation of the children is more or less detrimental than changing primary
       residential placement is the factor that overlaps relocation and modification.
               8. In her report, the [GAL] indicated that she believed that the relocation
       had already happened and that the relocation was not the specific focus of the
       investigation. Rather, the [GAL] considered the factors that cross over between
       relocation and modification in her recommendation.
               9. The [GAL’s] recommendation included change of primary residential
       placement to Mr. Peck and to be [sic] in [the] children’s best interests.
               10. The [GAL] found that relocation by [Peacock] is more detrimental to
       the girls than a change of primary residential placement to [Peck].
               11. Since the parties separated in 2009, Mr. Peck has been involved with
       the girls regularly even though Ms. Peacock has moved a number of times. In order
       to remain involved with and have significant contact with the girls, Mr. Peck has
       moved closer to Ms. Peacock each time she moved, except for the current relocation
       at issue. Each parent [has] a strong, loving, and caring relationship with each child.
               ....
               19. The court considered the age, developmental state, needs of the
       children, and the likely impact the relocation or its prevention will have on the
       children’s physical, emotional, and educational development taking into
       consideration any special needs of the children. . . . The [GAL] observed that [one
       of the children] had a perceived lisp and some medical issues that needed to be
       addressed. The [GAL] indicated both girls have shortness of breath, fail to enjoy
       exercise, have a poor self-image, and have overeating issues. The [GAL’s]
       recommendations were not completed by [Peacock]: the neuro-educational
       evaluation, the speech pathology evaluation, and the medical diagnosis regarding
       [a hip issue of one of the children].
               20. The court considered the quality of life, resources, and opportunities
       available to the children and Ms. Peacock in the current and the proposed

                                                  5
No. 49439-6-II


       geographic location. There is no dispute that the quality of life and the resources
       available are not any different between Yelm and Centralia.
               ....
               23.    Ms. Peacock’s relocation has drastically altered Mr. Peck’s
       participation in the girls’ after-school activities and nearly unilaterally eliminated
       Mr. Peck’s mid-week visitation time; especially when coupled with Ms. Peacock’s
       refusal to drive the girls home after the Wednesday basketball practice in Yelm.
       The court agrees with Mr. Peck that his attendance at the basketball practice is not
       residential time, even though Mr. Peck gets to spend time with the girls.

CP at 181-84.

                                    B. CONCLUSIONS OF LAW

       Under the heading “Conclusions of Law as to Relocation,” the trial court stated,

              1. Ms. Peacock’s request for relocation is denied. Ms. Peacock moved to
       Centralia at her peril under a temporary order without the benefit of all the factors
       being considered by the trial court.
              2. Mr. Peck has satisfied and met the burden to overcome the presumption
       when all factors are considered.

CP at 185.

       Under the heading “Conclusions of Law as to Modification of the Parenting Plan,” the trial

court stated,

               1. Ms. Peacock’s request for modification was not supported by the trial
       testimony.
               ....
               3. Mr. Peck bears the burden on his modification to demonstrate the
       detrimental effect of the relocation of the children outweighs the benefit of the
       change to the children and Ms. Peacock and met the burden.
               ....
               5. RCW 26.09.260(2)(c) allows the court to consider whether the children’s
       present environment is detrimental to the children’s physical, mental, or emotional
       health and the harm likely to be caused by a change of environment is outweighed
       by the advantage of the change for the children.
               ....
               9. The trial court’s ruling on Mr. Peck’s request for modification is granted.

CP at 185-87.


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No. 49439-6-II


                                         C. FINAL ORDER

       In its final modification order, under a heading labeled “4.          Major change (RCW

26.09.260(1) and (2))” (CP at 160), the trial court checked a box indicating that

       [t]he court approves a major change to the parenting/custody order. The major
       change is approved because:
            the requested change is in the children’s best interest, and
               . . . [t]he children’s current living situation is harmful to their physical,
       mental, or emotional health. It would be better for the children to change the
       parenting/custody order.

CP at 161.

       In addition, under a heading entitled “11. Decision,” the trial court checked boxes

indicating that it approved Peck’s parenting plan modification. CP at 162.

                                           ANALYSIS

                         I. DENIAL OF PEACOCK’S RELOCATION PETITION

       Peacock argues that the trial court erred in denying her relocation petition. We disagree.

                                      A. PRINCIPLES OF LAW

       We review the trial court’s decision to grant or deny a petition for relocation for an abuse

of discretion. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). Under RCW

26.09.520, the trial court must determine by a preponderance of the evidence that “the detrimental

effect of the relocation outweighs the benefit of the change to the child and the relocating person,

based upon” 11 relocation factors. RCW 26.09.520; In re Marriage of Rostrom, 184 Wn. App.

744, 752, 339 P.3d 185 (2014).

       No single factor carries more weight than another and there is no specific number of factors

that must be found to support denial of relocation. Horner, 151 Wn.2d at 894. When we consider

whether a trial court abused its discretion in deciding a relocation request, we first determine

                                                 7
No. 49439-6-II


whether the trial court entered specific findings on each factor. Horner, 151 Wn.2d at 896. If the

trial court did not enter these findings, we examine the record to determine whether substantial

evidence was presented on each factor and whether the “trial court’s findings of fact and oral

articulations reflect that it considered each factor.” Horner, 151 Wn.2d at 896. If the trial court

does not satisfy either of these methods of documenting its consideration of the child relocation

factors, the trial court has abused its discretion. Horner, 151 Wn.2d at 896.

                                        B. GAL EVIDENCE

        Peacock argues that the trial court improperly relied on the GAL’s report in finding that

the statutory relocation factors support denial of Peacock’s relocation. Peacock argues that the

trial court abused its discretion when it denied her relocation because it relied “heavily” on the

GAL’s report and testimony, which Peacock argues “did not even try to assess or investigate

factors [in] relation to relocation.” Br. of Appellant at 12-13. We disagree.

        Peacock’s argument relies on the incorrect assumption that the GAL’s report did not

address all relevant statutory relocation factors. The stated purpose of the GAL’s report was to

investigate whether the “relocation of the children [is] more detrimental or less detrimental than

changing the primary residential parent.” CP at 4. To investigate Peacock’s relocation, the GAL

analyzed all 11 factors under RCW 26.09.520. Thus, Peacock’s argument fails because she

mischaracterizes the nature of the GAL’s report and fails to recognize that it analyzed all relevant

statutory factors.

        In addition, Peacock’s argument fails because her argument is properly characterized as a

challenge to the trial court’s credibility determination and the weight that it placed on the GAL’s

report. Peacock argues that the GAL’s report is inadequate because the GAL “invested only 15


                                                 8
No. 49439-6-II


hours in the case” and did not visit Peacock’s home where the girls lived. Br. of Appellant at 12.

However, the trial court stated in its oral ruling that the GAL “did a thorough, helpful, and complete

investigation, including an in-depth analysis of all the relocation factors.” VRP (June 29, 2016) at

344. And we do not review the trial court’s determination that the GAL’s report was credible or

second guess the weight of the GAL’s report. In re Marriage of Fahey, 164 Wn. App. 42, 62, 262

P.3d 128 (2011). As such, Peacock’s challenge to the trial court’s reliance on the GAL’s report

fails.

                        C. PRESUMPTION WAS CONSIDERED AND OVERCOME

         Peacock argues that the trial court did not properly apply the statutory presumption in favor

of relocation. We hold that the trial court properly applied the presumption.

         RCW 26.09.520 provides the criteria for determining a relocation issue and imposes a

rebuttable presumption that relocation will be permitted. Horner, 151 Wn.2d at 895. The

objecting party may rebut the presumption in favor of relocation by proving by a preponderance

of the evidence that “the detrimental effect of the relocation outweighs the benefit of the change

to the child and the relocating person, based upon the [11 child relocation] factors.” RCW

26.09.520; Rostrom, 184 Wn. App. at 752.

         Contrary to Peacock’s claim, the trial court applied the presumption in favor of Peacock’s

relocation. In its oral ruling, the trial court stated, “[T]he Court must determine whether or not

[Peck] satisfied his burden to rebut [Peacock’s] move or the presumption that allowed her to

relocate.” VRP (June 29, 2016) at 344. Then, after considering all 11 relocation factors, the trial

court said, “[Peck] has overcome the presumption, in considering all of the factors. [Peacock]

moved at her peril under a temporary order without the benefit of all of the factors being considered


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No. 49439-6-II


by the trial court.” VRP (June 29, 2016) at 353. And conclusion of law 2 states, “Mr. Peck has

satisfied and met the burden to overcome the presumption when all factors are considered.” CP at

185. Based on this record, we hold that the trial court properly applied the relocation presumption.

                                      D. SUBSTANTIAL EVIDENCE

         Peacock asserts only in a heading that “[t]he trial court’s findings of fact and conclusions

of law regarding [r]elocation are not supported by the evidence.” Br. of Appellant at 12 (bold

omitted). Peacock did assign error to findings of fact 11, 19, 20, and 23 and conclusions of law 1

and 2. However, Peacock makes no argument addressing these assignments of error. Peck argues

that the trial court addressed all relocation factors and that the trial court did not abuse its discretion

in denying the relocation. We reject Peacock’s argument.

1.       RULES OF LAW

         We uphold trial court findings if they are supported by substantial evidence. Fahey, 164

Wn. App. at 55. “‘Substantial evidence’ exists if the record contains evidence of a sufficient

quantity to persuade a fair-minded, rational person of the truth of the declared premise.” Fahey,

164 Wn. App. at 55. “We review conclusions of law to determine whether factual findings that

are supported by substantial evidence in turn support the conclusions.” Fahey, 164 Wn. App at

55-56.

2.       INADEQUATE BRIEFING

         Although Peacock assigns error to several findings of fact, Peacock does not discuss any

specific assignment of error or finding of fact in her analysis. An assignment of error that is not

argued in the brief is deemed to have been abandoned. Cowiche Canyon Conservancy v. Bosley,

118 Wn.2d 801, 809, 828 P.2d 549 (1992). In addition, Peacock provides less than two pages of


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No. 49439-6-II


arguments related to relocation, and she provides analysis regarding only the issues addressed

above related to the inadequacy of the GAL’s report and the trial court’s failure to apply the

presumption in favor of Peacock. We do not review issues that are not adequately developed in

the briefs. State v. Corbett, 158 Wn. App. 576, 597, 242 P.3d 52 (2010). As such, we decline to

reach the merits of the inadequately briefed substantial evidence issue.2 Corbett, 158 Wn. App. at

597.

3.     CONCLUSIONS OF LAW

       Peacock also assigns error to relocation conclusions of law 1 and 2, which state that the

trial court considered all relocation factors and concluded that Peck met his burden such that the

relocation was denied. Peacock argues that because the trial court found only “one of the eleven

factors . . . weighed in favor of [Peck],” Peck did not carry his burden, and the trial court abused

its discretion in denying the relocation. Br. of Appellant at 13.

       The written findings of fact do not address each relocation factor, so we must examine the

record to determine whether substantial evidence was presented on the relocation factors and

whether the trial court’s findings of fact and oral ruling reflect that it considered each relevant

relocation factor. Horner, 151 Wn.2d at 896. Here, the GAL’s report explicitly addressed each

relocation factor. In addition, the trial court heard testimony from 13 witnesses over three days of




2
 Even if we reached the merits, we would hold that substantial evidence supports the trial court’s
challenged findings of fact 11, 19, 20, and 23.
        Each of these findings is supported by the GAL’s testimony and interview summaries and
analysis in the GAL’s report. As discussed, the trial court found the GAL’s report to be credible.
All of the findings are also supported by other witnesses’ testimony. This evidence is sufficient to
persuade a fair-minded, rational person that the trial court’s findings are true and thus are supported
by substantial evidence. Fahey, 164 Wn. App. at 55.

                                                  11
No. 49439-6-II


trial, including both parents, the GAL, several relatives, the children’s therapist, and even

Peacock’s real estate agent. Following the trial, the trial court’s oral ruling spanned 10 transcript

pages and addressed each relocation factor and facts connected to each factor. As such, substantial

evidence was presented and the oral articulations reflect that the trial court considered each factor.

Horner, 151 Wn.2d at 896.

       Contrary to Peacock’s claim that only one of 11 factors weighed against relocation, it

appears that at least factors 1, 3, 5, and 6 supported the trial court’s denial of Peacock’s relocation.

       Because the trial court reviewed evidence regarding all relocation factors, explicitly

discussed evidence regarding each factor in its oral ruling, and indicated that at least four factors

weighed against the children’s relocation, the trial court’s denial of Peacock’s relocation was not

an abuse of discretion. Horner, 151 Wn.2d at 896.

                                           E. CONCLUSION

       The trial court properly relied on the GAL’s report, applied the presumption in favor of

relocation, and made conclusions of law supported by the findings and oral ruling. As such,

Peacock has failed to show that the trial court erred when it denied her relocation.

                           II. GRANT OF PECK’S MODIFICATION PETITION

       Peacock argues that the trial court improperly granted Peck’s modification because its

findings of fact related to “detriment” to the children under RCW 26.09.260(2)(c) are not

supported by substantial evidence. Br. of Appellant at 11. She argues that because the trial court

stated that it would allow Peacock to retain primary residential placement if she returned to Yelm

with the children, the trial court’s findings regarding detriment were not supported. We disagree

that the trial court improperly granted the modification.


                                                  12
No. 49439-6-II


                                       A. PRINCIPLES OF LAW

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

Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). We will not reverse a trial

court’s decision to modify a parenting plan unless the trial court exercised its discretion in an

untenable or manifestly unreasonable manner. McDole, 122 Wn.2d at 610. “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.” In re Marriage of Fiorito, 112 Wn.

App. 657, 664, 50 P.3d 298 (2002).

       RCW 26.09.260 sets forth the procedures and criteria to modify a parenting plan. RCW

26.09.260 provides in relevant part,

       (1) Except as otherwise provided in subsection[] . . . (6) . . . of this section, the
       court shall not modify a prior custody decree or a parenting plan unless it finds . . .
       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. . . .
               ....
               (6) 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, including a change of the residence in which the child resides the majority of
       the time, 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

                                                 13
No. 49439-6-II


       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.)

       The trial court is not required to consider the factors contained in RCW 26.09.260(2) when

a trial court modifies a parenting plan in the context of a relocation proceeding and instead RCW

26.09.260(6) applies. In re Marriage of Raskob, 183 Wn. App. 503, 513-14, 334 P.3d 30 (2014).

                             B. DETRIMENT NOT REQUIRED

       Peacock’s argument relies on the assumption that the trial court could not modify the

parenting plan unless it properly found that placement with Peacock was detrimental to the

children. She specifically cites to RCW 26.09.260(2)(c), which states that a parenting plan may

not be modified unless “[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.”3 But Peacock does not cite to the

controlling subsection nor to the controlling case law. As such, Peacock’s argument fails.




3
 Peacock challenges the trial court’s finding of detriment under the modification statute, RCW
26.09.260(2)(c), and not under the relocation statute, RCW 26.09.520, related to her appeal of the
parenting plan modification.

                                               14
No. 49439-6-II


1.     RCW 26.09.260(6) CONTROLS

       As noted above, RCW 26.09.260(1) and (6) expressly provide that a person objecting to

relocation may petition for a change of primary residence without a showing of adequate cause.

And in Raskob, Division One of this court specifically held that when a major parenting plan

modification to residential time is made pursuant to a relocation, the provisions in RCW

26.09.260(2) do not apply. 183 Wn. App. at 513-14.

       In Raskob, the parents had a parenting plan which included specific notice provisions, and

the mother moved with the children in violation of the parenting plan. 183 Wn. App. at 508-09.

Although the father initially sought to restrain the mother’s relocation, he ultimately accepted her

move as a “‘fait accompli’” because he did not want to force his children to move again. Raskob,

183 Wn. App. at 508. But he still pursued the parenting plan modification based on the mother’s

improper relocation, which the court granted. Raskob, 183 Wn. App. at 509.

       On appeal, the mother argued that the trial court abused its discretion when it found a

substantial change in circumstances and failed to consider the factors provided in RCW

26.09.260(2) before it modified the parenting plan. Raskob, 183 Wn. App. at 513-14. Division

One rejected the mother’s arguments, holding that where a major modification is made in a

proceeding to permit or restrain relocation, the trial court is not required to find a substantial

change of circumstances or consider the factors contained in RCW 26.09.260(2). Raskob, 183

Wn. App. at 513-14. Instead, RCW 26.09.260(6), which provides that courts “‘may order

adjustments to the residential aspects of a parenting plan pursuant to a proceeding to permit or

restrain a relocation of the child,’” governs. Raskob, 183 Wn. App. at 514 (emphasis added)

(quoting RCW 26.09.260(6)).


                                                15
No. 49439-6-II


        Here, Peacock relocated with the children under a temporary relocation order, but without

a final relocation order, and Peck filed his modification petition in conjunction with his objection

to Peacock’s relocation. Therefore, like the mother who had no authority to relocate in Raskob,

Peacock relocated without permanent authority to do so, and the modification was granted

“‘pursuant to a proceeding to permit or restrain a relocation of the child.’” Raskob, 183 Wn. App.

at 514 (quoting RCW 26.09.260(6)). As such, RCW 26.09.260(6) is the applicable provision.

        Under RCW 26.09.260(6), the trial court was not required to consider the factors of RCW

26.09.260(2), including the factor that requires the trial court to find detriment to the children

before modification under RCW 26.09.260(2)(c). See Raskob, 183 Wn. App. at 513-14. Thus,

Peacock’s challenge to the trial court’s findings regarding detriment fails because the trial court

was not required to find detriment under RCW 26.09.260(2)(c) before modifying the parenting

plan in this case.

2.      PEACOCK RELOCATED

        In oral argument, Peacock asserted that RCW 26.09.260(6) governs only as long as a

relocation is being “pursued” and that because she told the court she would move back to Yelm,

she was no longer pursuing relocation. Wash. Court of Appeals oral argument, Peck v. Peck, No.

49439-6-II (Nov. 28, 2017), at 8 min., 0 sec. through 10 min., 40 sec. (on file with court). She

relies on the language in RCW 26.09.260(6) that states, “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.” Peacock claims that because she was no longer pursuing relocation, RCW 26.09.260(6)

did not apply and the provisions of RCW 26.09.260(2)(c) required the trial court to make a finding

of detriment before ordering the modification. We disagree.


                                                16
No. 49439-6-II


       To support this argument, Peacock relies on In re Marriage of Grigsby, 112 Wn. App. 1,

57 P.3d 1166 (2002). Wash. Court of Appeals oral argument, supra, at 5 min., 19 sec. through 10

min., 40 sec. In Grigsby, Division One held that when a parent decides not to relocate after a

relocation denial, the parent is no longer pursuing relocation, and a trial court must find adequate

cause before it may modify the parenting plan. 112 Wn. App. at 16-17.

       Peacock’s case is distinguishable from Grigsby and more analogous to Raskob. Unlike the

mother in Grigsby, Peacock had in fact already relocated pursuant to a temporary order. And

Peacock did not move back, in violation of the trial court’s relocation denial, by the time the

modification was ordered. Thus, although Peacock said she was no longer pursuing relocation,

her actions belied her words. Like the mother in Raskob, whose relocation in violation of the

parenting plan allowed modifications to residential aspects of the parenting plan under RCW

26.09.260(6), Peacock’s unauthorized relocation also allowed residential modifications. RCW

26.09.260(6).

       The dissent asserts that when a trial court denies the relocation petition, the relocation no

longer provides adequate cause for modifications under RCW 26.09.260(6) and courts must find

adequate cause under the provisions of RCW 26.09.260(1) and (2) to modify the parenting plan

following relocation denials. But this reasoning fails here because although the trial court denied

the relocation, Peacock had already relocated. And after the trial court gave Peacock a reasonable

time to abandon the relocation, Peacock did not do so.4



4
  The dissent also argues that, rather than ordering a modification under RCW 26.09.260(6), the
trial court should have held Peacock in contempt if it believed that Peacock was improperly
delaying the move back to Yelm. But no party raised contempt as a potential remedy below or in
briefing here. We decline to raise a new issue sua sponte.

                                                17
No. 49439-6-II


       The dissent rejects the claim that Peacock was still pursuing relocation, saying that

“relocation no longer is being pursued once the trial court denies a relocation petition.” Dissent at

22. But this reasoning fails because RCW 26.09.260(6) does not state that it applies until only a

relocation is denied. Instead, RCW 26.09.260(6) authorizes “adjustments to the residential aspects

of a parenting plan pursuant to a proceeding to permit or restrain a relocation of the child.” And 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.” RCW 26.09.260(6). Based on this language, we

disagree that the trial court’s denial of the relocation petition unequivocally meant that Peacock

was no longer pursuing relocation. Such a narrow reading of RCW 26.09.260(6) elevates form

over substance. Here, Peacock in fact had relocated and she did not abandon the relocation in the

time the trial court allotted. Even acknowledging that Peacock told the court she was no longer

pursuing relocation, Peacock continued to “pursue relocation” under these circumstances.

       Although the trial court’s written modification order cites to RCW 26.09.260(2), we may

affirm on any basis supported by the record. Raskob, 183 Wn. App. at 514-15. The trial court

recognized in its oral ruling that it would contravene the CRA’s purpose to allow Peacock to

relocate with the children when the statutory considerations under the CRA showed that the move

should not be allowed. The trial court recognized that Peacock had in fact relocated; in other




                                                 18
No. 49439-6-II


words, Peacock was still pursuing relocation. Thus, we hold that RCW 26.09.260(2)(c) did not

apply and that modification was proper under RCW 26.09.260(6).5

          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.



                                                   JOHANSON, J.
    I concur:



    SUTTON, J.




5
 Peacock also argues that the relocation did not constitute a “substantial change in circumstances”
such that there was no “adequate cause” for the trial court to hear Peck’s major modification.
Reply Br. of Appellant at 2-3. This argument fails because under RCW 26.09.260(6), the person
objecting to the relocation of the child may file a petition to modify the parenting plan without a
showing of adequate cause other than the proposed relocation itself. Because Peck filed his
modification petition in conjunction with his objection to Peacock’s relocation, he did not need to
show adequate cause “other than the proposed relocation itself.” RCW 26.09.260(6).
                                                 19
No. 49439-6-II
Marriage of Peck- Dissent
       MAXA, A.C.J. (dissenting in part) – I agree with the majority that the trial court did not

abuse its discretion in denying Desiree Peacock’s relocation petition. However, I believe that the

trial court erred in granting Theodore Peck’s modification petition and ruling that Peck should be

the parent with whom the children would reside a majority of the time.

A.     INAPPLICABILITY OF RCW 26.09.260(6)

       The majority rules that RCW 26.09.260(6) allowed the trial court to modify the

residential provisions of the parties’ parenting plan without complying with the requirements of

RCW 26.09.260(1) and (2) because Peacock petitioned for relocation, even though the petition

was denied. This ruling reflects a misunderstanding of RCW 26.09.260(6).

       In the typical case, RCW 26.09.260(1) provides that a trial court cannot modify a

parenting plan without finding “that a substantial change has occurred in the circumstances of the

child or the nonmoving party” and that the modification is necessary to serve the best interests of

the child. Further, under RCW 26.09.260(2) the court must retain the residential schedule

established by the parenting plan unless one of four factors is present. One factor is that “[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).

       However, RCW 26.09.260(1) expressly states that these provisions apply “[e]xcept as

otherwise provided in subsection[ ] . . . (6).” Subsection (6) provides different rules for when

one person files a petition to relocate the child:

       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, including a
       change of the residence in which the child resides the majority of the time, without

                                                     20
No. 49439-6-II
Marriage of Peck- Dissent
       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.

RCW 26.09.260(6)

       The plain language of RCW 26.09.260(6) states that a person objecting to relocation may

file a petition to change a child’s primary residence “without a showing of adequate cause other

than the proposed relocation itself.” And the law is clear that when the trial court allows

relocation, the court can modify the residential schedule without finding a substantial change in

circumstances as required in RCW 26.09.260(1) or one of the factors contained in RCW

26.09.260(2). In re Marriage of Raskob, 183 Wn. App. 503, 513, 334 P.3d 30 (2014). The

obvious rationale is that a relocation itself is a sufficient basis for changing the residence in

which the child resides the majority of the time.

       But the issue here is whether a court can modify the residential schedule without

complying with RCW 26.09.260(1) and (2) when the court denies the relocation petition. The

majority rules that even when relocation is not allowed, the trial court is free to modify the

residential schedule without finding a change of circumstances or the existence of one of the

RCW 26.09.260(2) factors. I believe that this ruling is inconsistent with the statutory language,

applicable case law, and common sense.

       First, RCW 26.09.260(6) states that after the trial court determines whether to permit or

restrain the relocation, the court must determine “what modification pursuant to relocation

should be made.” (Emphasis added.) Although the language could more clear, this provision

indicates that the residential schedule can be modified only if relocation is allowed.
                                                21
No. 49439-6-II
Marriage of Peck- Dissent
       Second, RCW 26.09.260(6) states that a showing of adequate cause is not necessary only

“so long as the request for relocation of the child is being pursued.” Case law interpreting this

language establishes that RCW 26.09.260(6) is inapplicable if a parent no longer is pursuing

relocation.

       [T]he normal requirement of a showing of adequate cause is excused only so long
       as relocation is being pursued. Where, as here, the parent is no longer pursuing
       relocation, the parent proposing modification of the parenting plan must show a
       substantial change in circumstances, considering the factors set forth in RCW
       26.09.260(2).

In re Marriage of Grigsby, 112 Wn. App. 1, 16, 57 P.3d 1166 (2002). By definition, relocation

no longer is being pursued once the trial court denies a relocation petition.

       Third, allowing the trial court to modify the residential schedule without a showing of

adequate cause when relocation is requested but not allowed would make no sense. As noted

above, the rationale of RCW 26.09.260(6) is that the relocation itself provides adequate cause for

modifying the residential schedule. That rationale disappears if the relocation is not allowed.

       Here, the trial court denied Peacock’s relocation petition. And Peacock informed the

court that she no longer was pursuing relocation and would be moving back to the Yelm area. I

would hold that because the trial court denied Peacock’s relocation petition, the court could not

modify the parties’ residential schedule without making the findings required in RCW

26.09.260(1) and (2).

B.     ADEQUATE CAUSE TO MODIFY RESIDENTIAL SCHEDULE

       The trial court apparently recognized that it could not modify the residential schedule

without finding an adequate cause. In modifying the parenting plan, the trial court made specific

findings that there had been a substantial change in the children’s situation as required in RCW

26.09.260(1) and that the children’s current living situation was harmful to their physical,

                                                 22
No. 49439-6-II
Marriage of Peck- Dissent
mental, or emotional health as required in RCW 26.09.260(2)(c). The majority should have

addressed whether these findings were supported by substantial evidence.

        If Peacock and the children had planned to remain in Centralia, such a change in

residence clearly would constitute a substantial change in circumstances under RCW

26.09.260(1). And I would have deferred to the trial court’s determination that changing the

residence in which the children resided a majority of the time to the father’s residence would be

in the best interests of the children. Similarly, if Peacock and the children had planned to remain

in Centralia, I would have deferred to the trial court’s determination that such a change in

residence would be detrimental to the children and that a change in the parenting plan would be

better for the children.

        However, Peacock made it clear that she and the children would not be remaining in

Centralia. She informed the court that she planned to move back to the Yelm area with the

children and planned to enroll the children in the Yelm School District. And the trial court

expressly recognized that if Peacock and the children moved back to Yelm, it likely would not

modify the residential schedule. Given Peacock’s stated intention to return to Yelm, the trial

court’s findings were not supported by substantial evidence.

        The trial court obviously was frustrated that Peacock had been unable to find a new

residence in the Yelm area within six weeks after the court’s denial of the relocation petition.

But the record shows that Peacock was actively seeking a residence in the Yelm area. If the

court believed that Peacock was improperly delaying the move, the appropriate remedy would

have been to find Peacock in contempt of court under RCW 26.09.160(2) or to develop some

other coercive remedy. The court should not have “punished” Peacock by modifying the parties’



                                                23
No. 49439-6-II
Marriage of Peck- Dissent
residential schedule based on findings that no longer would be valid once Peacock moved back

to Yelm.

       I would hold that the trial court abused its discretion in modifying the parties’ residential

schedule simply because Peacock was unable to find a new residence within a period of six

weeks. Accordingly, I would reverse the trial court’s modification of the parenting plan and

remand for further proceedings.


                                              _______________________________________
                                              MAXA, A.C.J.




                                                24
