                                                                                       FILED
                                                                                  C.
                                                                                   00PT OF APPEALS
                                                                                     DIVISION ii

                                              2013 OCT -1 AM 9: 10
          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                 STATE OF WNS     TON

                                                  DIVISION II
                                                                                  BY
                                                                                        OEF TY
In   re   Marriage     of:                                   I                   No. 42990 0 II
                                                                                           - -

JASON EHLERT,

                                      Respondent,            I.            UNPUBLISHED OPINION


           V.




MARIA SPURIA -
             EHLERT,

                                      I:
                                       7


            BJORGEN, J. — Maria Spuria Ehlert appeals the child custody determinations in a final
                                       -

parenting plan. She argues that the trial court: (1)failed to consider the statutory factors and

instead based its ruling on an erroneous two -factor standard, (2)refused to consider the

children's life in Australia, 3)
                              ( ignored the guardian ad litem's recommendations, and (4)failed

to award her           attorney fees connected   to   the contempt order. Because the trial court failed to


examine the statutory factors, we reverse and remand.

                                                        FACTS


                                             I. MARRIAGE AND CHILDREN


            Maria, an Australian citizen, and Jason Ehlert, a Canadian citizen, met through their

employment in 2002. They each moved to Washington,fwhere they bought a house together. In

2005 Maria and Jason married in Australia, returned to Washington for about six months, and

then moved to Australia.           They    have two sons, JE       and PE,who were born in Australia and who


1
    We refer to the parties by their first names to avoid confusion; we intend no disrespect.
2
    We refer to children using initials to protect their privacy.
3
     JE   was   born   on   September 8,2006.    PE   was   born   on   May 31, 2008.
No. 42990 0 II
          - -



are Australian citizens. Jason also has twin boys from a prior marriage, who reside in Utah.

        In 2007 the       family traveled   to the United States   on   a   business   trip. Upon arrival,

authorities detained Jason because he had lived in Australia for more than a year and needed to

give up his resident alien status in the United States to continue with the trip. In 2008 the family

moved to Washington on an investment visa. They bought a house in Pierce County and worked

in their own company.

        By   2011   the    parties   considered themselves   separated.     In February, Maria and the

children traveled to Australia for her father's birthday, but instead of returning to Washington at

the end of the month as originally planned, Maria decided to stay until after her sister's wedding

scheduled for that   April. Jason became concerned that Maria was not planning to return the

children to Washington.

                                       II. PROCEDURAL BACKGROUND


A.      Pretrial


        Jason petitioned in Pierce County Superior Court for legal separation and for an ex parte

restraining order for Maria's immediate return of the children to reside with -
                                               -                              him. -
                                                                                   After Maria

opposed the restraining order, the court ordered a jurisdiction hearing under the Uniform Child

Custody Jurisdiction and Enforcement Act. Initially, Maria obtained counsel in Australia

seeking Australian jurisdiction and residence.           Shortly thereafter, however, Maria obtained

Washington counsel, submitted to Washington's jurisdiction, and returned to Washington with

the children. Although Maria submitted to Washington's jurisdiction, she maintained that it was

in the children's best interest to grow up in Australia.

4
    Chapter 26. 7 RCW.
              2

                                                     2
No. 42990 0 II
          - -



         The court appointed a guardian ad litem (GAL) to evaluate the best interests of the
children, who    were   then five and three.    Based on Maria's and the GAL's preliminary

suggestion, the court issued a temporary order, under which Jason and Maria rotated residential

time with the children in the family home on a 50150 basis. A temporary order restrained the

parties from disturbing each other's peace while they shared the house. Further, based on the

GAL's•
     recommendation, the court required that Jason's new live in girlfriend not live in the
                                                               -

house when Jason had the children.


         During Maria's residential time with the children in the house, she noticed a cord coming

out from under her refrigerator. Pulling the cord, she discovered a small speaker attached to a

recording device, actively recording audio. After holding a show cause hearing for contempt for

violating the temporary restraining order, the court imposed a monetary penalty of 500 against
                                                                                   $
Jason for   placing   the device, but declined to award Maria attorney fees.     Maria moved for


revision of the denial of those attorney fees, but the trial court declined to revise. Because the

parties were struggling with rotating in and out of the house, the trial court accelerated the trial



B.       Trial


         At the bench trial, Jason stated that he had been the primary caregiver since the family's

2008 return to the United States and that Maria had been running the family's businesses. He

stated that he wished to continue to be the primary caregiver and that he believed that Maria had

a boyfriend in Australia.

5
    RCW 26. 9.
        220.
          0

6
    Specifically, the schedule set four nights with Jason and three nights with Maria one week,with
the reverse the following week.
                                                  3
No. 42990 0 II
          - -



         Maria told the court that she has been the primary caretaker and that she had

implemented       the GAL's   suggestions,   such   as       obtaining counseling.   Maria submitted two


proposed parenting plans: one with a residential schedule for the upcoming year, during which

she intended to remain in the United States, and one for the year following, when she intended to

relocate to Australia if the court allowed.         Maria explained that she and Jason owned their

businesses with another couple, which complicated the division.

         The GAL recommended that Maria be the primary residential parent and that Jason have

the    children   on   the weekends   and twice     a        week after   school.    The GAL based that

recommendation on her conclusions that: (1) was attached to both parents, 2) wanted to
                                           PE                             ( JE

be with his mother and missed his grandparents, who live in Australia, 3) was more involved
                                                                       ( JE

with his mother and her family, and (4)both parents were involved with the children, but the

children's relationship with their mother was stronger.

         The trial court asked the GAL whether she had talked to the man in Australia, whom

Jason alleged Maria was having an affair with,to see whether the children should be around him.

She replied that she was not able to contact the man. The trialcourtfurther questioned-whether - -

the GAL had " ead this file,"
            r               adding that it did not appear that she had done so. Verbatim Report

of    Proceedings (VRP) Nov. 22, 2011) at
                        (                           35 36.
                                                       -         The trial court asked if based on "[ er
                                                                                                    h]

investigation, such as it was, did you come to any conclusion that either one of these parents was

unfit and weren't      good parents ?" VRP (Nov. 22, 2011) at 39. The GAL replied that neither

7
     Specifically, the GAL recommended a two week schedule, where Jason would have the
children Friday from 5:0 p. . to Sunday at 5:0 p. . the first week, and Saturday at 5:0 p. .
                      0   m                 0   m                                    0   m
to Sunday at 5:0 p. . the second week. Additionally, she recommended that Jason have the
              0   m
children after school on Tuesday and Thursday from 4:0 p. . to 7:0 p. .,
                                                    0   m       0   m alternating one on-
                                                                                      -
one time with each child on Thursdays.

                                                        El
No. 42990 0 II
          - -



parent was unfit. The trial court then asked if she understood that the issue about boyfriends and

girlfriends in the home applied both ways. The trial court noted that the GAL did not even talk

to the people involved and stated, B]
                                   "[ ottom line is that they're both caring and they both love

these children." VRP (Nov. 22, 2011) at 39. The GAL affirmed that they did. Then the trial

court asked the GAL if she had concerns about either of the parents caring for the children; she

answered that the children would be well cared for in either environment.


       At the close of evidence, to advise the parties of its thinking in preparation for closing

arguments, the trial court stated:

        T]
         hroughout this hearing I have been less than happy with both sides, of course,
       that   pertains   to   credibility. . . .   I'e used the words manipulative, shrewd,
                                                    v
       calculating, and it is not fair to make that observation as to only one person.
                But it is also my judgment that this mother and father care a great deal
       about [PE] and [JE].

       There is no way in the world that anybody could put a parenting plan together
       better than the mother and the father if they think            [          And
                                                              only of JE]and [PE]....
        another parameter is that it would be 50150 also, parenting, and the site it would
        seem to me they agreed upon some time ago was Pierce County, Washington.
        SeaTac is 20 minutes away.    And daycare with their schedules and so on and
        schooling, including preschool, could be structured so there isn't an issue. Mom
        has to go to Dubai mom has to go to Manila, dad has to go to China.
                So we work it out so that mom or dad, whatever the case is,looks after the
        little guys. And if it is not worked out, then you come back here. You don't go
        downstairs and argue, you come back here. And any problems that aren't worked
        out, I'l work out. And if I find in this Court's judgment that someone is being
                l
        obstinate or obstructive, they will pay for the fees that are applicable.
                  These two parents are capable, very capable in my observations, both
        personally and in their abilities to make a living.

VRP ( ov.23, 2011)at 111 13.
    N                    -

        In his closing argument, Jason stated that he had prepared proposed papers based on the

court's statements. The trial court reiterated:




                                                      5
No. 42990 0 II
          - -



          I wasn't really happy, as I indicated. The biggest part of it was that credibility
          was an issue. And the only thing that was able to in my mind overcome that was
          the   children, the parties, what appeared   to be their love for their children. But

          they are pretty selfish people. Now, with that, go ahead, say what you want to
          say.


VRP (Nov. 28, 2011) at 3 4. Continuing, Jason stated that he would not review the testimony
                         -

because the court was well aware of it and that he supported the court's parenting plan under

which the children would remain in the North Tacoma area and evenly divide time with each

parent.

          In her closing argument, Maria outlined the evidence related to each of the applicable

statutory factors.      Based on the statutory criteria, Maria asked the court to adopt a shared

schedule, but to make her the primary parent, alternating residential time with Jason on

weekends and        during   each week.   Additionally, her proposed plan provided that she and the

children could return to Australia and that the children could attend school there.


          The trial court ordered a 50150 division in child custody. At presentation, Maria argued

that the findings of fact and conclusions of law should address the fact that the parties had lived

in Australia for some time. -
                            The trial court refused,
                                      -            stating: -

                  They might have lived in Tokyo, do you want to put in there every place
          that they lived? The only relevant part is that they resided in Washington. I'l
                                                                                        l
          leave it the way it is.

VRP (Dec. 23, 2011) at 6 7. The final parenting plan designated both parents as the custodial
                         -

parent and ordered that the children reside the majority of the time with each parent. Maria


8
    The trial court also divided the parties' assets 50/ 0; this appeal concerns only the 50/ 0
                                                       5                                    5
residential placement.

9 We take the trial court's order that the children reside the majority of time with each parent as
ordering an even division of residential time.
                                                       6
No. 42990 0 II
          - -



timely appeals.

                                            ANALYSIS


       Maria argues that the trial court erred because it ( )
                                                          1 failed to consider the statutory factors

and instead based its ruling on an erroneous two -factor standard, ( )refused to consider the
                                                                   2

children's life in Australia, 3)
                              ( ignored the GAL's recommendations, and (4)failed to award her

attorney fees connected to the contempt order. Jason responds that the trial court (1)properly

made its decision based on all the statutory factors, 2)
                                                      ( properly weighed the credibility of the

GAL and Maria's evidence, and (3)appropriately refused attorney fees regarding an order

unconnected to the parenting plan.

                                      I. STANDARD OF REVIEW


       We review the trial court's decisions in the final parenting plan for an abuse of discretion.

In re Marriage ofKovacs, 121 Wn. d 795, 801, 854 P. d 629 (1993).The trial court abuses its
                               2                  2

discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable

reasons.   In   re   Marriage of Mansour,   126 Wn.   App. 1, 8, 106 P. d
                                                                      3     768 ( 2004). A court's


decision is based on -untenable - grounds or reasons if therecord does -not -support its-
                                                                                        factual - -

findings, if it has used an incorrect standard, or if the facts do not meet the requirements of the

correct standard. In re Marriage of Wicklund, 84 Wn. App. 763, 770 n. , P. d 652 (1996).
                                                                    l 932 2

In matters dealing with the welfare of children, the trial court has broad discretion. Kovacs, 121

Wn. d at 801. " We
  2                       are reluctant to disturb a child custody disposition because of the trial

court's unique opportunity to personally observe the parties."In re Marriage ofMurray, 28 Wn.

App. 187, 189, 622 P. d 1288 (1981).
                    2




                                                  7
No. 42990 0 II
          - -



                                         II. STATUTORY FACTORS


         Maria asks us to reverse and remand the parenting plan because the trial court failed to

consider the statutory factors and instead used an erroneous two -factor standard. Jason responds

that the trial court properly made its decision based on the factors. Maria is correct.

         When ordering a parenting plan, the trial court must consider the criteria in RCW

187(
26. 9. In re Marriage of Littlefield, 133 Wn. d 39, 51 52, 940 P. d 1362 (1997).
   3
   0 )."                                    2          -        2




io
     RCW 26. 9.
         187(
            3 provides:
            0 )
          a)The court shall make residential provisions for each child which encourage
         each parent to maintain a loving, stable, and nurturing relationship with the child,
         consistent with the child's developmental level and the family's social and
         economic circumstances. The child's residential schedule shall be consistent with
         RCW 26. 9. Where the limitations of RCW 26. 9.are not dispositive of
                 191. 0                                       191  0
         the child's residential schedule, the court shall consider the following factors:
             i) relative strength, nature, and stability of the child's relationship with
              The
         each parent;
             ii) agreements of the parties, provided they were entered into knowingly
               The
         and voluntarily;
             iii)Each parent's past and potential for future performance of parenting
         functions as defined in RCW 26. 9.
                                       004(  3 including whether a parent has taken
                                             0 ),
         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.
             Factor ( ) be given the greatest weight.
                    i shall
             b)Where the limitations of RCW 26. 9. are not dispositive, the court
                                                    191 0
          may order that a child frequently alternate his or her residence between the
          households of the parents for brief and substantially equal intervals of time if such
          provision   is in the best interests of the child.   In determining whether such an
          arrangement is in the best interests of the child, the court may consider the
                                                    8
No. 42990 0 II
          - -



When written findings of fact do not clearly reflect a consideration of the statutory factors, we

may review the trial court's oral opinion. Murray, 28 Wn. App at 189. Specific findings are
not required on each statutory criterion when ( )
                                              1 evidence of those criteria is before the court and

2) oral opinion and written findings reflect consideration of them. Murray, 28 Wn. App. at
  its
189.


       Here, Maria, Jason, and their respective witnesses testified regarding the statutory factors.

Maria and Jason gave conflicting testimony about who had been the primary caregiver and who

had the stronger relationship with the children. RCW 26. 9.
                                                     a)(
                                                     187(
                                                        i),
                                                        3)(one testified,
                                                        0 iii).
                                                              No                                           (

though, that either party was an unfit parent. As Maria notes, she outlined each of the statutory

factors in her closing argument. The trial court had evidence on each of the statutory factors

before it. See In re Marriage of Croley, 91 Wn. d 288, 291, 588 P. d 738 (1978).
                                              2                  2

       Although evidence of each criterion was before the court, the trial court's oral opinion

and written findings do not reflect consideration of them. Murray, 28 Wn. App. at .189. The

heart of the trial court's rationale lies in its statement: "The biggest part of it was that credibility

was an issue: -
              And the only thing that was able to in my mind -overcome that was the children;
                                                  -

the parties, what appeared to be their love for their children."VRP (Nov. 28, 2011) at 3 4. The
                                                                                         -


        parties[']geographic proximity to the extent necessary to ensure the ability to
        share performance of the parenting functions.
            c) any child, residential provisions may contain any reasonable terms or
                For
        conditions that facilitate the orderly and meaningful exercise of residential time
        by a parent, including but not limited to requirements of reasonable notice when
        residential time will not occur.
Reviser's note omitted.)
11
  Littlefield and Murray addressed the parenting plan statute in former RCW 26. 9.1973).
                                                                            190 (
                                                                              0
The legislature replaced this provision with RCW 26. 9.in 1987: LAWS of 1987, ch. 460, §
                                                  187 0
61.


                                                   0
No. 42990 0 II
          - -



court's expression, l"ove for their children,"
                                             generally conveys "[ he relative strength, nature,
                                                                t]

and stability of the child's relationship with each parent,"
                                                           which is one of the statutory criteria of

RCW 26. 9. 4 VRP at 3 4. Credibility," the other hand, is not one of the statutory
    187(
       3
       0 ).           -  "           on

criteria, but rather is weighed when applying the factors.

       The " elative strength, nature, and stability of the child's relationship with each parent"is
           r

the sole statutory criterion which the court's decision or findings show that it considered. VRP

Nov. 28, 2011) at 33; Clerk's Papers      at 263 64.
                                                 -     RCW 26. 9.requires that the court
                                                           187(
                                                              3
                                                              0 )

consider all of the listed criteria.    As discussed further below regarding Australia, it is

particularly significant that the trial court did not discuss RCW 26. 9.
                                                                  v),
                                                                  187(
                                                                     3)(
                                                                     0 which requires
consideration of:


               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.

       The failure to consider all the statutory criteria    was   inconsistent with the statute. In


addition, without an examination of this and other statutory factors, it is impossible to determine

on what basis the court ultimately made its determination. -In re Marriage of Combs;105 Wn.
                                                                           -         -

App. 168, 176 77, 19 P. d 469 (2001). Therefore, the court's failure to examine the required
              -       3

statutory factors was an abuse of discretion. Combs, 105 Wn. App. at 177.

                                          III. AUSTRALIA


        The evidence showed that the children have important ties to Australia. Maria and the

children are Australian citizens; as such, they receive significant benefits in Australia, including

free medical   care.   In contrast, the family does not have health insurance in the United States

because they are self -
                      employed. Additionally, in Australia Maria and the children receive a bi-


                                                 10
No. 42990 0 II
          - -



weekly   tax   benefit payment, and Maria receives       a   63 percent child   care   expense rebate.   In


addition to significant economic benefits, the children have extended family in Australia,

including maternal grandparents, an uncle, great aunts and great uncles, and many cousins.

Jason acknowledges that Maria's family has been close and supportive.. Finally, Jason is a

Canadian citizen and Maria presented evidence that his temporary United States visa, which is

the basis for his residency, is problematic.

         The trial court did not make findings about these connections and did not discuss them in

its ruling. As noted, the trial court refused to consider them, stating:

         They might have lived in Tokyo, do you want to put in there every place that they
         lived? The only relevant part is that they resided in Washington. I'l leave it the
                                                                            l
         way it is.

VRP ( ec. 23, 2011)at 6 7.
    D                   -

         Jason's position that the trial court properly ignored the ties to Australia because Maria

kidnapped"them is not supported by the evidence. Br. of Resp't at 21 22. Jason testified that
                                                                     -

he was fully aware of Maria's planned trip with the children and that he later became concerned

because their marriage had      disintegrated and   Maria extended      her absence. Although Maria -


initially contested jurisdiction, shortly thereafter she returned to Washington with the children.
         The court's refusal to consider ties to Australia is a refusal to consider the factor of RCW .

v):
187(
26. 9.
   3)(
   0

                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.

For the reasons in Part II of the Analysis above, the failure to consider this factor violates

RCW 26. 9. constitutes an abuse of discretion.
    187(
       3 and
       0 )


                                                    11
    No. 42990 0 II
              - -



                                             IV. GUARDIAN AD LITEM


             Maria further argues that the trial court improperly ignored the GAL's recommendation

    that Maria be the   primary   residential parent. We     disagree. "The [
                                                                            trial]court   is ...   free to ignore

    the guardian ad litem's recommendations if they are not supported by other evidence or it finds

    other testimony more convincing." Fernando v. Nieswandt, 87 Wn. App. 103, 107, 940 P. d
                                                                                        2

    1380 (1997).Here, the GAL recommended that Maria be the primary residential parent, but she

    also affirmed that she did not have concerns about either parent and stated that the children
                                                    12
    would be well cared for       by   both parents.     We conclude that the trial court did not abuse its


    discretion by not implementing the GAL's specific recommendations.

                                        V. ATTORNEY FEES FOR CONTEMPT


             Maria argues that the trial court erred by failing to award her reasonable expenses for

    bringing her successful contempt motion. Jason responds that the trial court did not err because

    the contempt ruling " ad nothing to do with the parenting plan."Br. of Resp't at 23. Again, we
                        h

    agree with Maria.

I            Before trial,the court issued - temporary order under which Jason and Maria rotated
                                           a           -           -

    living   with the children in the     family   house.    Based on Jason's concerns about both parties

    sharing the house, the temporary order restrained the parties from disturbing the other party's

    peace. After Jason hid a recording device behind the refrigerator during Maria's residential time

    with the children, the trial court found Jason in contempt for violating this aspect of the




    12
       Additionally, the trial court was concerned that the GAL had not fully investigated Maria's
    alleged boy friend in Australia. Thus, the trial court may have reasonably determined that the
    GAL's recommendation lacked evidential support. Fernando, 87 Wn.App. at 107.

                                                            12
      No. 42990 0 I1
                - -



      temporary order and imposed              500 penalty under chapter 26. 0 RCW.
                                             a $                           5                              The trial court,

      however, did not award the attorney fees associated with obtaining the contempt order.

               RCW 26. 9.
                   b) if a parent is found in contempt of court for violating an
                   160(
                      2)(
                      0  states that

      order   establishing   residential   provisions   for   a   child, the
                                                                          "    court shall order ... (   ii)
                                                                                                           The parent to

      pay, to the moving party, all court costs and reasonable attorneys' fees incurred as a result of the

      noncompliance." Under this statute, Maria is entitled to reasonable attorney fees for obtaining

      the contempt order against Jason.

                                             VI. APPELLATE ATTORNEY FEES


               Both Maria and Jason request attorney fees under RAP 18. . We may award fees as part
                                                                      1

      of the cost of    litigation   allowed       by contract, statute,       or   equitable principles. Thompson v.

      Lennox, 151 Wn. App. 479, 484, 212 P. d 597 (2009).RCW 26. 9.authorizes an award of
                                          3                  140
                                                               0

      reasonable costs and attorney fees on appeal after considering the parties' financial resources and

      the arguable merit of the issues raised on appeal. In re Marriage ofJohnson, 107 Wn. App. 500,

      505, 27 P. d 654 (2001). In this case, the trial court concluded the parties would pay their
               3


I--   attorney fees 50/ 0 from theircommunity -assets. Although prevails in this appeal; she
                    - 5 -                                                -

      does not contend that her financial circumstances have changed since that time, nor did she file a

      financial declaration no later than 10 days before oral argument. Johnson, 107 Wn. App. at 505;

      RAP     18. (Where a trial court orders the parties to bear their own fees, we do not award
              c).
                1

      appellate fees unless the party demonstrates a change in financial circumstances. See Combs,

      105 Wn. App. at 177.

               We reverse and remand for a new trial consistent with this opinion. We also grant Maria

      reasonable attorney fees associated with the contempt motion.


                                                                   13
No. 42990 0 II
          - -



       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

040,
2.6.it is so ordered there is no need to publish.
 0



                                                                    m,.
                                               BTK RGEN, J
We   cncur:




HyAi, ;
F




                                              14
