                                                                    FILED
                                                                 JUNE 28, 2018
                                                         In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In re the Marriage of:                        )          No. 35027-4-III
                                              )
DAVID WILLIAM JACKSON,                        )
                                              )
                     Respondent,              )
                                              )          OPINION PUBLISHED
              and                             )          IN PART
                                              )
RHONDA LYN CLARK,                             )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — The child relocation act (CRA), RCW 26.09.405-

.560, sets forth the procedure and standards for certain child relocation requests. One

standard gives the relocating parent a favorable presumption that relocation will be

permitted. But by its terms, the CRA applies only to relocation requests made by a person

“with whom the child resides a majority of the time.”
No. 35027-4-III
In re Marriage of Jackson & Clark


       Here, substantial evidence supports the trial court’s finding that Ms. Clark, the

relocating parent, was not a person with whom the children resided a majority of the time.

In the published portion of this opinion, we affirm the trial court’s conclusion that Ms.

Clark was not entitled to a presumption that relocation would be permitted.

                                          FACTS

       Rhonda Clark and David Jackson are the parents of two young children, L.J. and

H.J. In April 2015, the parties finalized their divorce and filed their agreed parenting

plan. The agreed parenting plan designated Ms. Clark as the custodial parent,1 and

scheduled the children to reside with her a majority of the time. The parties however did

not follow the plan. Instead, the parties shared residential placement equally.

       In January 2016, Ms. Clark obtained counsel and sought to change the terms of the

parenting plan. Ms. Clark’s attorney sent Mr. Jackson a proposed parenting plan. The

proposed plan generally followed the original plan, but required the parties to follow

certain procedures so as to better communicate with one another. Mr. Jackson did not

disagree with those procedures, but he marked the portion that set forth the children’s

residential schedule to reflect the shared schedule that he and Ms. Clark had. In addition,



       1
         Washington uses the term “custodial parent” solely for purposes of state and
federal statutes that require a designation or determination of custody. RCW 26.09.285.

                                             2
No. 35027-4-III
In re Marriage of Jackson & Clark


he crossed out that portion of the proposed plan that listed Ms. Clark as the custodial

parent. Mr. Jackson then returned the marked proposed plan to Ms. Clark’s attorney.

       Ms. Clark’s attorney then sent a revised parenting plan to Mr. Jackson.

The revised plan changed the scheduled residential time as Mr. Jackson had requested,

but still designated Ms. Clark as the custodial parent. Mr. Jackson did not want to sign

the revised draft. He knew that Ms. Clark was dating a man who lived in Nevada and was

concerned that she might move to Nevada and try to take their children with her.

       In response to his concerns, Ms. Clark sent Mr. Jackson a text message assuring

him that she would not move: “Also, I want [you] to know that I am not moving to Reno.

I could easily get a [school] principal job elsewhere. But I know the kids are rooted here

with school.” Clerk’s Papers (CP) at 78-80. Ms. Clark provided Mr. Jackson a further

assurance in a later text, “You can always go through with signing. We have 50/50.”

CP at 117. Mr. Jackson, along with Ms. Clark and her attorney, signed the revised

parenting plan. The parties presented the revised parenting plan to the county superior

court where they had filed their agreed parenting plan, but that court would not file the

revised plan.




                                             3
No. 35027-4-III
In re Marriage of Jackson & Clark


       In May 2016, the parties attempted to mediate various parenting plan issues. The

mediation was unsuccessful. On June 9, 2016, Ms. Clark received an offer to become a

vice principal in Reno, Nevada. The vice principal job was a significant promotion for

her, with more scheduled days, an increase in pay, and with an opportunity for further

advancement.

       On June 17, 2016, the parties transferred venue to the county superior court of

their residence, Spokane County, and registered their original parenting plan with that

court. However, Ms. Clark did not file the signed revised plan.

       On June 27, 2016, Ms. Clark filed and served on Mr. Jackson a notice of intent to

relocate her children to Nevada. On July 26, 2016, a court commissioner held a hearing

for temporary orders. The commissioner found that Ms. Clark’s request to relocate the

children would likely not be granted, and denied Ms. Clark’s request for her children to

relocate prior to a fact-finding hearing.

       On August 9, 2016, Ms. Clark accepted the job in Nevada. Ms. Clark moved to

revise the commissioner’s ruling, and the trial court denied her motion. The trial court

then scheduled a fact-finding hearing to begin October 24, 2016.

       At the hearing, both parties presented witnesses who provided testimony both

supporting and opposing relocation. During the hearing, Mr. Jackson testified that he and


                                             4
No. 35027-4-III
In re Marriage of Jackson & Clark


Ms. Clark shared residential time with their children equally. Mr. Jackson also cross-

examined Ms. Clark with her prior deposition testimony. In that testimony, Ms. Clark

had admitted that the parenting schedule set forth in the revised and signed parenting plan

was the schedule that she and Mr. Jackson had generally followed since the divorce. In

addition, several of her text messages were admitted, including the text message where

she described the revised parenting plan as “50/50.” CP at 117.

       At the conclusion of the fact-finding hearing, the trial court advised the parties that

it wished to review the trial transcript and scheduled its oral ruling for mid-November. In

its November ruling, the trial court meticulously set forth the background of the case, the

legal framework, and explained its resolution of the conflicting evidence. The trial court

found that the parties shared residential time with the children equally. The trial court

found Mr. Jackson’s testimony on this point credible, and noted it was consistent with

other evidence, such as the lack of a child support transfer payment, and Ms. Clark’s

various admissions. Based on its finding that the children did not reside with Ms. Clark a

majority of the time, the trial court concluded that Ms. Clark was not entitled to the

CRA’s presumption that relocation would be permitted.

       The trial court then addressed whether the children would be permitted to relocate

with Ms. Clark to Nevada. In addressing this issue, the trial court discussed the 11 factors


                                              5
No. 35027-4-III
In re Marriage of Jackson & Clark


set forth in RCW 26.09.520. After discussing each factor, the trial court determined that

the detrimental effect of the relocation would outweigh the benefit of the change to the

children and Ms. Clark. The trial court also determined that the factors against relocating

the children weighed so heavy that it would have denied relocation even had Ms. Clark

been entitled to the CRA’s presumption. The trial court later entered an order consistent

with its oral ruling, together with supporting findings and conclusions.

       Ms. Clark appealed.

                                        ANALYSIS

       A.     APPLICABILITY OF THE CRA AND ITS PRESUMPTION

       This court reviews a trial court’s relocation decision for abuse of discretion. In re

Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). A trial court abuses its

discretion when it makes a manifestly unreasonable decision or bases its decision on

untenable grounds or reasons. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942

(2012). This can occur when a trial court applies an incorrect legal standard, substantial

evidence does not support its findings, or the findings do not meet the requirements of the

correct standard. Horner, 151 Wn.2d at 894.

       Ms. Clark contends that the trial court abused its discretion by applying the wrong

legal standard. She contends that the parenting plan’s designation of her as the custodial


                                             6
No. 35027-4-III
In re Marriage of Jackson & Clark


parent entitles her to a presumption that relocation will be permitted. She relies on In re

Marriage of Fahey, 164 Wn. App. 42, 262 P.3d 128 (2011). For the reasons explained

below, we agree with the dissent in Fahey that the CRA and its presumption apply only to

“a person with whom a child resides a majority of the time.” RCW 26.09.430.

                       1.     Legal principles

       The CRA is codified at RCW 26.09.405-.560. The CRA sets forth notice

requirements and standards applicable to certain child relocation requests.

RCW 26.09.430 provides: “[A] person with whom the child resides a majority of the time

shall notify every other person entitled to residential time or visitation with the child

under a court order if the person intends to relocate.” If an interested person objects, the

trial court must then conduct a fact-finding hearing. RCW 26.09.520.

       The CRA provides “a rebuttable presumption that the intended relocation of the

child will be permitted.” Id. At the fact-finding hearing, the objecting person may rebut

this presumption by showing that “the detrimental effect of the relocation outweighs the

benefit of the change to the child and the relocating person, based upon [10]2 factors.” Id.

The CRA permits the relocating parent’s interest to be considered because it recognizes




       2
           The 11th factor does not apply at the fact-finding hearing.

                                                 7
No. 35027-4-III
In re Marriage of Jackson & Clark


the presumption that a fit parent acts in the best interest of his or her child. Horner, 151

Wn.2d at 895.

                     2.      We disapprove of Fahey

       In Fahey, the parties’ parenting plan listed the mother as the custodial parent and

scheduled the children to live with her a majority of the time. Fahey, 164 Wn. App. at 47.

Seven years after the plan was entered, the mother provided notice to the father of her

intent to have the children relocate with her to Omak, Washington. Id. at 47-48. The

father, who lived in Edmonds, Washington, objected. Id. At the fact-finding hearing, the

father presented evidence that despite the terms of the parenting plan, the children

actually spent more time with him. Id. at 49-51. The majority noted that “the plain

language of the child relocation statutes” is triggered by the relocation of a person “‘with

whom the child resides a majority of the time.’” Id. at 58 (quoting RCW 26.09.430).

Inexplicably, the majority then held that whether a child resides with the relocating person

a majority of the time is answered by the parenting plan’s designation of custodial parent,

not where the children actually reside. Id. at 59-60.

       Judge Armstrong issued a strong dissent. Quoting RCW 26.09.430, he emphasized

that the relocation statutes and the presumption permitting relocation applied only to a

person “‘with whom [a] child resides a majority of the time.’” Id. at 70 (Armstrong, J.,


                                              8
No. 35027-4-III
In re Marriage of Jackson & Clark


dissenting) (alteration in original). He noted that whether a parent has a child a majority

of the time is a factual question, and acknowledged that the designation of custodial

parent is a consideration in answering that question. Id. at 71.

               [But] no case has held that the wording of a parenting plan controls
       over the reality of where the children reside a majority of the time. And the
       statute is clear that the presumption works in favor of the parent “with
       whom the child resides a majority of the time,” not the parent with whom
       the child is scheduled to reside a majority of the time. If the trial court and
       the majority are correct, a parenting plan’s designation of the primary
       residential parent would control even if the children actually spent 90
       percent of their time with the nondesignated parent.

Id. at 71 (citation omitted).3

       State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000) (footnotes omitted)

explains how we must determine the meaning of a statute:

               To determine the meaning of a statute, courts apply the general rules
       of statutory construction to ascertain and carry out the intent of the
       Legislature. If the language of a statute is clear on its face, courts must give
       effect to its plain meaning and should assume the Legislature means exactly
       what it says. If a statue is unambiguous, its meaning must be derived from
       the wording of the statute itself. A statute that is clear on its face is not
       subject to judicial interpretation.


       3
         Because the CRA did not apply, Judge Armstrong concluded that the trial court
should have analyzed whether the existing plan should be modified under the criteria in
RCW 26.09.260. Fahey, 164 Wn. App. at 73 (Armstrong, J., dissenting); see In re
Marriage of Coy, 160 Wn. App. 797, 804, 248 P.3d 1101 (2011) (“After a trial court
enters a final parenting plan, and neither party appeals it, the plan can be modified only
under RCW 26.09.260.”).

                                              9
No. 35027-4-III
In re Marriage of Jackson & Clark


       The CRA is clear. The CRA and its presumption permitting relocation apply only

when the person relocating is “a person with whom the child resides a majority of the

time.” RCW 26.09.430. This is consistent with the notion that a fit parent is presumed to

be acting in the best interest of his or her child: In situations where residential placement

is shared, both parents are presumptively fit, and neither would be entitled to a favorable

presumption. See In re Marriage of Worthley, 198 Wn. App. 419, 431, 393 P.3d 859

(2017) (Where “both parents are equally entrusted to act in the child’s best interests,” the

CRA presumption in favor of the relocating parent is inapplicable.).

       We agree with Judge Armstrong. The CRA and the presumption permitting

relocation apply only to a person with whom the child resides a majority of the time. The

designation of custodial parent is a consideration in answering whether the child resides a

majority of the time with the relocating parent; but where the child resides, rather than is

scheduled to reside, is the factual question that must be answered.

                     3.      Application of legal principles

       Here, the parents had a final parenting plan in place that designated Ms. Clark as

the custodial parent with whom the children lived a majority of the time. The trial court,

however, was persuaded that the parties shared residential time with their children

equally. Although Ms. Clark assigns error to this finding, substantial evidence supports


                                              10
No. 35027-4-III
In re Marriage of Jackson & Clark


it. Here, Mr. Jackson testified that he and Ms. Clark shared residential time equally from

the very beginning. His testimony was consistent with the lack of a child support transfer

payment, Ms. Clark’s deposition testimony in which she admitted that the revised plan

was consistent with the parenting schedule they generally followed, and Ms. Clark’s text

message describing the plan as “50/50.” We conclude that the trial court properly denied

Ms. Clark the statutory presumption permitting relocation.

       Affirmed.

       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.

       Because the CRA does not apply, the trial court should have either dismissed Ms.

Clark’s CRA request or, because a fact-finding hearing had already occurred, analyzed

Ms. Clark’s request as one for a major modification of the parenting plan under

RCW 26.09.260. See Schuster v. Schuster, 90 Wn.2d 626, 628-29, 585 P.2d 130 (1978)

(A final parenting plan may be modified only in accordance with RCW 26.09.260.).

Either way, Ms. Clark’s contentions that the trial court erred in its weighing the

RCW 26.09.520 factors are moot. But should Ms. Clark ask the trial court to analyze her


                                             11
No. 35027-4-III
In re Marriage of Jackson & Clark


relocation request under RCW 26.09.260, the parties need to be able to know what

evidence was properly admitted or excluded at the hearing. For this reason, we address

the trial court’s contested evidentiary rulings.

       B.     THE TRIAL COURT’S CONTESTED EVIDENTIARY RULINGS

       Ms. Clark challenges three trial court evidentiary rulings. All three involve

whether the evidence excluded or admitted consisted of offers of compromise,

inadmissible under ER 408. We review such rulings for abuse of discretion. Klotz v.

Dehkhoda, 134 Wn. App. 261, 271, 141 P.3d 67 (2006).

       ER 408 provides:

               In a civil case, evidence of (1) furnishing or offering or promising to
       furnish, or (2) accepting or offering or promising to accept a valuable
       consideration in compromising or attempting to compromise a claim which
       was disputed as to either validity or amount, is not admissible to prove
       liability for or invalidity of the claim or its amount. Evidence of conduct or
       statements made in compromise negotiations is likewise not admissible. . . .
       This rule also does not require exclusion when the evidence is offered for
       another purpose, such as proving bias or prejudice of a witness, negating a
       contention of undue delay, or proving an effort to obstruct a criminal
       investigation or prosecution.

       More succinctly, the rule excludes evidence of conduct or statements made in

settlement negotiations to prove liability. Klotz, 134 Wn. App. at 271. It does not

exclude settlement evidence offered for another purpose if the evidence is otherwise




                                              12
No. 35027-4-III
In re Marriage of Jackson & Clark


admissible under the rules. Id.; see also Bulaich v. AT&T Info. Sys., 113 Wn.2d 254, 264,

778 P.2d 1031 (1989).

              1.     Exclusion of Mr. Jackson’s letter

       Ms. Clark contends the trial court erred by refusing to admit a letter that Mr.

Jackson sent to her around the time of mediation. The letter was entitled, “‘Jackson

. . . Modification/Mediation.’” Report of Proceedings (Oct. 24, 2016) at 60.

       Ms. Clark argued for the letter’s admissibility at the hearing. She argued it was

relevant to contradict Mr. Jackson’s assertion at trial that he never proposed that one child

live in Washington while the other live in Nevada. Ms. Clark argued that she did not

receive, see, or read the letter until after the May 2016 mediation. The record does not

reflect when Mr. Jackson sent the letter to her. Mr. Jackson objected to the letter’s

admission under ER 408. The trial court sustained Mr. Jackson’s objection.

       Ms. Clark did not have the letter pre-marked so as to be part of the record. For this

reason, we do not adequately know its contents. Nor did the parties clarify when Mr.

Jackson sent it. For these reasons, the record is inadequate for us to review the claimed

error. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988).




                                             13
No. 35027-4-III
In re Marriage of Jackson & Clark


              2.      Admission of exhibits 26 and 25

       Ms. Clark next contends the trial court erred by admitting exhibit 26, which was

the draft parenting plan sent to Mr. Jackson on which he noted his comments. She also

contends the trial court erred by admitting exhibit 25, which was the revised and signed

parenting plan. We disagree with both contentions.

                      a.     Exhibit 26

       Exhibit 26 contains the same parenting schedule and custodial parent designation

as the parties’ original parenting plan. It also shows that Mr. Jackson marked the

proposed plan to reflect the equally shared residential schedule and struck the plan’s

designation of Ms. Clark as the custodial parent.

       Ms. Clark’s reiteration of the original parenting plan was not an admission of

liability. Nor were Mr. Jackson’s markings an admission of liability. Rather, Mr.

Jackson’s markings were relevant and admissible to show that his assertion the parties

equally shared residential placement was not a fabricated recent contention. We conclude

that the trial court did not abuse its discretion by admitting exhibit 26.




                                              14
No. 35027-4-III
In re Marriage of Jackson & Clark


                     b.       Exhibit 25

       Exhibit 25 is the revised parenting plan that was signed by the parties and Ms.

Clark’s attorney. It designates Ms. Clark as the custodial parent, but also provides for an

equally shared residential schedule. The trial court admitted the revised parenting plan

over Ms. Clark’s objection.

       Mr. Jackson introduced the revised and signed parenting plan to prove that the

children did not reside with Ms. Clark a majority of the time. Although this claim was

disputed at the fact-finding hearing, there is no evidence it was disputed in January 2016

when the revised parenting plan was signed. Notably, Ms. Clark admitted in her

deposition that she and Mr. Jackson generally shared residential time with their children

equally. Because this fact had not been disputed prior to the agreement’s signing, this

aspect of exhibit 25 was not a compromise or an offer of compromise.4 We conclude that

the trial court did not abuse its discretion by admitting exhibit 25.




       4
         Ms. Clark inadvertently concedes this point in her brief: “She sought an amended
parenting plan because Mr. Jackson’s harassing behavior escalated and he attempted to
manipulate her time with the children and she felt that there needed to be restrictions
regarding communication. . . . The purpose of the amended parenting plan . . . was to add
other restrictions.” Appellant’s Br. at 43.

                                              15
No. 3 5027-4-III
In re Marriage ofJackson & Clark


      C.       ATTORNEY FEES


      Mr. Jackson requests an award of attorney fees on appeal. He cites RAP 18.1 and

RCW 26.09.140. He fails to provide any argument supporting-his request. We therefore

deny it. Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012).




                                           L& ... ,<.... c.s. .. g'tN\< 1· c.. ~.
                                        Lawrence-Berrey, C.J.
WE CONCUR:



   S..·tJ!i.w
   O  l~                      /:- .,
    oway, J.         fl   I
                                        Pennell, J.




                                           16
