                                                                 FILED 

                                                              APRIL 11,2013 

                                                       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 Parentage of:                       )         No. 30617-8-III
                                              )
TMLT                                          )
                                              )
BRIAN S. TANIS,                               )
                                              )
                     Appellant,               )         UNPUBLISHED OPINION
                                              )
ALENA S. LIKES,                               )
                                              )
                     Respondent.              )

       KULIK, J. -   Brian Tanis petitioned Grant County Superior Court for a minor

modification to the parenting plan for his child, T.M.L.T. At trial, Mr. Tanis presented a

parenting plan that requested a major modification and changed T.M.L.T.'s primary

residence to his home. The court found a substantial change in T.M.L.T.'s environment

and granted the modification to serve the best interest of the child. Alena Likes,

T.M.L.T.'s mother, failed to appear at trial but filed two CR 59 motions for

reconsideration. She also moved to vacate the judgment under CR 60(b). The court

initially denied Ms. Likes's CR 59 motions, but granted the CR 60(b) motion. After

considering the issue again, the court then denied Ms. Likes's CR 60(b) motion and
No.30617-8-III
In re Parentage ofTMLT


granted Ms. Likes's second CR 59 motion for reconsideration. The court determined that

there were irregularities in the court's proceedings and that the parenting plan granted

relief to Mr. Tanis to which he is not entitled, based on the evidence presented at trial.

Mr. Tanis appeals. He contends that the trial court lacked the authority to grant the CR 59

motion because its review was untimely. We conclude that CR 60(b)(l1) necessitates a

new trial based on the irregularities in the first trial. Therefore, we remand for a new

trial.

                                           FACTS

         Mr. Tanis and Ms. Likes entered a final residential schedule in October 2004 for

their child T.M.L.T. (D.O.B. March 2,2004). The schedule generally split the residential

time between the two parents.

         A few years later, when T.M.L.T. entered school, the parties deviated from the

parenting plan and followed a schedule in which T.M.L. T. lived with Ms. Likes during

the week and with Mr. Tanis on the weekends.

         In March 2010, on T.M.L.T.'s sixth birthday, Mr. Tanis petitioned to modify the

residential schedule. In his petition, Mr. Tanis requested minor adjustments to the

residential provisions under RCW 26.09.260(5)(c) and declared that the proposed

modification "is a minor modification in the residential schedule that does not change the


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residence the [child is] scheduled to reside in the majority of the time." Clerk's Papers

(CP) at 97. He also declared in the petition that the increase was more than 24 full days

but less than 90 overnights per year. In the accompanying parenting plan, Mr. Tanis

proposed primary residential placement with him, with T.M.L.T. residing with Mr. Tanis

every weekend, and alternate placement between Mr. Tanis and Ms. Likes during the

school week and split school breaks between the parents.

       Mr. Tanis explained that a substantial change in circumstances existed and an

adjustment was needed because the prior plan did not provide for a school schedule. He

contended that Ms. Likes threatened to terminate Mr. Tanis's weekend visits with

T.M.L.T. because the visits were not in the schedule. He also contended that he was

concerned for the child because Ms. Likes had sent strangers to pick up T.M.L.T. from

visitation even though the strangers did not have proper restraints for a six-year-old child

and had been under the influence of drugs or alcohol.

       Ms. Likes also petitioned for adjustments to the residential schedule. She

stipulated that there was adequate cause for the court to modify the previous parenting

schedule. In Ms. Likes's proposed plan, T.M.L.T. would reside with Ms. Likes during

the week, and every other weekend. T.M.L.T. would reside with Mr. Tanis on the




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alternate weekends with additional residential time during the summer. The proposed

plan also divided the holidays between the parties.

       A trial was held on November 21,2011. Ms. Likes failed to appear. The court

heard testimony presented by Mr. Tanis. On the day of trial, Mr. Tanis filed a new

proposed parenting plan. The new plan proposed only alternating weekends for Ms.

Likes during the school year, one-half of the school holidays, and three weeks during the

summer. The proposed parenting plan also changed T.M.L.T.'s primary residential

placement to Mr. Tanis. Mr. Tanis stated that there were no limiting factors to be

considered in placement. Following the trial, the court orally granted Mr. Tanis's petition

and directed entry ofthe parenting plan as submitted by Mr. Tanis, with some specific

alterations.

       Ms. Likes, pro se, filed a motion for reconsideration on November 29. She

contended that she did not appear because she was not served with notice of the trial date.

She noted a hearing date for December 8.

       On December 2, the trial court held a presentment hearing for the order of

modification and the parenting plan. When the case was called, Ms. Likes was not

present. The trial court summarily denied Ms. Likes's motion for reconsideration.




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       The order for modification presented by Mr. Tanis at the December 2 hearing

differed from what he requested in his March 2010 petition for modification. The new

order for modification presented to the trial court indicated that a more extensive

modification was needed under RCW 26.09.260(1) and (2), and that the minor adjustment

provisions ofRCW 26.09.260(5) did not apply.

       The December 2 order for modification also included a limiting factor that was not

pleaded in Mr. Tanis's March 2010 petition or proposed parenting plan. The order

indicated that the parenting plan should be modified under RCW 26.09.260(1) and (2)

because ofa substantial change in circumstances to T.M.L.T.'s environment due to Ms.

Likes's increased use of illegal drugs, physical abuse, and failure to respond to T.M.L.T's

educational deficiencies. The order included a finding that the mother's continued use of

illegal drugs impaired her parenting functions. The order concluded that the modification

was needed to serve the best interests of the child. For these reasons, Ms. Likes's

residential time was limited.

       The court entered the modification order and parenting plan as presented by Mr.

Tanis. A few minutes later, Ms. Likes appeared in court alleging that she was directed to

the wrong courtroom. The trial court heard Ms. Likes's arguments, but adhered to its




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earlier ruling. The court advised Ms. Likes of the potential for another motion for

reconsideration from the December 2 order.

       On December 13, Ms. Likes filed a second motion for reconsideration of the

December 2 parenting plan. Ms. Likes again contended that she did not receive notice of

the November 21 trial date. She also contended that the trial court indicated to her that it

did not make a finding related to her parental fitness. Without such a finding, Ms. Likes

argued that the court did not have a basis for changing T.M.L.T.'s primary residence to

Mr. Tanis's home.

       The trial court denied Ms. Likes's second motion for reconsideration. The court

doubted Ms. Likes's credibility and found that her failure to attend trial was a matter of

inexcusable neglect or inadvertence. The court concluded that Ms. Likes received written

notice of the trial date, and that the parenting plan was in the best interest of the child

based on the testimony presented at trial.

       Ms. Likes filed a motion to vacate the parenting plan and grant a new trial pursuant

to CR 60(b)( 1) and CR 60(b )(11). During the motion hearing on December 29, Ms. Likes

alleged that the parenting plan was not supported by the pleadings and the trial evidence.

       On January 13,2012, the trial court issued a letter opinion in response to Ms.

Likes's motion for a new trial. The court stated that it reviewed the file and testimony.


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Importantly, the court noted that Mr. Tanis's proposed parenting plan, presented after

trial, inexplicably included a finding that Ms. Likes's long-term drug abuse interfered

with her parenting functions, even though "[s]uch a limiting factor had not been

plead[ ed], included in the proposed parenting plan, or discussed by the court in its oral

ruling." CP at 83.

       The court concluded that the parenting plan should be vacated for several reasons.

First, the trial court found that the evidence did not support the drug abuse finding made

in the order of modification of the parenting plan. The court stated that the entire

testimony regarding drug use consisted of Mr. Tanis's allegations that (1) he confronted

Ms. Likes with drug paraphernalia while they were living together, (2) Ms. Likes had

attitude changes and a lip biting habit, and (3) Ms. Likes had mood swings and computers

and bicycles tom apart in her living room. The court concluded that this evidence was

insufficient to establish drug abuse by Ms. Likes, let alone long-standing drug abuse that

interferes with her parenting. The court also concluded that the evidence of physical

abuse ofT.M.L.T. was insufficient. And, while T.M.L.T may have shortcomings in

completing his homework, his school progress reports indicate decent grades and

behavior.




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       Second, the trial court found the order and parenting plan granted relief beyond

what was requested in Mr. Tanis's petition. The court explained that Mr. Tanis based his

petition for modification on RCW 26.09.260(5)(c), which is designated for minor

modifications. Thus, the court noted that it may not change T.M.L.T's primary placement

and may not enter a parenting plan that grants Mr. Tanis more than 90 overnights per

year. The court concluded that it exceeded the relief sought in the petition for

modification, making the court's order void. Accordingly, the court vacated its order and

reopened the matter for additional trial proceedings.

       Mr. Tanis contested the court's decisions, arguing that CR 54(c) allowed the court

to grant any relief that the father is entitled because the matter was resolved by trial, and

an error of law is not appropriately corrected under CR 60, but by appeal.

       On February 10, the trial court changed its basis for granting a new trial. In its

written findings of fact and conclusions of law, the court concluded that the

circumstances did not provide a basis for relief under CR 60 and denied the motion. The

court also concluded that Ms. Likes's second CR 59 motion for reconsideration should

have been granted. The court stated that the parenting plan granted relief to Mr. Tanis to

which he is not entitled because the trial evidence did not prove a substantial change in

the circumstances of Ms. Likes or T.M.L.T.


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       Correspondingly, the court withdrew its previous denial of the motion for

reconsideration and granted relief. The trial court concluded, "In order to avoid manifest

injustice herein, it is necessary to vacate the Parenting Plan entered after trial and re-open

the trial proceedings. There was an irregularity in the proceedings of the court, and an

abuse of discretion, in that the Court at trial erroneously equated a finding of adequate

cause with a finding of substantial change in circumstances, justifYing modification of the

Parenting Plan." CP at 21.

       Mr. Tanis appeals. He contends that the trial court did not have the authority to

reconsider its decision and to vacate the parenting plan because it failed to timely raise the

issue. Additionally, he contends the court had no authority to grant Ms. Likes's second

motion for reconsideration because Ms. Likes's motion was also untimely. Mr. Tanis

requests that we reinstate the December 2 parenting plan.

                                        ANALYSIS

       We look first at whether this court should decide, sua sponte, that the trial court

erred by denying Ms. Likes's CR 60(b)(11) motion.

       RAP 12.1(b) allows a new issue to be raised by the appellate court. "If the

appellate court concludes that an issue which is not set forth in the briefs should be

considered to properly decide a case, the court may notifY the parties and give them an



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opportunity to present written argument on the issue raised by the court." RAP 12.1(b).

While we generally limit review to claimed errors, we also liberally interpret the Rules of

Appellate Procedure to promote justice and facilitate a decision on the merits. State v.

Bonisisio, 92 Wn. App. 783, 796,964 P.2d 1222 (1998); RAP 10.3; RAP 1.2.

       This case is distinguishable from the recent Supreme Court opinion Clark County

v. Western Washington Growth Management Hearings Review Board, No. 85989-2,2013

WL 1163889 (Wash., Mar. 21, 2013). Unlike the annexed land claims raised in Clark

County, the validity of the December 2 judgment and parenting plan is not a separate and

distinct issue because Mr. Tanis asks us to reinstate the December 2 judgment and

parenting plan. Also, the parties did not stipulate to the tenns of the parenting plan.

Thus, review of the validity of the judgment and parenting plan and the trial court's

reasons for vacating those orders had a bearing on the claims and issues that were actually

presented on appeal.

       Pursuant to RAP 12.1(b), we review the trial court's decision denying Ms. Likes's

CR 60(b)( 11) motion. A review of the issue is needed to facilitate a decision on the

merits and to promote justice for T.M.L.T. The parties were allowed to file supplemental

briefing on this issue.




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       The standard of review for a decision granting a motion to vacate under CR 60(b)

is abuse of discretion. Barr v. MacGugan, 119 Wn. App. 43,46, 78 P.3d 660 (2003).

       CR 60(b)(11) allows a trial court to vacate an order for "[a]ny other reason

justifying relief from the operation of the judgment." CR 60(b)( 11) is confined to

extraordinary circumstances when no other section of the rule applies. In re Marriage of

Furrow, 115 Wn. App. 661, 673, 63 P.3d 821 (2003). The circumstances must relate to

irregularities that are "extraneous to the action of the court." In re Marriage of Yearout,

41 Wn. App. 897, 902, 707 P.2d l367 (1985), Irregularities that are extraneous to the

court's action or involve substantial deviations from a prescribed rule or means of

proceeding justify vacating an order under CR 60(b)(11); errors oflaw cannot be

addressed in a CR 60(b)(11) motion. Furrow, 115 Wn. App. at 674 (quoting Philip A.

Trautman, Vacation and Correction ofJudgments in Washington, 35 WASH. L. REv. 505,

515 (1960)).

      -'''Viewing the problem more generally it appears that an irregularity is regarded as

a more fundamental wrong, a more substantial deviation from procedure than an error of

law.'" Id.

       Modifications of parenting plans are governed by RCW 26.09.260. "Procedures

relating to the modification of a prior custody decree or parenting plan are statutorily



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prescribed and compliance with the criteria set forth in RCW 26.09.260 is mandatory." In

re Marriage ofShryock, 76 Wn. App. 848,852,888 P.2d 750 (1995).

       "RCW 26.09.260(1), the statute governing modification of parenting plans, places

a heavy burden on a parent seeking to change the primary residential placement of a

child." In re Marriage ofPape, 139 Wn.2d 694,710,989 P.2d 1120 (1999). "Except as

otherwise provided ... the court shall not modify a prior custody decree or a parenting

plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan

or that were unknown to the court at the time of the prior decree or plan, that a substantial

change has occurred in the circumstances of the child or the nonmoving party and that the

modification is in the best interest of the child and is necessary to serve the best interests

of the child." RCW 26.09.260(1).

       In applying the above 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." RCW 26.09.260(2).

       By contrast, RCW 26.09.260(5) establishes a procedure for parents to make minor

adjustments to the residential provisions of a parenting plan without having to carry the


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heavy burden imposed for those seeking to change the child's primary residence. Pape,

139 Wn.2d at 710. If the proposed modification is only a minor modification, the

provisions ofRCW 26.09.260(5) allow the trial court to order adjustments to the

residential aspects of a parenting plan upon a substantial change in circumstances of

either parent or of the child, without having to consider the factors listed in

RCW 26.09.260(2).

       A minor modification in the residential schedule is one that does not change the

residence the child is scheduled to reside in the majority of the time and:

              (a) Does not exceed twenty-four full days in a calendar year; or
              (b) Is based on a change of residence of the parent with whom the
       child does not reside the majority of the time or an involuntary change in
       work schedule by a parent which makes the residential schedule in the
       parenting plan impractical to follow; or
              (c) Does not result in a schedule that exceeds ninety overnights per
       year in total [if other conditions are met].

RCW 26.09.260(5).

       "Custodial changes are viewed as highly disruptive to children, and there is a

strong presumption in favor of custodial continuity and against modification." In re

Marriage ofMe Dole , 122 Wn.2d 604,610,859 P.2d 1239 (1993).

       The legislature expressed the policy for statutes included in chapter 26.09 RCW:




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       Parents have the responsibility to make decisions and perform other
       parental functions necessary for the care and growth of their minor
       children. . . . The state recognizes the fundamental importance of the
       parent-child relationship to the welfare of the child, and that the relationship
       between the child and each parent should be fostered unless inconsistent
       with the child's best interests. Residential time and financial support are
       equally important components of parenting arrangements. The best interests
       of the child are served by a parenting arrangement that best maintains a
       child's emotional growth, health and stability, and physical care.

RCW 26.09.002.

       We conclude the court abused its discretion by denying Ms. Likes's CR 60(b)(lI)

motion. The trial court admitted that there was "an irregularity in the proceedings of the

court, and an abuse of discretion, in that the Court at trial erroneously equated a finding of

adequate cause with a finding of substantial change in circumstances, justifying

modification of the Parenting Plan." CP at 21. The trial court's substantial deviation

from the strict, mandatory guidelines of RCW 26.09.260 resulted in an irregularity in the

proceedings that is extraneous to the court's action. Mr. Tanis failed to alert the court in

his petition that he intended to seek a change in T.M.L.T.'s primary residence under

RCW 26.09.260(1) and (2) and the trial court failed to hold Mr. Tanis to the higher

burden mandated under the statute. This irregularity warrants a new trial on the matter.

       The resulting injustice from these irregularities is the effect the proceedings will

have on T.M.L.T. At stake is the welfare ofT.M.L.T., who plays no active role in the



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litigation, but who is directly affected by the outcome. Allowing a change in T.M.L.T.'s

primary residence without applying the proper modification statute and corresponding

standard goes against the best interest ofT.M.L.T. and public policy. The change in

custody violates the strong presumption in favor of custodial continuity and against

modification. See McDole, 122 Wn.2d at 610. Furthermore, changing T.M.L.T.'s

primary residence without applying the proper standard violates RCW 26.09.002 because

it does not promote the relationship between T.M.L.T. and his mother. The relationship

between the child and each parent should be fostered unless inconsistent with the child's

best interest, which has not been established in T.M.L.T.'s situation.

       Also of some importance is the reSUlting injustice that will occur if primary

residential custody is taken away from Ms. Likes without giving her proper notice of Mr.

Tanis's intent to change T.M.L.T.'s primary residence. She was not notified of the

possibility that her parental rights could be substantially impacted. While Ms. Likes was

in error for failing to appear at trial, the worst she could expect from her nonappearance

was a minor modification of the parenting plan. Ms. Likes was not given notice that the

court could potentially find her a deficient parent and severely restrict her contact with

her child. Again, the court's action that allowed Mr. Tanis to make substantial




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modifications to the parenting plan without alerting Ms. Likes of his intentions fails to

foster the relationship between the child and each parent.

       We agree with the trial court that a new trial is needed to correct the irregularity in

the proceedings of the court and to avoid manifest injustice. The trial court recognized its

failure to follow the standards set forth in RCW 26.09.260. Therefore, given this court's

authority to raise the issue under RAP 12.1 (b), we conclude that the trial court abused its

discretion by denying relief under CR 60(b)(II) and remand for a new trial. Because this

issue is dispositive, we need not address any other issues raised on appeal.

       Conclusion. We reverse the trial court's decision granting the CR 59 motion, and

we reverse the trial court's decision denying Ms. Likes's CR 60(b)(lI) motion. We grant

Ms. Likes relief under CR 60(b)( 11) and remand to the trial court for a new trial.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                           ~/cP·
                                           Kulik, J.

WE CONCUR:



Brown, J.

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