                                                                           FILED
                                                                        JULY 30, 2020
                                                                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 the Matter of the Marriage of:             )        No. 37358-4-III
                                              )
ANGELA K. SCOUTTEN,                           )
                                              )
                     Appellant,               )
                                              )        UNPUBLISHED OPINION
       and                                    )
                                              )
MICHAEL J.E. SCOUTTEN,                        )
                                              )
                     Respondent.              )

       PENNELL, C.J. — Angela Kristen Schreiner, formerly known as Angela Scoutten,

appeals various orders related to a trial court decision authorizing Michael Scoutten to

move their daughter, M.S., to the country of Wales in the United Kingdom. We affirm.

                                         FACTS

       M.S. was born in April 2010. Her parents divorced shortly thereafter. For the first

few years after the divorce, M.S. lived with her mother, Angela Schreiner. But in 2015

the parenting plan was modified to place M.S. in the primary care of her father, Michael
No. 37358-4-III
In re Marriage of Scoutten


Scoutten, who lived with M.S.’s stepmother, Monica Scoutten. Ms. Schreiner was given

residential time with M.S. every other weekend along with one week day after school.

       The 2015 plan imposed parenting restrictions on Ms. Schreiner due to deleterious

conduct, including abusive use of conflict and fabricated allegations against Mr.

Scoutten.1 As part of the restrictions, Mr. Scoutten was given exclusive decision-making

authority over M.S, with the exception of day-to-day decisions arising during Ms.

Schreiner’s residential time.



       1
          The court found Ms. Schreiner had engaged in conduct resulting in an adverse
effect to M.S. based on the following factors:

       1. Neglect or substantial nonperformance of parenting functions.
       2. The absence or substantial impairment of emotional ties between the
          child and the mother. Evidence at trial was overwhelming that the child
          does not want to return to her mother at the conclusion of residential
          time with father.
       3. The abusive use of conflict by the mother which creates the danger of
          serious damage to the child’s psychological development.
       4. Instability which the court finds detrimental to the child.
       5. The mother’s failure to communicate and engage in joint decision
          making and co-parenting.
       6. The court finds the mother has engaged in making untrue statements,
          including untrue allegations against the father and statements used to
          deprive the father of his opportunities to speak with the child, including
          on the child’s birthday.

Clerk’s Papers at 54.


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       Ms. Schreiner unsuccessfully appealed the 2015 parenting plan. In re Marriage of

Scoutten, No. 48027-1-II, slip op. at 1-2 (Wash. Ct. App. Oct. 25, 2016) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2048027-1-II%20Unpublished%20

Opinion.pdf. In that appeal, Division Two of this court affirmed the trial court’s

disposition based on evidence that Ms. Schreiner’s living circumstances were unstable

and that M.S. was more bonded to Mr. Scoutten than Ms. Schreiner. It was also noted

Ms. Schreiner sowed conflict in M.S.’s life by making unsubstantiated allegations against

the Scouttens, including a claim that Mr. Scoutten “allowed a pedophile to be around

M.S.” Id. at 19.

       Shortly after the 2015 plan went into effect, the Scouttens arranged for M.S. to

attend therapy. The goals included accepting her parents’ divorce and identifying her

emotions.

       Several months passed before Ms. Schreiner became aware of M.S.’s therapy

sessions. Upon this discovery, Ms. Schreiner contacted the therapist by e-mail to

complain about being excluded from the process. M.S.’s therapist invited Ms. Schreiner

to attend a therapy session and she provided Ms. Schreiner with some updates on M.S.’s

progress, as permitted by Mr. Scoutten. Ms. Schreiner was dissatisfied with this level of

interaction and repeatedly e-mailed the therapist to voice her frustrations. The majority of


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In re Marriage of Scoutten


Ms. Schreiner’s e-mails to the therapist included derogatory remarks about Michael and

Monica Scoutten. A number of Ms. Schreiner’s e-mails accused the Scouttens of illegal

conduct.

       From 2015 to 2018, Ms. Schreiner made several allegations against Monica

Scoutten. Law enforcement and child protective services became involved. Mutual

restraining orders were imposed. Charges were never brought against Ms. Scoutten, nor

did child protective services take any action.

       In early 2018, Mr. Scoutten learned he was selected for an army position in the

country of Wales.2 Mr. Scoutten notified Ms. Schreiner of his intent to move and filed a

relocation petition under RCW 26.09.520. Ms. Schreiner objected to relocation and asked

for a modification so that M.S. would be placed back in her care.3

       A three-day trial was held on the relocation petition and request for modification.

The court heard testimony from Michael and Monica Scoutten, Angela Schreiner, Ms.

Schreiner’s stepfather, individuals from M.S.’s school, and friends of M.S. and Ms.



       2
        Mr. Scoutten is a noncommissioned officer in the United States Army.
       3
        Mr. Scoutten actually filed two relocation petitions. The first one was withdrawn
after Mr. Scoutten learned the Army had not authorized him to move to Wales with his
family. Once the Army’s orders were amended to allow his family to relocate as well, Mr.
Scoutten filed a second relocation petition. Ms. Schreiner objected to both petitions and
requested modification so that M.S. would be returned to her custody.

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Schreiner. The court also received records from M.S.’s therapist, along with a variety of

school, police, medical, and child protective services records.

       The Scouttens and Ms. Schreiner presented very different depictions of M.S.’s

living circumstances. According to Ms. Schreiner, M.S.’s current living circumstances

were a disaster. She alleged Ms. Scoutten engaged in physical abuse and contended Mr.

Scoutten was essentially unavailable due to his military deployments. The Scouttens

denied Ms. Schreiner’s allegations. They claimed Ms. Schreiner was the one creating

conflict in M.S.’s life through her false allegations of misconduct and improper assertions

of decision-making authority to M.S.’s care providers.

       After hearing the evidence, the trial court credited the testimony of the Scouttens

over Ms. Schreiner’s testimony. This assessment was based not only on demeanor, but the

records from M.S.’s therapist.4

       M.S.’s therapy records supported the Scouttens’ depiction of M.S.’s living

circumstances. Notes from the therapist indicate most of M.S.’s familial stress came from

her mother. M.S. made comments to her therapist indicating Ms. Schreiner spoke ill of

Ms. Scoutten and that Ms. Schreiner pressured M.S. not to talk during therapy. M.S. told

her therapist that she loves her father and Ms. Scoutten and that she likes living with


       4
           The therapy records were admitted at trial by agreement of the parties.

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them. At times, M.S. commented that she did not like spending too much time with her

mother. M.S. told her therapist that she was excited about moving to Wales, even though

it meant she would not see her mom for a while. In a progress report, M.S.’s therapist

stated she thought the move to Wales would be good for M.S.

       The trial court granted Mr. Scoutten’s relocation petition, issued an amended

parenting plan and child support schedule, and ordered Ms. Schreiner to cooperate in the

release of M.S.’s passport. Ms. Schreiner has filed a timely pro se appeal. The case was

submitted without oral argument to a Division Three panel after an administrative transfer

from Division Two.

                                       ANALYSIS

       Superior courts have considerable discretion in dealing with the custody and

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

Family law disputes are often fact-intensive and turn on credibility assessments that can

only be made on an inperson basis. Appellate judges are not fact finders. We review

family law decisions merely for abuse of discretion. Under that standard, reversal is

warranted only if a trial court’s decision is “manifestly unreasonable or based upon

untenable grounds or reasons.” State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546

(1997). Ms. Schreiner’s various arguments fail to meet this demanding standard.


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In re Marriage of Scoutten


Relocation decision

       Washington law favors relocation by a primary residential parent. Under RCW

26.09.520, there is a rebuttable presumption that relocation “will be permitted.” A person

with residential or visitation rights may object to relocation and rebut the relocation

presumption “by demonstrating that the detrimental effect of the relocation outweighs the

benefit of the change to the child and the relocating” parent. Id.; see In re Marriage of

McNaught, 189 Wn. App. 545, 553-56, 359 P.3d 811 (2015) (affirming objecting parent

bears “burdens of persuasion and production” to rebut relocation presumption).

       The trial court here followed the applicable legal standards in issuing its relocation

decision. The court discussed each of the eleven relocation factors on the record. See

RCW 26.09.520(1)-(11). It found that some of the factors favored the father, some

favored the mother, and some were neutral. In the final analysis, the court determined that

relocation would be good for M.S. This determination was based on the court’s credibility

assessments and M.S.’s therapy records. The court therefore acted within its discretion in

deciding Ms. Schreiner had not rebutted the presumption in favor of relocation. The

relocation decision must be affirmed.

       In ruling Ms. Schreiner had not met her burden of rebutting the presumption in

favor of relocation, the court necessarily determined the parenting plan should not be


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modified so as to make Ms. Schreiner the primary residential parent. Ms. Schreiner’s

complaint that the trial court did not consider her modification request is without merit.

Parenting plan restrictions

       RCW 26.09.191 authorizes trial courts to restrict a parent’s residential time and

decision-making based on a finding of emotional abuse, RCW 26.09.191(1)-(2), or when

a parent’s conduct has an adverse effect on the child’s best interests. RCW 26.09.191(3).

A finding of abuse requires restrictions, whereas restrictions are optional when a parent’s

conduct merely has an adverse effect.

       The trial court’s .191 restrictions

       The trial court found restrictions appropriate under RCW 26.09.191(1), (2), and

(3).

       With respect to RCW 26.09.191(1) and (2), the court found Ms. Schreiner

subjected M.S. to emotional child abuse, explaining as follows:

       Pursuant to the mother’s past actions and consistent with her ongoing
       actions the court finds Mother’s abusive use of conflict creates emotional
       child abuse and a serious danger of an adverse effect on the child’s best
       interest. The mother’s actions continue to create an emotional abuse of the
       child.

Clerk’s Papers (CP) at 533.




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In re Marriage of Scoutten


      With respect to RCW 26.09.191(3), the court made additional findings in support

of the conclusion that Ms. Schreiner engaged in conduct harmful to M.S.’s best interests:

      1. The absence or substantial impairment of emotional ties between the
         child and the mother. Evidence at trial was overwhelming that the child
         does not want to return to her mother at conclusion of residential time
         with father.
      2. The abusive use of conflict by the mother which creates the danger of
         serious damage to the child’s psychological development.
      3. Instability which the court finds detrimental to the child.
      4. The mother’s failure to communicate and engage in joint decision
         making and co-parenting.
      5. The court finds the mother has engaged in making untrue statements,
         including untrue allegations against the father.

CP at 533.

      Based on the foregoing findings, the trial court imposed the following restrictions:

           limitations on residential time;

           contact with M.S.’s school, medical providers, and counselors was limited

             to once a month by e-mail, absent an emergency;

           Mr. Scoutten was permitted to only respond to Ms. Schreiner’s e-mails once

             a week, absent emergency or up-coming travel; and

           like the 2015 plan, Mr. Scoutten was given sole decision-making authority,

             except for day-to-day decisions while M.S. was in Ms. Schreiner’s care.




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No. 37358-4-III
In re Marriage of Scoutten


      The restrictions were supported in fact

      The trial court had an adequate factual basis to impose restrictions based on

emotional abuse under RCW 26.09.191(1) and (2). The testimony from Mr. and Ms.

Scoutten demonstrated that the Scouttens provided M.S. with a loving and supportive

household, but that Ms. Schreiner was often a disruptive force, making false claims

against the Scouttens and involving law enforcement. M.S.’s therapy records indicate Ms.

Schreiner pressured M.S. not to say negative things about her to her counselor.5 Despite

this pressure, M.S. eventually disclosed she heard her mother say mean things about Ms.

Scoutten and that the she was upset about tensions between her two households. By 2018,

M.S. told her therapist that she felt “‘scared and icky when talking to mom.’” Sealed Ex.

15 at 244. M.S. worried that her mother would get mad and was watching her all the time.

M.S. repeatedly made clear to her therapist that she did not want to spend too much time

with her mother.

      M.S.’s therapy records also support the trial court’s finding of abusive use of

conflict pursuant to RCW 26.09.191(3)(e). The records reveal Ms. Schreiner repeatedly


      5
         The therapy notes state M.S. was often open when talking about her father and
stepmother, but when it came to her mother M.S. was guarded and sometimes scared to
talk. At one point, M.S. told her therapist her mother had told her not to talk in therapy
because it would get someone in trouble. M.S. indicated she was scared of getting herself
and her mother in trouble.

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No. 37358-4-III
In re Marriage of Scoutten


contacted M.S.’s therapist in a hostile, accusatory manner, calculated to paint the

Scouttens in an improper light. For example, on January 14, 2016, Ms. Schreiner sent five

e-mails to the therapist, alleging that the Scouttens were in contempt, that Ms. Scoutten

had yelled at Ms. Schreiner in front of M.S., that Ms. Scoutten had spanked M.S. and

been mean to her, and that Mr. Scoutten once strangled Ms. Schreiner. Ms. Schreiner’s e-

mails to the therapist rarely inquired as to M.S.’s well-being. Instead they focused on Ms.

Schreiner’s personal grievances against the Scouttens.

       The restrictions were appropriately tailored

       The restrictions chosen by the trial court were reasonable under the circumstances.

Ms. Schreiner was awarded unsupervised residential time with M.S each year and weekly

telephone and video contact. The durational limits on Ms. Schreiner’s residential time

with M.S. are not excessive; they are a natural result of the practical difficulty of travel

between Washington and Wales. The restrictions on Ms. Schreiner’s decision-making and

contact with care providers were based on evidence of Ms. Schreiner’s habit of misusing

contact with care providers as a method for sowing conflict between herself, M.S. and the

Scouttens. There was no abuse of discretion in imposing RCW 26.09.191 restrictions.




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In re Marriage of Scoutten


Child support modification

       Father’s income

       Contrary to Ms. Schreiner’s position, the trial court had sufficient information to

calculate Mr. Scoutten’s income for purposes of child support. Mr. Scoutten presented tax

records for the four years preceding the hearings in this case. He also provided paystubs

and bank statements for the months leading up to the court hearings. At the final hearing

in December 2018, the parties pointed out that a housing allowance on Mr. Scoutten’s

November 2018 paycheck may have been incorrect.6 Nevertheless, Mr. Scoutten provided

all information he had and the information before the court provided a reasonable basis

for determining Mr. Scoutten’s income.

       Ms. Schreiner complains that the support hearing should have been continued to

allow further information regarding Mr. Scoutten’s income. We find the trial court did not

abuse its discretion in denying a continuance. The support hearing was held

approximately six months after the relocation trial. It had been continued several times at

Ms. Schreiner’s request. The trial court acted appropriately in deciding to utilize

information available in November 2018 to set child support.


       6
        Mr. Scoutten’s housing allowance is indicated as “BAH $0.30” in the
entitlements section of his November 2018 paycheck. CP at 1285. He acknowledged this
amount was incorrect as the military had yet to adjust his allowance.

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In re Marriage of Scoutten


       Mother’s income

       At trial, there was no dispute that Ms. Schreiner was voluntarily unemployed and

had no income. Thus, in calculating child support, the trial court was required to impute

Ms. Schreiner’s income according to the following order of priority:

           (a) Full-time earnings at the current rate of pay;
           (b) Full-time earnings at the historical rate of pay based on reliable
       information, such as employment security department data;
           (c) Full-time earnings at a past rate of pay where information is
       incomplete or sporadic;
           (d) Full-time earnings at minimum wage in the jurisdiction where the
       parent resides if the parent has a recent history of minimum wage earnings,
       is recently coming off public assistance, aged, blind, or disabled assistance
       benefits, pregnant women assistance benefits, essential needs and housing
       support, supplemental security income, or disability, has recently been
       released from incarceration, or is a high school student;
           (e) Median net monthly income of year-round full-time workers as
       derived from the United States bureau of census, current population reports,
       or such replacement report as published by the bureau of census.

RCW 26.19.071(6).

       Ms. Schreiner’s attorney argued the court should impute income according to

minimum wage under RCW 26.19.071(6)(d). The court declined. Instead, the court

imputed Ms. Schreiner’s income according to the next priority level—median net income

based on census data, pursuant to RCW 26.19.071(6)(e).

       The trial court did not abuse its discretion in imputing income pursuant to RCW

26.19.071(6)(e). The record on appeal shows no recent minimum wage earnings to justify

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In re Marriage of Scoutten


imputation under RCW 26.19.071(6)(d). Instead, the evidence in the record showed

Ms. Schreiner was living an affluent lifestyle. The monthly rent at her condominium was

$1,700.00. She traveled to Thailand, France, and Hawaii during the months prior to trial.

Bank records revealed Ms. Schreiner frequently ate out at restaurants, including a $1,415

meal that she shared with her boyfriend at Canlis, a restaurant in Seattle. Ms. Schreiner

testified she was able to afford her various luxuries through the kindness of her parents,

brother, and boyfriend as well as student loans. Even crediting this explanation as true,

the trial court was permitted to take such resources into account in imputing Ms.

Schreiner’s income according to the lowest priority level, RCW 26.19.071(6)(e). See In re

Marriage of Foley, 84 Wn. App. 839, 843, 930 P.2d 929 (1997) (applying former RCW

26.19.071(6) (1993)); see also In re Marriage of Dodd, 120 Wn. App. 638, 646, 86 P.3d

801 (2004) (court may impute income with census records under former RCW

26.19.071(6) (1997) when parent’s deception makes income “impossible to ascertain”).

Allocation of travel costs

       Under RCW 26.19.080(3), long-distance travel costs “shall be shared by the

parents in the same proportion as the basic child support obligation.” This requirement

only extends to airfare or similar transportation expenses. McNaught, 189 Wn. App. at




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In re Marriage of Scoutten


567. It does not apply to lodging or other visitation costs. Id. “[A] trial court has

discretion to decide what travel expenses are necessary and reasonable.” Id.

       The trial court here ordered travel costs be shared by the parties according to their

child support percentages on a once per year basis. The end result was that Mr. Scoutten

would pay 80 percent of airfare for M.S. and an adult companion to travel to and from

Wales once per year. Ms. Schreiner was responsible for the remaining 20 percent. The

court declined to order additional trips or travel expenses, given the cost of international

airfare. The court noted Ms. Schreiner would be able to visit M.S. in Wales more often at

her own expense, provided advance notice was given to Mr. Scoutten.

       The trial court’s travel decision fell within its wide range of discretion. Given the

costs of international travel, it was not unreasonable for the court to limit Mr. Scoutten’s

responsibility for paying travel costs. Furthermore, Ms. Schreiner’s recent history of

overseas travel indicated she would be capable of some self-funded travel. We will not

disturb the trial court’s travel decision.

Trial court’s attorney fee award

       A trial court presiding over a family law proceeding “may order one party to pay

a reasonable amount in attorney fees and costs to the other party after considering the

financial resources of both parties.” In re Marriage of Burrill, 113 Wn. App. 863, 873,


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In re Marriage of Scoutten


56 P.3d 993 (2002). The court “may also award attorney fees if one spouse’s

intransigence increased the legal fees of the other party.” Id. In the case of intransigence,

financial resources are irrelevant. Id.

       The trial court imposed fees against Ms. Schreiner based on intransigence.

Although Ms. Schreiner had valid reasons to oppose Mr. Scoutten’s relocation petition,

the trial court found Ms. Schreiner’s accusations against the Scouttens were made in bad

faith and they unnecessarily complicated the proceedings and increased the expended

amount of attorney fees. Based on Ms. Schreiner’s obstructionist conduct, the trial court

awarded Mr. Scoutten $21,833 in fees.

       The trial court did not abuse its discretion in awarding attorney fees. The facts at

trial supported the conclusion that Ms. Schreiner was intransigent by repeatedly

fabricating claims against the Scouttens. Although Ms. Schreiner’s difficult conduct

permeated almost every aspect of the case, the court reduced its fee award by nearly half

in order to account for the fact that some of Ms. Schreiner’s litigation was in good faith.

This disposition was generous. Given that Ms. Schreiner’s false allegations against the

Scouttens permeated nearly every aspect of the parties’ case, the court could have granted

Mr. Scoutten’s fee request in full. Id.; see Foley, 84 Wn. App. at 847. The final fee award

is affirmed.


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Miscellaneous claims

       Ms. Schreiner makes several assignments of error that have not been preserved for

appellate review. See RAP 2.5(a). Ms. Schreiner waived her appearance of fairness claim

by failing to make a predisposition motion for disqualification. State v. Blizzard, 195 Wn.

App. 717, 725-26, 381 P.3d 1241 (2016). Ms. Schreiner has not shown the trial court

committed manifest constitutional error by treating her differently than Mr. Scoutten or by

requiring her to sign for M.S.’s passport. See RAP 2.5(a)(3). And the trial court had an

adequate basis for compelling Ms. Schreiner to facilitate finalization of M.S.’s passport,

since Mr. Scoutten needed a valid passport to exercise his relocation rights under the

court’s order.

Attorney fees on appeal

       Both parties seek attorney fees on appeal. Neither request is warranted. Ms.

Schreiner has unsuccessfully represented herself on appeal. There is no basis for fees in

such circumstances. With respect to Mr. Scoutten, his fee request is virtually a word-for-

word recitation of the fee request made in the parties’ prior appeal. This court’s decision

in that case (which was issued several months before Mr. Scoutten filed his current brief)

held Mr. Scoutten’s fee request was insufficiently detailed to warrant an award of fees.

See In re Marriage of Scoutten, No. 50159-7-II, slip op. at 24 (Wash. Ct. App. Feb. 26,


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2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2050159-7-

II%20Unpublished%20Opinion.pdf. Mr. Scoutten provides no reason for us to depart

from our prior assessment of his briefing. Mr. Scoutten’s request for fees must therefore

be denied.

                                    CONCLUSION

       The orders on appeal are affirmed.

       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.

                                            _________________________________
                                            Pennell, C.J.

WE CONCUR:



______________________________
Korsmo, J.


______________________________
Siddoway, J.




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