                                                                                                              FILED
                                                                                                       OOURT OF APPEALS
                                                                                                             DIVISMl 11

                                                                                                      2013 NAY 1        AMY 9: 01
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                      STAT   o            x,   ors

                                                  DIVISION II                                         BY
                                                                                                                   go
In re Marriage of:                                                            No. 42453 3 II
                                                                                        - -


BRYAN LEE ESTILL,

                                        Appellant,
           and


EVELYN MATEO ESTILL,                                                    UNPUBLISHED OPINION


                                        Respondent.

           PENOYAR J. — Bryan            Estill filed for dissolution of his marriage to Evelyn Estill. He

appeals     the final   parenting plan designating       Evelyn as the primary residential parent of their

child, IE. He argues that (1) parenting plan is inconsistent with RCW 26. 9.2) trial
                            the                                       184, (
                                                                        0     the

court misapplied RCW 26. 9.3)the trial court erred when it found that Evelyn did not
                     187, (
                       0
engage in abusive use of conflict or alienation, and (4) trial court erred by awarding attorney
                                                        the
fees to Evelyn. Though the parties presented conflicting evidence to the trial court on each of

these issues, substantial_
              _          evidence,_
                                 supports each of the trial court's findings, which, in turn,

support the trial court's conclusions. We therefore affirm.
                                                       FACTS


           Bryan and Evelyn married in April 2005. Their child, IE,was born in August 2005 in the
Philippines. After IE's birth, Bryan left the Philippines but would occasionally return to visit IE
and   Evelyn. In June 2008, Evelyn moved to Washington, leaving IE in her relatives' care.

Bryan was living and working in British Columbia at the time. Evelyn brought IE to live with
her in Washington in January 2010.




1
                              to the   parties by their first names.   We intend        disrespect.
    For   clarity, we refer                                                        no
42453 3 II
      - -




       Bryan filed for dissolution on February 5 2010. Between this date and the eventual trial,

both parties filed multiple motions and the trial court amended the temporary parenting plan

several times. The initial temporary parenting plan, entered on May 6, 2010, provided that IE

would reside primarily with Evelyn and visit Bryan every other weekend. At that time, the trial

court also appointed a guardian ad litem ( AL).
                                         G

       Evelyn twice violated the parenting plan. The first time, she misunderstood the parenting

plan's wording, resulting in IE missing a holiday with Bryan. The second time, Evelyn refused
to allow Bryan to take IE for his scheduled residential time, producing a doctor's note stating

that IE was too sick to travel. Bryan filed a contempt motion against Evelyn for violating the

parenting plan. The trial court found Evelyn in contempt and awarded Bryan attorney fees but
reserved determination of the amount for trial.

       In response to the GAL's report filed after the contempt hearing, the trial court modified
the temporary parenting plan, granting Bryan primary residential status and allowing Evelyn

supervised residential time one Saturday a month. The trial court restricted Evelyn's residential
time because it found that she "engaged in a pattern of alienation of the child's relationship

with]the father that is detrimental to the child's well-
                                                       being"and it was concerned that she was a
flight risk..Clerk's Papers (CP)at 570. This parenting plan remained in effect until.rial.
                                                                                    t
       At trial, Bryan argued that Evelyn was restricting his access to IE and manipulating IE
against him. He presented e mails from Evelyn stating that she was going to "nurture [IE] to
                            -
hate [him]" that she was going to terminate his parental rights. Report of Proceedings (RP)
          and
at 102. Evelyn admitted that she wrote some, but not all, of the e-
                                                                  mails. Bryan testified that the
residential time exchanges were long and difficult because Evelyn allowed IE to hide behind her
rather than   encouraging   IE   to   go with him.       He also introduced recordings of two phone
                                                     2
42453 3 II
      - -



conversations between Evelyn and IE where Evelyn repeatedly disparages Bryan and asks IE

which parent he loves more.

        The GAL testified that she did not believe Evelyn was intentionally alienating IE but that

she believed both parties had engaged in abusive use of conflict by filing excessive motions. Dr.

Daniel Rybicki, the psychologist Evelyn hired to perform her psychological assessment, testified

that Evelyn discussed "inappropriate" topics with IE during the recorded phone calls but that it
was common for parents involved in parenting disputes to make negative comments about each
other. RP at 197. He also noted that Evelyn's derogatory statements, rather than eliciting an

alienating response, caused IE to become upset at her, not Bryan. He concluded that nothing he
observed in his assessment raised concerns about a parenting deficit, such as alienation.

         Bryan also argued at trial that Evelyn was not adequately. addressing IE's developmental
needs. He testified that when he visited IE in the Philippines, the four - old was still drinking
                                                                         year -

a   bottle and   appeared   to be unable to feed himself.      He further testified that, during his first

residential times, he had difficulty convincing IE to eat. However, he said that IE is now eating

well and feeding himself, and the GAL testified that she did not have any concerns about IE's
nutrition.


         The trial court concluded that the temporary parenting plan was a "gross deviation"from

the statutory               and that the statutory factors   weighed heavily   in   Evelyn's   favor. CP at
                 analysis

1014. The trial court noted that IE was born in the Philippines, speaks the same dialect as his

mother, and was raised by his maternal relatives. It found that Evelyn had the "strongest most

nurturing relationship"with IE and that she was meeting his developmental and emotional needs

2
    Judge Orlando presided over the trial, but the previous motions were heard and considered by
other judges or commissioners.
                                                      3
42453 3 II
      - -



and caring for his physical safety. CP at 1047. The trial court also found that, although Evelyn

was angry at Bryan, her actions did not establish abusive use of conflict or parental alienation.

        The trial court approved the final parenting plan, which provided that IE would reside

primarily with Evelyn and visit Bryan every other weekend, with holidays and summers evenly

split. The plan allows for a more generous schedule if Bryan moves to Pierce County. The trial
court also awarded Evelyn $ 500 in attorney fees. This amount included an offset for the fees
                          3,                           .

Evelyn owed Bryan as a result of the contempt order. Bryan appeals.
                                              ANALYSIS


I.      STANDARD OF REVIEW


        We review a trial court's decisions in a final parenting plan to determine if the decisions

were   manifestly unreasonable   or   based   on   untenable   grounds   or reasons.   In re Marriage of

Kovacs, 121 Wn. d 795, 801, 854 P. d 629 (1993).Placement decisions are based on the child's
              2                  2
best interests, as found at the time of trial. RCW 26. 9. re Marriage of Littlefield,
                                                   a);
                                                   187(
                                                      3 In
                                                      0 )(
133 Wn. d 39, 52, 940 P. d 1362 (1997).The trial court has a unique opportunity to observe the
      2                2
                                       reluctant to disturb child    placement dispositions. "'    In re
parties; thus,   we        extremely
                      are "`




Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P. d 1280 (2001) quoting In re Marriage
                                                   3               (
ofSchneider, 82 Wn. App. 471, 476, 918 P. d 543 (1996)).
                                        2
        We will not retry the facts on appeal and will accept findings of fact as verities if
substantial evidence in the record supports them. In re Marriage of Thomas, 63 Wn. App. 658,

660, 821 P. d 1227 (1991).We review conclusions of law to determine whether the trial court's
          2
findings of fact support them. In re Marriage of Myers, 123 Wn. App. 889, 893, 99 P. d 398
                                                                                   3
 2004).As long as substantial evidence supports a finding, it does not matter that other evidence
may contradict it. In re Marriage ofBurrill, 113 Wn. App. 863, 868, 56 P. d 993 (2002).We
                                                                        3
                                                      11
42453 3 II
      - -



do not review the trial court's credibility determinations, nor can we weigh conflicting evidence.

In re Marriage ofRich, 80 Wn. App. 252, 259, 907 P. d 1234 (1996).
                                                  2

II.     RCW 26. 9.
            184
              0


        Bryan first argues that the parenting plan is not consistent with the objectives in RCW

184(
26. 9. Specifically, he argues that there is evidence that Evelyn cannot maintain IE's
   1
   0 ).

emotional stability, that she cannot provide for IE's changing developmental needs, and that she

exposed IE to harmful parental conflict. These arguments necessarily question the trial court's
credibility determinations and the weight it gave conflicting evidence. Since we do not second
guess a trial court's evaluation of conflicting evidence, we will not review these arguments.
III.     RCW 26. 9.
             187(
                3
                0 )

         Next, Bryan argues that the trial court erred when it concluded that the factors in RCW
a) Evelyn's favor. Because substantial evidence supports the trial court's
187(
26. 9.
   3 weigh in
   0 )(
findings regarding the statutory factors and the findings support the trial court's conclusion that
the factors weigh in Evelyn's favor, we disagree.


3
  RCW 26. 9.states that the objectives of a parenting plan are to provide for the child's
        184(   1
               0 )
physical care; maintain the child's emotional stability; provide for the child's changing needs; set
forth each parent's authority and responsibilities; minimize the child's exposure to harmful
parental conduct; encourage the parents to meet their responsibilities through agreements in the
parenting plan; and otherwise protect the child's best interests.
4
    Bryan also argues that the trial court put undue emphasis on Evelyn's cultural ` eritage. This
                                                                                   h
argument is not persuasive. Although the trial court found that IE speaks the same dialect and
was raised by his maternal relatives in the same culture as Evelyn, Bryan fails to show that the
trial court gave unreasonable weight to this finding. It was only one of many findings the trial
court made in support of its conclusion that the statutory factors weigh in Evelyn's favor, and the
trial court did not extensively discuss this finding or otherwise indicate that it gave this finding
more weight than any other. Further, in its written ruling, the trial court mentioned this finding
in connection with the fact that IE did not meet his     paternal   relatives until 2010. From this

context, it appears that the trial court was considering IE's relationships with his extended family
rather than his exposure to his parents' cultures.
                                                     5
42453 3 II
      - -




          RCW 26. 9.lists criteria for determining residential placement under a parenting
              187(
                 3
                 0 )

plan. The trial court must consider (1) relative strength, nature, and stability of the child's
                                       the
relationship with each parent; 2) parties' agreements; 3)
                               ( the                   ( each parent's past and potential for

future performance of parenting functions; 4)the child's emotional needs and developmental
                                           (

level; 5) child's relationship with siblings and other adults and his involvement with school
       ( the
and other activities;6)the parents' wishes; and (7) parents' employment schedules. RCW
                     (                             the

  0 . a). trial
26. 9 1 87(  The                     court   shall   give   the   first   factor   the   most   weight.   RCW
          3)(

a).
187(
26. 9.
   3)(
   0

          The trial court concluded that the statutory factors weigh in Evelyn's favor because she

had the strongest and most nurturing relationship with IE, she had provided the majority of the

parenting functions, and she was meeting IE's emotional and developmental needs and caring for
his physical safety. There is substantial evidence in the record to support each of these findings,
and the findings support the trial court's conclusion that primary residential placement should be
with Evelyn.

          First, there is substantial evidence that Evelyn had the strongest and most nurturing

relationship     with IE.     Until the trial court entered the temporary parenting plan restricting

Evelyn's custody, IE lived with her or her family. and saw Bryan only 'during his occasional
visits.    Bryan argues that duration of care alone does not necessarily evidence a strong
relationship, but the strength of Evelyn and IE's relationship is further evidenced by Dr.

Rybicki's testimony IE exhibits positive attachment to Evelyn.
          Further, there is substantial evidence that Evelyn performed the majority of the parenting
functions.      For the first years of IE's life, Bryan lived in another country, leaving Evelyn to

perform     a   majority of   IE'
                                s   parenting. Although Bryan contends that he has also performed
                                                        6
42453 3 II
      - -




parenting functions, this argument goes to the trial court's credibility determinations and the
weight it placed on evidence. We do not review credibility determinations or reweigh evidence

on appeal.

       There is also substantial evidence that Evelyn was meeting IE's emotional and

developmental needs. Bryan's argument to the contrary is based on his testimony that IE was

still taking a bottle at age four and that he initially had difficulty getting IE to eat. But, the trial.
                                                                       .
record establishes that IE is now feeding himself and eating well, and the GAL testified that she

was not concerned about IE' nutrition.
                          s

IV.     RCW 26. 9.
            191(
               3
               0 )

        Bryan next argues that the trial court erred when it found that Evelyn did not engage in
alienation   or   abusive use of conflict.   Because substantial evidence supports the trial court's

finding, his argument fails.

        Under RCW 26. 9. trial court may limit the parenting plan if a parent's
                  e),
                  191(
                     3 the
                     0 )(
abusive use of conflict creates a danger of serious damage to the child's psychological

development. Here, the      trial court found that "[ he mother is
                                                   t]                angry at the father but her actions ..

do not establish abusive use of conflict or parental alienation."CP at 1047.

        There is substantial evidence to support the trial court's finding. The GAL testified that

she did not believe Evelyn was intentionally alienating IE and that she did not recommend any
restrictions under RCW 26. 9. Dr. Rybicki testified that, based on his observations, he saw
                       191.
                         0

nothing that concerned him about alienation or abusive use of conflict. Bryan presented e mails
                                                                                          -
evidencing Evelyn's attempts to alienate IE,but she denied responsibility for at least some of the
e-
 mails. Evelyn twice violated the parenting plan, but the facts surrounding each violation were
contested. We will not reweigh the evidence or make credibility determinations. Thus, despite
                                                    7
42453 3 II
      - -




the presence of some contradictory evidence, substantial evidence supports the finding that

Evelyn did not engage in alienation or abusive use of conflict.
V.     GAL RECOMMENDATIONS

                                      that   the   trial       court   improperly disregarded        the   GAL's
       Finally, Bryan        argues


recommendations. He does not identify which recommendations the trial court disregarded nor

does he             any citations to the record.    Although       we   need not consider arguments that
          provide                                                                                              are

unsupported by reference to the record or authority, see Cowiche Canyon Conservancy v. Bosley,
118 Wn. d 801, 809, 828 P. d 549 (1992), briefly address Bryan's argument here and
      2                  2             we

conclude that the trial court did not act improperly by disagreeing with the GAL's
                                                                                                           0
recommendations.


          Bryan admits that "[ he trial court remains free to ignore the recommendations made by
                            t]

the guardian ad litem if they are not supported by other evidence or it finds other testimony more
persuasive."Appellant's Br. at 48 (citing In re Guardianship ofStamm; 121 Wn. App. 830, 836,
91 P. d 126 (2004);
    3             Fernando v. Nieswandt, 87 Wn. App. 103, 107, 940 P. d 1380 (1997)).
                                                                    2
Bryan appears to be challenging the trial court's decision to make Evelyn the primary residential
parent despite the GAL's recommendation naming him as the primary residential parent.
          Although the GAL recommended that Bryan be the primary residential parent, she stated
that this   was a   very difficult situation.   She also noted that her recommendation for Evelyn's

paltry parental contact schedule was "only due to the distance between the parties." CP at 558.
Her report mentions concerns regarding alienation, but she testified at trial that the issues may be
cultural and that she did not make any recommendations on RCW 26. 9.restrictions.
                                                              191
                                                                0

          As   we   discussed above, Evelyn has       performed         the   majority of   IE'
                                                                                              s   parenting.   The


 statutory factors weigh in her favor, and there is substantial evidence supporting the trial court's
                                                           8
42453 3 II
      - -




finding   that she did not engage in abusive   use   of conflict   or   alienation. Substantial evidence


supports the trial court's decision to make Evelyn the primary residential parent.
VI.       ATTORNEY FEES


          A.     TRIAL


          Bryan argues that the trial court erred by awarding attorney fees to Evelyn because it

found her in contempt and she was intransigent. We review a statutory attorney fee award to
determine if the trial court's decision was manifestly unreasonable or based on untenable

grounds    or reasons.    In re Marriage of Coy, 160 Wn. App. 797, 807, 248 P. d 1101 ( 2011).
                                                                             3

Under RCW 26. 9. the trial court determines that a parent has violated a court
          b)(
          160(
             ii),
             2)(
             0 if

order in bad faith, it shall find the parent in contempt and shall order the parent to pay the

moving party's costs and fees incurred as a result of the noncompliance. The trial court may also
award attorney fees based on a party's intransigence as demonstrated by "litigious behavior,
bringing excessive motions, or discovery abuses." In re Marriage of Wallace, 111 Wn. App.
697, 710, 45 P. d 1131 (2002).
              3

          Here, Evelyn requested $ 500 in attorney fees and the trial court awarded her $ 500.
                                 7,                                                     3,
This amount included an offset for Bryan's fees for litigating the contempt motion. Bryan asked

the court to reconsider the attorney fees, arguing that Evelyn was intransigent. The trial. court

declined, stating that Bryan had a greater ability to pay the fees.

          Given the contested facts, the excessive motions, and the parties' financial positions, the

trial court    properly   exercised its broad discretion in awarding attorney fees.         Moreover, it

subtracted the contempt fees from Evelyn's award in compliance with RCW 26. 9.
                                                                        b)(
                                                                        160(
                                                                           ii).
                                                                           2)(
                                                                           0




                                                     9
42453 3 II
      - -



       B.         APPEAL


       Evelyn argues that we should award her attorney fees on appeal because she has a need

and Bryan has the        ability   to pay.   We have discretion to order a party to pay for the cost of

maintaining the appeal and attorney fees in addition to statutory costs. RCW 26. 9. When
                                                                             140.
                                                                               0

awarding attorney fees, we examine the arguable merit of the issues and the parties' financial

resources.   In   re   Marriage of Griffin, 114 Wn. d 772,779, 791 P. d 519 (1990). The parties
                                                  2        "        2


must file financial affidavits with the court no later than 10 days before oral argument. RAP

18. ( The parties did not file financial affidavits here; thus, we cannot evaluate the current
c).
  1

financial   resources    of the    parties, and   we   decline to award further fees.   In re Marriage of

Johnson, 107 Wn. App. 500, 505, 27 P. d 654 (2001).
                                    3

       We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We concur:




        Van Deren, J.




                                                          10
