     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



In the Matter of the Parentage of K.D.,
                                                  No. 70537-7-1
                     Minor Child.
                                                  DIVISION ONE
                                                                                      r-o            o
                                                                                      o          COO
                                                                                      •'   'i-
                                                                                                 —<cr
                                                                                      J7-
                                                                                                 5: P3
                                                                                      C_         —izi
MICHELLE WILBURN-DONAHUE,                                                                        n


                                                                                      f\3
                                                                                                 _.2>_J
                     Appellant,
                                                                                                 >-Ti,-n
                                                                                      s»
                                                                                      3C         5>w
      v.
                                                                                                 en co
                                                  UNPUBLISHED OPINION                 «»


                                                                                                 HO
                                                                                      CD         O   —
CHRISTOPHER DILWORTH,                                                                 jr         z-<



                     Respondent.

                                                  FILED: January 21.2014

       Spearman, A.C.J. — Michelle Wilburn-Donahue (now Baker) appeals an

order of the superior court described by the court as a clarification of a previous

order it entered in a parenting plan modification proceeding between Wilburn-

Donahue and Christopher Dilworth. We agree with Wilburn-Donahue that (1) the

order was not a clarification but a modification of the court's prior order and (2)

the order was contrary to the court's findings of fact entered in conjunction with

the parenting plan. We remand for partial vacation of the order.
No. 70537-7-1/2


                                       FACTS

       Wilburn-Donahue and Dilworth are the parents of K.D. After they

separated in 2009, this parentage case was commenced. Wilburn-Donahue later

married Charles Baker, who was transferred by his employer, the United States

Army, to Anchorage, Alaska. Wilburn-Donahue obtained a temporary parenting

plan that permitted her to take K.D. to Alaska and provided that the parties would

share equally the cost of airfare for Dilworth to visit K.D. in Alaska. On March 30,

2010, the parties entered a final agreed parenting plan that provided, "The

mother and the father shall each pay half of the airfare for the father to visit the

child once per month and for the child to visit the father in Washington once a

year." Clerk's Papers (CP) at 30. The final parenting plan does not mention hotel

or car rental costs.


       The Army later transferred Baker to Joint Base Lewis-McChord in Fort

Lewis, Washington and the couple, with K.D., lived briefly in Washington, as

evidenced by Wilburn-Donahue's filing of a notice of intent to relocate. Dilworth

did not object. In 2012, the Army ordered Baker to move to San Antonio and

Wilburn-Donahue filed a notice of intent to relocate. Dilworth objected and

petitioned for modification of the parenting plan. He noted that the original

parenting plan had been developed while K.D. was living in Alaska and asserted

that flight times to San Antonio would be longer and travel to that city more

costly. He requested, among a number of other things, that the parties "shall

each pay half of the traveling expenses including airfare, hotel and rental car for

the father to visit the child twice a month." CP at 54.
No. 70537-7-1/3


       On April 17, 2013, the question of modification of the parenting plan was

tried before the superior court. Wilburn-Donahue presented evidence that airfare

costs to San Antonio and car rental and hotel rates in San Antonio were

comparable to or less than costs of airfare to Anchorage and car rental and hotel

rates in Anchorage. Dilworth presented no evidence to the contrary.

       The next day, April 18, the superior court entered findings of fact and

conclusions of law, an order on Dilworth's petition for modification of the

parenting plan, and a final parenting plan. The court's orders substantially

maintained the status quo as to the March 2010 parenting plan, with the court

indicating in its order on modification that "[t]he petition for modification should be

denied." CP at 93. It also stated in its findings of fact,

       The Court finds that the prior parenting plan of March, 2010 was
       entered by agreement and was drafted in circumstances similar
       to those now applicable. The parties foresaw that relocation was
       a probability due to the mother's husband's military obligations.
       The Court finds that the cost for the father to travel to San
       Antonio is not substantially different from the cost to travel to
       Anchorage, and ... in most situations is just slightly less.

CP at 87. The court concluded,

       The fact of the mother residing in San Antonio does not create
       circumstances that are substantially different from those that
       applied when the mother resided in Anchorage. The mother's
       relocation is not a circumstance that was unforeseen at the
       time the current parenting plan was drafted, and was
       addressed in detail in that plan. There is therefore no basis
       under RCW 26.09.260 to modify the plan.

CP at 88. The parenting plan stated, at section 3.11:

       The mother and the father shall each pay half of the airfare for
       the father to visit the child once per month and for the child to
       visit the father in Washington once a year. The mother shall
No. 70537-7-1/4


       reimburse the father for her share of air fare within 30 days of
       receipt of transportation expense verification, provided that the
       father books flights at least three weeks in advance and takes
       advantage of best available rates for airfare, hotel
         accommodations, and car rentals. If the father elects to book a
         more expensive transportation or accommodation, the mother
         shall be obligated only to pay 50% of what the father would
         have paid had he booked his reservations at least three weeks
         in advance and made reasonable effort to take advantage of
         available savings.

CP at 78-79.

         On May 29, 2013, Dilworth sent the superior court an email seeking

clarification of its April 18 orders.1 In pertinent part, he sought clarification on
whether the court's orders required Wilburn-Donahue to pay for half of his hotel

accommodations and car rentals, in addition to airfare, when he visited K.D. in

Texas.

         On June 17, 2013, the superior court held a "telephonic meeting"2 with
Wilburn-Donahue and Dilworth.3 It stated that while Wilburn-Donahue's attorney

had not been notified of the meeting, she was waiving the opportunity to

reschedule and wanted to handle the matter on her own.4 The court confirmed

that Wilburn-Donahue had seen Dilworth's email. The court read section 3.11 of

the parenting plan and stated that it was "taken right out of the prior parenting


         1The email does not appear in the record.
         2Under CR 7(b)(5), "[o]ral argumenton civil motions, including family law motions, may
be heard by conference telephone call in the discretion of the court."

         3The audio log of the telephonic meeting has been transcribed and appears in the
record. The record also contains clerk's minutes summarizing the June 17, 2013 telephone
meeting.

         4 Dilworth had appeared pro se in the modification proceedings.
No. 70537-7-1/5


plan." Report of Proceedings (RP) (6/17/13) at 10. It then stated, "It was the

Court's intention that the reimbursement extends to air travel, hotel

accommodation and vehicle rental." CP at 9. The following day, June 18, the

court issued an order clarifying the April 18, 2013 parenting plan, stating,

       With regard to [Wilburn-Donahue's] obligation to reimburse
       [Dilworth] for the costs associated with his monthly visits with
       the child, Paragraph 3.11 shall require [Wilburn-Donahue] to
       reimburse [Dilworth] for half of the costs of airfare, hotel
       accommodations and car rentals pursuant to Paragraph 3.11.
       [Dilworth] is obligated to use his best efforts to obtain the most
       economical airfare, lodging and car rental expenses pursuant
       to Paragraph 3.11.

CP at 99.

       Wilburn-Donahue appeals the superior court's June 18, 2013 order.

                                    DISCUSSION

       Wilburn-Donahue contends the superior court's order was not a

clarification but a modification of its prior order and that it must be vacated

because (1) the court lacked subject matter jurisdiction due to Dilworth's failure to

(a) bring a written motion in compliance with CR 5 and CR 7 and (b) timely move

for amendment of the April 2013 parenting plan under CR 59; and (2) the court's

order was contrary to its findings of fact entered in conjunction with the parenting

plan. Dilworth responds that the superior court simply clarified its intent as

contained in the April 2013 parenting plan.

       We agree with Wilburn-Donahue that the superior court's order was not a

clarification but a modification of its April 2013 parenting plan. A modification

occurs when rights given to one of the parties are either extended beyond the
No. 70537-7-1/6


scope originally intended or reduced, giving the party fewer rights than those

originally received. Rivard v. Rivard. 75 Wn.2d 415, 418, 451 P.2d 677 (1969).

Section 3.11 of the April 2013 parenting plan expressly required Wilburn-

Donahue to pay for half the cost of airfare. It did not expressly require her to pay

for half of the costs of a rental car and hotel, though its language on that issue

was somewhat ambiguous because it made reference to such costs.

Notwithstanding any ambiguity in that language, the April 2013 orders purported

to deny Dilworth's petition for modification and stated that there was "no basis" to

modify the March 2010 parenting plan. That parenting plan required Wilburn-

Donahue to pay for only half of Dilworth's airfare. It made no mention of Wilburn-

Donahue sharing in the costs of hotel accommodations and car rentals.

Furthermore, it is apparent from the superior court's statements during the June

2013 telephonic meeting that, insofar as travel reimbursements were concerned,

it believed its April 2013 orders did not deviate from the previous March 2010

parenting plan.5
       We also agree with Wilburn-Donahue that the superior court's ruling

requiring her to share in the costs of hotel accommodations and car rentals is

contrary to the findings of fact the court had entered in connection with the




       5Thejudge who entered the April 18, 2013 and June 18, 2013 orders was not the same
judge who entered the final agreed parenting plan on March 30, 2010.
No. 70537-7-1/7


parenting plan it was purporting to clarify.6 The April 2013 findings offact stated
that Wilburn-Donahue's move to Texas did not create circumstances

substantially different from those when she lived in Alaska; that her "relocation is

not a circumstance that was unforeseen at the time the current parenting plan

was drafted, and was addressed in detail in that plan"; and that there was

"therefore no basis under RCW 26.09.260 to modify the plan."7 CP at 88. The
court's April 2013 order on modification stated that it was denying Dilworth's

petition for modification. It is undisputed that the prior March 2010 parenting plan

made no provision for Wilburn-Donahue to share in the costs of hotel

accommodations or car rentals. Thus, the later order requiring Wilburn-Donahue

to pay half of those expenses is contrary to and not supported by its findings of




        6Wilburn-Donahue's argument that the superior court lacked subjectmatter jurisdiction to
hear the clarification issue due to Dilworth's failure to bring a written motion in accordance with
CR 5 and CR 7 is meritless. While it is undisputed that Dilworth did not comply with these rules,
none of the authorities cited by Wilburn-Donahue supports her argument, nor does she otherwise
show that she may raise this issue for the first time on appeal. Some of the cited cases simply
pertain to whether the trial court ruled appropriately where procedural rules were involved. See In
Recall of Lindquist, 172 Wn.2d 120, 129, 258 P.3d 9 (2011) (trial court properly dismissed
affidavit of prejudice because it was filed without a signed motion as required by RCW 4.12.050,
CR 7, and CR 11); In re Marriage of Christel v. Blanchard. 101 Wn. App. 13, 22-24, 1 P.3d 600
(2000) (trial court erred in entering order modifying dispute resolution process where neither party
sought or moved for clarification or modification of that issue); Davenport v. Davenport, 4 Wn.
App. 733, 734 (1971) (trial court did not err in denying a motion for a voluntary nonsuit where
party did not file written motion until December 1970 but asserted that date of filing was the date
party made oral, ex-parte motion in August 1970). James v. Cntv of Kitsap, 154 Wn.2d 574, 588,
115 P.3d 286 (2005) supports the proposition that a court's jurisdiction can be contingent upon
procedural requirements imposed by statute. But CR 5 or CR 7 do not state that a court lacks
subject matter jurisdiction for failure to comply with those rules. We also reject Wilburn-Donahue's
argument that the superior court lacked subject matter jurisdiction because of Dilworth's failure to
move for amendment of the April 18, 2013 parenting plan within ten days, as required by CR
59(h). She cites no authority for the proposition that a party's failure to comply with CR 59(h)
results in a court's lack of subject matter jurisdiction.

        7The court did notenter any findings of fact in connection with the orderon clarification.
No. 70537-7-1/8


fact, which indicate that there have been no changes justifying modification to the

parenting plan.

        Accordingly, we remand with instructions to vacate, in pertinent part, the

superior court's June 2013 order.

        Remanded with instructions to vacate in part.8



WE CONCUR:
                                                                                 i^

                                                                ^ g>ft* \




        8The June 18, 2013 order also addressed Dilworth's request for clarification on a
separate visitation issue. Wilburn-Donahue's appeal does not address that issue, and it is not
affected by our decision.


                                                8
