                                                            Filed
                                                      Washington State
                                                      Court of Appeals
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                       Division Two

                                             DIVISION II                                     January 5, 2016

    In re Parentage of                                                      No. 46344-0-II

    AC,
                                                                   UNPUBLISHED OPINION
                                   Minor.
    LW,

                                    Respondent,,

           v.

    ZC,

                                   Appellant,
    and

    WW,
                                   Respondent.


    In re AC

    CT and DT,

                                   Petitioners,

           v.

    ZC; and LW,

                                   Respondents.

          BJORGEN, A.C.J. — ZC1 appeals the trial court’ s order denying a major modification to

the parenting plan for his child, AC, which would have transferred primary custody to him from

the mother, LW. ZC argues that (1) the trial court improperly applied the major modification

standard under RCW 26.09.260, (2) there is not substantial evidence in the record to support the


1
    We refer to the parties by their initials in order to retain privacy.
No. 46344-0-II


trial court’ s findings of fact, and such findings do not support its conclusion of law that he is not

entitled to a change of custody, and (3) the trial court abused its discretion when it declined to

follow the recommendation of the guardian ad litem that ZC be AC’ s primary parent. In

addition, LW requests attorney fees under RCW 26.26.140 and RAP 18.

       We hold that (1) ZC waived his challenge to the trial court’ s application of the major

modification standard, (2) substantial evidence in the record supports the findings that LW is

mentally stable and did not abandon AC, and such findings support the conclusion that ZC did

not meet his burden to justify a change of custody under the major modification standard, ( 3) the

trial court did not abuse its discretion in declining to follow the GAL’s recommendation, and (4)

LW is not entitled to attorney fees.

       Accordingly, we affirm the trial court and deny LW’ s request for attorney fees.

                                               FACTS

       LW gave birth to AC in September 2010. She petitioned the trial court to determine

parentage, and in April 2013, it determined that ZC was AC’ s biological father. ZC and LW

agreed to a parenting plan under which LW was the primary residential parent and ZC was given

no guaranteed residential time:

       3.5     Residential Schedule / Parenting Plan

       The primary residence of the child shall be with Petitioner, [LW], who is
       designated custodian solely for the purpose of other state and federal statutes.

        LW] shall be designated the custodian of the child, and the child shall reside with
        LW] at all times.

        ZC] shall have no residential time with the child unless agreed to between the
       parties.

Clerk’ s Papers (CP) at 277.




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No. 46344-0-II


       A year later, ZC sought modification of the final parenting plan under RCW 26.09.260,

seeking primary custody of AC. In April 2014, the trial court held a two-day hearing to

determine whether modification was appropriate. The trial court heard from several parties,

including LW, ZC, and a couple who had taken care of AC while LW was away in New York.

The court also heard from a GAL who, among other things, recommended that ZC be designated

AC’ s primary residential parent.

       In its ruling, the trial court applied the modification standard, rather than the initial

custody determination standard. In so reasoning, the trial court stated that because there was

already a parenting plan in place, it was ZC’s burden to show that a change of custody was

appropriate. The court found that while ZC had not met his burden for a major modification, he

had presented sufficient evidence for a minor modification.2 Thus, the trial court concluded that

the initial parentage order dated April 12, 2013, “ should be adjusted/modified into a long

distance parenting plan,” which granted ZC residential time with AC. CP at 229-30, 237

alteration in original). The trial court specifically found:

       This Court finds that the Respondent has not met or demonstrated the burden of a
       major modification.

       This Court does not find a substantial change in the circumstance of the child or the
       non-moving party.

       This Court finds the parent who did not have any parenting residential schedule
       previously, . . .is now requesting one. The Court does believe this child is bonded
       to the Respondent/Father and has a relationship with him.

       This Court did not find any abuse, threatening behavior or danger to this child by
       Petitioner/Mother’ s former husband.


2
  Consistent with the case law and the trial court, this opinion refers to the modification
authorized under RCW 26.09.260(1) as a “ major modification” and the adjustment authorized
under RCW 26.09.260(5) as a “ minor modification.” Application of the minor modification
standard is not challenged on appeal.


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No. 46344-0-II



CP at 237. The trial court also orally ruled that LW had not abandoned AC and that LW had no

mental health issues. ZC filed a motion for reconsideration, which the trial court denied. ZC

appeals the trial court’ s order denying a major modification.

                                             ANALYSIS

        ZC raises three challenges to the trial court’ s order denying him primary residential

custody of AC. ZC first argues that the trial court improperly applied and used the major

modification standard under RCW 26.09.260 in determining which parent should have primary

custody. Second, ZC argues that there is not substantial evidence in the record to support the

trial court’ s findings and such findings fail to support its conclusion that he is not entitled to a

change of custody under the major modification standard. Third, ZC argues that the trial court

abused its discretion when it declined to follow the GAL’s recommendation that ZC be the

primary custodial parent of AC.3 ZC’s challenges fail.

                                      I. STANDARD OF REVIEW

        We review a trial court’ s parenting plan for an abuse of discretion. In re Marriage of

Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012), cert. denied, 133 S. Ct. 889 (2013). A trial court

abuses its discretion when it makes a decision that “ is manifestly unreasonable or based on

untenable grounds or untenable reasons.” Id. at 35. We treat the trial court’ s findings of fact as




3
  ZC does not challenge the trial court’ s denial of his motion to reconsider in his assignments of
error. His only discussion of it in his opening brief is to describe the trial court’ s denial of his
motion in the statement of the case. From this, we must conclude that ZC is not challenging the
denial of reconsideration on appeal. If he were, the challenge would fail. ZC’ s motion for
reconsideration was based on texts that LW sent. Allegedly, they demonstrated that LW wanted
to make ZC the primary parent of AC. The texts, however, could just as reasonably be
interpreted to mean that LW simply wanted to let ZC know that she wanted him to be involved in
AC’ s life as the father. Thus, the trial court did not abuse its discretion in denying the motion for
reconsideration based on this evidence.

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No. 46344-0-II


verities as long as they are supported by substantial evidence. Id. at 35. “ Substantial evidence is

that which is sufficient to persuade a fair-minded person of the truth of the matter asserted.” Id. at

35. We review the trial court's conclusions of law by determining whether the findings of fact that

are supported by substantial evidence in turn support those conclusions. In re Marriage of Fahey,

164 Wn. App. 42, 55-56, 262 P.3d 128 (2011).

                                            II. WAIVER

        ZC argues that the trial court abused its discretion by applying an incorrect standard for a

major modification of a parenting plan. We hold that ZC waived this issue by failing to raise it

in the trial court.

        With exceptions not relevant here, this court in its discretion “ may refuse to review any

claim of error which was not raised in the trial court.” RAP 2.5(a). ZC did not raise the issue

regarding the major modification standard to the trial court. In fact, ZC endorsed the trial court’ s

major modification standard in his post-trial motion for reconsideration. Therefore, we hold that

ZC waived this challenge.

                                 III. FINDINGS AND CONCLUSIONS

        Next, we find the trial court did not abuse its discretion when it concluded that there was

no substantial change in AC’ s or LW’ s circumstances. In making this determination, we

examine whether the findings are supported by substantial evidence in the record and whether

this conclusion is supported by the trial court’ s findings that LW had not abandoned AC and that

LW was mentally stable. Katare, 175 Wn.2d at 35; Fahey, 164 Wn. App. at 55-56.

        In determining the initial custody placement of a child, a court’ s paramount concern is

the best interest of the child. RCW 26.09.002; In re Parentage of Schroeder, 106 Wn. App. 343,

349, 22 P.3d 1280 (2001). In contrast to the standard for the initial placement of a child, a court



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No. 46344-0-II


shall not modify a prior custody decree or parenting plan unless it finds “ that a substantial

change has occurred in the circumstances of the child or the nonmoving party.” RCW

26.09.260(1). Along with a showing of a substantial change of circumstances, a major

modification must also be in “the best interest of the child and . . . necessary to serve the best

interests of the child.” Id. The court may make such a major modification based on facts that

have arisen since the prior custody decree or that were unknown to the court at the time of the

prior decree. Id.

       In applying these standards, the court shall retain the residential schedule
       established by the decree or parenting plan, unless . . . ( c) [ t]he 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)(c). “We employ a strong presumption against modification because changes

in residences are highly disruptive to children.” In re Custody of Halls, 126 Wn. App. 599, 607,

109 P.3d 15 (2005). We also are “ generally reluctant to disturb a child custody disposition

because of the trial court’ s unique opportunity to personally observe the parties.” In re Custody

of Stell, 56 Wn. App. 356, 366, 783 P.2d 615 (1989). Therefore, the burden is on the moving

party to show that the modification is appropriate. Halls, 126 Wn. App. at 607.

       The trial court’ s findings support the conclusion that ZC failed to meet his burden of

proof under the major modification standard to show that LW or AC had a substantial change of

circumstances. It found that LW had not abandoned AC at any point and had acted as her

primary parent. The trial court found compelling that LW maintained Skype, cell phone, and e-

mail contact with AC and that she sent money to a couple to take care of AC while she was

away. LW ’s and the caretakers’ testimony constitutes substantial evidence to support these trial

court findings.



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No. 46344-0-II


          The trial court also found that LW had no mental health issues. Specifically, it found that

while she had some depression, it was not unusual given the circumstances of these parties. For

example, LW stood with a sign at ZC’ s apartment with a picture of AC and the statement:

    Daddy I Miss You.” Br. of Appellant at 7. LW testified, though, that she took this action

because ZC “ never ask[ed] about the baby. . . . I was really angry. . . . I ask him, come, let’ s

make her first birthday.” RP at 226-27. This testimony is sufficient to show that this was a

reasonable response to the present situation. LW’s testimony is substantial evidence that

supports the trial court’ s finding that she had no mental health issues.

          ZC is correct that conflicting evidence exists as to these findings, but “[ s]o long as

substantial evidence supports the finding, it does not matter that other evidence may contradict

it.” In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).4 While ZC may not

agree with the trial court’ s assessment of the evidence, substantial evidence in the record

supports its findings that LW did not abandon AC and that she was mentally stable. In turn,

these findings support the conclusion that ZC failed to meet his burden to show a substantial

change in AC’ s or LW’ s circumstances to merit a change of custody under the major

modification standard.

                                     IV. GAL RECOMMENDATION

          ZC argues that the trial court abused its discretion because the GAL’s recommendation to

place AC with him was not followed. This argument fails because the trial court was free to find




4
  ZC also raises several arguments relating to his reluctance to pursue visitation with AC initially
and his failure to challenge the initial parenting plan/parentage decree. However, findings
pertaining to ZC are irrelevant to the trial court’ s conclusion regarding a modification, which
requires a substantial change of circumstances to AC or LW. A substantial change of
circumstances as to ZC is only relevant to the adjustment standard for a minor modification,
which the trial court ordered.

                                                    7
No. 46344-0-II


that the major modification standard had not been met based on the other evidence presented at

trial.

         A GAL is appointed to investigate the child and family situation for the court and to

make recommendations about appropriate parenting arrangements. RCW 26.10.130; Fernando

v. Nieswandt, 87 Wn. App. 103, 107, 940 P.2d 1380 (1997). “ In effect, [the GAL] acts as a

neutral advisor to the court and, in this sense, is an expert in the status and dynamics of that

family who can offer a common sense impression to the court.” Id. However, the trial court is

 free to ignore [the GAL’s] recommendations if they are not supported by other evidence or it

finds other testimony more convincing.” Id.

         Here, the GAL recommended, in part, that ZC be AC’ s primary parent. The trial court in

applying the major modification standard to a change of custody was free to find that the GAL’ s

recommendation was not as convincing as the other evidence presented to the trial court, such as

the testimony by LW and the caretakers. That testimony, noted above, supported the trial court’ s

conclusion that LW remain the primary parent to AC.

         ZC argues that because other evidence corroborated the GAL’s recommendation, the

court abused its discretion by departing from it. However, the GAL’s recommendations in itself

do not compel a trial court to find that ZC had met his burden under the major modification

standard and that he should have been awarded custody. The evidence in the record supports the

trial court’ s conclusion that ZC did not meet his burden and that LW should continue to remain

the primary residential parent. Thus, we find that the trial court did not abuse its discretion in not

following the GAL’s recommendation to place AC with ZC.

         ZC also argues that it was error for the trial court not to allow the GAL to interview LW.

In direct contradiction to ZC’ s argument, the trial court did grant extra time for the GAL to



                                                  8
No. 46344-0-II


interview LW, but yet she was never interviewed. While it is true that the trial court in its oral

ruling expressed concern that the GAL did not interview LW,5 the trial court did actually allow

the GAL 10 more hours to complete her investigation and ordered ZC to pay $750 in fees to the

GAL. We hold that the trial court did not refuse to allow the GAL to interview LW, and

therefore, did not err.

                                        V. ATTORNEY FEES

        LW requests appellate attorney fees and other costs under RCW 26.26.140 and RAP 18.

We decline to award fees and costs under RCW 26.26.140 because it only applies to actions

brought under the Uniform Parentage Act, chapter 26.26 RCW. RCW 26.26.021 (emphasis

added) (“ This chapter applies to determinations of parentage in this state”). This case is

governed by chapter 26.09 RCW, since it involves a modification to a parenting plan. LW,

however, did not request fees under chapter 26.09 RCW.

        We also deny LW’s request for attorney fees on grounds that ZC’ s appeal is frivolous

under RAP 18.1. An appeal is frivolous if there are no debatable issues on which reasonable

minds can differ and is so totally devoid of merit that there was no reasonable possibility of

reversal. Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758, 787, 275 P.3d 339 (2012). Here,

we find there were issues raised with enough merit that attorney fees would be inappropriate.

Therefore, we deny attorney fees under RAP 18.1 as well.




5
  The trial court stated: “ Unfortunately, in 37 hours you should be able to make a phone call to
the mother, converse with her, understand her life circumstance, what is going on with her. I
really think that is a significant lack in this particular investigation that occurred.” Report of
Proceedings at 291.


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No. 46344-0-II


                                          CONCLUSION

        We hold that (1) ZC waived his challenge to the trial court’ s application of the major

modification standard, (2) substantial evidence supports the trial court’ s findings and those

findings support its conclusion that ZC failed to meet the major modification standard, and (3)

the trial court did not abuse its discretion when it did not follow the recommendation of the

GAL. Accordingly, we affirm the trial court’ s orders denying a major modification. We also

deny LW’s request for attorney fees.

        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 2.06.040,

it is so ordered.




                                                      BJORGEN, A.C.J.
 We concur:




 MAXA, J.




 LEE, J.




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