                                                                                       FILED
                                                                                  COURT OF APPEALS
                                                                                     DIVISION II

                                                                                2005 JAR 27    AN 8: 50




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

IN RE MARRIAGE OF                                                   No. 45273 -1 - II


JESSICA EMILY MATTSON (formerly
known as STALKER),


                                  Respondent,


        v.



NICHOLAS DAVID STALKER;                                        UNPUBLISHED OPINION


                                  Appellant.


       SUTTON, J. —     Nicholas David Stalker appeals the trial court' s order granting a minor


modification of the parties' parenting plan. He argues that the trial court abused its discretion in

finding a substantial change in circumstances and in finding that Jessica Emily Mattson' s work

schedule change from part time to full time was involuntary, making the parenting plan impractical

to follow.   Holding that the trial court did not abuse its discretion because Mattson presented

sufficient evidence of a substantial change in circumstances, we affirm.'




1 Stalker does not assign error to the finding of fact that the modification did not exceed 24 full
days in a calendar year. We consider unchallenged findings as verities on appeal. In re Marriage
of Fiorito, 112 Wn.   App.   657, 665, 50 P. 3d 298 ( 2002).
No. 45273 -1 - II



                                                        FACTS


        Stalker and Mattson are the parents of two children: N.S. and R.S. 2 On July 28, 2009, the

trial court entered an agreed final parenting plan for the two children as part of the parent' s

dissolution    action.   At the time, Mattson worked part time ( 2. 5 days a week) for the Puyallup

School District ( the District)    as   a   high   school     American Sign Language ( ASL) teacher.              The



parenting plan stated that the children would reside with Stalker from Friday 7: 00 PM to Sunday

7: 00 PM the first, second, and third weekends of the month and every Tuesday from 4: 30 PM to

Wednesday 9: 00 AM. The children were to reside with Mattson at all other times.

        For the school year 2011 -12, Mattson' s work hours increased to 80 percent of full time.

Starting in the school year 2012 -2013, Mattson' s work hours were scheduled to increase to full
time. On August 20, 2012, when N. S. and R.S. were then ages nine and seven, Mattson petitioned

the trial court to modify the 2009 parenting            plan.   In her petition, she asserted that the schedule


                                                    her                quality time          her               She had
             working because it did
was not                                 not allow         sufficient                  with         children.




remarried and had another child, then aged one year old. She requested that the trial court modify

the schedule to give Stalker visitation Thursday from 7: 00 PM through Sunday evening at 7: 00 PM

every other week ( rather than Friday evening through Sunday evening) and keep the current

overnight visitation every week from Tuesday 4: 30 PM to Wednesday 9: 00 AM.3
        At trial, Mattson testified that the 2009 parenting                plan was    not   working " very well."


Verbatim Report       of   Proceedings ( VRP)      at   24.   She explained that she did not have any quality




 2 We use the minor children' s initials to maintain confidentiality and we mean no disrespect.
 3 On September 24, 2012, the trial court commissioner found adequate cause to hear Mattson' s
 petition.
No. 45273 -1 - II



time with the two children because their time at her home was taken up with homework and

housework before bedtime at 8: 00 PM. Because she only had the children on the fourth weekend

of the month, her weekend would often be overridden by Stalker' s residential time on superseding

holidays    and     the   children' s   birthdays that       occurred     at   the   end of   the   month.    This meant that


Mattson would not have a weekend with the children for up to seven consecutive weeks, leaving

her without quality family time with them. Mattson also claimed that the children lacked structure

at Stalker' s home and that they would return from his home having not completed their homework.

         When Mattson began working as a part-time ASL teacher, she did not intend to become a

full -time employee. For the school year 2012 -2013, according to the District' s contract with her,

she   became    a   full -time   employee and also          began to     advise a student      ASL   club    for   a stipend.   She


worked five days a week from 7: 10 AM to 4: 00 PM and sometimes late into the evening. Mattson

testified that if she had refused to work more hours, the District would have been required to try

to transfer her.       Because only three other schools in the district offered ASL, the District would

               have had         job               for her         thus   she would      have   ended         unemployed.        She
likely   not                a         available             and                                        up


considered the change in her work schedule to be involuntary.

          Stalker testified that he assumed Mattson' s initial decision to work part time was a " foot in

the door" to " work her way up" to a full -time position. VRP at 62. His testimony focused on his

time spent with the children, which included playing video games, going to the park, watching

movies, eating candy, and bonding. At his house, the children rarely had homework to do. He did
not have the same quality time with the children on Thursday evenings as he did on weekends

 when the children were with him.


           The trial court found three substantial changes in circumstances:




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No. 45273 -1 - II



            1) [    Mattson] moved from part time to full time employment.
            2) [ Mattson] remarried.
            3) [    Mattson] has another child /sibling of the children.

Clerk' s Papers ( CP) at 39. The trial court also found that Mattson' s change in work schedule was


involuntary, making the parenting plan impractical to follow, and that Mattson' s proposed change

did   not exceed        24 full days in   a calendar year.          Because of Mattson' s full -time work schedule,


combined with her remarriage and new child, the 2009 parenting plan made it "impractical for her

to have any quality time              with [   the   children]    during   the   week."     VRP    at   98.   The trial court


commented that it could not find case law on whether a new sibling constitutes a substantial

change, but stated that there was " no question" that " common sense indicates that having a new

sibling is         a substantial change."      VRP     at   98.   Based on these findings, the trial court entered an


order granting Mattson' s proposed modification under both RCW 26.09. 260( 5)( a) and ( b) and

entered a final modified parenting plan on August 9, 2013. 4 Stalker appeals.
                                                            ANALYSIS


                                                     I. STANDARD OF REVIEW


           We review a trial court' s order granting a minor modification of a parenting plan for abuse

of    discretion. In      re   Marriage of Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012), cent. denied, 133




 4
     We   note      that the August    9, 2013 parenting plan           contains   two   errors:   First, the parenting plan
 grants Stalker residential custody from Friday 7: 00 PM to Sunday 7: 00 PM every other week.
 According to Mattson' s proposed plan and her brief, the 2013 plan should grant Stalker Thursday
 7: 00        Sunday 7: 00 PM every other week. The record does not suggest that Mattson ever
          PM to

 revised her July 2013 proposal to exclude the Thursday overnight. Stalker indicates that this is a

 scrivener' s error. Second, the August 9, 2013 order references a " July 24, 2013" order, but the
 referenced order was actually entered on July 23, 2013. CP at 41.



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No. 45273 -1 - II



S. Ct. 889 ( 2013).         An abuse of discretion occurs when the trial court' s ruling is manifestly

unreasonable or based on untenable grounds or untenable reasons. Katare, 175 Wn.2d at 35.


                                   II. MINOR MODIFICATION OF PARENTING PLAN


           The trial court' s range of discretion in granting a minor modification of a parenting plan is

bounded     by   the   criteria   in RCW 26. 09. 260( 5).          See In re Marriage of Chandola, 180 Wn.2d 632,

642, 327 P. 3d 644 ( 2014).           RCW 26. 09. 260( 5) provides that a court may modify a parenting plan

if the   petitioner shows: (        1) "[    A] substantial change in circumstances of either parent or of the


child,"    and ( 2) the change either (a) does not exceed 24 full days in a calendar year, or (b) is based

on a parent' s     involuntary       work schedule change                   that   makes   the parenting   plan "   impractical to


follow."


           Stalker argues that the trial court abused its discretion when it granted Mattson' s minor


modification of the 2009 parenting plan because Mattson did not provide evidence that the changes

in her life were " substantial" or evidence that her work schedule change made the 2009 parenting

                                      5
plan     impractical to follow.             Br.   of   Appellant   at   18.    Mattson argues that the record supports the


trial court' s finding of substantial changes in circumstances and that the modified schedule did not

change the number of overnights for either parent. 6 We agree with Mattson.




 5 Stalker argues that Mattson did not testify about the effect of her remarriage, birth of a new child,
and work schedule change has on the children. Stalker' s argument overlooks RCW 26. 09. 260( 5);
that statute requires the petitioner to show a substantial change of circumstance in.the life of either
the petitioning parent or the children.

 6 Mattson' s argument, that the trial court did not abuse its discretion in modifying the parenting
 plan because the change did not impact the number of overnights for each parent, does not find
 support    in RCW 26. 09. 260( 5), which refers to " full calendar days" and not overnights.



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No. 45273 -1 - II



            A " substantial change in circumstances" is a fact that is unknown to the trial court at the


time it entered the original parenting plan or an unanticipated fact that arises after entry of the

original plan.     In   re   Marriage of Tomsovic, 118 Wn.                  App.   96, 105, 74 P. 3d 692 ( 2003) (     holding

that father' s relocation was anticipated because the parenting plan detailed three different plans

that differed depending on the parents' residential proximity); In re Marriage ofHoseth, 115 Wn.

App.       563, 572 -73,     63 P. 3d 164 ( 2003) (          holding that the father' s relocation from Idaho to

Washington and his new domestic partner were unanticipated changes because the parenting plan

did   not address   these    issues). A substantial change must be a " bona fide change in circumstances."


In    re   Marriage of Pape, 139 Wn.2d 694, 716, 989 P. 2d 1120 ( 1999).                                The burden is on the


petitioner at trial to demonstrate a substantial change in circumstances. Pape, 139 Wn.2d at 716.

     I] t is in the trial court' s broad discretion to determine whether [ a] change should be characterized

as substantial."     Tomsovic, 118 Wn. App. at 106 ( citing Hoseth, 115 Wn. App. at 572).

            We will not second -guess a trial court' s reasonable rationale for determining that a

petitioner     has demonstrated        a substantial change          in    circumstances.   Here, the trial court reasoned


that Mattson had presented evidence of a substantial change in circumstances when the totality of

a change in work schedule from part time to full time, remarriage, and birth of a new child were

considered in relation to each other. The trial court heard testimony about the impact these changes

had on Mattson.


            According      to the trial   court, "   common sense" indicated that a new child was a substantial


change       because Mattson'      s   time   with   N. S.   and   R. S.   was   further divided   by   a new child.   VRP at




7 We also note that siblings need to spend quality time together as a family and under the 2009
plan they could not do so because Mattson was awarded so few weekends with N.S. and R.S.

                                                                    6
No. 45273 -1 - I1




98. A change of employment may be a substantial change in circumstances. Pape, 139 Wn.2d at

716 ( listing a change in employment as an example of a " bona fide change in circumstances ").

Remarriage may        also   be    a substantial change    in   circumstances.       Hoseth, 115 Wn. App. at 572.

Under Mattson' s proposed modified parenting plan, each parent would have residential time every

other weekend.       Stalker       would   additionally have        visitation on   Thursday   evenings.   Given these


reasons, the trial court' s decision to modify the parenting plan was not unreasonable or based on

untenable grounds. Katare, 175 Wn.2d at 35. The trial court did not abuse its discretion in finding

a substantial change in circumstances under these facts.

                                                 ATTORNEY FEES


           Mattson requests attorney fees under RAP 18. 9, arguing that this appeal is frivolous.

Alternatively, Mattson requests attorney fees under RCW 26. 09. 140.

           RAP 18. 9 allows an appellate court to sanction a party who files a frivolous appeal. Lutz

Title, Inc.   v.. Krerch,   136 Wn.    App.   899, 906, 151 P. 3d 219 ( 2007). An appeal is frivolous if, based


on   the   entire record,    the   appellant presents "`   no debatable issues upon which reasonable minds


might differ, and [ that the appeal] is so totally devoid of merit that there is no possibility of

reversal. "'    Tiffany Family Trust Corp. v. City ofKent, 155 Wn.2d 225, 241, 119 P. 3d 325 ( 2005)

 quoting Green River          Cmty.   Coll., Dist. No. 10   v.      Higher Educ. Pers. Bd., 107 Wn.2d 427, 442-


43, 730 P. 2d 653 ( 1986)).          An appeal is not frivolous simply because the appellant' s arguments

 are rejected and all doubts should be resolved in favor of the appellant. Tiffany, 155 Wn.2d at 241.

 Stalker presented debatable issues and his appeal is not frivolous.

           RCW 26. 09. 140 allows the appellate court, in its discretion and based upon the " financial

 resources"     of the parties, to order a party to pay the attorney fees of the other party in cases


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No. 45273 -1 - II



governed    by   chapter   26. 09 RCW.     Mattson' s financial declaration showed that she shared


household expenses with another working adult. She also did not include Stalker' s monthly child

support payment     to her.   Her financial declaration failed to   prove financial   need.   Therefore, we


deny her request for attorney fees under RCW 26. 09. 140.

          We   affirm.   The trial court did not abuse its discretion in finding a substantial change in

circumstances.




          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.




We concur:




     swick, P.




Lee, J.




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