                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           December 8, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 In re the Marriage of:                                              No. 46577-9-II
                                                             (Consolidated w/ No. 46637-6-II)
 JACKIE LEE DALY (f/k/a Jackie L. Riley),

                                Petitioner,

         And                                                    UNPUBLISHED OPINION

 SCOTT M. RILEY,

                                Respondent.

       BJORGEN, A.C.J. — Scott Michael Riley appeals from orders denying his motions to

restrain relocation and to find adequate cause to modify the parenting plan as to his children. We

affirm the order denying the motion to restrain relocation but reverse the order denying adequate

cause and remand for further proceedings.

       In 2004, the King County Superior Court entered a final parenting plan between Jackie

Daly and Riley as to their two children. Under the terms of that plan, the children would reside

primarily with Daly and would reside with Riley every other weekend and alternating holidays.

The plan also provided for joint decision making as to education decisions regarding the children.

On September 11, 2008, however, a King County Superior Court Commissioner entered a

Stipulation and Agreed Order Suspending Residential Time, which provided that “Riley’s

residential time with his children . . . shall be suspended until further Order of this Court, or until

deemed appropriate by [Riley’s] court-ordered therapist and the children’s therapist(s).” Clerk’s
No. 46577-9-II
(Cons. w/ No. 46637-6-II)


Papers (CP) at 159-60. In 2010, Riley brought a motion to terminate that order. On April 12,

2010, a different King County Superior Court Commissioner entered an order stating:

               THE ABOVE-ENTITLED COURT, HAVING HEARD A MOTION to
       Terminate Order Suspending Residential Time brought by [Riley].
               IT IS HEREBY ORDERED that the motion is denied. The Court finds that
       the Order Suspending Residential Time can be terminated in two different ways,
       neither of which have been met here. First, [Riley] could bring a Petition to Modify.
       To establish adequate cause, he would have to meet the statutory criteria and may
       complete[] another sexual deviancy evaluation, including a pleismograph [sic],
       showing that he does not pose a risk to his children.
               Secondly, in the alternative, [Riley’s] court ordered therapist could opine
       that he does not present a risk to his children and the children’s therapist
       recommend that [sic] resuming his residential time with his children.

CP at 272. Riley did not move to revise this order.

       On May 13, 2014, upon discovering that his son was residing with his maternal grandfather

in Colorado and was attending school there, Riley filed a motion in Pierce County Superior Court

for modification of the parenting plan, a motion for contempt, an objection to relocation and a

motion to restrain relocation. The court commissioner entered an order ruling:

       (1) that the father’s motion is denied, (2) that the father’s objection to relocation is
       dismissed, . . . (3) the court finds that under the current orders, the mother has sole-
       decision making regarding the parties’ children based on current restrictions; and
       (4) the Order to Show Cause re: Contempt and the father’s Motion for Temporary
       Orders based on those same facts are stricken.

CP at 182.

       Riley moved to modify that order. The judge denied the motion for revision, ruling that:

       The Relocation Statute 430 says that except as in 460 a parent intending to relocate
       a child shall notify every other party entitled to residential time. It’s my
       understanding that you have no residential time with your son and the King County
       orders haven’t been vacated or modified. So, in this case, Mr. Riley, you don’t get
       notice, because the statute doesn’t apply to you. I’m denying your motion for
       revision.




                                                  2
No. 46577-9-II
(Cons. w/ No. 46637-6-II)


Narrative Report of Proceedings (NRP) (Jun. 13, 2014) at 11-12. Riley’s subsequent motion for

reconsideration was denied.

       On June 26, 2014, Riley filed a motion in Pierce County Superior Court for a finding of

adequate cause to modify the parenting plan, asserting that there had been substantial changes in

circumstances, including interference with his access to the children, his son’s relocation to

Colorado without notice to him, emergency incidents about which he had not been informed and

various acts by Daly. On July 9, 2014, a different commissioner denied his motion, finding that

adequate cause for hearing a petition to modify the parenting plan had not been established. The

commissioner also found that “Riley has not met the requirements of the Order on Family Law

Motion entered in King County Superior Court . . . on April 12, 2010.” CP at 298.

       Riley moved to revise the commissioner's order of July 9, 2014. On August 8, 2014, the

same judge denied his motion to revise, noting that under RCW 29.09.260(7), a parent who is

subject to limitations on residential time under RCW 26.09.191(2) or (3), may not seek expansion

of residential time unless that parent demonstrates a substantial change in circumstances. When

Riley remonstrated that there were no limitations imposed under RCW 26.09.191(2) or (3), the

trial court concluded that such limitations were “implied” by the 2008 and 2010 King County

Superior Court orders. NRP (Aug. 8, 2014) at 8.

       On appeal, Riley argues first that the trial court erred in denying his motion of May 13,

2014 to restrain the relocation of his son.1 He contends that absent restrictions imposed under

RCW 26.09.191(2) or (3), he is entitled to notice of intended relocation and to the opportunity to


1
  As to both motions, Riley assigns error to the orders of the commissioners. However, we
review only the orders of the judge following a motion to revise. State v. Ramer, 151 Wn.2d
106, 113, 86 P.3d 132 (2004).


                                                3
No. 46577-9-II
(Cons. w/ No. 46637-6-II)


object to it. He further contends that absent termination of his parental rights as to his children, he

was entitled to notice of intended relocation and to the opportunity to object to it. We disagree.

         RCW 26.09.430 states:

                 Except as provided in RCW 26.09.460, a person with whom the child
         resides a majority of time shall notify every other person entitled to residential time
         or visitation with the child under a court order if the person intends to relocate.

The 2008 and 2010 orders from King County Superior Court suspend Riley’s residential time with

the children, and those orders are still in effect. Because Riley’s residential time was suspended,

RCW 26.09.430 did not require that he be given notice of the relocation of his son. Nothing in

RCW 26.09.460 or RCW 26.09.191 requires such notice. Because the applicable statutes did not

entitle Riley to notice of relocation of his son, they cannot be read to entitle him to object to that

relocation. Therefore, Riley does not demonstrate that the trial court erred in denying his motion

to restrain relocation and in denying his objection to relocation. In addition, because his motions

for contempt and for modification of the parenting plan rested upon that objection to relocation,

the trial court did not err in striking them.

         Second, Riley argues that the trial court erred in denying his motion for adequate cause

because he was not subject to limitations on residential time imposed under RCW 26.09.191(2) or

(3). We agree that the trial court erred in not considering the merits of his motion for adequate

cause.

         Under RCW 26.09.260(7),

         [a] parent with whom the child does not reside a majority of the time and whose
         residential time with the child is subject to limitations pursuant to RCW
         26.09.191(2) or (3) may not seek expansion of residential time under subsection
         (5)(c) of this section unless the parent demonstrates a substantial change in
         circumstances specifically related to the basis for the limitation.



                                                   4
No. 46577-9-II
(Cons. w/ No. 46637-6-II)


        Limitations on residential time under RCW 26.09.191(2) or (3) require findings of harmful

or illegal conduct by the parent or findings that the parent’s conduct may have an adverse effect

on the child’s best interests. Neither the 2004 parenting plan, the 2008 order, nor the 2010 order

contain such findings. There is no authority for “implying” such findings based on a stipulated

order suspending residential time. Therefore, the trial court erred in denying Riley’s motion for

adequate cause based on RCW 26.09.260(7). Riley is entitled to have his motion for adequate

cause considered on the merits.

        The order denying Riley’s motion to restrain the relocation of his son is affirmed. The

order denying his motion for adequate cause is reversed, and that motion is remanded to the trial

court for further proceedings. Daly’s request for attorney fees on appeal is denied.

        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:



 WORSWICK, J.




 MAXA, J.




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