      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Marriage of                NO. 72228-0-1


JONATHAN M. PHILPOTT,                           DIVISION ONE


                       Respondent,
                                                UNPUBLISHED OPINION
      and


LINDSEY MAY WRIGHT
(fka philpott),+

                       Respondent,

RHEA J. ROLFE,

                       Appellant.               FILED: May 11, 2015


       Leach, J. — Rhea Rolfe appeals a trial court's CR 11 sanction against her.

She challenges the trial court's determination that she filed an amended

objection to relocation and request for modification of a parenting plan in bad

faith. Because the trial court based its decision on an erroneous view of the law,

the trial court abused its discretion when it imposed the sanction. We reverse.

                                      FACTS


      Jonathan Philpott and Lindsey Wright lived with their two children in

Florida when they separated in December 2011. Wright moved with the children

to Colorado to be near extended family and then in January 2012 to Washington.


       t Ms. Wright was the respondent in the trial court action. She is not a
party to the appeal.
NO. 72228-0-1 / 2



       In May 2012, Philpott planned to visit the children and sent a text to

Wright's new partner, a former friend to both Wright and Philpott.          Because

Wright and her partner interpreted the text as threatening, the visit did not occur.

The text also caused Wright to file a petition for protective order in Washington,

alleging sexual violence. Washington issued a warrant for Philpott's arrest for

cyberstalking and telephone harassment. A Washington court later entered a

five-year protective order preventing Philpott from contacting the children or

Wright. Philpott did not appeal the order.

       Philpott petitioned for divorce in Florida. After a two-day trial, the Florida

court granted the divorce, designating Philpott the primary residential parent.

The Florida court did not find Wright to be credible, believing she had lied to

Washington authorities to obtain the protective order.     It considered the arrest

warrant in Washington unjustified. Among other factors, it found that Philpott had

a stable job and that the children would attend A-rated schools in Florida. The

parenting plan required Philpott to give advance notice of an intent to relocate

more than 50 miles away.

       In June 2013, the children moved to Florida to live with Philpott. Philpott

quit his job shortly afterward and then lost his subsequent job. In early August,

he moved with the children to Colorado without providing notice to Wright except

for asking their daughter to tell her.
NO. 72228-0-1 / 3



      On August 29, 2013, Wright filed a petition for modification of the Florida

parenting plan in Washington.1 In her petition, she alleged that Philpott relocated

the children without notifying her and prevented her from accessing the children,

constituting a substantial change in circumstances.        In response to Wright's

motion for temporary orders, Philpott argued that the case was a major

modification case requiring an adequate cause hearing. A court commissioner

determined at an October 17, 2013, hearing on temporary orders that an

adequate cause hearing was required and continued the hearing to October 31,

2013, requiring either party to file a motion for adequate cause based on the

statutory factors or relocation issues.       Philpott filed a response to Wright's

petition for modification the next day. Wright moved for revision of the

commissioner's order.    She also moved for leave to amend her petition for

modification to request relief under the child relocation act, RCW 26.09.403

through 26.09.560. Wright scheduled this motion for November 1, 2013, before

Judge Robinson, without oral argument.

      Philpott filed a motion for a determination of no adequate cause.         On

October 31, 2013, the commissioner heard arguments on temporary order

requests and adequate cause and entered a temporary order placing the children



      1 Washington has jurisdiction because the children resided in Washington
prior to moving to Florida, resided in Florida for less than six months, and then
moved to Colorado with Philpott. Wright still lives in Washington. RCW
26.27.201(1)(a); RCW 26.27.211(1 )(b); RCW 26.27.221(2).
                                        -3-
NO. 72228-0-1 / 4



with Wright. The commissioner did not rule on adequate cause because Wright's

motion to revise was pending before the court.

       On December 10, 2013, Judge Robinson denied Wright's motion to permit

filing of an amended petition without prejudice, stating, "Ms. [Wright] may renew

her motion to amend after her [adequate cause] hearing."

       After hearing argument on December 13, 2013, Judge Robinson entered

an order finding that "adequate cause for hearing the petition has not been

established" and denying Wright's original petition for modification.       The court

ordered the children to return to Colorado and awarded $5,000 in attorney fees to

Philpott based on Wright's intransigence. It also granted Wright's motion to file

an amended petition to object to the relocation. Wright then filed her amended

objection to relocation and petition for modification with the trial court.     In her

amended petition she requested a change in the children's primary residence.

       The court transferred the case from Judge Palmer Robinson to Judge

Ronald Kessler, effective January 13, 2014.

       On   April 15,       2014,   Philpott   pleaded guilty to   the   cyberstalking

misdemeanor against Wright and her partner, and the court entered a judgment

against him, placing him on probation for 24 months and preventing Philpott from

contacting either victim.
NO. 72228-0-1 / 5



        At trial before Judge Kessler, Philpott argued that the court lacked

authority to change the primary residence of the children while Wright contended

that the child relocation act grants courts this authority in a relocation proceeding.

Wright argued that new grounds for modification had arisen, namely, Philpott's

guilty plea to cyberstalking, particularly since the Florida court had believed

Philpott's innocence. Judge Kessler limited the issue before the court to "strictly

a relocation," stating that the children would either stay in Colorado or return to

Florida.


        After considering the relocation factors in RCW 26.09.520, Judge Kessler

ordered relocation and a limited modification of the parenting plan. He concluded

that Wright did not need to establish adequate cause before the court considered

her petition for modification, but the law permitted modifications only to the extent

necessary to accommodate the relocation.         He modified the parenting plan to

require that all communications go through Philpott's parents and Wright's

partner, to require that Philpott allow the children to talk privately on the phone,

and to prohibit either party from recording phone calls.

        In its oral decision, the trial court imposed CR 11 sanctions against Rolfe,

holding Rolfe and Wright jointly liable for Philpott's attorney fees. The court's

final judgment against Rolfe and Wright awarded Philpott $27,738.56 in attorney

fees.
NO. 72228-0-1 / 6



       Rolfe appeals.

                              STANDARD OF REVIEW


       This court reviews a trial court's imposition of CR 11 sanctions for abuse

of discretion.2     A trial court abuses its discretion if its order is manifestly

unreasonable or based on untenable grounds or an erroneous view of the law.3

                                     ANALYSIS


       This case presents one primary issue:          did the trial court abuse its

discretion in awarding a judgment against Rolfe under CR 11?

       Attorneys and parties who sign and file a pleading, motion, or legal

memorandum to the court must comply with CR 11 requirements. These include

that the pleading is well grounded in fact and warranted by existing law and that it

was not brought to harass, cause unnecessary delay, or increase costs in

litigation.4 The rule's purpose is to deter baseless filings and curb abuses of the

judicial system but not to chill enthusiasm or creativity in pursuing factual or legal

theories.5 CR 11 requires that a pleading have a factual and legal basis. When

a court finds either is missing, the court must also find that the pleading's author

failed to conduct a reasonable inquiry into the pleading's factual and legal basis.6


       2 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d
299, 338-39, 858 P.2d 1054 (1993).
      3 Fisons, 122Wn.2dat339.
       4CR 11.
       5 Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099(1992).
       6 Bryant, 119 Wn.2d at 220.
                                         -6-
NO. 72228-0-1 / 7



       In its oral ruling, the trial court gave several reasons for imposing CR 11

sanctions. It first found that Wright filed her amended objection to relocation and

petition for modification without leave of the court. When Rolfe rose to clarify, the

court said, "Sit down.     I'm ruling."   The trial court also concluded that "the

objection was not well grounded in fact and was not warranted by existing law or

a good faith argument" to change or establish new law, stating that the law for

relocation only permits modification of a parenting plan to accommodate a

relocation if one is granted. The trial court found that Rolfe filed the objection

with the intent "to harass and cause needless increase in the cost of litigation."

Finally, the trial court concluded that Judge Robinson's finding of no adequate

cause for Wright's initial petition for modification of the parenting plan foreclosed

a request for modification as part of Wright's objection to relocation and

concluded that she argued her position on the issue in bad faith. At the end of

the trial court's oral ruling, Judge Kessler stated that the parties may not reargue

the issues he had decided.


       Rolfe challenges several findings and conclusions related to the trial

court's CR 11 sanctions against her. We review each in turn to determine if the

trial court abused its discretion in sanctioning Rolfe.

       Rolfe challenges the trial court's finding that she failed to obtain leave of

court to file the amended objection to relocation and petition for modification.


                                          -7-
NO. 72228-0-1 / 8



       Judge Robinson's order finding that Wright had failed to establish

adequate cause for a hearing on her modification petition stated, "Court allows

mother to amend her petition to allege objection to relocation." Apparently, as

discussed later in this opinion, Judge Kessler appears to have failed to

appreciate the legal significance of Judge Robinson's order.

       Rolfe next challenges the trial court's conclusion that the child relocation

act does not permit a parent objecting to a relocation to include with the objection

a request for a major modification of a parenting plan without demonstrating

adequate cause.

       RCW 26.09.260(6) governs a request for modification made as part of an

objection to a petition for relocation:

       The court may order adjustments to the residential aspects of a
       parenting plan pursuant to a proceeding to permit or restrain a
       relocation of the child. The person objecting to the relocation of the
       child or the relocating person's proposed revised residential
       schedule may file a petition to modify the parenting plan, including
       a change of the residence in which the child resides the majority of
       the time, without a showing of adequate cause other than the
       proposed relocation itself. A hearing to determine adequate cause
       for modification shall not be required so long as the request for
       relocation of the child is being pursued. In making a determination
       of a modification pursuant to relocation of the child, the court shall
       first determine whether to permit or restrain the relocation of the
       child using the procedures and standards provided in RCW
       26.09.405 through 26.09.560. Following that determination, the
       court shall determine what modification pursuant to relocation
       should be made, if any, to the parenting plan or custody order or
       visitation order.
NO. 72228-0-1 / 9



          The plain language of this statute provides the legal authority for Wright to

include in her relocation objection a request for a major modification, including a

change in primary residence. In In re Marriage of Raskob,7 we recently held that

under RCW 26.09.260(6) a trial court need not consider if a substantial change in

circumstances occurred, other than the relocation itself, and need not consider

the factors contained in RCW 26.09.260(2).             We concluded that the plain

language of "RCW 26.09.260(6), an exception to the requirements of RCW

26.09.260(1), allows a trial court to make a 'major' modification to a parenting

plan, including an adjustment to the residential schedule 'pursuant to a

proceeding to permit or restrain a relocation of the child.'"8 And we held that

where a trial court made a modification under an objection to relocation, the trial

court properly considered if that modification was in the best interests of the

child.9

          Rolfe cites In re Marriage of McDevitt10 to show that even after a ruling

that a party lacked adequate cause for a hearing on a petition to modify a

parenting plan, that party may request the same relief in an objection to

relocation.      In McDevitt, a father unsuccessfully petitioned for a           minor

modification to the parenting plan, a commissioner denied his petition without

          7 183 Wn. App. 503, 513, 334 P.3d 30 (2014).
          8 Raskob, 183 Wn. App. at 513 (quoting RCW 26.09.260(6)).
          9 Raskob, 183 Wn. App. at 515.
          10 181 Wn. App. 765, 768, 771, 326 P.3d 865, review denied, 181 Wn.2d
1018(2014).
                                           -9-
NO. 72228-0-1/10



prejudice, and the father filed an amended minor modification request.11 The

mother then filed a       notice of intent to relocate her children from Hawaii to


Colorado. The commissioner found the relocation request but not the father's

amended modification request merited a hearing.12 In response to the relocation

request, the father filed a proposed parenting plan allowing him one three-night

weekend every other month and one-half of the children's school vacations,

including summer break.13 This far exceeded the permitted scope of a minor

modification under the statute.14 Division Three affirmed the trial court's decision

to adopt the father's parenting plan over the mother's objection. It held that the

trial court decided the case solely on the basis of relocation under RCW

26.09.260(6) and that the language in that statute "clearly states that the

relocation petition itself is a basis for modifying a parenting plan [and] also

expressly permits consideration of new parenting plans as a result of a relocation

request."15

         Philpott claims neither Raskob nor McDevitt applies because neither

involves a situation where the court had just found a failure to show adequate

cause.        But McDevitt's facts are analogous to this case, and Philpott cites no

authority contrary to Raskob and McDevitt. He asserts that a trial court should

         11   McDevitt. 181 Wn. App.   at 767.
         12   McDevitt, 181 Wn. App.   at 767.
         13   McDevitt, 181 Wn. App.   at 767.
         14   RCW 26.09.260(5).
         15   McDevitt, 181 Wn. App.   at 771.
                                            -10-
NO. 72228-0-1 /11



apply RCW 26.09.260(2) to RCW 26.09.260(6) and require a court to retain the

existing residential schedule unless it is harmful to the child. But subsection (2)

clearly references the standards enumerated in subsection (1) that excepts

subsection (6) from its provisions.

       Further, Rolfe, on behalf of Wright, pointed to facts occurring after the

Florida proceedings to show that a change in primary custody was in the best

interests of Wright's children. Rolfe specifically cited Philpott's relocation of the

children without warning to Wright, not providing Wright access to them, not

including Wright in decision-making, and Philpott's guilty plea to cyberstalking.

Each of these issues could weigh on a best interest of the child analysis for the

purpose of a request for modification under the objection to relocation.

       Philpott also argues that Wright waived her ability to object to a relocation

because Wright failed to file an objection to relocation with the Florida court

where the parenting plan had not yet been filed in Washington. But the Uniform

Child Custody Jurisdiction and Enforcement Act, ch. 26.27 RCW, provided

Washington jurisdiction because neither the children nor Philpott lived in Florida

after Philpott relocated them, the children resided in Florida for less than six

months, and Wright lived in Washington.16        Thus, the act allowed Wright to

register the parenting plan and file her request for modification in Washington.



       16 RCW 26.27.201 (1)(a); RCW 26.27.211(1 )(b); RCW 26.27.221(2).
                                        -11-
NO. 72228-0-1/12



Philpott fails to cite any authority requiring this court to find that Wright waived

the right to file her objection to relocation.

         Philpott argues that the principle of res judicata prevents the trial court

from determining that adequate cause does not exist and then allowing a major

modification under the relocation statute. As a threshold requirement to show res

judicata bars a claim, the party asserting res judicata must show a final judgment

on the merits in a prior suit.17 But res judicata does not apply where a trial court

"'plainly reserve[s] from adjudication'" certain issues.18 Here, Judge Robinson

denied adequate cause but granted Wright's motion to amend, thus reserving the

issue.


         Philpott also argues that where Wright did not except or assign error to the

denial of adequate cause with respect to a major modification, that decision

became the law of the case.19 As we have explained, Wright did not need to

establish adequate cause under RCW 26.09.260(6).

         Because Rolfe made arguments supported by law and grounded her

argument in facts based on the record, she did not file the objection to relocation

for the improper purpose to harass and cause needless increase in the cost of

       17 Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108
(2004).
       18 Cumminqs v. Guardianship Servs. of Seattle, 128 Wn. App. 742, 754,
110 P.3d 796 (2005) (quoting Case v. Knight, 129 Wash. 570, 574, 225 P. 645
(1924)).
       19 See Cresap v. Pac. Inland Navigation Co., 2 Wn. App. 548, 556-57, 469
P.2d 950, affd, 78 Wn.2d 563, 478 P.2d 223 (1970).
                                           -12-
NO. 72228-0-1/13



litigation, and the trial court abused its discretion when it sanctioned her for this

purpose.


       Rolfe finally challenges the trial court's determination that she, on behalf of

Wright, filed the objection to relocation in bad faith as a means to reargue

modification.   The trial court concluded that after Judge Robinson found

adequate cause did not exist for modification to the parenting plan, Wright could

not argue for modification in good faith. He concluded that Wright did not care if

Philpott lived in Florida or Colorado with his children but that her purpose

involved only reversing the Florida court's decision to make Philpott the primary

residential parent.

       But Raskob and McDevitt support Rolfe's legal argument, and under the

best interest of the child standard, Wright presented facts supporting her request

to change the residential schedule. Thus, we hold that the trial court abused its

discretion when it found that Rolfe acted in bad faith.


       Because the court based its judgment on an erroneous view of the law, we

conclude that CR 11 sanctions were improper and reverse the award of attorney

fees and judgment against Rolfe.

       While we do not need to reach Rolfe's argument that the court denied her

an opportunity to be heard when it precluded further argument after issuing CR

11 sanctions, due process requirements under CR 11 require that the court


                                        -13-
NO. 72228-0-1 /14



provide notice to the offending party and an opportunity to be heard.20 Where the

trial court announces CR 11 sanctions without providing notice or an opportunity

for an offending party to respond, it fails to provide adequate due process.

                                  CONCLUSION


       Because the trial court based its CR 11 sanctions against Rolfe on an

erroneous view of the law, it abused its discretion. We reverse the trial court's

finding of a CR 11 violation and the judgment against Rolfe and deny Philpott's

request for attorney fees.




WE CONCUR:




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       20 See Bryant, 119 Wn.2d at 224.                                            o    ~
                                        -14-
