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                                                                                          GUPfi ,= APPEALS


                                                                                       2015 JUL 28 AN, 8: 24

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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

 In re the Matter of the Marriage of                                       No. 45042 -9 -II


 JAMES ERNEST DUNN,


                                        Respondent,


 and




 MELISSA JO DUNN,                                                    UNPUBLISHED OPINION


                                       9

           JOHANSON, C.J. —           Melissa Jo Dunn appeals the trial court' s denial of her request to


relocate her child and the parenting plan modification changing primary residential placement of

her daughter to the father, James Ernest Dunn. Melissal argues that ( 1) the trial court failed to


consider the child relocation factors required under RCW 26. 09. 520, and ( 2) the trial court lacked


the authority to modify the parenting plan without first finding adequate cause following the denial

of   the   relocation request.       Because the trial court failed to ' address all of the required child


relocation factors, failed to recognize the presumption of relocation, and failed to apply the correct

legal standard, we vacate the order denying relocation. And because any related modification must




1 Because Melissa and James share the same last name, we refer to them by their first names for
clarity;   we   intend   no   disrespect.
No. 45042 -9 -II



wait until after the relocation issue is resolved, we vacate the modified parenting plan. We remand

this matter for further proceedings before a different judge.

                                                       FACTS


                                                  I. PARENTING PLANS


        Melissa and James have a daughter together. On November 30, 2007, when the child was


three years old, their marriage was dissolved, and the trial court entered a final parenting plan in

which the child resided the majority of time with Melissa.

        In February 2012, Melissa moved to modify the dispute resolution, decision making, and

transportation provisions of the November 2007 parenting plan. She alleged, among other matters

that James had been harassing and stalking her, that James had " sexually assaulted her since the

divorce,"    that he had recently attacked her boyfriend, Robert Enriquez, and that he had endangered

the child in various ways. Clerk' s Papers ( CP) at 109. Melissa also requested a domestic violence


protection order. The trial court found adequate cause for a modification and entered a temporary

order which,     among    other   things, - (1)    appointed   a guardian ad   litem ( GAL) for the   child, (   2)


extended a February 3, 2012 restraining order, but only as to Melissa, and ( 3) restricted James' s

contact with Melissa to only e- mail intended to facilitate the parenting plan.

        The parties eventually agreed on a new parenting plan which the court approved; this

parenting plan was filed June 8, 2012. Under the June 2012 parenting plan, the child was to.reside

the majority of the time with Melissa with alternating every -other -week weekend and mid -week

visitation   for James.   The child was also to stay with James for the first half of her 2012 summer

vacation. The new parenting plan also prohibited James from coming onto Melissa' s property or

entering her workplace or school. When the June 2012 parenting plan was entered, both parents

lived in McCleary, in Grays Harbor County, Washington.
                                                           2
No. 45042 -9 -II



               II. NOTICE OF INTENT TO RELOCATE AND MOTION FOR TEMPORARY ORDER


         On July 24, 2012, Melissa filed a notice of intent to relocate the child to Kitsap County,

and a motion      for   a   temporary    order   permitting      relocation of    the   child.   In the motion, notice, and


accompanying documents, Melissa                  stated   that ( 1)     she had just received notice that she and the


child had to vacate their current home in McCleary by July 31 because of a foreclosure sale,2 ( 2)
in   May, she had     started a new      full-time job    with a       funeral home in Bremerton, ( 3) she had located


a new home to lease that was closer to her work, and ( 4) she was seeking to reduce her three-hour

daily commute. Melissa also stated that she had the opportunity to earn more money if she lived

in   Kitsap County      and was available        to   assist   the funeral director     with calls.   Melissa asserted that


the June      2012 parenting     plan    did   not need        to be   revised   because " all visitation can remain the


same." 3 CP at 14.

         James    objected      to the   relocation.      In addition to addressing the child relocation factors

under RCW 26. 09. 520, James asserted that ( 1) the relocation would adversely affect his visitation,

and ( 2) Melissa had not acted in good faith in entering into the June 2012 parenting plan because

she was aware that she would be seeking relocation so she could live with Enriquez in his mother' s




2 In an accompanying affidavit, Melissa explained that although she knew the house she had been
leasing would be sold in a foreclosure auction in May 2012, she was not told that she could not
continue to lease the home from the new owners until just before she filed the relocation
paperwork. At a later hearing, she testified that she found out she could no' longer lease the house
two days before she filed her notice and motion.


3 Melissa did not disclose the new address or workplace address in these documents, asserting that
the June 2012 parenting plan stated James was not to come to her home or work and that she was
afraid   he   would   harass her.
No. 45042 -9 -II



home.      James    also requested       that the trial    court     modify the parenting              plan   to " change in the


residence    in   which   the   child resides    the majority    of   the time."    CP at 21.


                           III. AUGUST 1, 2012 HEARING AND TEMPORARY ORDER


          On August 1, 2012, the trial court held a hearing on the motion to relocate.4 The parties

presented evidence related to ( 1) whether Melissa had acted in bad faith by negotiating the June

2012 parenting plan despite knowing that she would be seeking relocation soon after that parenting

plan was entered, ( 2) when           Melissa learned     she could not continue           to   rent   her   McCleary   home, ( 3)


whether     Melissa had         relocated   the child before         filing   the notice        and    motion   to   relocate, (   4)


Melissa' s job     search and     her   new    job, ( 5) how the relocation might impact James' s visitation and


what     Melissa   was   willing to do to facilitate the existing         schedule, (      6) the child' s current schooling

and relationships with          her   family   and   friends, ( 7) the resources and schools available to the child


if the court allowed relocation, and ( 8) the location and type of housing Melissa had arranged in

Kitsap County. The parties also presented evidence that Enriquez had been charged with second

degree assault of James with a firearm.5

          In her written pleadings, Melissa refused to disclose the address of the proposed new


residence or her new job, asserting that she feared that James would harass her and that the June

2012 parenting       plan prohibited        James from coming to her               place    of work or residence.           When


Enriquez testified, he stated that he was currently living in Lynnwood with his sister but that he



4 This hearing and the subsequent hearings were not before the same judge involved in the June
2012 parenting plan.

5 When the issue of the assault arose, the trial court, who was also sitting on the criminal case,
prohibited the parties from asking about the assault to avoid creating any issues with the criminal
trial.



                                                                rd
No. 45042 -9 -II



intended to move in with Melissa when she relocated to Manchester, Kitsap County. He refused

to   disclose   who owned        the home in Manchester            or   its   address.   Enriquez also testified that his


contact with his daughter had been restricted to supervised visits based on allegations of alcohol


use and the alleged assault.



         The trial court " temporarily" denied relocation of the child and reappointed the GAL. The

trial court then made the following statement:

         You [ Melissa]         can go   right ahead and move.                What I am also going to do, is,
         temporarily, following the day before Labor Day, the child will go to her father.
         The parenting plan will be temporarily reversed. The child will live with her father.
         You     will   have his   visitation --   I wouldn' t interrupt me.


                         I will tell you something right now, if you want to hear it, young woman.
         I think   you    have just   about played enough games with                 the   system.   You were not
         forthright in dealing with this parenting plan. You were not forthright in allegations
         you made        in   your attempt   to [ relocate].   Your witness comes in here and refuses to
         answer questions.          We are sitting here waiting for issues regarding a felony trial.
         And here we are, and you want to interrupt. And you can sit here and recite what
         you want about what' s in your parenting plan. There is nothing in your parenting.
         plan that says he [ James] isn' t supposed to know where you live or work. It says
         he doesn' t come there and bother you. And it also has about a page and a half of
         relocation - what you are supposed to do. So, to use the word, I believe, forthright,
         does not apply to you.
                 Now, what we are going to do is real simple.
                 No, the kid is not moving right away.
                 Yes, you are going to have your chance to say and prove why you should.
                 And yes, you are going to get a right to have a potential hearing on a
         modification.

                    So, no, we are not moving this kid away.
                 Secondly, go ahead and get yourself established and done it [sic].
                 Next, the kid is going to live with daddy under the parenting plan, and we
          are going to have a hearing on custody of this kid, and the primary residential
          placement, I may put her back with you, I don' t know. But I am going to have [ the.
          GAL] get me a hearing and I am going to wait until this guy' s felony trial is over
          with, so I can get him to answer questions.
                 And that kid is going to go to school and she is going to be there, and you
          are going to be an extremely polite gentleman. And not only that, you can even
          drive down from Manchester on Wednesdays and Thursdays and visit, that' s up to
          you.



                                                               5
No. 45042 -9 -II



                The bottom line is, we are going to have a hearing, and it will be heard prior
         to November 16th, because if the County Commissioners don' t want [ to] give me
         any money, I am not conducting anything from November 19th to January first.
                So, you go get a date. We are not hearing it until a minimum of November
         one.

                So, bottom line, we are reversing for a short period of time.
                You make your arrangements. Get your place set up.
                The [ GAL] is going to check on stuff.
                Your boyfriend can get his trial over with, then I am going to have more
         information, and we are going to be forthright.
                Number two, you [ James] are going to take care of the kid, and you are
         going to make sure the kid is a gentleman, excuse me, a young lady, and going to
         school. Do you understand that?


Report   of   Proceedings ( RP) ( Aug.        1, 2012) at 47- 50.

         The trial   court   then   allowed    Melissa to       speak.    She   said, "   Um, I have full custody. I would

be   happy to move    in   with   my   mom, which         is   next   door to [ James]."     RP (Aug. 1, 2012) at 50. The

trial court responded,


         I just made a ruling.

                    If I am going to stick this kid somewhere else in another county, you are
         going to go there and get set up so the [ GAL] can visit and figure out what kind of
         house we got, and what the schools are like. We are not doing this again.

                       And the bottom line is, I am going to find out 'which one of you people
         can cooperate and be nice.
                   Now,    you get     her,   and she [   Melissa] has       got   her   summer   left   yet   too. You

          James] are not interrupting that. I don' t care whether she goes with the kid.

                   Now, I want to have a hearing about this kid in the future. I want to have it
         in November, and I want to deal with two people, and I want all the cards on the
         table.   About the time I get a feeling in this thing again, that I have been mislead
          sic], there is going to be real unhappy people.




                                                                  2
No. 45042 -9 -II



                      And     you [ Melissa] owe $       150 bucks, [61 you got 30 days to pay it.
                      You,[ James'        s counsel] owe $ 50       bucks,[']    and got 30 days to pay it. Give it
          to the court clerk' s office. Thank you. We are done.


RP ( Aug. 1, 2012)            at   50- 51.   The trial court then issued a written order memorializing this oral

ruling.


                                   IV. JANUARY 24, 2013 HEARING AND FINAL ORDER


          The court reconvened on January 24, 2013, after Enriquez' s acquittal on the assault charge.

The trial court first discussed whether it should recuse on this matter. It advised the parties that as


the judge in the criminal case, it had the opportunity to observe Enriquez, Melissa, and James

testify under oath and that it intended to use information from the criminal trial if the parties agreed

to   allow   it to do   so.    Both parties agreed to go forward and agreed that they did not object to the

trial court using information from the criminal trial.

          At this hearing, the GAL testified and was cross- examined by Melissa and James. Melissa

and   James     also    testified     and presented      their     own witnesses.      The evidence addressed the same


issues presented at the August 1, 2012 hearing, focusing largely on whether Melissa had planned

to   move    before agreeing to the June 2012 parenting                   plan.     The evidence also addressed ( 1) how




6 Throughout this hearing, the trial court admonished Melissa for " interrupting" or speaking over
James'    s counsel when            he   was cross-   examining her. RP ( Aug. 1, 2012)            at   11.   The first time she
spoke over counsel, the trial court admonished her to not answer counsel before he had completed
his   question.       The     second      time she spoke over counsel, the trial court sanctioned                  her $ 50 and
warned       her he   would sanction          her   again   if   she continued     to interrupt.   The third time she spoke
over counsel,     the trial        court sanctioned     her      another $ 50.    The trial court also sanctioned Melissa,
who was pro se, $ 50 for " interrupting" Enriquez when he was responding to one of her questions.
RP ( Aug. 1, 2012) at 31.

I The trial court appears to have sanctioned James' s counsel $50 for "arguing" with Melissa during
his cross- examination of her. RP (Aug. 1, 2012) at 19.

                                                                     7
No. 45042 -9 -II



the    child was   adapting to      living      with   her father   and   his fiancde, ( 2)    the stability of Melissa' s new

job,   housing,    and   relationship       with   Enriquez, ( 3) Enriquez' s supervised visitation with his own


child, and ( 4) facts related to the alleged assault.


          The trial court gave the following extensive oral ruling:

          You know usually when you listen to these kind of cases, hopefully they' re always
          very clear. For want of a better term, one person is a jerk and one person is a very
          nice person, it makes it very easy, or both of them are very nice people and it makes
          the job very hard. Or this is one of those cases, for want of a better term, the Court
          has to make a decision of the lesser of two evils.
                    Let'    s go   back   and    take a look                                here.
                                                                           And I' m not going
                                                                 at what we' ve got

          to go too far in the past. I must say, having listened to the McCleary trial and Mr.
          Enriquez and obviously court files is aware of his situation, and all of the materials
          that the parties have stipulated the Court could entertain, so we didn' t have to revisit
          these    issues   again of      the   testimony   of   the   parties   in this   case.    I' ll just synopsize it
          very simply.
                 The lifestyle of McCleary is somewhat.different than what I had suspected
          having grown up here. I didn' t know that things were quite as extravagant, shall
          we say. And I will further say it' s not a lifestyle that I approve of. But where are.
          we   today? We are in the situation where we have a mother and father of this child
          and the mother is asking that she be allowed to relocate the child to Manchester or
          basically Kitsap County, which is some distance up the road but not that far up the
          road    from ...    McCleary, Washington....
                    The bottom line is the                mother       wishes     to   relocate,     she   obtained   new

          employment in May of 2012, appears to be a good job, whatever. The father, still
          employed, basically unemployed but employed in his job, and I think we can all
          quit pointing fingers about today' s economy. Anybody who doesn' t know what' s
          happening in this country since October of 2008 and jobs in America needs to have
          their head examined then.
                  The bottom line is let' s take a look at the child. Basically born and raised
          in McCleary, goes to school in McCleary, lived their entire life, et cetera, and it
          changes, the mother moving, the father not moving, despite each is with a different
          significant other. The father apparently with a significant other for one year,
           Melissa] with a significant other for apparently more than one year, which is .
          relevant at times but not relevant. The question is the child, that' s what we' re here
          for.
                    Now, let' s take        a   look    at some of     these   materials.     When you come into a
          courtroom I think probably the most important thing and I will tell you people, like
          I' ve told mainly criminal people, you know candor and honesty is the most
          important factor. And I say it with tongue in cheek, but not tongue in cheek, I' ve
          told people that         committed murder with               the   weapon    in   your    hand   and   the blood
No. 45042 -9 -II



        dripping down from your arm, I would rather have you sit there and tell me what
        you did than sit there and tell me that I didn' t do it, I don' t know. Let' s get serious
        about it, because I can deal with a person who' s going to be honest with me. I can' t
        deal with a person who' s going to be dishonest with me, I don' t know where we' re
        coming from.
                  Now, one of the major issues in this case to me is candor and honesty. In
        this   case,   if I take   a   look   at   it, there     was a  parenting plan entered in June. And in
        my     opinion you were not            honest, with          the Court, [ Melissa].  You came in, you
        agreed to a parenting plan, et cetera, and you knew you already had a job elsewhere.
        You knew you weren' t going to be. living in McCleary, you knew you were going up
        the road. So I can only conclude you misled the opposing party, you misled the

        attorneys....   And once that parenting plan was entered, then you went down the
        road to go behind everyone' s back and change things. It' s not honest.
                 When I look at candor and honesty here, too, it' s rather startling and,
       fortunately or unfortunately, in the trial what we had involving Mr. Enriquez - in
        fact, there were two trials, hung jury in October on an assault charge. And just
        briefly, the facts .of the case involve Mr. Enriquez and [ James] and we' ve got an
        issue - in fact, the issue involves something about did or did not drink a beer around
        a kid on a birthday and went up to Olympia and Costco and birthday and all the rest
        of this situation and came back. And there was some apparently words or whatever
        and that culminated in these two - use the term lightly - gentlemen meeting at the

        McCleary. And we focus on the police station.

                   But I know where that intersection is, I know where the ballfield is, I know
        what    the Bear Festival is.              It'   s not   like I' m
                                                                        We' re not talking
                                                                             anidiot   there....

        about a large metropolitan city.
               And on that evening, which is rather interesting, a call is made, I' ll meet
        you 10: 30, basically let' s go up there and have a chat. And I heard two versions at
        the trial, the first one was it was a nice friendly chat, the second one was it wasn' t
        a nice friendly chat. But I do know one thing, one of the guys showed up with a
        loaded gun with a bullet in the chamber. I happen to know a little bit about guns.
        I didn' t like the Mekong Delta and it was very fortunate that I was very familiar
        with pistols, M16' s, BAR' s, 50 caliber machine guns.   Very familiar with them.
        And I' m also familiar with you don' t walk around with a bullet in thechamber of
        a gun.    In fact, anybody whose [ sic] had a revolver, you' ve got six rounds, you
        always   only put five in. The hammer is always over an empty chamber. Why?
        Goes    off and you drop it, it' s hit, it' s got a problem. Read the, papers. It happens

        with semiautomatics,            too.       We never jacked bullets into chambers unless we were
        going to use them.
                But let' s come forward then. Let' s go back to candor and honesty. We had
        a hearing on this initially on August 1 of 2012. At that hearing Mr. Enriquez was
        called to the stand. Very interestingly he refused to give his address. He was asked
        his address and he refused. Mmmm. Very interestingly we had a Court hearing in
        that case on September 24th. The morning hearing had to be continued to the


                                                                      9
No. 45042 -9 -II



        afternoon. The Court was informed that at about 10 or 11 o' clock, whatever time
        it was, that Mr. Enriquez was in Shelton and he would be there as quickly as he
        could.      But   wait a minute,         his address is Lynnwood, Washington. I don' t know
        very many people that take a ferry across Puget Sound to drive down a Highway
        103 to come through Shelton to get to this Court from Lynnwood, Washington.
        The fastest way is to drive down I- 5 and turn off the route over here, so maybe
        someone  wasn' t living where they were supposed to by Court order.        Maybe

        someone wasn' t being honest with the Court.
                   And then, wait a minute, [Melissa] has testified that she lives in Manchester.
        She lives in basically the basement of Mr. Enriquez' s mother' s home in Manchester
        or Port Orchard, call it what you wish. Yet Document 55 on the witness list in the
        criminal trial lists her address as Lynnwood, Washington. That' s the address that
        was given by Mr. Enriquez' s attorney to the Court of where she lived. So 1 don' t
        know, the lawyer misled the Court or she misled the Court. Somebody misled the
        Court.
                   But the inference here is apparently these two                    people   have obviously     as


        indicated in inference to the Court, they' ve been together basically all ofthis time.
        I   can   only infer - and maybe the lawyer made a mistake --


                             Enriquez      was     not    honest    with    the   Court.   I have to go back, he
        wouldn' t tell the Court where he lived.
                   Then    we go       down this    situation -     and I have to take a look at the overall.
        And I know also in this situation Mr. Enriquez' s parenting plan, he' s not even
        allowed      to   have   unsupervised visits with           his   own children.      He has two hours per
        week visitation with his children that must be supervised and he is to undergo an
        alcohol evaluation. I have not had any information or testimony to this Court in
        this proceeding of whether or not he has, whether he hasn' t, outside of I know that
        the gentleman that lives with you is not allowed around his own kids unsupervised.
                 And then we get around to something I think that' s very telling also. It goes
        back to the kickoff point in this. And I believe we' ve already heard the testimony
        at the trials. I agree with you, [ Melissa], the jury found Mr. Enriquez not guilty.
        There' s no question about that. There' s an interestingparable. Not guilty doesn' t
        mean innocent. The two are not synonymous terms. It' s quite obvious that if you
        recall from this trial that jury was also sent back and asked the question and it had
        to do with a significant amount of money and that would have been the award of
        attorney' s fees and costs which included time loss and things of that nature.
                    Was Mr. Enriquez justified in his              use of force    that evening?    That very same
        jury that found him not guilty came back and said, no, it wasn' t. So the gentleman
        who showed up on that night to resolve a parenting issue with a loaded gun, bullet
        in the chamber, was not justified in the use of his force that night and the very same
        jury that found him not guilty made that.
                    So let' s    get   back to   square one.        I've got a parenting plan and a request.
        One, yeah, you misled the Court offthe bat. Okay. We all make mistakes. It' s not
        like   you' re    innocent.      It' s like I    started   this   off, [James],    this is the lesser of two


                                                                   10
No. 45042 -9 -II



        evils.I' m not going to go back and revisit because I' ve told both of you what
       happened up to the date you signed that parenting plan, courts are restricted.
               So I guess I' m not going to go down your lifestyle and how you conducted
       yourself and all the other stuff that' s been presented.  My decision is based on
       basically two things; Number 1, stability. This child was born and raised in
       McCleary. She goes to the same school, has the same friends....        That' s where

       she' s going to keep going to school. I am not going to change the program to allow
       this child to be relocated to a strange community to live in the basement of Mr.
       Enriquez' s home. And he is                   not   going to be       allowed around         that child ...     unless

       you are present untilfurther order. Ifhe can' t be allowed by a Court to be around
       his own kids, it would be highly remiss ofthis Court to do otherwise.
               Now, regarding that. If it happens, they come back, I don' t know, I' ll cross
       that bridge when I get to it. So the stability of the child is my first criteria. My

       second criteria is honesty with the Court. And you weren' t. And so therefore, it is
        I believe in the best interest of this                 child   to   continue     to   reside with    his - with her
        father.
                   I' m   also    going to say        she gets    liberal     visitation ...        and it' s going to be
        worked     around        her   work schedule.          And I will caution you, until there' s a fiuther
        court order that child is not to be left in the presence alone with Mr. Enriquez.


                          If his mother is there, that' s fine, go to the store and do your thing. But
        I' m not going to find myself looking in the mirror until some Court lifts that order
        on him and then we can cross that bridge. And I' ll tell you right now, you can save
        your attorney' s fees. And you better listen very closely. About the time that that
        kid or his children are allowed to have unsupervised visitation, then I`m not going
        to have that requirement in there. But I will have one requirement, there' s going to
        be   no   firearms    around         that kid. If that kid comes over to .visit, the firearms are to

        be locked up, period.
               Now, outside of that, that' s how it' s going to be. And I would caution you
        very closely the word liberal means liberal. She' s out working, she' s got a good
       job,   a potential good career, and                 it['] s not too far down the road and that kid is not
        going to be        living      with either one of you,
                                                                            hopefully     she'   ll be in   college.   And I
        would rather have her working at a good career contributing to college tuition than
        not, and you also.



RP ( Jan. 30, 2013) at 64- 75 ( emphasis added).


        The trial    court    did      not   issue   written   findings      of   fact   and conclusions of       law. On April 8,


2013, the trial court entered the final parenting plan, designating James as the primary residential

parent and allowing Melissa visitation.

        Melissa appeals the denial of her motion to relocate and the modified parenting plan.

                                                                   11
No. 45042 -9 -II



                                                  ANALYSIS


                                                1. RELOCATION


         Melissa first argues that the trial court erred when it denied her request for relocation


without addressing the child relocation factors in RCW 26. 09. 520. We agree.

                                           A. STANDARD OF REVIEW


         We review the trial court' s decision on a request to relocate for abuse of discretion. In re

Marriage of Horner, 151 Wn.2d 884, 893, 93 P. 3d 124 ( 2004);                In re Marriage ofFahey, 164 Wn.

App.   42, 61, 262 P. 3d 128 ( 2011).     The trial court abuses its discretion when it applies an incorrect


standard, the record does not support the court' s findings, or the facts do not meet the requirements


of the correct standard. Horner, 151 Wn.2d at 894.


                              B. CHILD RELOCATION STANDARDS AND FACTORS


         RCW 26. 09. 520       provides   the legal   standard   for   determining   a   relocation   issue. Horner,


151 Wn.2d      at   895. RCW 26. 09. 520 provides,


         The person proposing to relocate with the child shall provide his or her reasons for
         the   intended     relocation.   There is a rebuttable presumption that the intended
         relocation of the child will be permitted. A person entitled to object to the intended
         relocation, of the child may rebut the presumption by demonstrating that the
         detrimental effect ofthe relocation outweighs the benefit ofthe change to the child
         and the relocating person, based upon the following factors. The factors listed in

         this section are not weighted. No inference is to be drawn from the order in which
         the following factors are listed:
                  1)  The relative strength, nature, quality, extent of involvement, and
         stability of the child' s relationship with each parent, siblings, and other significant
         persons in the child' s life;
                     2) Prior agreements of the parties;
                     3)
                     Whether disrupting the contact between the child and the person with
         whom the child resides a majority of the time would be more detrimental to the
         child than disrupting contact between the child and the person objecting to the
         relocation;

                     4)   Whether either parent or a person entitled to residential time with the
         child is subject to limitations under RCW 26. 09. 191;

                                                          12
No. 45042 -9 -II



                       5)
                        The. reasons of each person for seeking or opposing the relocation and
           the. good faith of each of the parties in requesting or opposing the relocation;
                    6) The age, developmental stage, and needs of the child, and the likely
           impact the relocation or its prevention will have on the child' s physical,
           educational, and emotional development, taking into consideration any special
           needs of the child;
                       7)
                        The quality of life, resources, and opportunities available to the child
           and to the relocating party in the current and proposed geographic locations;
                       8)    The availability of alternative arrangements to foster and continue the
           child' s relationship with and access to the other parent;
                     9) The alternatives to relocation and whether it is feasible and desirable
           for the other party to relocate also;
                       10) The financial impact and logistics of the relocation or its prevention;
           and

                       11)    For a temporary order, the amount of time before a final decision can
           be made at trial.


 Emphasis added.)


                                                C. ABUSE OF DISCRETION


           When we consider whether a trial court abused its discretion in deciding a request for

relocation, we first determine whether the trial court entered specific findings on each factor.


Horner, 151 Wn.2d             at    896. If the trial court did not enter these findings, we examine the record


to. determine whether substantial evidence was presented on each factor and whether the " trial


court' s   findings     of   fact   and oral articulations reflect    that it   considered each      factor." Horner, 151


Wn.2d      at   896.    If the trial court does not satisfy either of these methods of documenting its

consideration of the child relocation factors, the trial court has abused its discretion. Horner, 151

Wn.2d      at   896. Such is the case here.


           Here, the trial court did not enter any written findings of fact. Additionally, the trial court' s

oral ruling failed to address several of the child relocation factors. The trial court expressly stated

                                                       two factors: ( 1) "                        child]," and ( 2)   "
that it   was   basing its    decision entirely   on                         stability [ of the                           honesty

with   the [    c] ourt."    RP ( Jan. 30, 2013)    at   73.   These factors arguably touch on aspects of the first

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factor ("[      t]he relative strength, nature, quality, extent of involvement, and stability of the child' s

relationship        with each parent,          siblings,     and   other significant persons       in the   child' s   life"),   and



aspects of the           fifth factor ("[   t]he reasons of each person for seeking or opposing the relocation and

the good         faith   of each of   the parties    in requesting        or   opposing the   relocation").   RCW 26. 09. 520


 1), (   5).    But they do not address the remaining factors.

               James argues that the oral ruling was sufficient to show the court considered all remaining

relevant factors; we disagree. For instance, the oral ruling did not address the third factor, whether

disrupting contact between the child and Melissa would be more detrimental to the child than

disrupting         contact     with   James.      RCW 26: 09. 520( 3).            Although the trial court addressed the


potential risk to the child by placing her in a situation with someone who was apparently prohibited

from unsupervised contact with his own child and who had been around children with a loaded


firearm, it at no time mentioned whether disrupting the child' s contact with Melissa would be more

or less detrimental than disrupting the child' s contact with James. RCW 26. 09.520( 3).

               And although the trial court acknowledged, to some extent, that Melissa' s pursuit of her


new career could be financially beneficial to the child later, the court never discussed the seventh

factor, the quality of life, resources, or opportunities that might be available to the child in, the new

location        versus     those   available    to her, in   McCleary. RCW           26. 09. 520( 7).   Nor did the trial court


mention anything that remotely touched on the eighth factor, whether there were alternative

arrangements that might foster and continue the child' s relationships with both parents, such as


providing more frequent weekend visitation with James or the possibility that Melissa consider

moving to a location somewhat further from work but closer to McCleary, or the ninth factor,




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alternatives to Melissa' s relocation and whether it was feasible or desirable for James to relocate.

RCW 26. 09. 520( 8), ( 9).

         Moreover, the trial court ignored the presumption in favor of relocation, which should have


been in Melissa' s favor because she was the primary residential parent under the June 2012

parenting plan, and instead relied on a " best interest" of the child standard rather than balancing

whether the detrimental effect of the relocation outweighs the benefit of the change to the child

and   the relocating   person.       See RP ( Jan. 30, 2013)        at   73 (" And so therefore, it is I believe in the


best interest   of this child   to   continue   to   reside with   his -   with   her father.") ( emphasis added); RCW


26. 09. 520.


         Because the trial court failed to address each of the relevant factors, failed to acknowledge

the presumption in favor of relocation, and applied the incorrect legal standard, it abused its

discretion.     Accordingly, we reverse its denial of Melissa' s relocation request and remand for a

new hearing on this matter.

                                                     II. MODIFICATION


         Melissa next argues that the trial court erred in modifying the June 2012 parenting plan to

change the primary residential parent designation without a proper adequate cause finding

following its denial of the relocationmotion. James argues that when a party pursues relocation,

the trial court has the authority to modify the parenting plan without an adequate cause finding.

Because we vacate the denial of the relocation motion, we also vacate the April 2013 modified


parenting plan and reinstate the original June 2012 parenting plan pending further proceedings.

         RCW 26. 09. 260( 6) governs parenting plan modifications based orf relocation. That statute

provides,




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No. 45042 -9 -II -



            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.

RCW 26. 09. 260( 6) (       emphasis added).




            James is correct that he did not have to establish adequate cause for modification as long

as   the   request   for relocation is   being pursued.   RCW 26. 09. 260( 6). But the remainder of subsection


 6) makes it clear that any modification must follow the trial court' s determination of whether to

permit or restrain       the child'   s relocation.   Because the trial court' s modification of the June 2012


parenting plan was pursuant to its denial of Melissa' s relocation request and we are vacating that

decision and remanding for a new determination on the relocation issue, the trial court' s order

modifying the June 2012 parenting plan is also vacated and remanded for further action.

                                           III. ATTORNEY FEES AND COSTS


            James requests attorney fees and costs citing RCW 26. 09. 140, RAP 18. 1, Leslie v. Verhey,

90 Wn.       App.    796, 807, 954 P. 2d 330 ( 1998) ( the court should examine the arguable merit of the


issues     raised on appeal when          determining   if attorney fees and   costs are appropriate).   Because


Melissa' s appeal had merit, we deny James' s request for attorney fees and costs.




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        We vacate the trial court' s denial of Melissa' s request for relocation and the April 8, 2013


modified final parenting plan and remand for further proceedings before a different judge.8

        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.




                                                       a nANSol 1, C. J.
 We concur:

        s.



ZO IWIPA
 F- JRGT, -- -—'




 MELNICK, J.




s We remand to a different judge because the original judge has retired and the record strongly
suggests that the judge would have difficulty overlooking his previously stated views or findings.
A remand to a new judge would prevent any possible appearance of impropriety, and the remand
essentially requires a new hearing in light of the time that has passed since the judge denied
Melissa' s relocation, thus the reassignment would not entail a disproportional amount of additional
resources. Ellis v. United States Dist. Court, 356 F. 3d 1198, 1211 ( 9th Cir. 2004).
                                                  17
